ILLINOIS POLLUTION CONTROL BOARD

SUBPART A: GENERAL PROVISIONS
SUBPART B: COMPLAINT, REQUEST FOR INFORMAL AGENCY INVESTIGATION, SERVICE, AND AUTHORIZATION OF HEARING
1. Section 103.202 Parties
2. Section 103.204 Notice, Complaint, and Answer
No proceeding pending before the Board will be disposed of or modified without an order of the Board. A proposed stipulation and settlement agreement must contain a written statement, signed by the parties or their authorized representatives, outlining
a)A full stipulation of all material facts pertaining to the nature, extent, and causes of the alleged violations;
b)The nature of the relevant parties' operations and control equipment;
c)The character and degree of injury to, or interference with the protection of the health, general welfare and physical property of the people; [415 ILCS 5/33(c)(i)]
d)Details as to future plans for compliance, including a description of additional control measures and the dates for their implementation, if any; and
e)The proposed penalty, if any.
When the parties submit a proposed stipulation and settlement agreement to the hearing officer at hearing, or when the Board orders that a hearing be held in accordance with Section 103.300(c) of this Part, the hearing officer will conduct a hearing in
a)The Board will consider such proposed settlement and stipulation agreement and the hearing record. The Board may accept, suggest revisions in, reject the proposed settlement and stipulation agreement, or direct further hearings as it deems appropriat
b)If the Board determines that a settlement involves or may involve the issuance or modification of a Resource Conservation Recovery Act (RCRA) permit it will enter an interim order pursuant to Section 103.402 of this Part.
SUBPART E: IMPOSITION OF PENALTIES, FEES, AND COSTS

March 16, 2000

IN THE MATTER OF:

REVISION OF THE BOARD’S

PROCEDURAL RULES: 35 ILL. ADM.

CODE 101-130

)

R00-20

(Rulemaking-Procedural)

Proposed Rule. First Notice.

PROPOSED ORDER OF THE BOARD (by C.A. Manning, G.T. Girard, and E.Z. Kezelis):

SUMMARY OF TODAY’S ACTION

The Board proposes changes to 35 Ill. Adm. Code 101-130 to update and streamline its

procedural rules. This order is supported by an opinion also entered today.

The first notice public comment period will end on June 1, 2000. All interested persons

may request to be added to notice or service lists in this matter. The Board will hold two public

hearings, the first in Springfield on April 11, 2000, and the second in Chicago on May 4, 2000.

Details pertaining to public comment and the hearings will be announced in the hearing officer’s

order to be issued today. The Board’s opinion and order, as well as the hearing officer order,

will be available from the Board’s Chicago office and the Board’s Web site

(www.ipcb.state.il.us).

The Board directs the Clerk to cause first notice publication in the

Illinois Register

of this

proposal to repeal existing 35 Ill. Adm. Code 101-130 and adopt new procedural rules. The

complete text of the proposed rules follows.

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE A: GENERAL PROVISIONS

CHAPTER I: POLLUTION CONTROL BOARD

PART 101

GENERAL RULES

SUBPART A: GENERAL PROVISIONS

Section

101.100 Applicability

101.102 Severability

101.104 Repeals

101.106 Board

Authority

101.108 Board

Proceedings

101.110 Public

Participation

101.112

Bias and Conflict of Interest

101.114

Ex Parte Communications

SUBPART B: DEFINITIONS

Section

101.200

Definitions Contained in the Act

101.202

Definitions for Board’s Procedural Rules

SUBPART C: COMPUTATION OF TIME, FILING, SERVICE OF DOCUMENTS, AND

STATUTORY DECISION DEADLINES

Section

101.300

Computation of Time

101.302

Filing of Documents

101.304

Service of Documents

101.306

Incorporation of Documents by Reference

101.308

Statutory Decision Deadlines and Waiver of Deadlines

SUBPART D: PARTIES, JOINDER, AND CONSOLIDATION

Section

101.400

Appearances, Withdrawals, and Substitutions of Attorneys in

Adjudicatory Proceedings

101.402

Intervention of Parties

101.403

Joinder of Parties

101.404

Agency as a Party in Interest

101.406

Consolidation of Claims

101.408

Severance of Claims

SUBPART E: MOTIONS

Section

101.500

Filing of Motions and Responses

101.502

Motions Directed to the Hearing Officer

101.504

Contents of Motions and Responses

101.506

Motions Attacking the Sufficiency of the Petition, Complaint, or Other

Pleading

101.508

Motions to Board Preliminary to Hearing

101.510

Motions to Cancel Hearing

101.512

Motions for Expedited Review

101.514

Motions to Stay Proceedings

101.516

Motions for Summary Judgment

101.518

Motions for Interlocutory Appeal from Hearing Officer Orders

101.520

Motions for Reconsideration

101.522

Motions for Extension of Time

SUBPART F: HEARINGS, EVIDENCE, AND DISCOVERY

Section

101.600 Hearings

101.602

Notice of Board Hearings

101.604

Formal Board Transcript

101.606

Informal Recordings of the Proceedings

101.608 Default

101.610

Duties and Authority of the Hearing Officer

101.612

Schedule to Complete the Record

101.614

Production of Information

101.616 Discovery

101.618 Admissions

101.620 Interrogatories

101.622 Subpoenas

101.624

Examination of Adverse, Hostile or Unwilling Witnesses

101.626

Information Produced at Hearing

101.628

Statements from Participants

SUBPART G: ORAL ARGUMENT

Section

101.700 Oral

Argument

SUBPART H: SANCTIONS

Section

101.800

Sanctions for Failure to Comply with Procedural Rules, Board Orders, or

Hearing Officer Orders

101.802

Sanctions for Abuse of Discovery Procedures

SUBPART I: REVIEW OF FINAL BOARD OPINIONS AND ORDERS

Section

101.902

Motions for Reconsideration

101.904

Relief from and Review of Final Opinions and Orders

101.906

Judicial Review of Board Orders

101.908 Interlocutory

Appeal

APPENDIX A

Captions

ILLUSTRATION A

Enforcement Case

ILLUSTRATION B

Citizen’s Enforcement Case

ILLUSTRATION

Variance

ILLUSTRATION D

Adjusted Standard Petition

ILLUSTRATION E

Joint Petition for an Adjusted Standard

ILLUSTRATION F

Permit Appeal

ILLUSTRATION G

Underground Storage Tank Appeal

ILLUSTRATION H

Pollution Control Facility Siting Appeal

ILLUSTRATION I

Administrative Citation

ILLUSTRATION J

General Rulemaking

ILLUSTRATION K

Site-specific Rulemaking

APPENDIX B

Appearance Form

APPENDIX C

Withdrawal of Appearance Form

APPENDIX D

Notice of Filing

APPENDIX E

Certificate of Service

ILLUSTRATION A

Service by Non-Attorney

ILLUSTRATION B

Service by Attorney

AUTHORITY: Implementing Sections 5, 7.1, 7.2, 26, 27, 28, 29, 31, 32, 33, 35, 36, 37, 38, 40,

40.1, 40.2, 41, and 58.7 of the Environmental Protection Act (Act) [415 ILCS 5/5, 7.1, 7.2, 26,

27 , 28, 29, 31, 32, 33, 35, 36, 37, 38, 40, 40.1, 40.2, 41, and 58.7] and authorized by Sections 26

and 27 of the Act [415 ILCS 5/26 and 27].

SOURCE: Filed with Secretary of State January 1, 1978; codified 6 Ill. Reg. 8357; Part repealed,

new Part adopted in R88-5A at 13 Ill. Reg. 12055, effective July 10, 1989; amended in R90-24 at

15 Ill. Reg. 18677, effective December 12, 1991; amended in R92-7 at 16 Ill. Reg. 18078,

effective November 17, 1992; Old Part repealed, new Part adopted in R00-20 at 24 Ill. Reg.

, effective .

SUBPART A: GENERAL PROVISIONS

Section 101.100 Applicability

a) This

Part sets forth the rules generally applicable to proceedings before the

Illinois Pollution Control Board (Board), and should be read in conjunction with

procedural rules for the Board’s specific processes, found at 35 Ill. Adm. Code

103 through 130 and the Board’s Administrative Rules, found at 2 Ill. Adm. Code

2175. In the event of a conflict between the rules of this Part and those found in

subsequent Parts, the more specific requirement applies.

The provisions of the Code of Civil Procedure [735 ILCS 5/1-101] and the

Supreme Court Rules [Ill. S. Ct. Rules] do not expressly apply to proceedings

before the Board. However, the Board may look to the Code of Civil Procedure

and the Supreme Court Rules for guidance where the Board’s procedural rules are

silent.

Section 101.102 Severability

If any provision of this Part or its application to any person is adjudged invalid, such

adjudication does not affect the validity of this Part as a whole or of any portion not adjudged

invalid.

Section 101.104 Repeals

All resolutions the Board adopted prior to December 31, 1996 that relate to the Board’s

procedural rules are repealed and are superseded by 35 Ill. Adm. Code 101-130.

Section 101.106 Board Authority

The Board has the authority to

determine, define and implement the

environmental control standards applicable in the State of Illinois and may adopt

rules and regulations in accordance with Title VII of this Act

. [415 ILCS 5/5(b)]

The Board has the

authority to conduct hearings upon complaints charging

violations of this Act or of regulations thereunder; upon petitions for variances;

upon petitions for review of the Agency’s denial of a permit in accordance with

Title X of this Act; upon petition to remove a seal under Section 34 of this Act;

upon other petitions for review of final determination which are made pursuant to

the Act or Board rules and which involve a subject which the Board is authorized

to regulate; and such other hearings as may be provided by rule

. [415 ILCS

5/5(d)]

In addition to subsections (a) and (b) of this Section, the Board has the authority

to act as otherwise provided by law.

Section 101.108 Board Proceedings

Board proceedings can generally be divided into two categories: rulemaking

proceedings and adjudicatory proceedings.

The following are examples of Board rulemaking proceedings: Identical-in-

Substance, Clean Air Act/Fast Track, Federally Required Rulemaking, General

Rulemaking, and Site-Specific Rulemaking. Procedural rules for these types of

proceedings can be found at 35 Ill. Adm. Code 102.

The following are examples of Board adjudicatory proceedings: Permit Appeals,

Underground Storage Tank Appeals, Pollution Control Facility Siting Appeals,

Enforcement Proceedings, Administrative Citations, Variance Petitions, and

Adjusted Standard Petitions. Procedural rules for these types of proceedings can

be found at 35 Ill. Adm. Code 103 through 108.

Board Decisions will be made at meetings open to the public. Except as provided

in subsection (e) of this Section, 4 members of the Board constitute a quorum, and

4 affirmative votes are required to adopt a Board decision.

At a hearing pursuant to Section 34(d) of the Act to determine whether a seal

should be removed,

at least one Board Member shall be present, and those Board

Members present may render a final decision without regard to the requirements

of Section 5(a) of the Act.

[415 ILCS 5/34(d)]

Section 101.110 Public Participation

General. The Board encourages public participation in all of its proceedings. The

extent to which the law allows for such participation varies, depending on the

type of Board proceeding involved, the party status of the person or persons

seeking to participate, and the rules governing that type of proceeding. Public

participation in particular proceedings may be more specifically delineated by

Board or hearing officer order consistent with the provisions of applicable law

and the Board’s procedural rules.

Party/Non-Party Status. The issue of who constitutes a proper party in each type

of adjudicatory proceeding before the Board is addressed in the rules. A person

who wishes to participate in a Board adjudicatory proceeding and is not a party

will be deemed a participant and will have only those rights specifically provided

in these rules.

Amicus Curiae Briefs. Amicus curiae briefs may be filed in any adjudicatory

proceeding by any interested person, provided permission is granted by the

Board. Response briefs may be allowed by permission of the Board, but not as of

right. Such briefs must consist of argument only and may not raise facts that are

not in evidence in the relevant proceeding. Amicus curiae briefs, and any

responses, will be considered by the Board only as time allows. Such briefs will

not delay decision-making of the Board. See also Section 101.302(j) of this Part.

Section 101.112 Bias and Conflict of Interest

No Board Member or Board employee may represent any other person in any

Board proceeding.

No former Board Member or Board employee may represent any other person in

any Board proceeding in which he or she participated personally and substantially

as a Board Member or Board employee, unless the Board and, as applicable, all

parties or proponents in the proceeding consent in writing after disclosure of the

participation. For purposes of subsections (a) and (b) of this Section,

representation includes, but is not limited to, consulting on legal or technical

matters, and Board employee means a person the Board employs on a full-time,

part-time or contract basis.

The Board, on its own motion or the motion of any party, may disqualify a

hearing officer for bias or conflict of interest [5 ILCS 100/10-30(b) of the IAPA].

Section 101.114 Ex Parte Communications

Adjudicatory Proceedings. Ex parte communications with respect to a pending

adjudicatory proceeding are prohibited. (See definition of “ex parte

communication” in Section 101.202 of this Part.) Information about a pollution

source included in the record of a regulatory proceeding is not an ex parte

communication with respect to any adjudicatory proceeding concerning the

pollution source, but Board Members and Board employees will exercise caution

to avoid prejudging the merits of the adjudicatory proceeding based on such

information. For purposes of this Section, Board employee means a person the

Board employs on a full-time, part-time, contract, or intern basis.

Regulatory Proceedings. Board Members and Board employees should not

engage in an ex parte communication designed to influence his or her action with

respect to a pending regulatory proceeding. Whenever practicable,

communications with respect to a pending regulatory proceeding must be in

writing and addressed to the Clerk rather than to individual Board Members or

Board employees.

Nothing in this Section precludes Board Members or Board employees from

receiving informal complaints about individual pollution sources, or forbids such

administrative contacts as would be appropriate for judges and other judicial

officers.

In the event that an ex parte communication occurs, the Board Member or Board

employee will make that communication part of the record of the proceeding. To

make an oral ex parte communication part of the record, the substance of the oral

communication, along with the identity of each person involved in the

communication, will be either set forth in a memorandum and placed in the record

or announced on the record at a public hearing.

SUBPART B: DEFINITIONS

Section 101.200

Definitions Contained in the Act

Unless otherwise provided in 35 Ill. Adm. Code 101-130, or unless a different meaning of a

word or term is clear from the context, the definitions of the Act apply to the Board’s procedural

rules, found in 35 Ill. Adm. Code 101 through 130.

Section 101.202 Definitions for Board’s Procedural Rules

Unless otherwise provided in 35 Ill. Adm. Code 101-130, or unless a different meaning of a

word or term is clear from the context, the following definitions also apply to the Board’s

procedural rules, found in 35 Ill. Adm. Code 101 through 130:

"Act" means the Environmental Protection Act. [415 ILCS 5/1

et seq.

]

"Adjudicatory proceeding" means an action of a quasi-judicial nature brought before the

Board pursuant to authority granted to the Board under Section 5(d) of the Act or as

otherwise provided by law. Adjudicatory proceedings include, but are not limited to,

enforcement, variance, permit appeal, pollution control facility siting appeal,

Underground Storage Tank (UST) Fund determination, water well set back exception,

adjusted standard, and administrative citation proceedings. Adjudicatory proceedings do

not include regulatory, quasi-legislative, or informational proceedings.

"Adjusted standard" or "AS" means an alternative standard granted by the Board in an

adjudicatory proceeding pursuant to Section 28.1 of the Act and 35 Ill. Adm. Code

104.Subpart D. The adjusted standard applies instead of the rule or regulation of general

applicability.

"Administrative citation" or "AC" means a citation issued pursuant to Section 31.1 of the

Act by the Agency, or by a unit of local government acting as the Agency's delegee

pursuant to Section 4(r) of the Act.

"Administrative citation review (appeal)" means a petition for review of an

administrative citation filed pursuant to Section 31.1(d) of the Act. (See 35 Ill. Adm.

Code 108)

“Affidavit” means a sworn, signed statement witnessed by a notary public.

"Affidavit of service" means an affidavit that states that service of a document upon

specified persons was made, and the manner in which, and date upon which, service was

made.

"Agency" means the Illinois Environmental Protection Agency as established by Section

4 of the Act.

"Agency recommendation" means the document filed by the Agency pursuant to Sections

37(a) and 28.1(d)(3) of the Act in which the Agency provides its recommended

disposition of a petition for variance or an adjusted standard. This includes, but is not

limited to, a recommendation to deny, or a recommendation to grant with or without

conditions. (See 35 Ill. Adm. Code 104.218 and 104.416)

"Amicus curiae brief" means a brief filed in a proceeding by any interested person. (See

Sections 101.110 and 101.628 of this Part.)

"Applicant" means any person who submits, or has submitted, an application for a permit

or for local siting approval pursuant to any of the authorities to issue permits or granting

of siting approval identified in Sections 39, 39.1, and 39.5 of the Act.

"Article" means

any object, material, device or substance, or whole or partial copy

thereof, including any writing, record, document, recording, drawing, sample, specimen,

prototype, model, photograph, culture, microorganism, blueprint or map

. [415 ILCS

5/7.1]

"Attorney General" means the Attorney General of the State of Illinois and/or

representatives thereof.

"Authorized representative" means any person who is authorized to act on behalf of

another person by formal agreement or contract.

"Board" means the Illinois Pollution Control Board as created in Section 5 of the Act or,

if applicable, its designee.

"Board decision" means an opinion or an order voted in favor of by at least four members

of the Board at an open Board meeting except in a proceeding to remove a seal under

Section 34(d) of the Act.

"Board designee" means an employee of the Board who has been given authority by the

Board to carry out a function for the Board. ( e.g., the Clerk, Assistant Clerk of the

Board, or Hearing Officer.)

“Board meeting” means an open meeting held by the Board pursuant to Section 5(a) of

the Act in which the Board makes its decisions and determinations.

"Board’s procedural rules" means the Board’s regulations set forth at 35 Ill. Adm. Code

101 through 130.

"Brief" means a written statement that contains a summary of the facts of a proceeding,

the pertinent laws, and an argument of how the law applies to the facts supporting a

position.

“CAAPP” means the Clean Air Act Permit Program, as adopted in Section 39.5 of the

Act.

"Certificate of acceptance" means a certification, executed by a successful petitioner in a

variance proceeding, in which the petitioner agrees to be bound by all terms and

conditions that the Board has affixed to the grant of variance.

"Chairman" means the Chairman of the Board designated by the Governor pursuant to

Section 5(a) of the Act.

"Citizen’s enforcement proceeding” means an enforcement action brought before the

Board pursuant to Section 31(d) of the Act by any person who is not authorized to bring

the action on behalf of the People of the State of Illinois.

"Clean Air Act" or “CAA”

means the

federal

Clean Air Act, as now and hereafter

amended, 42 U.S.C. 7401 et seq.

[415 ILCS 5/ 39.5.1]

"Clean Water Act" means the federal Clean Water Act, 33 USC 1251 et seq.

"Clerk" means the Clerk of the Board.

"Complaint" means the initial filing that begins an enforcement proceeding pursuant to

Section 31 of the Act and 35 Ill. Adm. Code 103.

"Compliance plan" means a detailed description of a program designed to achieve

compliance with the Act and Board regulations.

"Copy" means

any facsimile, replica, photograph or other reproduction of an article, and

any note, drawing or sketch made of or from an article

. [415 ILCS 5/7.1]

“Counter-complaint” means a pleading that a respondent files setting forth a claim in its

favor against a complainant. (See 35 Ill. Adm. Code 103.206.)

“Cross-complaint” means a pleading that a party files setting forth a claim in its favor

against a co-party. (See 35 Ill. Adm. Code 103.206.)

“Cross-media impacts” means impacts that concern multiple environmental areas, such as

air, land and/or water.

"Decision date" means the Board meeting immediately preceding the decision deadline.

"Decision deadline" means the last day of any decision period, as established by law,

within which the Board is required to render a decision in an adjudicatory proceeding.

(See Subpart C of this Part); (See also Sections 38(a), 40, and 40.1 of the Act that

establish 120-day decision deadlines for variances, permit appeals, and review of

pollution control facility siting decisions respectively.)

"Decision period" means the period of time established by the Act within which the

Board is required to make a Board decision in certain adjudicatory proceedings. (See

Subpart C of this Part); (See also Sections 38(a), 40, and 40.1 of the Act that establish

120-day decision deadlines for variances, permit appeals, and review of pollution control

facility siting decisions, respectively.)

“Deinked stock”

means paper that has been processed to remove inks, clays, coatings,

binders and other contaminants

. [415 ILCS 20/2.1]

"Delegated unit" means the unit of local government to which the Agency has delegated

its administrative citation or other function pursuant to Section 4(r) of the Act.

“DNR” means the Illinois Department of Natural Resources.

"Discovery" means a prehearing process that can be used to obtain facts and information

about the adjudicatory proceeding in order to prepare for hearing. The discovery tools

include, but are not limited to, depositions upon oral and written questions, written

interrogatories, production of documents or things, and requests for admission.

"DNS" means the Illinois Department of Nuclear Safety.

“DOA” means the Illinois Department of Agriculture.

“Duplicitious” or “Duplicative” means the matter is identical or substantially similar to

one brought before the Board or another forum.

“Environmental Management System Agreement” or “EMSA” means the agreement

between the Agency and a sponsor, entered into under Section 52.3 of the Act and 35 Ill.

Adm. Code 187, that describes the innovative environmental measures to be

implemented, schedules to attain goals, and mechanisms for accountability.

"Enforcement proceeding” means an adjudicatory proceeding brought upon a complaint

filed pursuant to Section 31 of the Act by the Attorney General, State’s Attorney, or other

persons, in which the complaint alleges violation of the Act or any rule or regulation or

Board order thereunder or any permit or term or condition thereof.

“Ex parte communication" means a communication between a person who is not a Board

Member or Board employee and a Board Member or Board employee that reflects on the

substance of a pending Board proceeding and that takes place outside the record of the

proceeding.

Communications regarding matters of procedure and practice, such as the

format of pleadings, number of copies required, manner of service, and status of

proceedings, are not considered ex parte communications.

[5 ILCS 100/10-60(d)] For

purposes of this definition, “Board employee” means a person the Board employs on a

full-time, part-time, contract or intern basis. (See Section 101.114 of this Part.)

"Fast Track rulemaking" means a Clean Air Act rulemaking conducted pursuant to

Section 28.5 of the Act.

"Federally required rule" means

a rule that is needed to meet the requirements of the

federal Clean Water Act, Safe Drinking Water Act, Clean Air Act (including required

submission of a State Implementation Plan), or Resource Conservation and Recovery

Act, other than a rule required to be adopted under subsection (c) of Section 13, Section

13.3, Section 17.5, subsection (a) or (d) of Section 22.4, or subsection (a) of Section

22.40

. [415 ILCS 5/28.2]

"Filing" means the act of delivering a document or article into the custody of the Clerk

with the intention of incorporating that document into a proceeding or record before the

Board. The Clerk’s Office is located at 100 West Randolph Street, Suite 11-500,

Chicago, IL, 60601.

“Final order” means an order of the Board that terminates the proceeding leaving nothing

further to litigate or decide and that is appealable to an appellate court pursuant to

Section 41 of the Act. (See Subpart J of this Part.)

“Frivolous” means a request for relief that the Board does not have the authority to grant,

or a complaint that fails to state a cause of action upon which the Board can grant relief.

"Hearing" means a public proceeding conducted by a hearing officer where the parties

and other interested persons, as provided for by law and the Board’s procedural rules,

present evidence and argument regarding their positions.

"Hearing officer" means a person licensed to practice law in the State of Illinois who

presides over hearings and otherwise carries out record development responsibilities as

directed by the Board.

“IAPA” means the Illinois Administrative Procedure Act [5 ILCS 100 et. seq.].

"Identical-in-substance rules (or regulations)" means

State regulations which require the

same actions with respect to protection of the environment, by the same group of affected

persons, as would federal regulations if USEPA administered the subject program in

Illinois

. [415 ILCS 5/7.2]

"Initial filing" means the filing that initiates a Board proceeding and opens a docket. For

instance, the initial filing in an enforcement proceeding is the complaint; in a permit

appeal it is a petition for review; and in a regulatory proceeding it is the proposal.

“Innovative environmental measures” means any procedures, practices, technologies or

systems that pertain to environmental management and are expected to improve

environmental performance when applied. (See Part 106 Subpart F.)

"Inquiry hearing" means a hearing conducted by the Board for the purpose of seeking

input and comment from the public regarding the need for a rulemaking proceeding in a

specific area.

"Interlocutory appeal" means an appeal of a Board decision to the appellate court that is

not dispositive of all the contested issues in the proceeding. (See Section 101.1008(b)(4)

of this Part) An interlocutory appeal may also be the appeal of a hearing officer ruling to

the Board. (See Section 101.518 of this Part.)

"Intervenor" means a person, not originally a party to an adjudicatory proceeding, who

voluntarily participates as a party in the proceeding with the leave of the Board. (See

Section 101.402 of this Part.)

“Intervention” means the procedure by which a person, not originally a party to an

adjudicatory proceeding, voluntarily comes into the proceeding as a party with the leave

of the Board. (See Section 101.402 of this Part.)

"JCAR" means the Illinois General Assembly’s Joint Committee on Administrative Rules

established by the IAPA. [5 ILCS 100/5-90]

"Joinder" means the procedure by which the Board adds a person, not originally a party

to an adjudicatory proceeding, as a party to the proceeding. (See Section 101.403 of this

Part and 35 Ill. Adm. Code 103.206.)

“Misnomer” means a mistake in name, giving an incorrect name in a complaint or other

document.

"Motion" means a request made to the Board or the hearing officer for the purposes of

obtaining a ruling or order directing or allowing some act to be done in favor of the

movant. (See definition of “Movant” in this Section.)

“Movant” means the person who files a motion.

“New pollution control facility” means:

a pollution control facility initially permitted for

development or construction after July 1, 1981; or the area of expansion beyond the

boundary of a currently permitted pollution control facility; or a permitted pollution

control facility requesting approval to store, dispose of, transfer or incinerate, for the

first time, any special or hazardous waste.

[415 ILCS 5/3.32(b)]

“Non-disclosable information” means

information which constitutes a trade secret;

information privileged against introduction in judicial proceedings; internal

communications of the several agencies; information concerning secret manufacturing

processes or confidential data submitted by any person under this Act.

[415 ILCS 5/7(a)]

"Notice list" means the list of persons in a regulatory proceeding who will receive all

Board opinions and orders and all hearing officer orders. Persons on a notice list

generally do not receive copies of motions, public comments, or testimony. (See

definition of Service List in this Section.) (See also 35 Ill. Adm. Code 102.422.)

"Notice to reinstate" means a document filed that recommences the decision period after

a negotiation waiver has been filed. Such notice will give the Board a full decision

period in which to make a decision. (See Section 101.308 of this Part.)

"Oral argument" means a formal verbal statement of advocacy on a proceeding’s legal

questions made at a Board meeting with the Board’s permission. (See Section 101.700 of

this Part.)

"OSFM" means Office of the State Fire Marshal.

"OSFM appeal" means an appeal of an OSFM final decision concerning eligibility and

deductibility made pursuant to Title XVI of the Act. [415 ILCS 5/57]

"Participant" means any person, not including the Board or its staff, who takes part in an

adjudicatory proceeding who is not a party, or a person who takes part in a regulatory or

other quasi-legislative proceeding before the Board. A person becomes a participant in

any of several ways, including filing a comment, being added to the notice list of a

particular proceeding, or testifying at hearing.

“Participant in a CAAPP Comment Process” means a person who takes part in a Clean

Air Act Permit Program (CAAPP) permit hearing before the Agency or comments on a

draft CAAPP permit.

"Party" means the person by or against whom a proceeding is brought.

"Party in interest" means the Agency when asked to conduct an investigation pursuant to

Section 30 of the Act during an ongoing proceeding. (See Section 101.404 of this Part.)

"Permit appeal" means an adjudicatory proceeding brought before the Board pursuant to

Title X of the Act.

"Person" means

any individual, partnership, co-partnership, firm, company, limited

liability company, corporation, association, joint stock company, trust, estate, political

subdivision, state agency, or any other legal entity, or their legal representative, agent or

assigns

. [415 ILCS 5/3.26]

"Petition" means the initial filing in an adjudicatory proceeding other than an

enforcement proceeding, including permit appeals, OSFM appeals, UST appeals, appeals

of pollution control facility siting decisions, variances and adjusted standards.

“Pilot project” means an innovative environmental project that covers one or more

designated facilities, designed and implemented in the form of an EMSA. (See Section

52.3 of the Act.)

"Pollution control facility" means

any waste storage site, sanitary landfill, waste disposal

site, waste transfer station, waste treatment facility, or waste incinerator. This includes

sewers, sewage treatment plants, and any other facilities owned or operated by sanitary

districts organized under Metropolitan Water Reclamation District Act. The following

are not pollution control facilities

waste storage sites regulated under 40 CFR, 761.42

;

sites or facilities used by any person conducting a waste storage, waste treatment,

waste disposal, waste transfer or waste incineration operation, or a combination

thereof, for wastes generated by such person's own activities, when such wastes

are stored, treated, disposed of, transferred or incinerated within the site or

facility owned, controlled or operated by such person, or when such wastes are

transported within or between sites or facilities owned, controlled or operated by

such person

;

sites or facilities at which the State is performing removal or remedial action

pursuant to Section 22.2 or 55.3

;

abandoned quarries used solely for the disposal of concrete, earth materials,

gravel, or aggregate debris resulting from road construction activities conducted

by a unit of government or construction activities due to the construction and

installation of underground pipes, lines, conduit or wires off of the premises of a

public utility company which are conducted by a public utility

;

sites or facilities used by any person to specifically conduct a landscape

composting operation

;

regional facilities as defined in the Central Midwest Interstate Low-Level

Radioactive Waste Compact

;

the portion of a site or facility where coal combustion wastes are stored or

disposed of in accordance with subdivision (r)(2) or (r)(3) of Section 21

;

the portion of a site or facility used for the collection, storage or processing of

waste tires as defined in Title XIV

;

the portion of a site or facility used for treatment of petroleum contaminated

materials by application onto or incorporation into the soil surface and any

portion of that site or facility used for storage of petroleum contaminated

materials before treatment. Only those categories of petroleum listed in

paragraph (5) of subsection (a) of Section 22.18(b) are exempt under this

subdivision;

the portion of a site or facility where used oil is collected or stored prior to

shipment to a recycling or energy recovery facility, provided that the used oil is

generated by households or commercial establishments, and the site or facility is

a recycling center or a business where oil or gasoline is sold at retail

;

the portion of a site or facility utilizing coal combustion waste for stabilization

and treatment of only waste generated on that site or facility when used in

connection with response actions pursuant to the federal Comprehensive

Environmental Response, Compensation, and Liability Act of 1980, the federal

Resource Conservation and Recovery Act of 1976, or the Illinois Environmental

Protection Act or as authorized by the Agency;

the portion of a site or facility accepting exclusively general construction or

demolition debris, located in a county with a population over 700,000, and

operated and located in accordance with Section 22.38 of this Act.

[415 ILCS

5/3.32(a)]

"Pollution control facility siting appeal" means an appeal of a decision made by a unit of

local government filed pursuant to Section 40.1 of the Act with the Board.

“Postconsumer material” means

paper, paperboard, and fibrous wastes from retail

stores, office buildings, homes, and so forth, after the waste has been passed through its

end usage as a consumer item, including used corrugated boxes, old newspapers, mixed

waste paper, tabulating cards, and used cordage.

Additionally, it includes

all paper,

paperboard, and other fibrous wastes that are diverted or separated from the municipal

solid waste stream

. [415 ILCS 20/3(f)(2)(i), (ii)] (See also definition of “Recycled

Paper” in this Section.)

"Preemptory rulemaking" means

any rulemaking which is required as a result of federal

law, federal rules and regulations, or an order of a court, under conditions which

preclude compliance with the general rulemaking requirements of Section 5-40 of the

IAPA and which preclude the exercise by the

Board

as to the content of the rule it is

required to adopt

. [5 ILCS 100/5-50]

"Prehearing conference" means a meeting held in an adjudicatory case to determine the

status of the proceedings. A prehearing conference may also be a meeting held in a

regulatory proceeding prior to the hearing, the purposes of which

shall be to maximize

understanding of the intent and application of the proposal, if possible, and to attempt to

identify and limit the issues of disagreement among participants to promote efficient use

of time at hearing.

[415 ILCS 5/27(d).] (See 35 Ill. Adm. Code 102.404 and 102.406.)

"Proceeding" means an action conducted before the Board pursuant to authority granted

under Section 5 of the Act or as otherwise provided by law. Board proceedings are of

two types: quasi-legislative (e.g., rulemakings and inquiry proceedings) and quasi-

judicial (adjudicatory proceedings).

"Proponent" means any person, not including the Board or its staff, who submits a

regulatory proposal to the Board for the adoption, amendment, or repeal of a regulation.

"Provisional variance" means a short term variance sought by a party and recommended

by the Agency pursuant to Section 35(b) of the Act. (See 35 Ill. Adm. Code 104.308.)

"Public comment" means information submitted to the Board during a pending

proceeding either by oral statement made at hearing or written statement filed with the

Board.

“Qualitative description” means a narrative description pertaining to attributes and

characteristics.

“Quantitative description” means a numerically based description pertaining to attributes

and characteristics.

"RCRA variance" means a variance from a RCRA rule or a RCRA permit required

pursuant to Section 21(f) of the Act.

"Record" means the official collection, as kept by the Clerk, of all documents and

exhibits including pleadings, transcripts, and orders filed during the course of a

proceeding.

"Recycled paper" means paper which contains at least 50% recovered paper material.

The recovered paper material must contain at least 40% deinked stock or postconsumer

material; beginning July 1, 2000, must contain at least 45% deinked stock or

postconsumer material. (See also “Postconsumer material” in this Section.)

"Registered agent" means a person registered with the Secretary of State for the purpose

of accepting service for any entity, or a person otherwise authorized in writing as an

agent for the purpose of accepting service for that entity.

"Regulatory hearing" or "proceeding" means a hearing or proceeding held pursuant to

Title VII of the Act or other applicable law with respect to regulations.

"Regulatory relief mechanisms" means variances, provisional variances and adjusted

standards. (35 Ill. Adm. Code 104.)

“Representing” means, for purposes of Part 130,

describing, depicting, containing,

constituting, reflecting or recording.

[415 ILCS 5/7.1]

“Requester” means, for purposes of Part 130, the person seeking from the agency the

material claimed or determined to be a trade secret. [415 ILCS 5/7.1]

"Resource Conservation and Recovery Act” or “RCRA" means the Solid Waste Disposal

Act, as amended by the Resource Conservation and Recovery Act of 1976 (42 USC 6901

et seq.).

"Rule or regulation of general applicability" means a rule or regulation adopted by the

Board pursuant to Title VII of the Act or other applicable law, with such regulation

applicable to all persons not explicitly exempted either by the regulation or by associated

site-specific regulation or adjusted standard.

“Rulemaking" or “rulemaking proceeding” means a proceeding brought under Title VII

of the Act or other applicable law for the purpose of adoption, amendment, or repeal of a

regulation.

"Sanction" means a penalty or other mechanism used by the Board to provide incentives

for compliance with the Board’s procedural rules, Board orders or hearing officer orders.

(See also Subpart H of this Part.)

"SDWA" means the federal Safe Drinking Water Act (42 USC 300f et seq.).

“Service” means delivery of documents upon a persons. (See Section 101.300(c) and

101.304 of this Part.)

"Service list" means the list of persons designated by the hearing officer or Clerk in a

regulatory or adjudicatory proceeding upon whom participants must serve motions,

prefiled questions and prefiled testimony and any other documents that the participants

file with the clerk unless the hearing officer otherwise directs. (See definition of Notice

list in this Section.) (See also 35 Ill. Adm. Code 102.422.)

"Severance" means the separation of a proceeding into two or more independent

proceedings, each of which terminates in a separate, final judgment.

"Site-specific rule or regulation" means a proposed or adopted regulation, not of general

applicability, that applies only to a specific facility, geographic site, or activity. (See 35

Ill. Adm. Code 102.208.)

“Sponsor” means the proponent of a pilot project that enters into an EMSA with the

Agency.

"State enforcement proceeding” means an enforcement proceeding, other than a citizen’s

enforcement proceeding, that is brought pursuant to Section 31(a) of the Act.

"Stay" means a temporary suspension of the regular progress of a proceeding pursuant to

an order of the Board or by operation of law. (See Section 101.514 of this Part.)

"Subpoena" means a command to appear at a certain time and place to give testimony

upon a certain matter.

“Subpoena duces tecum” means a document that compels the production of specific

documents and other items at a specified time and place.

"Summary judgment" means the disposition of an adjudicatory proceeding without

hearing when the record, including pleadings, depositions and admissions on file,

together with any affidavits, shows that there is no genuine issue of material fact, and that

the moving party is entitled to judgment as a matter of law. (See Section 101.516 of this

Part.)

"Third party" means a person who is a party to a proceeding but was not one of the

parties in the initial proceeding.

“Third party complaint” means a pleading that a respondent files setting forth a claim in

its favor against a person who is not already a party to the proceeding. (See 35 Ill. Adm.

Code 103.206.)

"Trade secret" means

the whole or any portion or phase of any scientific or technical

information, design, process (including a manufacturing process), procedure, formula or

improvement, or business plan which is secret in that it has not been published or

disseminated or otherwise become a matter of general public knowledge, and which has

competitive value. A trade secret is presumed to be secret when the owner thereof takes

reasonable measure to prevent it from becoming available to persons other than those

selected by the owner to have access thereto for limited purposes

. [415 ILCS 5/3.48]

"Trade secret petition" means a petition filed pursuant to the Board’s procedural rules (35

Ill. Adm. Code 130) regarding trade secret information.

"Transcript" means the official recorded testimony from a hearing.

"USEPA" means the United States Environmental Protection Agency.

“Underground storage tank appeal” or "UST appeal" means an appeal of an Agency final

decision made pursuant to Title XVI of the Act.

“UST” means underground storage tank.

"Variance" means a temporary exemption from any specified

regulation, requirement or

order of the Board granted to a petitioner by the Board pursuant to Title IX of the Act

upon presentation of adequate proof that compliance with the rule or regulation,

requirement or order of the Board would impose an arbitrary or unreasonable hardship

[415 ILCS5/35(a)]

"Waiver" means the intentional relinquishing of a known right, usually with respect to

hearing before the Board or entry of a Board decision within the decision period. (See

also Section 101.308 of this Part.)

"Web site” means the Board’s computer-based informational service accessed on the

Internet at http://www.ipcb.state.il.us.

SUBPART C: COMPUTATION OF TIME, FILING, SERVICE

OF DOCUMENTS, AND STATUTORY DECISION DEADLINES

Section 101.300 Computation of Time

Computation of Time. Computation of any period of time prescribed in the Act,

other applicable law, or these rules will begin with the first calendar day

following the day on which the act, event or development occurs and will run

until the close of business on the last day, or the next business day if the last day

is a Saturday, Sunday or national or State legal holiday.

Time of Filing. Documents will be considered filed when they are filed in

conformance with the requirements found in Section 101.302 of this Part and any

other filing requirements specifically set out in the other Parts of these rules.

If filed in person, by messenger service or mail delivery service other than

U.S. Mail, documents are considered filed when they are received in the

Office of the Clerk.

For purposes of filing deadlines, documents filed by U.S. Mail will be

deemed filed when they are postmarked, provided all filing requirements

are met as set forth in Section 101.302 of this Part.

Documents filed other than those through U.S. Mail and received in the

Office of the Clerk after 4:30 p.m. will be marked as filed the following

business day. The Clerk will record the appropriate filing date on all filed

documents.

For purposes of Board decision deadlines, time does not begin until the

date on which the initial filing is date-stamped by the Clerk.

Time of Service. In the case of personal service, service is deemed complete on

the date personal delivery was effectuated. In the case of facsimile transmission,

service is deemed complete on the date of a complete and proper transmittal

(facsimile filings are only allowed in accordance with Section 101.302(d) of this

Part). In the case of service by registered or certified mail, or by messenger

service, service is deemed complete on the date specified on the registered or

certified mail receipt or the messenger service receipt. In the case of service by

U.S. Mail, service is presumed complete four days after mailing. Such

presumption can be rebutted by proper proof.

Date of Board Decision.

For purposes of statutory decision deadline proceedings, the date of the

Board decision is the date of the Board meeting where a final opinion and

order of the Board was adopted by the vote of at least four Board

members.

For purposes of appeal, the date of the Board decision is the date of

service of the final opinion and order by the Board upon the appealing

party. Or, in the event of a timely filed motion for reconsideration filed

pursuant to Section 101.520 of this Part, the date of the Board order ruling

upon the motion is the date of service by the Board upon the appealing

party.

Section 101.302 Filing of Documents

This Section contains the Board’s general filing requirements. Additional

requirements may exist for specific proceeding elsewhere in these rules. The

Clerk will refuse for filing any document that does not comply with the minimum

requirements below.

All documents filed with the Board must be filed with the Clerk’s Office. Service

on a hearing officer does not constitute filing with the Board. Documents may be

filed at:

Pollution Control Board, Attn: Clerk

100 West Randolph Street

James R. Thompson Center, Suite 11-500

Chicago, Illinois 60601-3218

Documents may be filed by U.S. Mail or other mail delivery service, in person or

by messenger.

Filing by electronic transmission or facsimile will only be allowed with the prior

approval of the Clerk of the Board or hearing officer assigned to the proceeding.

The following initial filings require filing fees and will only be considered filed

when accompanied by the appropriate fee, which may be paid in the form of

government voucher, money order, or check made payable to the Illinois

Pollution Control Board, but which may not be paid in cash:

Petition for Site-Specific Regulation, $75;

Petition for Variance, $75;

Petition for Review of Agency Permit Decision, UST Decision, or any

other appeal filed pursuant to Section 40 of the Act, $75;

Petition to Review Pollution Control Facility Siting Decisions, pursuant to

Section 40.1 of the Act, $75; and

Petition for Adjusted Standard, pursuant to Section 28.1 of the Act, $75.

All documents filed must be served in accordance with Subpart C of this Part.

All documents filed by parties with the Board must be typed in at least 12 pitch

font, should contain the relevant proceeding caption and number and must be

submitted on 8 1/2 x 11 inch recycled paper as defined in Subpart B of this Part.

Unless the Board or its procedural rules provide otherwise, all documents must

filed with a signed original and 9 duplicate copies (10 total), except that

documents specifically directed to the assigned hearing officer, such as requests

to admit, discovery motions, interrogatories, and answers, and subpoenas must be

filed with the Clerk with a signed original and 4 copies (5 total), or as the hearing

officer orders.

Non-Conforming Exhibits. When possible, exhibits must be reduced to conform

to 8 1/2 X 11 inch recycled paper. However, one non-conforming original copy

may be filed with the Clerk’s Office. Upon closure of the proceeding, the non-

conforming copy may be returned to the person filing it in accordance with 2 Ill.

Adm. Code 2175.300.

Page Limitation. No motion, brief in support of motion, or brief may exceed 30

pages, and no amicus curiae brief may exceed 20 pages, without prior approval of

the Board or hearing officer. These limits do not include appendices containing

relevant material.

Section 101.304 Service of Documents

Service Requirements. This Section contains the Board’s general service

requirements. However, the more specific Part for a proceeding type may contain

additional requirements.

Duty to Serve. Parties in Board adjudicatory proceedings are responsible for

service of all documents they file with the Clerk’s Office. Proof of service of

initial filings must be filed with the Board upon completion of service.

Method of Service. Service may be effectuated by U.S. Mail or other mail

delivery service, in person, by messenger, or by facsimile, as prescribed in

Section 101.302(d), except for service of enforcement complaints and

administrative citations which must be made personally, by registered or certified

mail, or by messenger service. Proof of service of enforcement complaints and

administrative citations must be filed with the Board upon completion of service.

Affidavit or Certificate of Service. A proceeding is subject to dismissal, and

parties are subject to sanctions in accordance with Section 101.800 of this Part, if

service is not timely made. Proof of proper service is the responsibility of the

party filing and serving the document. An affidavit of service or certificate of

service must accompany all filings of all parties. A sample form of the Affidavit

of service and certificate of service is available at the Board’s Offices (the

locations of the Board’s Offices are listed at 2 Ill. Adm. Code 2175.115) and may

be obtained electronically at the Board’s Web site.

Service of Amicus Curiae Briefs. Any person who files an amicus curiae brief

with the Board in any proceeding must serve copies of that brief on all parties in

accordance with this Section.

Service of Comments of Participants in an Adjudicatory Proceeding. Participants

will not be required to serve their comments upon the parties to the proceeding.

The Clerk’s Office will serve all comments filed by participants upon all parties

to the proceeding and the hearing officer. The Board will consider such

comments as time and the Act or other applicable law allow.

Service on State Agencies. Service must be at the addresses listed below unless a

specific person has an appearance on file with the Board.

Service on the Illinois Environmental Protection Agency (Agency). The

Agency must be served at the following address:

Division of Legal Counsel

Illinois Environmental Protection Agency

P.O. Box 19276

Springfield, IL 62794-9276

Service on Office of State Fire Marshal (OSFM). The OSFM must be

served at:

Division of Petroleum and Chemical Safety

Office of the State Fire Marshal

1035 Stevenson Dr.

Springfield, IL 62703

Service on the Illinois Attorney General. The Office of the Attorney

General must be served at:

Division Chief of Environmental Enforcement

Office of the Attorney General

188 West Randolph St., 20th Floor

Chicago, IL 60601

Service on the Illinois Department of Natural Resources (DNR) must be

served at:

Office of Legal Services

Illinois Department of Natural Resources

524 S. Second St.

Springfield, IL 62701-1787

Service on the Illinois Department of Transportation (IDOT). IDOT must

be served at:

Office of Chief Counsel

DOT Administration Building

2300 S. Dirksen Parkway, Room 300

Springfield, IL 62764

Service on Region V of the United States Environmental Protection

Agency (USEPA). USEPA Region V must be served at:

USEPA, Region V

230 South Dearborn St.

Chicago, IL 60604

Section 101.306 Incorporation of Documents by Reference

Upon the separate written request of any person or on its own initiative, the Board

or hearing officer may incorporate materials from the record of another Board

docket into any proceeding. The person seeking incorporation must file with the

Board 9 copies of the material to be incorporated. The person seeking

incorporation must demonstrate to the Board or the hearing officer that the

material to be incorporated is relevant to the proceeding. Notice of the request

must be given to all identified participants or parties by the person seeking

incorporation.

The Board will give the incorporated matter the appropriate weight in light of the

following factors: the standard of evidence under which the material was

previously presented to the Board; the present purpose for incorporating the

material; and the past and current opportunity for cross-examination of the

matters asserted within the incorporated material.

Section 101.308 Statutory Decision Deadlines and Waiver of Deadlines

Petitions in the following proceedings each have a 120-day statutory decision

deadline: Variances (Section 38 of the Act), Permit Appeals and UST appeals

(Section 40 of the Act), and Pollution Control Facility Siting Review (Section

40.1 of the Act). Other adjudicatory proceedings may be subject to decision

deadlines as provided by law.

Where the petitioner does not waive the decision deadline, the Board will proceed

expeditiously to establish all hearing and filing requirements. Failure to follow

Board requirements on such deadlines will subject the party to sanctions pursuant

to Subpart H of this Part. This Section will be strictly construed where there is a

decision deadline unless the Board receives a waiver as set out below.

All waivers of a deadline for Board action must be filed as a separate document.

Waivers must be clearly titled and state which type of waiver it is, identify the

proceeding by name and docket number, and be signed by the party or by his

authorized representative or attorney. A waiver of a statutory deadline does not

preclude the Board from issuing an opinion or order prior to any decision

deadline.

Open Waiver. Waives the decision deadline completely and

unequivocally.

Negotiation Waiver. Waives the decision deadline until such time as the

petitioner elects to reinstate the decision period by filing a notice to

reinstate. Upon proper filing of the notice, the decision period is

reinstated. In accordance with Section 101.300(b)(4) of this Part, the

decision period recommences as of the date the notice to reinstate is filed

with the Board.

Time Certain Waiver. Waives the decision deadline until a time certain.

The time certain may be expressed in length of days or to a specific

calendar date. If expressed in length of days, day one will be the first day

after the date upon which the current time clock expires. If the petitioner

files a time certain waiver before the hearing date, the waiver must be for

at least 120 days. If the extension is not renewed for at least 90 days prior

to the decision deadline, the Board will set the matter for hearing.

SUBPART D: PARTIES, JOINDER, AND CONSOLIDATION

Section 101.400 Appearances, Withdrawals, and Substitutions of Attorneys in Adjudicatory

Proceedings

Appearances. A person who is a party in a Board adjudicatory proceeding may

appear as follows:

Individuals may appear on their own behalf or through an attorney-at-law

licensed and registered to practice law. (Section 1 of the Attorney Act

[705 ILCS 205/1 ]

When appearing before the Board, any person other than individuals must

appear through an attorney-at-law licensed and registered to practice law.

(Section 1 of the Corporation of Law Prohibition Act [705 ILCS 220/1]

and Section 1 of the Attorney Act [705 ILCS 205/1])

Attorneys who are licensed to practice in a state other than Illinois and

who are not licensed and registered to practice in the State of Illinois may

request to appear pro hac vice on a particular matter on a motion filed with

the Board.

Any attorney appearing in a representative capacity must file a separate

written notice of appearance with the Clerk, together with proof of service

and notice of filing of the appearance on all parties in the proceeding.

Law firms, the Agency, and the Attorney General’s Office when

appearing before the Board must designate a lead attorney for purposes of

phone and mail contact pertaining to the proceeding.

Any person appearing before the Board may appear in a special limited

capacity to contest jurisdiction.

Withdrawals. An attorney who has appeared in a representative capacity and who

wishes to withdraw from that representation must file a notice of withdrawal with

the Clerk, together with proof of service and notice of filing on all parties or their

representatives.

Substitution. Any attorney who substitutes for an attorney of record must file a

written appearance pursuant to subsection (a) of this Section. That appearance

must identify the attorney for whom the substitution is made. However, no

attorney will be considered withdrawn from a proceeding until a formal

withdrawal is filed in accordance with subsection (b) of this Section.

Any person may appear on behalf of himself or others in a rulemaking proceeding

in accordance with 35 Ill. Adm. Code 102.100(b).

Section 101.402 Intervention of Parties

The Board may permit any person to intervene in any adjudicatory proceeding. If

a person seeks to intervene in an adjudicatory proceeding, the person must file a

motion to do so with the Clerk and serve a copy of the motion on all parties to the

proceeding. The motion must set forth the grounds for intervention. Each of the

parties to the proceeding may file a response to the motion within 14 days after

service.

In determining whether to grant a motion to intervene, the Board will consider the

timeliness of the motion and whether intervention will unduly delay or materially

prejudice the proceeding or otherwise interfere with an orderly or efficient

proceeding.

Subject to subsection (b) of this Section, the Board will permit any person to

intervene in any adjudicatory proceeding if:

the person has an unconditional statutory right to intervene in the

proceeding; or

it may be necessary for the Board to impose a condition on the person.

Subject to subsection (b) of this Section, the Board may permit any person to

intervene in any adjudicatory proceeding if:

the person has a conditional statutory right to intervene in the proceeding;

the person may be materially prejudiced absent intervention; or

the person is so situated that the person may be adversely affected by a

final Board order.

An intervenor will have all the rights of an original party to the adjudicatory

proceeding, except that the Board may limit the rights of the intervenor as justice

may require. Such limits may include, but are not limited to, providing that: the

intervenor is bound by Board and hearing officer orders already issued or by

evidence already admitted; that the intervenor does not control any decision

deadline; and that the intervenor cannot raise issues that were raised or might

more properly have been raised at an earlier stage of the proceeding.

Section 101.403 Joinder of Parties

The Board, on its own motion or the motion of any party, may add a person as a

party to any adjudicatory proceeding if:

a complete determination of the controversy cannot be had without the

presence of the person who is not already a party to the proceeding; or

it may be necessary for the Board to impose a condition on the person who

is not already a party to the proceeding.

If a party to an adjudicatory proceeding seeks to move the Board to add a party

pursuant to subsection (a) of this Section, the movant must file the motion with

the Clerk and serve a copy of the motion on all other parties to the proceeding and

the person sought to be added. The motion must set forth the grounds for joinder.

The movant also must serve the person sought to be added with a copy of the

initial filing in the proceeding, as amended, and all Board orders and hearing

officer orders to date in the proceeding.

The nonmoving parties and the person sought to be added each may file a

response to the motion within 14 days after the respective service described in

subsection (b) of this Section.

Section 101.404 Agency as a Party in Interest

Pursuant to Section 30 of the Act, the Board may request that the Agency investigate any alleged

violation of the Act, the regulations, any permit granted by the Agency, or any term or condition

of any such permit and any such other investigations as the Board may deem advisable. Upon

such request, the Board may designate the Agency as a party in interest in any ongoing

proceeding in that matter. The designation of the Agency as a party in interest does not require

the Agency to take a position on the merits of the proceeding.

Section 101.406 Consolidation of Claims

The Board, upon the motion of any party or upon its own motion, may consolidate two or more

proceedings for the purpose of hearing or decision or both. The Board will consolidate the

proceedings if consolidation is in the interest of convenient, expeditious, and complete

determination of claims, and if consolidation would not cause material prejudice to any party.

The Board will not consolidate proceedings where the burdens of proof vary.

Section 101.408 Severance of Claims

Upon motion of any party or on the Board's own motion, in the interest of convenient,

expeditious, and complete determination of claims, and where no material prejudice will be

caused, the Board may sever claims involving any number of parties.

SUBPART E: MOTIONS

Section 101.500 Filing of Motions and Responses

The Board may entertain any motion the parties wish to file that is permissible

under the Act or other applicable law, these rules, or the Illinois Code of Civil

Procedure.

All motions must be in writing, unless made orally on the record during a hearing,

and must state whether directed to the Board or to the hearing officer. Motions

that should be directed to the hearing officer are set out in Section 101.502 of this

Part. All motions should be filed and served in conformance with Subpart C of

this Part.

Motions may be filed at any time unless otherwise specifically provided.

Within 7 days after service of a motion, a party may file a response to the motion.

If no response is filed, such party will be deemed to have waived objection to the

granting of the motion, but such waiver of objection does not bind the Board or

the hearing officer in its disposition of the motion. Unless undue delay or

material prejudice would result, neither the Board nor the hearing officer will

grant any motion before expiration of the 7 day response period except in

deadline driven proceedings where no waiver has been filed. Parties may request

that the Board grant more time to respond by filing a motion for extension of

time.

The moving person will not have the right to reply, except as permitted by the

Board or the hearing officer to prevent material prejudice. A motion for leave to

file a reply must be filed with the Board within 7 days after service of the

response.

Section 101.502 Motions Directed to the Hearing Officer

The hearing officer has the authority to rule on all motions that are not dispositive

of the proceeding. Examples of motions that hearing officers may not rule upon

are motions to dismiss, motions to decide a proceeding on the merits, motions to

strike any claim or defense for insufficiency or want of proof, motions claiming

lack of jurisdiction, motions for consolidation, motions for summary judgment,

and motions for reconsideration. The duties and authorities of the hearing officer

are further set out in Section 101.610 of this Part.

An objection to a hearing officer ruling or any oral motion to the Board made at

hearing will be deemed waived if not filed within 7 days after the Board receives

the hearing transcript.

Unless otherwise ordered by the Board, neither the filing of a motion, the

certification of a question to the Board, nor any appeal to the Board of a hearing

officer order will stay the proceeding or extend the time for the performance of

any act. Unless otherwise provided, all hearing officer orders will remain in

effect during the pendency of any appeal to the Board.

Section 101.504 Contents of Motions and Responses

All motions and responses must clearly state the grounds upon which the motion is made and

must contain a concise statement of the position or relief sought. Facts asserted that are not of

record in the proceeding must be supported by oath or affidavit. A brief or memorandum in

support of the motion or response may be included.

Section 101.506 Motions Attacking the Sufficiency of the Petition, Complaint, or Other

Pleading

All motions to strike, dismiss, or challenge the sufficiency of any pleading filed with the Board

must be filed within 21 days after the service of the challenged document, unless the Board

determines that material prejudice would result.

Section 101.508 Motions to Board Preliminary to Hearing

Motions that a party desires the Board to rule on before hearing should be filed 21 days prior to

the regularly scheduled Board meeting before the noticed hearing date. Any motion filed after

the above prescribed time will be considered by the Board if time permits.

Section 101.510 Motions to Cancel Hearing

Time to file. Unless the Board or the hearing officer orders otherwise the hearing

officer may grant motions to cancel hearings that are filed no fewer than 10 days

or, if all parties agree to the motion, 5 days before the scheduled hearing date.

The hearing officer may grant any such motion filed after the prescribed time only

if the movant demonstrates that the movant will suffer material prejudice if the

hearing is not canceled.

Contents. All motions to cancel a hearing must set forth a proposed date to

reschedule the hearing and must be supported by an affidavit of the person or

persons with knowledge of the facts that support the motion. The affidavit must

include the factual basis for the request to cancel and a complete status report that

describes the progress of the proceeding and sets forth the number of cancellation

requests previously granted to the movant. The hearing officer will grant the

motion only if the movant demonstrates that the request to cancel is not the result

of the movant’s lack of diligence.

In a proceeding for which there is a decision deadline, the hearing officer will

deny a motion to cancel a hearing if the decision deadline does not allow enough

time for the Board to reschedule the hearing, provide the required notice of the

rescheduled hearing, complete the hearing, and deliberate and decide the matter.

If the hearing officer grants a motion to cancel a hearing, the hearing officer will

revise the schedule to complete the record in accordance with Section 101.612 of

this Part. The hearing officer also will file the revised schedule with the Clerk

and serve a copy of the revised schedule on all parties in accordance with Subpart

C of this Part.

If the hearing officer grants a motion to cancel a hearing, the Board may assess

the movant the actual cost of newspaper notice of the rescheduled hearing.

If a party files a motion to cancel a hearing less than two business days before the

scheduled hearing, the Board may assess the movant the cancellation fee of the

court reporter.

Section 101.512 Motions for Expedited Review

Motions for expedited review must be directed to the Board. All motions for

expedited review must contain a complete statement of the facts and or reasons

for the request and must be accompanied by an oath or affirmation attesting that

the reasons and facts cited are true.

In acting on a motion for expedited review, the Board will, at a minimum,

consider all statutory requirements and whether material prejudice will result

from the motion being granted or denied.

The Board will grant a motion for expedited review consistent with available

resources and decision deadlines.

Section 101.514 Motions to Stay Proceedings

Motions to stay a proceeding must be directed to the Board and must be

accompanied by sufficient information detailing why a stay is needed, and in

decision deadline proceedings, by a waiver of any decision deadline. A status

report detailing the progress of the proceeding must be included in the motion.

(See also Section 101.308 of this Part.)

If the motion to stay is granted, at the close of the stay, the parties must file a

status report in accordance with Subpart C of this Part. Additional requests for

stay of the proceedings must be directed to the hearing officer.

Section 101.516 Motions for Summary Judgment

Any time after the opposing party has appeared (or after the expiration of time

within which any party is required to appear), but no fewer than 30 days prior to

the regularly scheduled Board meeting before the noticed hearing date, a party

may move the Board for summary judgment for all or any part of the relief

sought. Any response to a motion for summary judgment must be filed within 14

days after service of the motion for summary judgment.

If the record, including pleadings, depositions and admissions on file, together

with any affidavits, show that there is no genuine issue of material fact, and that

the moving party is entitled to judgment as a matter of law, the Board will enter

summary judgment.

Any party wishing to cancel a hearing pending decision on a motion for summary

judgment must file a motion to cancel hearing pursuant to Section 101.510 of this

Part.

Any issue raised in a motion for summary judgment not ruled on prior to the

commencement of the hearing is deemed denied.

Section 101.518 Motions for Interlocutory Appeal from Hearing Officer Orders

Interlocutory appeals may be taken to the Board from a ruling of the hearing officer. The Board

may consider an interlocutory appeal upon the filing of a written motion.

Section 101.520 Motions for Reconsideration

Any motion for reconsideration or modification of a final Board order must be

filed within 35 days after the receipt of the order. (See Section 101.1002 of this

Part.)

Any response to a motion for reconsideration or modification must be filed within

14 days after the filing of the motion.

A timely-filed motion for reconsideration or modification stays the effect of the

final order until final disposition of the motion in accordance with Section

101.300(d)(2) of this Part.

Section 101.522 Motions for Extension of Time

The Board or hearing officer, for good cause shown on a motion after notice to the opposite

party, may extend the time for filing any document or doing any act which is required by these

rules to be done within a limited period, either before or after the expiration of time.

SUBPART F: HEARINGS, EVIDENCE, AND DISCOVERY

Section 101.600 Hearings

All hearings are open to the public and are held in compliance with the Americans with

Disabilities Act of 1990 (42 USC 12101 et seq.). The hearings are generally held in the county

in which the source or facility is located unless otherwise ordered by the hearing officer. All

hearings are subject to cancellation without notice. Interested persons may contact the Clerk’s

office or the hearing officer for information about the hearing. Parties, participants, and

members of the public must conduct themselves with decorum.

Section 101.602 Notice of Board Hearings

The Clerk will provide notice of all hearings, except for administrative citation hearings, in a

newspaper of general circulation in the county in which the facility or pollution source is

located, or where the activity in question occurred. Notice must be published at least 21 days

prior to the hearing. If the proceeding involves federal rules which the State has been given

delegated authority to administer, notice must be published at least 30 days prior to the hearing.

Section 101.604 Formal Board Transcript

All Board hearings will be transcribed by a certified court reporter in accordance with Section 32

of the Act or other applicable law. Any party or witness may file a motion with the hearing

officer to correct the transcript within 14 days after receipt of the transcript in the Clerk’s Office.

Failure of any party or witness to timely file a motion to correct the transcript constitutes waiver

of right to correct, unless material prejudice results.

Section 101.606 Informal Recordings of the Proceedings

Informal recording of Board proceedings is allowed as provided for in this Section. The hearing

officer may prohibit audio or video recording at hearing if a witness refuses to testify on the

grounds that the witness may not be compelled to testify if any portion of the testimony is to be

broadcast or televised. If the hearing officer determines that recording is disruptive or

detrimental to proper development of the record, the hearing officer may limit or prohibit audio

and/or video recording.

Section 101.608 Default

Failure of a party to appear at the hearing, or failure to proceed as ordered by the

Board or hearing officer, will constitute default.

If a party fails to appear at hearing, the opposing party must prove their prima

facie case in order to prevail on the merits.

Section 101.610 Duties and Authority of the Hearing Officer

The hearing officer has the duty to manage proceedings assigned, to set hearings, 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 concise record for timely transmission to the Board. The

hearing officer has all powers necessary to these ends, including the authority to:

Require parties to proceed to hearing and establish a schedule for, and notice and

service of, any prefiled submission of testimony and written exhibits;

Administer oaths and affirmations;

Allow for the examination of or examine witnesses to ensure a clear and complete

record;

Regulate the course of the hearing, including controlling the order of proceedings;

Establish reasonable limits on the duration of the testimony and questioning of

any witness, and limit repetitive or cumulative testimony and questioning;

Determine that a witness is adverse, hostile, or unwilling pursuant to Section

101.624 of this Part;

Issue an order compelling the answers to interrogatories or responses to other

discovery requests;

Order the production of evidence pursuant to Section 101.614 of this Part;

Order the filing of any required record or recommendation in a manner which

provides for a timely review and development of issues prior to the hearing and

consistent with any statutory decision deadline;

Initiate, schedule, and conduct a prehearing conference;

Order a briefing and comment schedule and exclude late-filed briefs and

comments from the record;

Rule upon objections and evidentiary questions;

Order discovery pursuant to Sections 101.614 and 101.616 of this Part;

Rule on any motion directed to the hearing officer or deferred to the hearing

officer by the Board in accordance with Section 101.502 of this Part;

Set status report schedules; and

Require all participants in a rulemaking proceeding to state their positions with

respect to the proposal.

Section 101.612 Schedule to Complete the Record

The hearing officer must establish a schedule to complete the record. The

schedule may provide dates and deadlines for prehearing conferences, discovery

completion, and hearing and post-hearing submissions (including public

comments). The schedule must provide for a completed record at least 30 days

before the decision date, unless the hearing officer orders otherwise to prevent

material prejudice. The schedule must be in the form of a hearing officer order.

The hearing officer must file the schedule with the Clerk and serve a copy of the

schedule on all parties in accordance with Subpart C of this Part.

The hearing officer may rule upon any motion to revise the schedule to complete

the record. The hearing officer may grant such motion to the extent that the

revised schedule provides for a completed record at least 30 days before the

decision date or to prevent material prejudice. If the hearing officer grants a

motion to revise the schedule, the hearing officer must file the revised schedule

with the Clerk and serve a copy of the revised schedule on all parties in

accordance with Subpart C of this Part. See also Section 101.510(d) of this Part.

Section 101.614 Production of Information

The hearing officer may, on his or her own motion or on the motion of any party, order the

production of information that is relevant to the matter under consideration. The hearing officer

will deny, limit or condition the production of information when necessary to prevent undue

delay, undue expense, or harassment, or to protect materials from disclosure consistent with

Sections 7 and 7.1 of the Act and 35 Ill. Adm. Code 130.

Section 101.616 Discovery

The assigned hearing officer will set all time deadlines for discovery not already provided for in

this Subpart. Time deadlines will be consistent with Board deadlines. Discovery deadlines

provided for in the Code of Civil Procedure do not apply. All discovery disputes will be handled

by the assigned hearing officer.

All relevant information and information calculated to lead to relevant

information is discoverable, excluding those materials that would be protected

from disclosure under 35 Ill. Adm. Code 130.

If the parties cannot agree on the scope of discovery or the time or location of any

deposition, the hearing officer has the authority to order discovery or to deny

requests for discovery.

All discovery must be completed at least 10 days prior to the scheduled hearing in

the proceeding unless the hearing officer orders otherwise.

The hearing officer may, on his or her own motion or on the motion of any party

or witness, issue protective orders that deny, limit, condition or regulate discovery

to prevent unreasonable expense, or harassment, to expedite resolution of the

proceeding, or to protect non-disclosable materials from disclosure consistent

with Sections 7 and 7.1 of the Act and 35 Ill. Adm. Code 130.

Unless a claim of privilege is asserted, it is not a ground for objection that the

testimony of a deponent or person interrogated will be inadmissible at hearing, if

the information sought is reasonably calculated to lead to relevant information.

Any appeals of rulings by the hearing officer regarding discovery must be in

writing and filed with the Board prior to hearing.

Failure to comply with any order regarding discovery subjects the offending

persons to sanctions pursuant to Subpart H of this Part.

If any person files any request for discovery or answers to discovery for any

improper purpose, such as to harass or to cause unnecessary delay or needless

increase in the cost of litigation, or knowingly gives a false answer to discovery

questions, the Board, on its own motion or the motion of a party, may impose

sanctions pursuant to Subpart H of this Part.

A party must amend any prior responses to interrogatories, requests for

production, or requests for admission if the party learns that the response is in

some material respect incomplete or incorrect, and the additional or corrected

information has not otherwise been made known to the other parties during the

discovery process or in writing.

Section 101.618 Admissions

General. All requests to admit must be served upon a party no later than 35 days

before hearing. Copies of such requests should be filed upon the Board and the

hearing officer. All answers or objections to requests to admit must be served

upon the party requesting the admission, the Board, and the hearing officer within

20 days of the service of the request.

Extension of Time. In accordance with Sections 101.522 and 101.610 of this

Part, the hearing officer may extend the time for filing any request, answer, or

objection either before or after the expiration of time.

Request to Admit. Any party serving a request to admit in accordance with

subsection (d) or (e) must include the following language in the first paragraph of

the request. “Failure to respond to the following requests to admit within 20 days

may have severe consequences. Failure to respond to the following requests will

result in all the facts requested being deemed admitted as true for this proceeding.

If you have any questions about this procedure, you should contact the hearing

officer assigned to this proceeding or an attorney.”

Request for Admission of Fact. A party may serve a written request for

admission of the truth of specific statements of fact on any other party.

Request for Admission of Genuineness of Document. A party may serve a

written request for admission of the genuineness of documents on any other party.

Copies of the document must be served.

Admission in the absence of denial. Each of the matters of fact and the

genuineness of each document of which admission is requested is admitted

unless, within 20 days after service thereof, the party to whom the request 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 the party cannot truthfully admit or deny those matters

or written objections on the ground that some or all of the requested admissions

are privileged or irrelevant or that the request is otherwise improper in whole or in

part. If written objections to a part of the request are made, the remainder of the

request must be answered within the period designated in the request. A denial

must fairly address the substance of the requested admission.

Partial denial or qualification. If good faith requires that a party deny a part of a

matter for which an admission is requested, or if a part requires qualification, the

party must specify the part which is denied or qualified and admit only the

remainder.

Objection. Any objection to a request or to any answer will be heard by the

hearing officer upon prompt notice and motion of the party making the request.

Effect of Admission. Any admission made by a party pursuant to a request under

this Section is for the purpose of the pending proceeding only. It does not

constitute an admission by the party for any other purpose and may not be used

against him in any other proceeding.

Expenses of Refusal to Admit. If a party, after being served with a request to

admit the genuineness of any document or the truth of any matters of fact, fails to

admit the truth of any of the matters or the genuineness of any documents and

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, the party

so moving may apply to the Board for an order under Subpart H of this Part for

payment of reasonable expenses incurred.

Section 101.620 Interrogatories

A party may serve written interrogatories on any other party, no later than 35 days

before hearing. Unless otherwise ordered by the hearing officer, interrogatories

must be filed pursuant to Section 101.302(i) of this Part and served upon the

Clerk and the hearing officer.

Within 20 days after service thereof, the party to whom the interrogatory is

directed must serve the answers and objections, if any, upon the party submitting

the interrogatories, the Clerk, and the hearing officer. Each interrogatory must be

answered separately and fully in writing under oath, unless it is objected to.

Answers must be signed by the person making them and objections must be

signed by the attorney making them or, in the event of an individual representing

himself or herself, the individual making them.

Grounds for an objection to an interrogatory must be stated with specificity. Any

ground that is not stated in a timely objection is waived.

Section 101.622 Subpoenas

Upon request by any party to a contested proceeding, the Clerk will issue

subpoenas for the attendance of witnesses at a hearing or deposition. Subpoena

forms are available at the Board's Chicago office. The person requesting the

subpoena is responsible for completing the subpoena and serving it upon the

witness.

Service of the subpoena must be completed 10 days before the date of the

required appearance. A copy of the subpoena must be filed with the Clerk after

service upon the witness and served upon the hearing officer. Failure to serve

both the Clerk and the hearing officer will render the subpoena null and void.

Service and filing must be in accordance with Subpart C of this Part.

Subpoenas may include a command to produce books, papers, documents, or

other tangible things designated therein and relevant to the matter under

consideration.

The hearing officer, upon motion made promptly and in any event at or before the

time specified in the subpoena for compliance, may quash or modify the subpoena

if it is unreasonable or irrelevant. The hearing officer will rule upon motions to

quash or modify material requested in the subpoena pursuant to subsection (c) of

this Part in accordance with the standards articulated in Section 101.614 of this

Part.

If the witness is not a resident of the State, the witness may be eligible for

reasonable expenses from the party requesting the subpoena.

Each witness subpoenaed by a party under this Section is entitled to receive

witness fees from that party as provided in Section 47 of the Fees and Salaries Act

[55 ILCS 45/47].

Unless the hearing officer orders otherwise, any witness subpoenaed for a

deposition may be required to attend only in the county in which he resides or

maintains an office address. In accordance with Amended Supreme Court Rule

206(d), depositions must be limited to 3hours in length unless the parties by

stipulation agree to a longer time frame or unless the hearing officer orders

otherwise after a showing of good cause. (See Ill. S. Ct. Amended Rule 206(d).)

Failure of any witness to comply with a subpoena will subject the witness to

sanctions under this Part, or the judicial enforcement of the subpoena. The Board

may, upon proper motion by the party requesting the subpoena, request the

Attorney General to pursue such judicial enforcement of the subpoena on behalf

of the Board.

Section 101.624 Examination of Adverse, Hostile or Unwilling Witnesses

Adverse Witnesses. At hearing, upon motion granted by the hearing officer, any

party, or any person for whose immediate benefit the proceeding is prosecuted or

defended, or any officers, directors, managing agents, or foremen of any party

may be called as an adverse witness as allowed by the Code of Civil Procedure.

(Section 2-110Z of the Code of Civil Procedure.) Adverse witnesses may be

examined as if under cross-examination. The party calling the adverse witness

may rebut the testimony and may impeach the witness.

Hostile or Unwilling Witnesses. If the hearing officer determines that any witness

is hostile or unwilling, the witness may be examined by the party calling the

witness as if under cross-examination.

Section 101.626 Information Produced at Hearing

In accordance with Section 10-40 of the IAPA, the hearing officer will admit evidence that is

admissible under the rules of evidence as applied in the civil courts of Illinois, except as

otherwise provided in this Part.

Hearsay. The hearing officer may admit hearsay evidence that is material,

relevant, and would be relied upon by prudent persons in the conduct of serious

affairs, unless such evidence is privileged.

Admissibility of Evidence. When the admissibility of evidence depends upon an

arguable interpretation of substantive law, the hearing officer will admit such

evidence.

Scientific articles and treatises. Relevant scientific or technical articles, treatises,

or materials may be introduced into evidence by a party. Such materials are

subject to refutation or disputation through introduction of documentary evidence

or expert testimony.

Written testimony. Written testimony may be introduced by a party only if the

persons whose written testimony is introduced are available for cross-examination

at hearing.

Admission of business records. A writing or record, whether in the form of any

entry in a book or otherwise made as a memorandum or record of any act,

transaction, occurrence, or event, may be admissible as evidence of the act,

transaction, occurrence, or event. To be admissible, the writing or record will

have been made in the regular course of business, provided it was the regular

course of business to make such a memorandum or record at the time of such 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 admitted to affect the weight of the

evidence, but will not affect admissibility. The term "business," as used in this

subsection (e), includes businesses, professions, occupations, and callings of

every kind.

Prior inconsistent statements. Prior statements made under oath may be admitted

to impeach a witness if the statement is inconsistent with the witness' testimony at

hearing.

Oral and written statements. Oral and written statements from participants may

be taken at hearing in accordance with Section 101.628 of this Part.

Section 101.628 Statements from Participants

Oral statements. The hearing officer may permit a participant, to make oral

statements on the record when time, facilities, and concerns for a clear and

concise hearing record so allow. Such oral statements must be made under oath

and are subject to cross-examination.

Written statements. Any participant may submit written statements relevant to

the subject matter at any time prior to hearing or at hearing. Participants

submitting such a statement will be subject to cross-examination by any party.

Written statements submitted without the availability of cross-examination will be

treated as public comment in accordance with subsection (c) of this Section and

will be afforded lesser weight than evidence subject to cross-examination.

Public Comments or Amicus Curiae Briefs. Participants may file public

comments subject to the requirements of this Section and the hearing officer's

schedule for completion of the record. The Board also allows for the filing of

amicus curiae briefs by non-party participants. Amicus Curiae briefs should be

filed in accordance with Section 101.110 of this Part.

Public comments must be filed within 14 days after the close of the last

hearing unless the hearing officer specifies a different date for submission

of post-hearing comments. However, all public comments must be filed

with the Board no later than 30 days before the decision date, unless the

hearing officer orders otherwise to prevent material prejudice. Consistent

with the burden of proof in a proceeding, the hearing officer may provide

for differing filing deadlines with respect to post-hearing comments by

different persons. Pursuant to hearing officer order, rebuttal public

comments may be submitted.

All public comments must present arguments or comments based on

evidence contained in the record. Such comments may also present legal

argument citing legal authorities.

Comments must be filed with the Board. Comments will be distributed to

parties and the hearing officer by the Clerk’s office.

SUBPART G: ORAL ARGUMENT

Section 101.700 Oral Argument

The Board may hear oral argument upon written motion of a party or the Board's

own motion. Such oral argument will be transcribed by a stenographer provided

by the Board and become part of the record of the proceedings before the Board.

The purpose of oral argument is to address legal questions. Oral argument is not

intended to address new facts.

Motions for oral argument must contain arguments supporting the grant of the

motion for oral argument. In considering a motion for oral argument, the Board

will consider, but is not limited to considering, the uniqueness of the issue or

proceeding and whether the issue or proceeding involves a conflict of law.

In any proceeding with a statutory decision deadline, the Board will deny the

request for oral argument if there is insufficient time to schedule oral argument

and allow time for the Board to issue its decision.

If the Board grants the motion for oral argument, it will issue an order setting

forth a schedule for oral argument that may include a briefing schedule. The brief

will be limited to the issues for which oral argument was granted.

SUBPART H: SANCTIONS

Section 101.800 Sanctions for Failure to Comply with Procedural Rules, Board Orders, or

Hearing Officer Orders

If any person fails to comply with any provision of 35 Ill. Adm. Code 101 through

130 or fails to comply with any order entered by the Board or the hearing officer,

including any subpoena issued by the Board, the Board may order sanctions. The

Board may order sanctions on its own motion, or in response to a motion by a

hearing officer or a party.

Sanctions include, but are not limited to, the following:

Further proceedings may be stayed until the order or rules are complied

with, except in proceedings with a statutory decision deadline.

Proceedings with a statutory decision deadline may be dismissed prior to

the date on which decision is due;

The offending person may be barred from filing any other pleading

relating to any issue to which the refusal or failure relates;

The offending person may be barred from maintaining any particular

claim, counterclaim, third-party complaint, or defense relating to that

issue;

As to claims or defenses asserted in any pleading to which that issue is

material, a judgment by default may be entered against the offending

person or the proceeding may be dismissed with or without prejudice;

Any portion of the offending person's pleadings relating to that issue may

be stricken and, if appropriate, judgment may be entered as to that issue;

The offending person may be required to pay the amount of reasonable

expenses incurred by the other party, as a result of their non-compliance

with a Board rule or Board or hearing officer order; and

The witness may be barred from testifying concerning that issue.

In deciding what sanction to impose the Board will consider factors including: the

relative severity of the refusal or failure to comply; the past history of the

proceeding; the degree to which the proceeding has been delayed or prejudiced;

and the existence or absence of bad faith on the part of the offending party or

person.

Section 101.802 Sanctions for Abuse of Discovery Procedures

The Board or the hearing officer may order that information obtained through abuse of discovery

procedures be suppressed. If a person willfully obtains or attempts to obtain information by an

improper discovery method, willfully obtains or attempts to obtain information to which he is not

entitled, or otherwise abuses discovery rules, the Board or hearing officer may enter any order

provided for in this Part.

SUBPART I: REVIEW OF FINAL BOARD OPINIONS AND ORDERS

Section 101.902 Motions For Reconsideration

In ruling upon a motion under this Section, the Board will consider factors including new

evidence, a change in the law, or any other reason to conclude that the Board's decision was in

error. (See also Section 101.520 of this Part.)

Section 101.904 Relief from and Review of Final Opinions and Orders

Upon its own motion or motion of any party, the Board may correct clerical

mistakes in orders or other parts of the record and errors therein arising from

oversight or omission. Such mistakes may be so corrected by the Board before

the appeal is docketed in the appellate court. Thereafter, while the appeal is

pending, such mistakes may be corrected only with leave of the appellate court.

Any corrected order will be mailed to all parties and participants in that

proceeding.

On written motion, the Board may relieve a party from a final order entered in a

contested proceeding, for the following:

Newly discovered evidence that existed at the time of hearing and that by

due diligence could not have been timely discovered;

Fraud (whether intrinsic or extrinsic), misrepresentation, or other

misconduct of an adverse party; or

Void order, such as an order based upon jurisdictional defects.

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 oath or affidavit or other

appropriate showing as to matters not of record. All parties or participants in the

proceeding must be notified by the movant as provided by Section 101.304 of this

Part.

A motion under subsection (b) of this Section must be filed with the Board within

one year after entry of the order except that a motion pursuant to subsection (b)(3)

of this Section must be filed within a reasonable time after entry of the order.

Any response to a motion under this Section must be filed within 14 days after the

filing of the motion.

Section 101.906 Judicial Review of Board Orders

Pursuant to Sections 29 and 41 of the Act, Supreme Court Rule 335, and Section

10-50 of the APA, judicial review of final Board orders is available from the

appellate court.

For purposes of judicial review, final Board orders are appealable as of the date of

service by the Board upon the appealing party.

The procedure for stay of any final Board order during appeal will be as provided

in Rule 335 of the Rules of the Supreme Court of Illinois. (Ill. S.Ct.Rule 335.)

Section 101.908 Interlocutory Appeal

Upon motion of any party the Board may consider an interlocutory appeal in accordance with

Supreme Court Rule 308. (Ill. S.Ct.Rule 308.)

TITLE 35:

ENVIRONMENTAL PROTECTION

SUBTITLE A: GENERAL PROVISIONS

CHAPTER I: POLLUTION CONTROL BOARD

PART 102

REGULATORY AND INFORMATIONAL HEARINGS AND PROCEEDINGS

SUBPART A: GENERAL PROVISIONS

Section

102.100 Applicability

102.102 Severability

102.104 Definitions

102.106

Types of Regulatory Proposals

102.108 Public

Comments

102.110

Waiver of Requirements

102.112 Other

Proceedings

SUBPART B: REGULATIONS OF GENERAL APPLICABILITY, RESOURCE

CONSERVATION AND RECOVERY ACT (RCRA) AMENDMENTS, AND SITE-SPECIFIC

REGULATIONS

Section

102.200

Proposal for Regulations of General Applicability

102.202

Proposal Contents for Regulations of General Applicability

102.204

Proposal of RCRA Amendments

102.206

Notice of Site-Specific RCRA Proposals

102.208

Proposal for Site-Specific Regulations

102.210

Proposal Contents for Site-Specific Regulations

102.212 Dismissal

SUBPART C: CLEAN AIR ACT AMENDMENTS (CAAA) FAST TRACK RULEMAKING

Section

102.300 Applicability

102.302 Agency

Proposal

102.304 Hearings

102.306 Prefiled

Testimony

SUBPART D: SERVICE AND FILING OF DOCUMENTS, MOTIONS, PRODUCTION OF

INFORMATION, SUBPOENAS, PREHEARING CONFERENCES, AND HEARINGS

Section

102.400

Service and Filing of Documents

102.402

Motions, Production of Information, and Subpoenas

102.404

Initiation and Scheduling of Prehearing Conferences

102.406

Purpose of Prehearing Conference

102.408 Prehearing

Order

102.410

Authorization of Hearing

102.412

Scheduling of Hearings

102.414

Hearings on the Economic Impact of New Proposals

102.416

Notice of Hearing

102.418 Record

102.420

Authority of the Hearing Officer

102.422

Notice and Service Lists

102.424

Prehearing Submission of Testimony and Exhibits

102.426 Admissible

Information

102.428

Presentation of Testimony and Order of Hearing

102.430

Questioning of Witnesses

SUBPART E: CERTIFICATION OF REQUIRED RULES

Section

102.500 Agency

Certification

102.502

Challenge to Agency Certification

102.504 Board

Determination

SUBPART F: BOARD ACTION

Section

102.600

Revision of Proposed Regulations

102.602

Adoption of Regulations

102.604

First Notice of Proposed Regulations

102.606

Second Notice of Proposed Regulations

102.608

Notice of Board Final Action

102.610

Adoption of Identical In Substance Regulation

102.612

Adoption of Emergency Regulations

102.614

Adoption of Peremptory Regulations

SUBPART G: MOTION FOR RECONSIDERATION AND APPEAL

Section

102.700

Filing of Motion for Reconsideration

102.702

Disposition of Motions for Reconsideration

102.704

Correction of Publication Errors

102.706 Appeal

AUTHORITY: Implementing Sections 5, 7.2, 13(c), 13.3, 17.5, 22.4(a), 22.4(d), 22.7(d), 27, 28,

28.2, 29, and 41 of the Environmental Protection Act (Act) [415 ILCS 5/5, 7.2, 13(c), 13.3, 17.5,

22.4(a), 22.4(d), 22.7(d), 27, 28, 28.2, 29, and 41] and authorized by Sections 26 and 27 of the

Act [415 ILCS 5/26 and 27].

SOURCE: Originally adopted as Chapter 1: Procedural Rules, Part II: Regulatory and Other

Nonadjudicative Hearings and Proceedings, in R70-4, 1 PCB 43, October 8, 1970; codified at 6

Ill. Reg. 8357; amended in R84-10 at 9 Ill. Reg. 1398, effective January 16, 1985; Part repealed,

new Part adopted in R88-5(B) at 14 Ill. Reg. 9210, effective May 24, 1990; amended in R90-16

at 14 Ill. Reg. 20472, effective December 11, 1990; old Part repealed, new Part adopted in R00-

20 at 24 Ill. Reg.______, effective____.

SUBPART A: GENERAL PROVISIONS

Section 102.100 Applicability

This Part applies to all regulatory and informational hearings and proceedings,

and must be read in conjunction with 35 Ill. Adm. Code 101. Hearings conducted

pursuant to this Part are quasi-legislative in nature and the purpose of such

hearings is to gather information and comments to guide the Board in its

rulemaking process. All testimony must be sworn.

All persons taking part in these hearings are participants, rather than parties as in

contested cases. Non-attorneys may represent themselves and others at regulatory

hearings and may ask questions of witnesses or give testimony or comment as

allowed by the hearing officer.

Section 102.102 Severability

If any provision of this Part or its application to any person is adjudged invalid, such

adjudication does not affect the validity of this Part as a whole or of any portion not adjudged

invalid.

Section 102.104 Definitions

For the purpose of this Subpart, words and terms will have the meaning as defined in 35 Ill.

Adm. Code 101.Subpart B unless otherwise provided, or unless the context clearly indicates

otherwise.

Section 102.106 Types of Regulatory Proposals

The Act provides for 4 types of regulatory proposals:

Identical in substance rulemakings, as defined in Sections 7.2, 13.3 , 28.2

and 28.4 of the Act [415 ILCS 5/7.2, 13.3., 28.2, and 28.4];

Federally required rules, as defined in Section 28.2 of the Act [415 ILCS

5/28.2];

Other regulatory proposals, both of general applicability and not of

general applicability as allowed by Sections 26, 27 and 28 of the Act [415

ILCS 5/26, 27, and 28]; and

Clean Air Act fast track rulemakings as defined by Section 28.5 of the Act

[415 ILCS 5/28.5].

The IAPA provides for three types of rulemakings:

General rulemaking pursuant to Section 5-40 of the IAPA [5 ILCS 100/5-

40];

Emergency rulemaking pursuant to Section 5-45 of the IAPA [5 ILCS

100/5-45]; and

Peremptory rulemaking pursuant to Section 5-50 of the IAPA [5 ILCS

100/5-50].

Section 102.108 Public Comments

The Board will accept written comments from any person concerning a regulatory

proposal during the first notice period as defined in Section 102.604 of this Part.

However, when adopting identical-in-substance regulations, the Board will accept

written comments from USEPA and other persons for at least 45 days after the

date of publication of the proposed regulations or amendments in the Illinois

Any person may submit written comments on any proposal within 14 days after

the receipt of the hearing transcript in Board offices unless otherwise specified by

the hearing officer or the Board.

Comments must be filed with the Clerk and served in accordance with 35 Ill.

Adm. Code 101.Subpart C, upon the Environmental Protection Agency (Agency),

Department of Natural Resources (DNR), the Attorney General (if a participant),

the proponent, and the participants on any service list established by the hearing

officer pursuant to Section 102.422 of this Part unless otherwise specified by the

hearing officer or the Board.

Comments that are not timely filed or properly served will not be considered,

except as allowed by the hearing officer or the Board to prevent material

prejudice.

Section 102.110 Waiver of Requirements

The Board may waive any of the non-statutory requirements of this Part upon a showing by a

person that a particular requirement would create an undue burden on that person such as where

the burden of compliance imposes financial costs that would preclude further participation, or

where compliance would result in the provision of information already provided in that

proceeding.

Section 102.112 Other Proceedings

Pursuant to Section 5(d) of the Act or other applicable law, the Board may conduct such other

noncontested or informational hearings as may be necessary to accomplish the purposes of the

Act or other applicable law. Such hearings may include, but are not limited to, inquiry hearings

to gather information on any subject the Board is authorized to regulate.

SUBPART B: REGULATIONS OF GENERAL APPLICABILITY, RESOURCE

CONSERVATION AND RECOVERY ACT (RCRA) AMENDMENTS, AND

SITE-SPECIFIC REGULATIONS

Section 102.200 Proposal for Regulations of General Applicability

Any person may submit a regulatory proposal for the adoption, amendment, or repeal of a

regulation. The original and 9 copies of each proposal must be filed with the Clerk and one copy

each with the Attorney General, the Agency, and DNR.

Section 102.202 Proposal Contents for Regulations of General Applicability

Each proponent must set forth the following in its proposal:

The language of the proposed rule, including any existing regulatory language

proposed to be amended or repealed. Language being added must be indicated by

underscoring and language being deleted must be indicated by strike-outs. The

proposed rule must be drafted in accordance with 1 Ill. Adm. Code 100.Subpart

A statement of the reasons supporting the proposal, including a statement of the

facts that support the proposal, and a statement of the purpose and effect of the

proposal, including environmental, technical, and economic justification. The

statement must discuss the applicable factors listed in Section 27(a) of the Act.

The statement must include, to the extent reasonably practicable, all affected

sources and facilities and the economic impact of the proposed rule;

A synopsis of all testimony to be presented by the proponent at hearing;

Copies of any material to be incorporated by reference within the proposed rule

pursuant to Section 5-75 of the IAPA [5 ILCS 100/5-75];

Proof of service upon all persons required to be served pursuant to Section

102.422 of this Part;

Unless the proponent is the Agency or DNR, a petition signed by at least 200

persons, pursuant to Section 28 of the Act and Section 102.410(b) of this Part;

When the Agency proposes a rule it believes is federally required, a certification

in accordance with Section 102.500 of this Part;

When the proponent is a State agency, a diskette containing the information

required under subsection (a) of this Section; and

When any information required under this Section is inapplicable or unavailable,

a complete justification for such inapplicability or unavailability.

Section 102.204 Proposal of RCRA Amendments

In addition to satisfying the requirements of Section 102.202 of this Part, any proposal to amend

the RCRA regulations must:

Indicate whether it is made pursuant to the provisions of Section 22.4(a), 22.4(b)

or 22.4(c) of the Act;

Include a listing of all amendments to the corresponding federal regulations since

the period encompassed by the last amendment of the Board's RCRA rules; and

Include a certificate of service indicating that a copy of the proposal has been

served on the USEPA. Service must be made at the following address:

Director, Waste Management Division

USEPA, Region V

77 W. Jackson Street

Chicago, Illinois 60604

Section 102.206 Notice of Site-Specific RCRA Proposals

Public notice of hearings on site-specific RCRA proposals will be given at least

30 days before the date of the hearing.

In addition to the requirements of Section 28 of the Act, the Board, at a minimum,

will give notice of hearings on a site-specific RCRA proposal to the following

persons:

Federal agencies as designated by the USEPA;

Illinois Department of Transportation;

Illinois Department of Natural Resources;

Illinois Department of Public Health;

The Governor of any other state adjacent to the county in which the

facility is located; and

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 28 of the Act and

Section 102.416 of this Part, the Board will give notice by broadcast over at least

one radio station in the area of the facility containing the information required by

subsections (d)(2) and (d)(4) through (d)(8) of this Section.

A hearing notice on a site-specific RCRA proposal will include the following

information:

The address of the Board office;

Name and address of the proponent and, if different, of the facility for

which the site-specific rule is sought;

A brief description of the business conducted at the facility and the

activity described in the proposal;

A description of the relief requested in the proposal;

Name, address and telephone number of the Clerk of the Board, from

whom interested persons may obtain further information, including copies

of the proposal;

The name, address and telephone number of the Agency's representative in

the rulemaking;

A description of any written comment period or a statement that a

comment period will be established in the future;

A statement that the record in the rulemaking is available at the Board

office for inspection, except those portions that are claimed or determined

to be trade secrets, and that procedures are available whereby disclosure

may be sought by the public. Any such claim must be made in accordance

with 35 Ill. Adm. Code 130;

A statement that site-specific rules may be adopted pursuant to 415 ILCS

5/27 et seq. and Section 102.202 of this Part, and a citation to the Board

regulations sought to be modified; and

10)

Any additional information considered necessary or proper.

Section 102.208 Proposal for Site-Specific Regulations

Any person may submit a written proposal for the adoption, amendment or repeal of a

substantive site-specific regulation. The original and 9 copies of each proposal must be filed

with the Clerk of the Board and one copy each served upon the Agency, DNR, and the Attorney

General.

Section 102.210 Proposal Contents for Site-Specific Regulations

Proponents of site-specific regulations other than those relating to RCRA must comply with the

requirements of Section 102.202 of this Part in addition to the following requirements:

The proposal must set forth the language of the proposed site-specific rule,

including any existing regulatory language proposed to be amended or repealed.

Language being added must be indicated by underscoring and language being

deleted must be indicated by strike-outs. If the proposed site-specific rule seeks

an exemption from or modification of a rule of general applicability, the proposed

site-specific rule may not be proposed as an amendment to the general rule.

Instead, the site-specific rule must be proposed as its own section;

In the event that the proposed rule would replace the applicability of a general

rule to the pollution source, the proposal must specify, with supporting

documentation, the reasons why the general rule is not technically feasible or

economically reasonable for the person or site. Such documentation must include

relevant information on other similar persons' or sites' ability to comply with the

general rule;

The proposal must describe the person or site for which regulatory change is

sought and the area affected by the proposed change. The proposal must also

include a detailed assessment of the environmental impact of the proposed

change, and include a description of available treatment or control options;

The proposal must demonstrate that the Board may grant the requested relief

consistent with federal law governing the subject of the proposal (e.g.

Underground Injection Control program, Resource Conservation and Recovery

Act, etc.);

When the proponent is a State agency, the proponent also must provide a diskette

containing the information required under subsection (a) of this Section; and

When any information required under this Section is inapplicable or unavailable,

the proposal must provide a complete justification for such inapplicability or

unavailability.

Section 102.212 Dismissal

Failure of the proponent to satisfy the content requirements for proposals under

this Subpart or failure to respond to Board requests for additional information will

render a proposal subject to dismissal for inadequacy.

Failure of the proponent to pursue disposition of the proposal in a timely manner

will render a proposal subject to dismissal. In making this determination, the

Board will consider factors including the history of the proceeding and the

proponent's compliance with any Board or hearing officer orders.

A proposal will be dismissed for inadequacy in cases in which the Board, after

evaluating the proposal, cannot determine the statutory authority on which the

proposal is made. In all such cases, a statement informing the proponent of the

Board's basis for dismissal will be made. Dismissal of a proposal will not bar a

proponent from re-submitting a proposal in the absence of any deadline imposed

by applicable law or Board regulations.

Any person may file a motion challenging the statutory authority or sufficiency of

the proposal pursuant to 35 Ill. Adm. Code 101.Subpart E.

SUBPART C: CLEAN AIR ACT AMENDMENTS (CAAA) FAST TRACK RULEMAKING

Section 102.300 Applicability

This subpart applies to

the adoption of rules proposed by the Agency and required to be adopted

by the State under the Clean Air Act as amended by the Clean Air Act Amendments of 1990

(CAAA) A “fast-track” rulemaking proceeding is a proceeding to promulgate a rule that the

CAAA requires to be adopted. For purposes of this Section, “requires to be adopted” refers

only to those regulations or parts of regulations for which the United States Environmental

Protection Agency is empowered to impose sanctions against the State for failure to adopt such

rules

. [415 ILCS 5/28.5(a), (c)]

Section 102.302 Agency Proposal

When proposing a regulation required by the CAAA, the Agency must meet the

following requirements:

The proposal must set forth the proposed rule, which must be drafted in

accordance with 1 Ill. Adm. Code 100.Subpart C;

The proposal must have a cover sheet that prominently states that the

Agency proposes the rule under Section 28.5 of the Act,

unless another

provision of this Act specifies the method for adopting a specific rule

[415

ILCS 5/28.5(c)];

The proposal must

clearly identify the provisions and portions of the

federal statute, regulations, guidance, policy statement, or other

documents upon which the rule is based

[415 ILCS 5/28.5(e)(3)];

The proposal must include

supporting documentation for

the rule that

summarizes the basis of the rule

[415 ILCS 5/28.5(e)(4)];

The proposal must

describe in general

the alternative selected and the

basis for the alternative

[415 ILCS 5/28.5(e)(5)];

The proposal must summarize the economic and technical data that the

Agency relied upon in drafting the proposed rule;

The proposal must include a list of any documents that the Agency

directly relied upon in drafting the proposed rule or that the Agency

intends to rely upon at hearing, and copies of the documents;

The proposal must set forth

a description of the geographical area to which

the rule is intended to apply, a description of the process or processes

affected, and identification by classes of the entities expected to be

affected, and a list of sources expected to be affected by the rule to the

extent known to the Agency

[415 ILCS 5/28.5(e)(8)]; and

The proposal must include a diskette containing the information required

under subsection (a)(1) of this Section.

If the proposal fails to meet any of the requirements of subsection (a) of this

Section, the Board may decide not to accept the proposal for filing.

Section 102.304 Hearings

Within 14 days after the receipt of a rule the Board will file the proposed rule for

first notice and schedule all hearings. Additionally, the Board will send notice to

the appropriate newspaper of the scheduled hearing. Such notice will be

published by the newspaper at least 30 days prior to the date of the hearing.

The first hearing will be held within 55 days after receipt of the rule and is

reserved for the Agency’s testimony and witnesses.

Within 7 days after the first hearing, any person may request a second hearing.

Such a request may be made on the record at the first hearing or in writing. If

done in writing it must be filed with the Board and served upon the service list.

A second hearing will be held to hear comments on Department of Commerce and

Community Affairs’ economic impact study of the proposed rules.

At least 20

days before the hearing, the Board shall notify the public of the hearing and make

the economic impact study, or the Department of Commerce and Community

Affair’s explanation for not producing an economic impact study, available to the

public. Such public hearing may be held simultaneously or as part of any Board

hearing considering such new rules.

[415 ILCS 5/27(b)] See also Section

102.414 of this Part.

The third hearing shall be scheduled to commence within 14 days after the first

day of the second hearing and shall be devoted solely to any Agency response to

the material submitted at the second hearing and to any response by other

parties.

[415 ILCS 5/28.5(g)]

In order to cancel the third hearing, the Agency

must state on the record at hearing that it and the affected entities are in

agreement or notify the Board and the service list in writing.

In order to meet statutory deadlines, hearing dates may be chosen by the assigned

Board member and hearing officer without consultation with the participants.

CAAA hearings need only be held in one affected area of the State.

Section 102.306 Prefiled Testimony

The hearing officer will close the service list for purposes of prefiled testimony at

4:30 p.m. 16 days before the date of hearing.

Ten days before the hearing, copies of prefiled testimony must be filed with the

Clerk and served upon all people who are on the service list as closed pursuant to

subsection (a) of this Section.

The Board may grant a waiver of the pre-filing deadline or service requirement

for good cause.

Participants who do not pre-file their testimony will only be allowed to testify if

time remains in that hearing day. The hearing will not be continued from day to

day to accommodate participants who do not pre-file.

SUBPART D: SERVICE AND FILING OF DOCUMENTS, MOTIONS, PRODUCTION OF

INFORMATION, SUBPOENAS, PREHEARING CONFERENCES, AND HEARINGS

Section 102.400 Service and Filing of Documents

All documents must be served and filed in accordance with 35 Ill. Adm. Code 101.Subpart C.

Section 102.402 Motions, Production of Information, and Subpoenas

Motion practice, production of information and the issuance of subpoenas in regulatory

proceedings is governed by 35 Ill. Adm. Code 101. All motions and responses must be filed

with the Board and served upon the hearing officer, the proponent, the Agency, and all persons

on any service list established pursuant to subsection 102.422(b) of this Part.

Section 102.404 Initiation and Scheduling of Prehearing Conferences

To the extent consistent with any deadline for adoption of any regulations

mandated by State or federal law, prior to initiating any hearing on a regulatory

proposal, the Board may assign a qualified hearing officer who may schedule a

prehearing conference between the proponents and any or all of the potentially

affected persons

. [415 ILCS 5/27(d)]

The hearing officer may schedule a prehearing conference on his or her own

motion, or on the motion of the proponent or any potentially affected person. A

“potentially affected person” is any person, as defined by the Act and 35 Ill. Adm.

Code 101.202, who demonstrates any nexus to the source of the pollutant to be

controlled by the proposal or who shows some impact from the pollutant to be

controlled by the proposal. A motion to schedule a prehearing conference must

be directed to the hearing officer.

In accordance with Section 27(d) of the Act, the notice requirements of Section

28 of the Act and Section 102.416 will not apply to such prehearing conferences.

However, the hearing officer will give notice to the proponents and any person

who is included on the notice list of that proposal.

Section 102.406 Purpose of Prehearing Conference

The purpose of a prehearing conference is:

To maximize understanding of the intent and application of the proposal;

To reach agreement on aspects of the proposal, if possible; and

To attempt to identify and limit the issues of disagreement among the participants

to promote efficient use of time at hearing.

[415 ILCS 5/27(d).]

Section 102.408 Prehearing Order

No record need be kept of the prehearing conference, nor shall any participant or

the Board be bound by any discussions conducted at the prehearing conference

[415 ILCS 5/27(d)]

Notwithstanding subsection (a) of this Section, with the consent of all participants

in the prehearing conference, the hearing officer may enter a prehearing order

delineating issues to be heard, agreed facts, and other matters.

If the participants in the prehearing conference agree to have a prehearing order

entered pursuant to subsection (b) of this Section, the hearing officer may require

that those participants furnish a draft of a proposed order setting forth the

substance of the agreements reached at the prehearing conference. The hearing

officer will enter that order if he agrees that it sets forth the substance of the

agreement. The order will identify which participants have agreed to the

substance of the order.

A prehearing order will not be binding on non-participants in the prehearing

conference. [415 ILCS 5/27(d)]

Section 102.410 Authorization of Hearing

The Clerk will assign a docket number to any proposal. All regulatory proposals

will be placed on the Board agenda for determination of adequacy under the

applicable law and this Part. The proponent must cure any inadequacy identified

by Board order before the proposal will proceed to hearing.

The Board will schedule a hearing on a proposal if it finds that such proposal is

supported by an adequate statement of reasons, is accompanied by a petition

signed by at least 200 persons, is not plainly devoid of merit and does not deal

with a subject on which a hearing has been held within the preceding six months.

[415 ILCS 5/28(a)]

In accordance with Section 28(a) of the Act, if a proposal is made by the Agency,

or DNR

, the Board shall schedule a public hearing without regard to the above

conditions

in subsection (b) of this Section as soon as practicable. [415 ILCS

5/28(a)]

Pursuant to Section 28 of the Act,

the Board

may also in its discretion schedule a

public hearing upon any proposal without regard to the above conditions

subsection (b) of this Section. [415 ILCS 5/28(a)]

If the Board determines that a proposal meets the requirements of subsection (b)

of this Section or is otherwise adequate under applicable law, and if any required

filing fee has been paid, the Board will issue an order accepting the proposal for

hearing. Such an order will be construed as starting the time clock for purposes

of any first notice publication deadlines pursuant to Sections 28.2 and 28.5 of the

Act. [415 ILCS 5/28(a)]

When the Board authorizes a hearing, the Chairman will designate one or more

attending Board members and a qualified hearing officer. A member of the Board

may serve as hearing officer if otherwise qualified.

The Board may consolidate proposals for hearing or decision.

Section 102.412 Scheduling of Hearings

Except as otherwise provided by applicable law,

no substantive regulation shall

be adopted, amended, or repealed until after a public hearing within the area of

the State concerned

. In the case of site-specific rules, a public hearing will be

held in the affected county

Except as otherwise provided by applicable law,

the case of state-wide regulations, hearings shall be held in at least two areas

[415 ILCS 5/28(a)]

If the proponent or any participant wishes to request a hearing beyond the number

of hearings specified by the hearing officer, that person must demonstrate, in a

motion to the hearing officer, that failing to hold an additional hearing would

result in material prejudice to the movant. The motion may be oral, if made at

hearing, or written. The movant must show that he exercised due diligence in his

participation in the proceeding and why an additional hearing, as opposed to the

submission of written comments pursuant to Section 102.108 of this Part, is

necessary.

Section 102.414 Hearings on the Economic Impact of New Proposals

In accordance with Section 27(b) of the Act, except as otherwise provided by

applicable law, before the adoption of any proposed rules,

the Board shall request

that the Department of Commerce and Community Affairs conduct a study of the

economic impact of the proposed rules. The Board shall conduct at least one

public hearing on the economic impact of those new rules

At least 20 days

before the hearing, the Board shall notify the public of the hearing and make the

economic impact study, or the Department of Commerce and Community Affair’s

explanation for not producing an economic impact study, available to the public.

Such public hearing may be held simultaneously or as a part of any Board

hearing considering such new rules. In adopting any such new rule, the Board

shall, in its written opinion, make a determination, based upon the evidence in the

public hearing record, including, but not limited to the economic impact study, as

to whether the proposed rule has any adverse economic impact on the people of

the State of Illinois.

[415 ILCS 5/27(b)]

If information of the economic impact of a proposed regulation is given at a

general hearing on the proposal, the Board need not hold a special hearing on

only the economic impact.

Section 102.416 Notice of Hearing

The hearing officer will set a time and place for hearing. The Clerk will give

notice of the date of the hearing as follows or as otherwise required by applicable

law:

By notice in the Board's Environmental Register and on the Board’s Web

site;

At least 20 days prior to the scheduled date of the hearing the Board shall

give notice of such hearing by public advertisement in a newspaper of

general circulation in the area of the state concerned

. The notice will

include,

the date, time, place and purpose of such hearing

[415 ILCS

5/28(a)]; and

Where required by federal law, including air pollution and RCRA

proposals, newspaper notice will be published at least 30 days prior to the

hearing date.

In accordance with Section 28(a) of the Act or as otherwise required by

applicable law, the Clerk will give notice by mail to the proponent and to all

persons who are on the notice list in accordance with Section 102.422 of this Part.

Hearings that are continued on the hearing record for a period of 45 days or less

do not require notice that complies with subsections (a) and (b) of this Section.

Section 102.418 Record

All oral testimony will be recorded stenographically. The proposal and all attachments, the

transcript, all written testimony, all exhibits admitted in connection with the hearing, and all

written submissions filed with the Clerk under Section 102.108 of this Part before or after the

close of the hearing will constitute the record.

Section 102.420 Authority of the Hearing Officer

The hearing officer will have the same authorities in rulemaking proceedings as those granted for

adjudicatory matters in 35 Ill. Adm. Code 101.Subpart F.

Section 102.422 Notice and Service Lists

The hearing officer will maintain a notice list for each regulatory proceeding.

The notice list will consist of those persons who have furnished their names and

addresses to the hearing officer or the Clerk’s office concerning the proposal.

Notice of all Board actions and hearing officer orders will be given to all persons

included on the notice list.

The hearing officer may establish a service list for any regulatory proceeding, in

addition to the notice list. The hearing officer may direct participants to serve

copies of all documents upon the persons listed on the service list. In deciding

whether to establish a service list, the hearing officer will consider factors

including the complexity of the proceeding and the number of participants. For

purposes of fast-track rulemakings under Section 28.5 of the Act, participants of

record will be the individuals on the service list.

The Board will not accept general requests to appear on all notice lists. Interested

persons must submit their names for each proceeding in accordance with

subsection (a) of this Section.

Section 102.424 Prehearing Submission of Testimony and Exhibits

The proponent must submit all written testimony and any related exhibits 21 days

prior to the hearing at which the witness testifies, unless the hearing officer

directs otherwise to prevent material prejudice or undue delay.

The hearing officer may require the prehearing submission of testimony,

questions, responses, answers, and any related exhibits by the proponent or

participants other than the proponent if the hearing officer determines that such a

procedure will provide for a more efficient hearing.

The original and 9 copies of any pre-submitted testimony, questions, answers,

responses, or exhibits must be filed with the Clerk. The hearing officer, the

Agency, and, if a participant, the Attorney General and DNR must each be served

with one copy of each pre-submitted testimony, questions, answers, responses, or

exhibits. One copy of any pre-submitted testimony, questions, answers,

responses, or exhibits must also be served upon the proponent and each

participant on any service list, unless otherwise specified or limited by the hearing

officer. Such service must be initiated on or before the date that copies are filed

with the Clerk.

All testimony, questions, answers, responses, and exhibits must be served and

submitted in the form required by 35 Ill. Adm. Code 101.Subpart C and labeled

with the docket number of the proceeding, the name of the witness submitting the

material or exhibit, and the title of the material or exhibit.

The proponent and each participant who has pre-submitted testimony, questions,

answers, or responses must bring the number of copies designated by the hearing

officer of that testimony and any exhibits to the hearing.

Testimony submitted prior to hearing will be entered into the record as if read,

unless the hearing officer determines that it will aid public understanding to have

the testimony read. All persons testifying will be sworn and will be subject to

examination. Modifications to previously submitted testimony and exhibits may

be allowed by the hearing officer at hearing provided that such modifications are

either non-substantive in nature or would not materially prejudice another

person’s participation at hearing. Objections to such modifications are waived

unless raised at hearing.

Where prehearing submission of testimony is required pursuant to subsections (a)

and (b) of this Section, any testimony that is not pre-submitted in a timely manner

will be allowed only as time permits pursuant to Section 102.420 of this Part.

Section 102.426 Admissible Information

All information that is relevant and not repetitious or privileged will be admitted by the hearing

officer.

Section 102.428 Presentation of Testimony and Order of Hearing

All witnesses at hearings must be sworn;

Testimony must be in narrative form; and

Proponents must present testimony in support of the proposal first. Any questions

or testimony in support or opposition to the proposal must follow as directed by

the hearing officer.

Section 102.430 Questioning of Witnesses

All witnesses must be subject to questioning by any person. Repetitious, irrelevant, harassing, or

cumulative questioning will be prohibited by the hearing officer. The Board will not consider as

substantive evidence any unsworn information that is presented in the form of a question during

questioning of any witness.

SUBPART E: CERTIFICATION OF REQUIRED RULES

Section 102.500 Agency Certification

When the Agency proposes a rule which it believes to be a required rule,

defined by Section 28.2(a) of the Act

the Agency shall so certify in its proposal,

identifying the federal law to which the proposed rule will respond and the

rationale upon which the certification is based

. [415 ILCS 5/28.2(b)] Such

certification must include a citation to the specific section of the specific federal

law to which the proposed rule will respond.

The Board shall either accept or reject the certification within 45 days and shall

reference the certification in the first notice of the proposal published in the

Illinois Register as provided by the Illinois Administrative Procedure Act.

[415

ILCS 5/28.2(b)]

Section 102.502 Challenge to Agency Certification

If any person wishes to challenge the Agency's certification that a proposed rule is

a required rule, that person must file an objection to that certification within 21

days after the date of the Board's order accepting a proposal for hearing. Such

objection must state the reasons that the objector believes that the proposed rule is

not a required rule, and must include all arguments that the objector wishes the

Board to consider. A copy of the objection must be served upon the Agency and

DNR.

The Agency may file a response to any objection within 14 days after the service

of that objection. No reply by the objector will be allowed, unless the Board

orders otherwise to avoid material prejudice.

No hearing will be held on any objection filed pursuant to this Section.

Section 102.504 Board Determination

The Board will rule upon any objection filed pursuant to this Subpart within 60

days after the date that the Board accepts a proposal for hearing.

In ruling upon an objection to an Agency certification, the Board will consider all

information in the record of that proceeding, including the proposal, the objection,

and the Agency response to the objection. The burden of proof is on the objector.

The Board will give notice of its determination to the objector, the Agency, DNR,

and any person who has asked to be placed on the notice list pursuant to Section

102.422 of this Part for that proposal.

Orders entered pursuant to this Section are interlocutory in nature and may be

appealed only pursuant to 35 Ill. Adm. Code 101.308.

SUBPART F: BOARD ACTION

Section 102.600 Revision of Proposed Regulations

The Board may revise the proposed regulations before adoption upon its own

motion or in response to suggestions made at hearing and in written comments

made prior to second notice. No additional hearing on the revisions need be held.

Unless otherwise provided by applicable law,

the Board may revise the proposed

regulations after hearing in response to objections or suggestions made by the

Joint Committee on Administrative Rules

(JCAR)

pursuant to subsection (b) of

Section 5.40 and subsection (a) of Section 5.110 of the Illinois Administrative

Procedure Act

. The Board may make such revision where it finds:

That such objections or suggestions relate to the statutory authority upon

which the regulation is based, whether the regulation is in proper form, or

whether adequate notice was given; and

That the record before the Board is sufficient to support such a change

without further hearing.

[415 ILCS 5/28(a)]

Section 102.602 Adoption of Regulations

The Board adopts first notice, second notice and final opinions and orders in regulatory matters.

Only the first notice proposal and the final adopted rules are published by the Secretary of State

in accordance with the IAPA. In adopting any new regulation, except a required rule or an

identical in substance regulation or as applicable law otherwise provides,

the Board shall, in its

written opinion, make a determination, based upon the evidence in the public hearing record,

including, but not limited to the economic impact study, as to whether the proposed rule has any

adverse economic impact on the people of the State of Illinois

. [415 ILCS 5/27(b)]

Section 102.604 First Notice of Proposed Regulations

Except when otherwise directed by applicable law, the Board will give first notice of its

proposed adoption, amendment, or repeal of regulations pursuant to Section 5-40 of the IAPA.

[5 ILCS 100/5-40] The first notice period will be at least 45 days, and will begin on the day that

first notice is published in the Illinois Register. The Board will accept written comments from

any person concerning the proposed regulations during the first notice period.

Section 102.606 Second Notice of Proposed Regulations

Except when otherwise directed by applicable law, the Board will give second

notice of its proposed adoption, amendment, or repeal of regulations to JCAR.

The second notice period will begin on the date written notice is received by

JCAR, and will expire 45 days after the date, except as provided by Section 5-40

of the IAPA. [5 ILCS 100/5-40] The Board will accept comments only from

JCAR during the second notice period.

After the beginning of the second notice period, no substantive changes will be

made to the proposed regulation, except in response to objections or suggestions

from JCAR. Such changes will be made pursuant to Section 102.600 of this Part.

Section 102.608 Notice of Board Final Action

The Board will give notice of its final action on a proposal to the proponent, the Agency, DNR,

the Attorney General, and all persons on the notice list. The Board will publish notice of its final

action in the Environmental Register and on its Web site, and will enter a written opinion stating

the reasons in support of its final action.

Section 102.610 Adoption of Identical In Substance Regulation

Prior to adopting Identical In Substance regulations, the Board will:

Make available to the public a proposed opinion and order containing the

text of the rules at the Board’s Chicago Office and on the Board’s Web

site;

Publish the proposed regulations in the Illinois Register;

Serve a copy of the proposed opinion and order on USEPA; and

Receive written comments from USEPA and other persons for at least 45

days after the date of publication in the Illinois Register.

After consideration of comments from USEPA, the Agency, the Attorney General

and the public, the Board will adopt the verbatim text of such USEPA regulations

as are necessary and appropriate for authorization of the program. Except as

provided in Section 7.2 of the Act, the only changes that may be made by the

Board to the federal regulations are those changes that are necessary for

compliance with the Illinois Administrative Code, and technical changes that in

no way change the scope or meaning of any portion of the regulations. [415 ILCS

5/7.2(a)]

As provided by Sections 13(c), 13.3, 17.5, 22.4(a), 22.4(d), and 22.7(d) of the

Act, the provisions of Title VII of the Act and Section 5-35 of the IAPA [5 ILCS

100/5-35] will not apply to Identical In Substance Rulemakings. [415 ILCS

5/13(c), 13.3, 17.5, 22.4(a), 22.4(d), and 22.7(d)]

Section 102.612 Adoption of Emergency Regulations

a) W

hen the Board finds that a situation exists which reasonably constitutes a threat

to the public interest, safety, or welfare, the Board may adopt regulations

pursuant to and in accordance with Section 5-45 of the

IAPA. [415 ILCS 27(c)]

When the Board finds that a severe public health emergency exists, the Board

may, in relation to any proposed regulation, order that such regulation shall take

effect without delay

. The Board will proceed with any required hearings while the

regulation continues in effect. [415 ILCS 5/27(c)]

Section 102.614 Adoption of Peremptory Regulations

When the Board finds that a peremptory rulemaking is necessary and states in

writing its reasons for that finding, the Board will adopt said peremptory

rulemaking upon filing a notice of rulemaking with the Secretary of State

pursuant to Section 5-70 of the IAPA.

Notice of such peremptory rulemaking will be published in the Illinois Register in

accordance with Section 5-50 of the IAPA.

SUBPART G: MOTION FOR RECONSIDERATION AND APPEAL

Section 102.700 Filing of Motion for Reconsideration

Motion for reconsideration or modification of any Board order taking substantive action on a

regulatory proposal must be filed in accordance with 35 Ill. Adm. Code 101.1002. The contents

of such motions are governed by 35 Ill. Adm. Code 101.Subpart J.

Section 102.702 Disposition of Motions for Reconsideration

After commencement of the second notice period, no substantive changes may be

made to a proposed rulemaking unless they are made in response to an objection

or suggestion of JCAR in accordance with Section 5-40(c) of the IAPA. [5 ILCS

100/5-40(c)] Therefore, submission of second notice of a proposal to JCAR will

preclude the Board from revising that proposal in response to a motion for

reconsideration. However, the Board may resubmit a rule for first notice if

necessary to prevent material prejudice.

An adopted rule becomes effective upon the filing of that rule with the Secretary

of State. Therefore, the Board is precluded from allowing a motion for

reconsideration of a final order adopting a rule, if that rule has been filed with the

Secretary of State.

Section 102.704 Correction of Publication Errors

The Board may make technical corrections to proposed or adopted rules, published in the Illinois

No hearing need be held on such corrections.

Section 102.706 Appeal

Any final Board order may be appealed to the appellate court within 35 days of the service of

that order, pursuant to Sections 29 and 41 of the Act. [415 ILCS 5/29 and 41]

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE A: GENERAL PROVISIONS

CHAPTER I: POLLUTION CONTROL BOARD

PART 103

ENFORCEMENT

SUBPART A: GENERAL PROVISIONS

Section

103.100 Applicability

103.102 Severability

103.104 Definitions

103.106 General

SUBPART B: COMPLAINT, REQUEST FOR INFORMAL AGENCY INVESTIGATION,

SERVICE, AND AUTHORIZATION OF HEARING

Section

103.200

Who May File

103.202 Parties

103.204

Notice, Complaint, and Answer

103.206 Adding

Parties

103.208

Request for Informal Agency Investigation

103.210

Notice of Complaint

103.212

Hearing on Complaint

SUBPART C: SETTLEMENT PROCEDURE

Section

103.300

Request for Relief from Hearing Requirement in State Enforcement

Proceeding

103.302

Contents of Proposed Stipulation and Settlement Agreement

103.304

Hearing on Proposed Stipulation and Settlement Agreement

103.306

Board Order on Proposed Stipulation and Settlement Agreement

SUBPART D: PROCEEDINGS INVOLVING RCRA PERMITS

Section

103.400

Purpose, Scope, and Applicability

103.402 Interim

Order

103.404

Joinder of the Agency

103.406

Draft Permit or Statement

103.408

Stipulated Draft Remedy

103.410

Contents of Public Notice

103.412 Public

Comment

103.414 Hearing

103.416

Contents of Board Order

SUBPART E: IMPOSITION OF PENALTIES, FEES, AND COSTS

Section

103.500 Default

103.502

Civil Penalties Method of Payment

AUTHORITY: Implementing Sections 5, 7.2, 13(c), 13.3, 17.5, 22.4(a), 22.4(d), 22.7(d), 27, 28,

28.2, 29, 30, 31, and 41 of the Environmental Protection Act (Act) [415 ILCS 5/5, 7.2, 13(c),

13.3, 17.5, 22.4(a), 22.4(d), 22.7(d), 27, 28, 28.2, 29, 30, 31, and 41] and authorized by Section

26 and 27 of the Act [415 ILCS 5/26 and 27].

SOURCE: Procedural rules adopted at 3 Ill. Reg. 23, p. 96, effective May 29, 1983; repealed by

operation of law effective October 1, 1984; new rules adopted at 9 Ill. Reg. 107, effective

December 21, 1984; Old Part repealed, new Part adopted in R00-20 at 24 Ill. Reg._____,

effective____.

SUBPART A: GENERAL PROVISIONS

Section 103.100 Applicability

This Part applies to proceedings before the Illinois Pollution Control Board

(Board) concerning complaints alleging violations of the Environmental

Protection Act (Act), regulations, and orders of the Board pursuant to Section 31

of the Act.

This Part must be read in conjunction with 35 Ill. Adm. Code 101, which contains

procedures generally applicable to all of the Board’s adjudicatory 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 103.102 Severability

If any provision of this Part or its application to any person is adjudged invalid, such

adjudication does not affect the validity of this Part as a whole or of any portion not adjudged

invalid.

Section 103.104 Definitions

For the purpose of this Part, words and terms will have the meaning as defined in 35 Ill. Adm.

Code 101.Subpart B unless otherwise provided, or unless the context clearly indicates otherwise.

Section 103.106 General

Enforcement proceedings may be initiated by the Attorney General of the State of Illinois or

any

person may file with the Board a complaint. . .against any person allegedly violating this Act or

any rule or regulation thereunder or any permit or term or condition thereof

. [415 ILCS

5/31(d)]. Complaints filed by persons other than the Attorney General or a State’s Attorney will

be known as citizen’s complaints.

SUBPART B: COMPLAINT, REQUEST FOR INFORMAL AGENCY INVESTIGATION,

SERVICE, AND AUTHORIZATION OF HEARING

Section 103.200 Who May File

Pursuant to Section 31 of the Act, an enforcement proceeding may be commenced by any

person.

Section 103.202 Parties

The person initiating an enforcement proceeding must be named the complainant.

Any adverse party must be named the respondent. If the Agency is requested by

the Board to conduct an investigation pursuant to Section 30 of the Act, the Board

will name the Agency as a “party in interest” pursuant to 35 Ill. Adm. Code

101.404.

With leave of the Board and in accordance with Section 103.206 of this Part,

cross-complainants and counter-complainants may appear as parties.

Misnomer of a party is not a ground for dismissal; the name of any party may be

corrected at any time.

Section 103.204 Notice, Complaint, and Answer

An enforcement proceeding will be commenced by the service of a notice and

complaint by certified mail or personal service upon all respondents and the filing

of 1original and 9 copies of the notice and complaint with the Clerk.

The notice must be directed to the respondents notifying them of the filing of the

accompanying complaint and that they may be required to attend a hearing at a

date set by the Board.

The complaint filed by the Attorney General on behalf of the People of the State

of Illinois must be captioned in accordance with 35 Ill. Adm. Code 101.Appendix

A, Illustration A and contain:

A reference to the provision of the Act and regulations which the

respondents are alleged to be violating;

The dates, location, events, nature, extent, duration, and strength of

discharges or emissions and consequences alleged to constitute violations

of the Act and regulations. The complaint must advise respondents of the

extent and nature of the alleged violations to reasonably allow preparation

of a defense; and

A concise statement of the relief which the complainant seeks.

A citizen’s complaint may be filed in conformance with subsection (c) of this

Section.

Except as provided in subsection (f) of this Section, the respondent must file an

answer within 60 days after receipt of the complaint if respondent wants to deny

any allegations in the complaint. All material allegations of the complaint will be

taken as admitted if no answer is filed or if not specifically denied by the answer.

Any facts constituting an affirmative defense must be plainly set forth before

hearing in the answer or in a supplemental answer.

If the respondent timely files a motion under Section 103.212(b) or 35 Ill. Adm.

Code 101.506, the 60-day period to file an answer described in subsection (e) of

this Section will be stayed. The stay will begin when the motion is filed and end

when the Board disposes of the motion.

Any party serving a complaint upon another party must include the following

language in the complaint: “Failure to file an answer to this complaint within 60

days may have severe consequences. Failure to answer will mean that all

allegations in the complaint will be taken as if admitted for purposes of this

proceeding. If you have any questions about this procedure, you should contact

the hearing officer assigned to this proceeding, the Clerk’s Office or an attorney.”

Section 103.206 Adding Parties

If a complete determination of the controversy cannot be had without the presence

of a person who is not already a party to the proceeding, the Board, on the motion

of a respondent, may order the person to be added as a respondent.

The movant must serve, personally or by certified mail, return receipt

requested, the person sought to be added with a copy of the complaint, all

Board orders and hearing officer orders to date, and the motion to add a

respondent. The movant also must serve the complainant with a copy of

the motion to add a respondent.

The person sought to be added and the complainant each may file a

response to the motion to add a respondent within 14 days after the

respective service described in subsection (a)(1) of this Section.

If a complete determination of a controversy cannot be had without the presence

of a person who is not already a party to the proceeding, the Board, on its own

motion, may order the person to be added as a respondent.

If the Board orders a person to be added as a respondent pursuant to subsection

(a) or (b) of this Section, the Board will grant the complainant leave to file an

amended complaint that sets forth a claim in the complainant’s favor against the

added respondent. The complainant must serve the added respondent, personally

or by certified mail, return receipt requested, with the amended complaint. The

amended complaint must meet the requirements of Section 103.204 of this

Subpart. The added respondent may file an answer under Section 103.204(e) of

this Subpart or a responsive motion under Section 103.212(b) of this Subpart or

35 Ill. Adm. Code 101.506. Failure of the complainant to file an amended

complaint in accordance with the Board’s grant of leave to file an amended

complaint under this subsection may subject the complainant’s action to

dismissal.

With respect to a counter-complaint, cross-complaint or third party complaint,

subsections (a), (b) and (c) of this Section apply to adding, as a counter-

respondent, cross-respondent or third-party respondent, respectively, a person

who is not already a party to the proceeding.

If a party wishes to file a counter-complaint, cross-complaint or third-party

complaint, the party must move the Board for leave to file the document. If a

party wishes to file an amendment to a complaint, counter-complaint, cross-

complaint or third-party complaint that sets forth a new or modified claim in its

favor against another person, whether or not the person against whom the claim is

made is already a party to the proceeding, the party who wishes to file the

document must move the Board for leave to file the document.

The document sought to be filed must:

set forth a claim that arises out of the occurrence or occurrences

that are the subject of the proceeding; and

meet the requirements of Section 103.204.

The movant must serve the person against whom the claim is made with a

copy of the document and the motion for leave to file the document. If the

person against whom the claim is made is not already a party to the

proceeding, the movant must serve the person personally or by certified

mail, return receipt requested.

The person against whom the claim is made may file a response to the

motion for leave to file the document within 14 days after the service

described in subsection (e)(2) of this Section.

If the Board grants a motion for leave to file a document pursuant to subsection

(e) of this Section, the time period for the person against whom the claim is made

to file an answer under Section 103.204(e) or a responsive motion under Section

103.212 (b) or 35 Ill. Adm. Code 101.506 will begin when the Board serves the

person with a copy of the Board’s order that grants the motion for leave to file the

document.

Section 103.208 Request for Informal Agency Investigation

To request an informal Agency investigation, a citizen may submit to the Board

an informal investigation request.

The Board will forward the request to the Agency with a copy to the person

requesting the investigation. The Agency must inform the citizen and the Board

of the results of the investigation or its decision not to investigate.

The Board will take no further action upon the request for informal investigation

beyond the action described in subsection (b) of this Section.

Section 103.210 Notice of Complaint

In addition to the notice of hearing requirements set forth in 35 Ill. Adm. Code

101. The Agency, when complainant, must give notice of each complaint and

hearing at least 21 days before the hearing to:

any person that has complained to the Agency respecting the respondent

within the six months preceeding the date of the complaint

;

and

to any person in the county in which the offending activity occurred that

has requested notice of enforcement proceedings

. [415 ILCS 5/31(c)(1)]

Failure to comply with the provisions of this Section may not be used as a defense

to an enforcement proceeding, but any person adversely affected by such failure

of compliance may upon motion to the hearing officer have the hearing postponed

if prejudice is shown.

Section 103.212 Hearing on Complaint

Any person may file with the Board a complaint . . . against any person allegedly

violating this Act or any rule or regulation thereunder or any permit or term or

condition thereof

. Such a complaint is known as a citizen’s complaint. When the

Board receives a citizen’s complaint,

unless the Board determines that such

complaint is duplicitous or frivolous, it shall schedule a hearing

. [415 ILCS

5/31(d)] The definition for duplicitous and frivolous can be found at 35 Ill. Adm.

Code 101.Subpart B.

Motions made by respondents alleging that a citizen’s complaint is duplicitous or

frivolous must be filed no later than 30 days following the date of service of the

complaint upon the respondent. Motions under this subsection may be made only

with respect to citizen’s enforcement proceedings. Timely filing the motion will,

pursuant to Section 103.204(f) of this Subpart, stay the 60 day period for filing an

answer to the complaint.

The Board will automatically set for hearing all complaints filed by the Attorney

General or a State’s Attorney on behalf of the People of the State of Illinois.

The Board in its discretion may hold a hearing on the violation and a separate

hearing on the remedy.

SUBPART C: SETTLEMENT PROCEDURE

Section 103.300 Request for Relief from Hearing Requirement in State Enforcement Proceeding

When a complaint has been filed on behalf of the Agency or by the People of the

State of Illinois, the parties may file with the Board a proposed stipulation and

settlement agreement accompanied by a request for relief from the requirement of

hearing pursuant to Section 31(c)(2) of the Act. [415 ILCS 5/31(c)(2)] The

proposed stipulation and settlement agreement must conform to the statement

required for settlement submissions at hearing in Section 103.302 of this Part.

Unless the Board, in its discretion, concludes that a hearing will be held, the

Board will cause notice of the proposed stipulation and settlement, and request for

relief to be published and sent in the same manner as is required for hearing, by

the Clerk’s office. The notice will include a statement that any person may file

with the Clerk of the Board a written demand for a hearing within 21 days after

publication of the notice. Such written demand for hearing must clearly state that

a public hearing is requested and should indicate the assigned Board Docket

number and respondent’s name in the matter.

If any person files a timely written demand for a hearing, the Board will deny the

request for relief from a hearing and will hold a hearing in accordance with the

notice provisions of Section 31(c)(1) of the Act. [415 ILCS 5/31(c)(2)]

If a hearing is scheduled pursuant to subsection (c) of this Section, the

complainant(s) do not have to present a

prima facie case before the hearing

officer. A copy of the proposed stipulation and settlement will be entered into

and presented for the record.

1) A

ll such hearings shall be open to the public, and any person may submit

written statements to the Board in connection with the subject thereof. In

addition, the Board may permit any person to offer oral testimony

. [415

ILCS 5/32]

In addition to their statutory participation rights, members of the public

present at the hearing may participate as provided in 35 Ill. Adm. Code

101.110.

Section 103.302 Contents of Proposed Stipulation and Settlement Agreement

No proceeding pending before the Board will be disposed of or modified without an order of the

Board. A proposed stipulation and settlement agreement must contain a written statement,

signed by the parties or their authorized representatives, outlining the nature of, the reasons for,

and the purpose to be accomplished by the settlement. Such written statement must include:

A full stipulation of all material facts pertaining to the nature, extent, and causes

of the alleged violations;

The nature of the relevant parties' operations and control equipment;

The character and degree of injury to, or interference with the protection of the

health, general welfare and physical property of the people

; [415 ILCS

5/33(c)(i)]

Details as to future plans for compliance, including a description of additional

control measures and the dates for their implementation, if any; and

The proposed penalty, if any.

Section 103.304 Hearing on Proposed Stipulation and Settlement Agreement

When the parties submit a proposed stipulation and settlement agreement to the hearing officer at

hearing, or when the Board orders that a hearing be held in accordance with Section 103.300(c)

of this Part, the hearing officer will conduct a hearing in which interested persons may make

statements with respect to the nature of the alleged violation and its impact on the environment,

together with their views on the proposed stipulation and settlement agreement. Such statements

must be in accordance with 35 Ill. Adm. Code 101.628.

Section 103.306 Board Order on Proposed Stipulation and Settlement Agreement

The Board will consider such proposed settlement and stipulation agreement and

the hearing record. The Board may accept, suggest revisions in, reject the

proposed settlement and stipulation agreement, or direct further hearings as it

deems appropriate. Where a National Pollutant Discharge Elimination System

(NPDES) permit is involved in the settlement, notice of settlement must be

published in the Environmental Register at least 30 days prior to such settlement.

If the Board determines that a settlement involves or may involve the issuance or

modification of a Resource Conservation Recovery Act (RCRA) permit it will

enter an interim order pursuant to Section 103.402 of this Part.

SUBPART D: PROCEEDINGS INVOLVING RCRA PERMITS

Section 103.400 Purpose, Scope, and Applicability

This Subpart applies when the Board finds in an interim order that an enforcement

proceeding involves issuance or modification of a RCRA permit.

Enforcement proceedings that involve issuance or modification of a RCRA permit

include those in which, to grant complete relief, it appears that the Board will

have to:

Revoke a RCRA permit;

Order a RCRA permit issued or modified;

Enter an order that could require actions which would be different from

the conditions of a RCRA permit or 35 Ill. Adm. Code 724 or 725; or

Enter an order directing facility closure or modification after a finding that

a facility was operating without a RCRA permit and that one was required.

These procedures provide methods by which the Board will formulate a

compliance plan, and, if necessary, direct the issuance or modification of a RCRA

permit.

Section 103.402 Interim Order

The Board will enter an interim order invoking the procedures of this Subpart on

its own motion or on the motion of any party. Before the Board enters an interim

order the parties must develop, through hearings or admissions pursuant to 35 Ill.

Adm. Code 101.Subpart F, a sufficient record to support the findings which the

Board must make in subsection (b) of this Section.

An interim order invoking the procedures of this Subpart will include:

A finding or proposed finding of violation and any penalty or proposed

monetary penalty;

A finding that the proceeding is an enforcement action that involves or

may involve the issuance or modification of a RCRA permit;

Joinder of the Agency if it is not already a party; and

A time schedule for filing by the Agency of a partial draft permit.

The interim order is not a final order and may be appealed only with leave of the

Board.

Section 103.404 Joinder of the Agency

If the Board directs that the Agency be joined, the Clerk will send, by messenger or by certified

mail addressed to the Agency, a copy of the Board Order requiring joinder. Such mailing will

constitute service of process upon the Agency.

Section 103.406 Draft Permit or Statement

Within 60 days after entry of an interim order, the Agency must file and serve on

all parties either a partial draft permit or a statement that no RCRA permit needs

to be issued or modified.

The partial draft permit must be in compliance with the requirements of 35 Ill.

Adm. Code 705.141 and must include such conditions as the Agency finds are

necessary to correct the violations found in the interim order.

The Agency may confer with other parties and enter into agreements as to the

substance of the partial draft permit which it will recommend to the Board. The

Agency must disclose any such conferences or agreements in the proposed draft

permit. Such agreements do not bind the Board.

If the Agency issues a statement that no RCRA permit needs to be issued or

modified, the remaining procedures of this subpart will not be followed, unless

the Board determines otherwise.

Section 103.408 Stipulated Draft Remedy

The parties may agree to a stipulated draft remedy.

A stipulated draft remedy must include the following:

Proposed mandatory orders that the parties agree should be included in the

Board's final order, which may include one or more of the following:

An order to cease and desist conducting regulated activities;

An order to close a facility or unit;

An order to execute a post-closure care plan;

A compliance plan, including a time schedule to assure compliance

with regulations in the shortest possible time;

An order to provide a performance bond or other financial

assurance;

An order to apply for a permit or permit modification; and

An order revoking a permit.

A partial draft permit or statement as provided by Section 103.406 of this

Part.

A statement as to whether or not the stipulation is divisible for purposes of

Board determinations.

All parties, including the Agency, must sign the stipulated draft remedy before

notice is given pursuant to Section 103.410 of this Part.

Section 103.410 Contents of Public Notice

In addition to all parties, the Agency must serve a copy of any partial draft permit

on USEPA at the address listed in 35 Ill. Adm. Code 101.Subpart C.

In addition to the requirements of the Act and Section 103.208 of this Part, the

Agency must, at a minimum, give notice of the filing of a partial draft permit to

the following persons:

Federal agencies as designated by USEPA;

Illinois Department of Transportation;

Illinois Department of Natural Resources;

Illinois Department of Public Health;

The Governor of any other state adjacent to the county in which the

facility is located; and

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 103.208 of this

Part, the Agency must give notice by broadcast over at least one radio station in

the area of the facility containing the information required by subsections (d)(2),

(d)(4) and (d)(6) through (d)(8).

A notice of a partial draft permit must include the following information:

The address of the Board office;

Name and address of the respondent and, if different, of the facility

subject to the enforcement proceeding;

A brief description of the business conducted at the facility and the

activity which is the subject of the enforcement proceeding;

A statement of the violations the Board has found or has proposed to find;

A statement that the Agency has filed a partial draft permit;

Name, address and telephone number of the Clerk of the Board, from

whom interested persons may obtain further information, including copies

of the partial draft permit or stipulated remedy;

A notice of a hearing, the address of the Board, a statement that a hearing

will be held and that the record will remain open for 45 days after the

filing of the partial draft or stipulated remedy for written comments;

A statement that the record in the proceeding is available at the Board

office for inspection, except those portions which are claimed or

determined to be trade secrets, and that procedures are available whereby

disclosure may be sought by the public in accordance with 35 Ill. Adm.

Code 130;

A statement that enforcement proceedings are considered pursuant to 415

Any additional information considered necessary or proper.

Section 103.412 Public Comment

Any person, including USEPA, may comment on the partial draft permit or stipulated draft

remedy within 45 days after it has been filed with the Board and notice given pursuant to Section

103.410 of this Part. Parties will receive distributions from the Clerk’s Office in accordance

with 35 Ill. Adm. Code 101.628(c)(3).

Section 103.414 Hearing

The hearing officer, after appropriate consultation with the parties, will set a time

and place for the hearing to be held not less than 30 days after the filing of the

partial draft permit or stipulated remedy.

The hearing will be held in the county in which the facility is located, in the

population center in such county closest to the facility.

The Clerk in consultation with the hearing officer will give notice of the hearing

to the persons entitled to notice in Sections 103.208 and 103.410 of this Part, and

to any other persons who have commented, requested to comment or requested

notice, and to any persons on a mailing list provided by the Agency.

Notice will be mailed not less than 30 days before the hearing.

Failure to comply with the provisions of this Section may not be used as a defense

to an enforcement proceeding, but any person adversely affected by such failure

of compliance may upon motion to the hearing officer or Board have the hearing

postponed if prejudice is shown.

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 municipality owned or publicly regulated, the Board will, at least

30 days prior to the scheduled date for the first hearing in such proceeding, give

notice of the date, time, place, and purpose of such hearing by public

advertisement in a newspaper of general circulation in the area of the state

concerned.

Section 103.416 Contents of Board Order

The Board will not enter an order that would require the issuance or modification

of a RCRA permit unless the public notice, public comment and hearing

procedures of this subpart have been followed.

If the Board determines that, to grant complete relief, it must order the issuance or

modification of a RCRA permit, its final order will include an order directing the

Agency to issue or modify the RCRA permit, which may take one of the

following forms:

An order to issue or modify a permit in conformance with a draft permit;

An order to issue or modify a permit in conformance with a draft permit as

modified by the Board order; or

Guidelines for issuance or modification of a permit in conformance with

the order and other applicable regulations.

If the order specifies a schedule leading to compliance with the Act and Board

rules;

Such schedule will require compliance as soon as practicable; and

The order may require the posting of sufficient performance bond or other

security to assure correction of such violation within the time prescribed.

SUBPART E: IMPOSITION OF PENALTIES, FEES, AND COSTS

Section 103.500 Default

The procedures for default can be found at 35 Ill. Adm. Code 101.608.

Section 103.502 Civil Penalties Method of Payment

Payment of the penalty must be made by certified or cashier’s check, money

order, or in installments by the foregoing means after execution of a promissory

note containing an agreement for judgment.

All remittances must be made payable to the Environmental Protection Trust

Fund or such other fund as specified by the Board.

Any such penalty not paid within the time prescribed in the Board order will incur

interest at the rate set forth in subsection (a) of Section 1003 of the Illinois

Income Tax Act [35 ILCS 5/1003(a)].

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE A: GENERAL PROVISIONS

CHAPTER I: POLLUTION CONTROL BOARD

PART 104

REGULATORY RELIEF MECHANISMS

SUBPART A: GENERAL PROVISIONS

Section

104.100 Applicability

Petition Content Requirements

104.206

Resource Conservation and Recovery Act (RCRA) Variance Petition

Contents

104.208

Consistency with Federal Law

104.210

Petition for Extension of Variance

104.212

Motion for Modification of Internal Variance Compliance Dates

104.214

Agency’s Notice of Petition

104.216

Agency Investigation and Recommendation

104.218

Agency Recommendation to RCRA Variance

104.220

Response to Agency Recommendation

104.222 Stipulations

104.224

Objections to Petition, Written Comments and Request for Hearing

104.226

Amended Petition and Amended Recommendation

104.228 Insufficient

Petition

104.230

Dismissal of Petition

104.232

Calculation of Decision Deadline

Certificate of Acceptance

Objection to Conditions

104.250 Revocation

SUBPART C: PROVISIONAL VARIANCES

Section

104.300 Applicability

Simultaneous Variance Prohibition

SUBPART D: ADJUSTED STANDARDS

Section

104.400 General

104.402

Initiation of Proceeding

104.404

Request to Agency to Join as Co-Petitioner

104.406

Petition Content Requirements

104.408

Petition Notice Requirements

104.410

Proof of Petition Notice Requirements

104.412

Effect of Filing a Petition: Stay

104.414

Dismissal of Petition

104.416

Agency Recommendation and Petitioner Response

104.418

Amended Petition, Amended Recommendation and Amended Response

104.420

Request for Public Hearing

AUTHORITY: Subparts B and C: Implementing Sections 5, 35, 36, 37 and 38 of the

Environmental Protection Act (Act) [415 ILCS 5/5, 35, 36, 37, and 38] and authorized by

Sections 26 and 27 of the Act [415 ILCS 5/26 and 27]. Subparts D through I: Implementing

Sections 5, 14.2(c), 22.4, 27, 28, 28.1, 28.5 and 39.5 of the Act [415 ILCS 5/5, 14.2(c), 22.4, 27,

28, 28.1, 28.5, 26 and 39.5] and authorized by Sections 26 and 27 of the Act [415 ILCS 5/26 and

27].

SOURCE: Subpart B: Originally adopted as Chapter I: Procedural Rules, 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 1978, amended in R79-9, 35 PCB 433, at 3 Ill. Reg. 51, p. 128, effective

December 7, 1979; amended in R80-12, 40 PCB 451, at 5 Ill. Reg. 2763, effective March 2,

1981; codified at 6 Ill. Reg. 8357; amended in R84-10, 62 PCB 87, at 9 Ill. Reg. 1409, effective

January 16, 1985; Old Part repealed, new Part adopted in R00-20 at 24 Ill. Reg. _____, effective

______________.

SUBPART A: GENERAL PROVISIONS

Section 104.100 Applicability

This Part applies to adjudicatory proceedings before the Board that provide relief

from environmental regulations under certain circumstances as set forth in Titles

VII and IX of the Act. Specifically, this Part applies to regulatory relief

mechanisms, meaning variances, provisional variances and adjusted standards.

This Part must be read in conjunction with 35 Ill. Adm. Code 101, which contains

procedures generally applicable to all of the Board’s adjudicatory 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 104.102 Severability

If any provision of this Part or its application to any person is adjudged invalid, such

adjudication does not affect the validity of this Part as a whole or of any portion not adjudged

invalid.

Section 104.104 Definitions

For the purpose of this Subpart, words and terms will have the meaning as defined in 35 Ill.

Adm. Code 101.Subpart B unless otherwise provided, or unless the context clearly indicates

otherwise.

SUBPART B: VARIANCES

Section 104.200 General

a) Description:

General Variance. A variance is a temporary exemption from any

specified rule, regulation, requirement or order of the Board, which may

be granted by the Board with or without conditions for a period of time

not to exceed five years,

upon presentation of adequate proof,

by the

petitioner

that compliance with any rule, regulation, requirement or order

of the Board would impose an arbitrary or unreasonable hardship

. [415

ILCS 5/35(a)]

Resource Conservation and Recovery Act (RCRA) Variance. A RCRA

variance is an exemption from 35 Ill. Adm. Code 703, 720, 721, 722, 723,

724 or 725 or which allows the Illinois Environmental Protection Agency

(Agency) to issue or modify any provision of a RCRA permit required

pursuant to Section 21(f) of the Act.

Effect of Filing:

The filing of a petition for a variance does not stay enforcement of a

regulation except as provided in subsection (b)(2) of this Section.

If any person files a petition for variance from a rule or regulation within

20 days after the effective date of such rule or 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 adopted by the Board which implements, in whole or in

part, a State RCRA,

Underground Injection Control (UIC), or National

Pollutant Discharge Elimination System (NPDES

) program shall not be

stayed. The Board may hold a hearing upon said petition 5 days from the

date of notice of such hearing or thereafter

. [415 ILCS 5/38(b)]

Section 104.202 Filing Requirements

Who May File. Any person seeking a variance from any rule or regulation,

requirement or order of the Board that would otherwise be applicable to that

person may file a variance petition.

General Filing and Service Requirements. All general filing and service

requirements for Board filings, including the form of filing and the fee

requirements for filing, apply to the filing of a petition for variance. These

general requirements are found at 35 Ill. Adm. Code 101.Subpart C.

Special Filing and Service Requirements. In addition to the general requirements

found at 35 Ill. Adm. Code 101.Subpart C, a person filing a petition for variance

must meet the following requirements:

One copy of the petition and all related documents must be served on the

Agency. Such service on the Agency must be initiated on or before the

date the petition is filed with the Board. Additionally, all RCRA variance

petitions must be served on the United States Environmental Protection

Agency (USEPA) Region V Director of Waste Management. An affidavit

of service of the petition and related documents must accompany the filing

with the Board; and

The petition must contain all information or documents necessary to

satisfy the petition contents requirements found in Sections 104.204,

104.206, and 104.208 of this Part.

Section 104.204 Petition Content Requirements

The petition must include the information required by subsections (a) through (n) of this Section.

Additionally, there are specific content requirements set forth at Section 104.206 of this Part for

RCRA variance petitions. If the petitioner believes that any of these requirements are not

applicable to the specific variance requested, the petitioner must so state and explain the

reasoning.

A statement describing the regulation, requirement, or order of the Board from

which a variance is sought. If variance from a regulation is sought, the statement

must include the Illinois Administrative Code citation to the regulation as well as

the effective date of that regulation. If variance from a requirement or order of

the Board is sought, the statement must include the citation to that requirement or

order of the Board promulgating that requirement, including docket number;

A complete and concise description of the nature of petitioner's activity that is the

subject of the proposed variance, including:

The location of, and area affected by, the petitioner's activity;

The location of points of discharge, and, as applicable, the identification

of the receiving waterway or land, or, if known, the location of the nearest

air monitoring station maintained by the Agency;

An identification, including docket number, of any prior variance issued to

petitioner and, if known, petitioner’s predecessors, concerning similar

relief;

An identification, including number, of the environmental permits held by

petitioner for the activity which may be affected by grant of variance;

The number of persons employed by the petitioner's facility at issue and

the age of that facility;

The nature and amount of the materials used in the process or activity for

which the variance is sought and a full description of the particular

process or activity in which the materials are used;

A description of the relevant pollution control equipment already in use;

and

The nature and amount of emissions, discharges or releases of the

constituent in question currently generated by the petitioner's activity;

Data describing the nature and extent of the present or anticipated failure to meet

the regulation, requirement, or order of the Board from which variance is sought

and facts that support petitioner’s argument that compliance with the regulation,

requirement, or order of the Board was not or cannot be achieved by any required

compliance date;

A description of the efforts that would be necessary for the petitioner to achieve

immediate compliance with the regulation, requirement, or Board order at issue.

All possible compliance alternatives, with the corresponding costs for each

alternative, must be set forth and discussed. The discussion of compliance

alternatives must include 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 for compliance. The discussion of the

costs of immediate compliance may include, but is not limited to, the overall

capital costs and the annualized capital and operating costs;

Facts that set forth the reasons the petitioner believes that immediate compliance

with the regulation, requirement, or order of the Board would impose an arbitrary

or unreasonable hardship;

A detailed description of the compliance plan, including:

A discussion of the proposed equipment or proposed method of control to

be undertaken to achieve full compliance with the regulation, requirement,

or order of the Board;

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;

A description of the environmental impact of the petitioner's activity including:

The nature and amount of emissions, discharges, or releases of the

constituent in question if the requested variance is granted, compared to

that which would result if immediate compliance is required;

The qualitative and quantitative description of the impact of petitioner's

activity on human health and the environment if the requested variance is

granted, compared to the impact of petitioner's activity if immediate

compliance is required. Cross-media impacts, if any, must be discussed;

and

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 that can be achieved during the period of the

variance;

Citation to supporting documents or legal authorities whenever such are used as a

basis for the petition. Relevant portions of such documents and legal authorities

other than Board decisions, reported state and federal court decisions, or state and

federal regulations and statutes must be appended to the petition;

If the requested variance involves an existing permit or a pending permit

application, a copy of the material portion of the permit or permit application

must be appended to the petition;

Any conditions petitioner suggests for the requested variance;

A proposed beginning and ending date for the variance. If the petitioner requests

that the term of the variance begin on any date other than the date on which the

Board takes final action on the petition, a detailed explanation and justification

for the alternate beginning date;

A discussion of consistency with federal law, including an analysis of applicable

federal law and facts that may be necessary to show compliance with federal law

as set forth in Section 104.208 of this Part;

An affidavit verifying any facts submitted in the petition; and

A statement requesting or denying that a hearing should be held in this matter.

Section 104.206 Resource Conservation and Recovery Act (RCRA) Variance Petition Contents

In addition to the requirements of Sections 104.204 and 104.208 of this Part, a petition for a

RCRA variance must meet the following requirements:

All petitions for RCRA variances must include a showing that the Board can grant

the requested relief consistent with, and establish RCRA permit conditions no less

stringent than, those that would be required by RCRA, and the regulations

thereunder promulgated by USEPA (40 CFR 260, 261, 262, 263, 264, 265, 266,

267, 268 and 270). Petitions must indicate whether any federal provisions

authorize the relief requested, and must include any facts necessary to show that

the petitioner would be entitled to the requested relief pursuant to federal law;

Persons who have, or are required to have, a RCRA permit and who seek a RCRA

variance that 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 must attach to the variance petition a copy of the RCRA permit

application, or such portion as may be relevant to the variance request; and

Petitioner must attach to the variance petition proof of service on USEPA as

required by Section 104.202 of this Part.

Section 104.208 Consistency with Federal Law

All petitions for variances from Title II of the Act or from 35 Ill. Adm.

Code.Subtitle B, Ch. I "Air Pollution," must indicate whether the Board may

grant the requested relief consistent with the Clean Air Act (CAA) (42 USC 7401

et seq.) and the federal regulations adopted pursuant thereto. If granting a

variance would require revision of the State Implementation Plan, the petition

must indicate whether the requirements of Section 110(a) of the CAA (42 USC

7410(a)) and 40 CFR 51 will be satisfied.

All petitions for variances from Title III of the Act; from 35 Ill. Adm.

Code.Subtitle C, Ch. I "Water Pollution," or from water pollution related

requirements of any other title of the Act or chapter of the Board's regulations,

must indicate whether the Board may grant the relief consistent with the Clean

Water Act (CWA) (33 USC 1251 et seq.), USEPA effluent guidelines and

standards, any other federal regulations, or any area-wide waste treatment

management plan approved by the Administrator of USEPA pursuant to Section

208 of the CWA (33 USC 1288).

All petitions for variances from Title IV of the Act or from 35 Ill. Adm.

Code.Subtitle F, Ch. I "Public Water Supplies," and to the extent applicable, from

Title V of the Act or from 35 Ill. Adm. Code.Subtitle D, Ch. I "Mine Related

Water Pollution," must indicate whether the Board may grant the relief consistent

with the Safe Drinking Water Act (42 USC 300(f) et seq.), the federal National

Primary Drinking Water Regulations (40 CFR 141) and Underground Injection

Control Program and other federal regulations adopted pursuant thereto.

All petitions for variances from Title V of the Act or from 35 Ill. Adm.

Code.Subtitle G, Ch. I "Waste Disposal" must indicate whether the Board may

grant the requested relief consistent with the RCRA, and the federal regulations

adopted pursuant thereto.

For all petitions for RCRA variances, petitioner should consult the federal RCRA

rules which contain procedures that are referred to as "Variances" (40 CFR 260,

261, 262, 263, 264, 265, 266, 267, 268 and 270) The petitioner should consult the

comparable Board regulations to decide whether the variance procedures of this

Part need to be followed.

Section 104.210 Petition for Extension of Variance

A variance extension pursuant to Section 36(b) of the Act

may be extended from

year to year by affirmative action of the Board, but only if satisfactory progress

has been shown

by the petitioner. [415 ILCS 5/36(b)]

A petition to extend a variance granted by the Board is a new petition for variance

before the Board, and must be filed in accordance with this Subpart and 35 Ill.

Adm. Code 101.Subpart C, including payment of the filing fee pursuant to

Section 104.202(b) of this Part and 35 Ill. Adm. Code 101.302(f)(2).

If the petitioner desires to have the term of the variance extension be sequential

with the term of the prior variance, the petition to extend variance must be filed

with the Board no later than 120 days prior to the termination of the variance,

unless the petitioner can demonstrate that the petition for variance extension was

filed as soon as practicable after the petitioner learned that it could not meet the

compliance timeframe under the existing variance.

In addition to the requirements of this Subpart, the petition for extension of

variance must contain:

A detailed statement showing that

satisfactory progress

toward

compliance has been or will have been achieved during the term of the

prior variance [415 ILCS 5/36(b)];

A statement that the conditions of the prior variance have been fully met,

or, if any condition or conditions have not been fully met, a detailed

explanation of the reason or reasons that the condition or conditions have

not been fully met; and

A motion to incorporate any material from the record of the prior variance

proceeding in accordance with 35 Ill. Adm. Code 101.306.

Section 104.212 Motion for Modification of Internal Variance Compliance Dates

The petitioner may request, by written motion, modification of internal dates

within a compliance schedule of an existing variance, so long as the modification

does not extend the length of the existing variance period. Such written motion

will not be considered to be an extension of the prior variance. The motion must

be filed under the docket number of the existing variance, and must be filed with

the Clerk and served upon the Agency, and any joined parties pursuant to 35 Ill.

Adm. Code 101.Subpart D. The Agency must, and any joined parties may, file a

response to that motion. Any response must be filed within 14 days after receipt

of the motion.

A motion for modification that would extend the length of the existing variance

period constitutes a Petition for Extension of Variance and must be filed in

accordance with Section 104.210 of this Part.

Section 104.214 Agency’s Notice of Petition

Within 14 days after receipt of the petition

the Agency shall publish a single

notice of such petition in a newspaper of general circulation in

the county where

the facility or pollution source is located. [415 ILCS 5/37(a)]

Upon receipt of a petition for variance,

the Agency shall promptly give written

notice of such petition to

Any person in the county in which the installation or property for which

variance is sought is located who has in writing requested notice of

variance petitions, the State's attorney of such county

;

The Chairman of the County Board of such county

; and

Each member of the General Assembly from the legislative district in

which that installation or property is located

. [415 ILCS 5/37(a)]

Upon receipt of a petition for RCRA variance, the Agency must promptly give

notice of such petition to:

Federal agencies as designated by USEPA;

Illinois Department of Transportation;

Department of Natural Resources;

Illinois Department of Public Health;

The Governor of any other state adjacent to the county in which the

facility or pollution source is located; and

Elected officials of any counties, in other states, adjacent to the county in

which the facility or pollution source is located, and elected officials in

any municipality, in another state, if it is the closest population center to

the facility or pollution source.

In addition to the methods of notice stated in subsection (c) of this Section in a

RCRA variance the Agency must also give notice by broadcast over at least one

local radio station in the area of the facility or pollution source containing the

information required by subsections (e) and (f) of this Section.

The notices required by this Section must include the following:

The street address of the facility or pollution source, and if there is no

street address then the legal description or the location with reference to

any well known landmark, highway, road, thoroughfare or intersection;

A description of the requested relief;

An indication that any person may request a hearing by filing with the

Board a written objection to the grant of such variance within 21 days

after the publication of the Agency’s notice, together with a written

request for hearing; and

The Clerk of the Board’s address and phone number and a statement that a

copy of the variance may be obtained through the Clerk’s Office.

The Agency must file with the Board a certification of publication which states

the date on which the notice was published and attach a copy of the published

notice within 21 days after the publication of the notice.

Section 104.216 Agency Investigation and Recommendation

Upon receipt of a petition for variance,

the Agency shall promptly investigate

such petition and consider the views of persons who might be adversely affected

by the grant of a variance

. [415 ILCS 5/37(a)]

The Agency shall make a recommendation to the Board as to the disposition of

the petition

. [415 ILCS 5/37(a).] Unless otherwise allowed by the hearing officer

or the Board, the recommendation must be filed with the Board within 45 days

after the filing of the petition or amended petition, or where there has been a

hearing scheduled, at least 30 days before hearing, whichever is earlier. The

Agency must serve a copy of its recommendation by First Class mail on the

petitioner, joined parties, and assigned hearing officer, if applicable. At a

minimum, the recommendation must include:

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;

The location of the nearest air monitoring station maintained by the

Agency where applicable;

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 in

the petition for variance;

Allegations of any other facts the Agency believes relevant to the

disposition of the petition, including any past or pending enforcement

actions against petitioner;

The Agency's estimate of the costs that compliance would impose on the

petitioner and on others;

The Agency's estimate of the injury that the grant of the variance would

impose on the public including the effect that continued discharge of

contaminants will have upon the environment;

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;

The status of any permits or pending permit applications that are

associated with or affected by the requested variance;

Allegation of any facts that the Agency believes are relevant to whether

the Board should condition a grant of variance on the posting of a

performance bond pursuant to Section 104.246 of this Part;

10)

Citation to supporting documents or legal authorities whenever such are

used as a basis for the Agency's recommendation. Relevant portions of

such documents and legal authorities other than Board decisions, reported

state and federal court decisions, state and federal regulations and statutes

must be appended to the recommendation if not already in the record of

the proceeding;

11)

The Agency's recommendation of what disposition should be made of the

petition, deny or grant, and suggested conditions. If the Agency

recommends that variance be granted, a recommended beginning and end

date of the requested variance, and any recommended conditions on the

variance; and

12)

An affidavit verifying any facts outside the record referenced in the

recommendation.

Section 104.218 Agency Recommendation to RCRA Variance

In addition to the recommendation requirements stated in Section 104.216 of this Part the

Agency recommendation on petitions for RCRA variances must also include the following and,

in addition to the service requirements Section 104.216 of this Part, the Agency must serve its

recommendation on USEPA 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.

The recommendation must include a fact sheet or statement of basis as provided

in 35 Ill. Adm. Code 705.141 through 705.143, where relevant.

If the Agency recommends that the variance be granted, a partial draft permit

reflecting the variance and recommended conditions must be included with the

recommendation.

Section 104.220 Response to Agency Recommendation

Within 14 days after service of the Agency recommendation the petitioner may

file a response to the Agency recommendation or an amended petition. The

petitioner must serve a copy of the response or amended petition upon the hearing

officer, the Agency, and any other parties to the proceeding.

The response or amended petition may include a request for hearing. New

information in a response or amended petition must be verified by oath or

affidavit.

Any amended petition or request for hearing under this Section recommences the

decision period pursuant to Section 104.232 of this Subpart.

Section 104.222 Stipulations

Filing of a stipulation in a variance proceeding is permissible to the extent that the stipulation

conveys to the Board those facts upon which the parties agree. However, the Board is not bound

to accept as fact any stipulation to findings of ultimate fact or conclusion of law, such as,

stipulating that it would impose an arbitrary or unreasonable hardship if petitioner were to

immediately comply with the applicable rule or regulation.

Section 104.224 Objections to Petition, Written Comments and Request for Hearing

A person who files an objection, request for hearing, or a comment is a

“participant” as defined in 35 Ill. Adm. Code 101.Subpart B.

Except as provided in subsection (e) of this Section for RCRA variances, any

person may file with the Clerk, within 21 days after the publication of the

Agency’s notice pursuant to Section 104.214 of this Part, a written objection to

the grant of variance. The Clerk will mail a copy of the objection to the

petitioner, the Agency, the hearing officer, and any joined parties by First Class

mail.

Any person may also file a written request for hearing. The written request must

be filed within 21 days after the publication of the Agency’s notice pursuant to

Section 104.214 of this Part in order for a hearing to be held in accordance with

Section 104.236 of this Part and 35 Ill. Adm. Code 101.Subpart F.

Any person may file written comments in a variance proceeding. If a hearing is

held, public comments must be filed within 14 days after the close of the hearing

unless the hearing officer specifies a different date. If there is no hearing,

comments must be filed no later than 30 days before the decision date, unless the

hearing officer orders otherwise to prevent material prejudice. (See 35 Ill. Adm.

Code 101.628(c)(1).)

In RCRA variances, subsection (b) and (c) of this Section do not apply. However,

persons may file written comments within 45 days after the Agency files its

recommendation.

Section 104.226 Amended Petition and Amended Recommendation

The petitioner may amend the petition prior to the close of the hearing, if a

hearing is held, or prior to the Board's decision, if a hearing is not held, by filing a

motion pursuant to 35 Ill. Adm. Code 101.Subpart E. Amended petitions

subsequent to hearing will be accepted only with leave of the Board. Amended

petitions must be in writing and filed with the Board and served in accordance

with 35 Ill. Adm. Code 101.Subpart C. The filing of an amended petition

recommences the decision period, pursuant to Section 104.232 of this Part, and

requires additional notice pursuant to Section 104.214 of this Part.

If the petitioner amends the petition, the Agency must file or give an amended

recommendation in writing or orally at hearing, but in any event not later than 30

days after the filing of an amended petition. The Agency may amend its

recommendation even if the petitioner has not amended its petition. In such an

instance, a recommendation may be amended prior to close of the hearing, if a

hearing is held, or 40 days prior to the Board's decision date if a hearing is not

held. The petitioner may file a response to an Agency recommendation pursuant

to Section 104.220 of this Part.

Written amendments to the petition or recommendation need not repeat the entire

unchanged portion of the original filing provided that a sufficient portion of the

original filing is repeated so that the context of the amendment is made clear.

Section 104.228 Insufficient Petition

If the Board finds the petition fails to contain information as required by Sections 104.204,

104.206, and 104.208 of this Part, the Board may order the petitioner to supplement the

information contained in the petition. Filings made in response to such order constitute an

amended petition for the purposes of calculating the decision deadline pursuant to Section

104.232 of this Part. Alternatively, pursuant to Section 104.230 of this Part, the Board may

dismiss the petition for lack of sufficient information. Failure of the Board to require

supplemental information does not preclude a later finding that the information provided is

insufficient to support grant of variance, or constitute a Board decision on the merits of the

petition.

Section 104.230 Dismissal of Petition

A petition is subject to dismissal if the Board determines that:

The petition requests relief that the Board is not empowered to grant;

The petition fails to comply with the requirements of 35 Ill. Adm. Code

101.Subpart C and Sections 104.202, 104.204, 104.206 and 104.208 of this Part;

The petitioner fails to timely comply with any order issued by the Board or the

hearing officer, including an order requiring additional information pursuant to

Section 104.228 of this Part; or

The petitioner is not subject to the rule or regulation, requirement, or order of the

Board at issue.

Section 104.232 Calculation of Decision Deadline

Pursuant to Section 38(a) of the Act the Board will render its final decision on the

petition within 120 days after the date of filing of the petition, except:

When the petitioner waives its right to a decision within the prescribed

decision period in accordance with 35 Ill. Adm. Code 101.Subpart C;

When the petitioner files an amended petition for variance pursuant to this

Subpart or files a request for hearing after filing the original petition, the

decision period recommences from the date of filing of the amended

petition or the request for hearing; or

When a hearing is canceled pursuant to 35 Ill. Adm. Code 101.510.

Time will be computed in accordance with 35 Ill. Adm. Code 101.Subpart C.

Section 104.234 Hearing

The Board will order a hearing on a variance petition if:

A hearing is requested by the petitioner at the time of initial filing on the

associated form or in writing, which is filed and served in accordance with 35 Ill.

Adm. Code 101.Subpart C;

A hearing is requested in a response or amended petition;

The Board, in its discretion, concludes that a hearing would be advisable

[415

ILCS 5/37(a)];

The Agency or any other person files a written objection to the grant of such

variance within 21 days

after the publication of the Agency’s notice pursuant to

Section 104.214 of this Part,

together with a written request for hearing;

[415

ILCS 5/37(a)];

The variance request, if granted, would require an amendment to the State

Implementation Plan for a criteria pollutant under the CAA; or

The request concerns a RCRA variance.

Section 104.236 Hearing Procedures

Hearings will be conducted pursuant to 35 Ill. Adm. Code 101.Subpart F, except that:

All hearings are to be held in the county where the petitioner’s facility or

pollution source is located unless otherwise ordered by the hearing officer (see 35

Ill. Adm. Code 101.600);

Hearings may be canceled pursuant to a motion filed in accordance 35 Ill. Adm.

Code 101.510 at the discretion of the hearing officer; and

If all parties and participants who have requested a hearing pursuant to this

Subpart have withdrawn their requests for a hearing, the hearing will not be held

unless the Board in its discretion deems it advisable.

The hearing officer shall give notice of RCRA hearings to the following persons:

Any person in the county in which the installation or property for which

variance is sought is located who has in writing requested notice of

variance petitions, the State's attorney of such county;

The Chairman of the county board of such county;

Each member of the General Assembly from the legislative district in

which that installation or property is located;

Federal agencies as designated by USEPA;

Illinois Department of Transportation;

Department of Natural Resources;

Illinois Department of Public Health;

The Governor of any other state adjacent to the county in which the

facility or pollution source is located;

Elected officials of any counties, in other states, adjacent to the county in

which the facility or pollution source is located, and elected officials in

any municipality, in another state, if it is the closest population center to

the facility or pollution source; and

10)

USEPA’s Region V Director of Waste, Pesticides and Toxics Division.

Section 104.238 Standard of Review

The Board may grant individual variances beyond the limitations prescribed by

the Act, whenever it is found, upon presentation of adequate proof, that

compliance with any rule or regulation, requirement or order of the Board would

impose an arbitrary or unreasonable hardship

. [415 ILCS 5/35(a)] The burden

of proof in a variance proceeding is on the petitioner.

In addition to subsection (a) of this Section the Board may grant a RCRA

variance only to the extent consistent with, and with conditions no less stringent

than, those that would be required by RCRA and 40 CFR 260, 261, 262, 263, 264,

265, 266, 267, 268, and 270. Variances must require compliance with the

regulations in the shortest practicable time.

Section 104.240 Certificate of Acceptance

The petitioner’s filing with the Board, which must be served on the Agency, will include a

certificate of acceptance in all variances. The certificate constitutes acceptance of the variance

and its conditions by the petitioner. A variance and its conditions are not binding upon the

petitioner until the certificate is filed with the Board and served on the Agency. Failure to timely

file the certificate with the Board and serve on the Agency renders the variance void. However,

execution of the certificate is not necessary prior to seeking reconsideration pursuant to 35 Ill.

Adm. Code 101.Subpart J, or appeal pursuant to Section 104.244 of this Part.

Section 104.242 Term of Variance

Except as provided

by Section 38(a) of the Act

any variance granted pursuant to the provisions

of this part shall be for such period of time, not exceeding five years, as shall be specified by the

Board at the time of the grant of such variance, and upon the condition that the person who

receives such variance shall make such periodic progress reports as the Board shall specify.

Such variance may be extended from year to year by affirmative action of the Board, but only if

satisfactory progress is shown

. [415 ILCS 5/36(b)]

Section 104.244 Variance Conditions

In granting a variance the Board may impose such conditions as the policies of the Act may

require

. [415 ILCS 5/36(a)] In a RCRA variance the Board may direct the Agency to issue or

modify a RCRA permit with conditions that may be set forth specifically in the order, or that

may consist of general guidelines to be followed by the Agency, together with applicable

regulations, in issuing a permit.

Section 104.246 Performance Bonds

If the hardship complained of consists solely of the need for a reasonable delay in which to

correct a violation of this Act or of the Board regulations, the Board shall condition the grant of

such variance upon the posting of sufficient performance bond or other security to assure the

completion of the work covered by the variance. The original amount of such performance bond

shall not exceed the reasonable cost of the work to be completed pursuant to the variance. The

obligation under such bond shall at no time exceed the reasonable cost of work remaining

pursuant to the variance

. [415 ILCS 5/36(a)]

Section 104.248 Objection to Conditions

Notwithstanding this subsection, the Board may include such conditions in granting a variance

and may adopt such rules and regulations as the policies of this Act may require. If an objection

is made to a variance condition, the Board shall reconsider the condition within not more than

75 days from the date of the objection

. [415 ILCS 5/41(b)] An objection to a specific variance

condition may be made by filing a motion pursuant to 35 Ill. Adm. Code 101.Subpart E, within

35 days after the receipt of the Board’s opinion and order containing the objectionable condition.

Section 104.250 Revocation

The Board has the authority to, upon its own motion or upon a motion filed pursuant to 35 Ill.

Adm. Code 101.Subpart E by petitioner, Agency or any person , revoke or vacate any variance

or any condition of any variance. The Board will vacate or revoke a variance or any condition in

a variance for reasons including non-compliance with the variance or any conditions of the

variance. Upon petitioner’s or the Agency’s request, or upon its own motion, the Board will

hold a hearing pursuant to 35 Ill. Adm. Code 101.Subpart F if necessary to determine whether

the variance or any condition of a variance should be revoked or vacated.

SUBPART C: PROVISIONAL VARIANCES

Section 104.300 Applicability

This Subpart applies to any person seeking a provisional variance pursuant to Title IX of the Act.

This Subpart must be read in conjunction with 35 Ill. Adm. Code 101 and this Part. In the event

of conflict between this Subpart and the requirements of 35 Ill. Adm. Code 101, the requirements

of this Subpart apply.

Section 104.302 Board Action

The Board shall grant provisional variances only upon notification from the Agency that

compliance on a short term basis with any rule or regulation, requirement or order of the Board,

or with any permit requirement would impose an arbitrary or unreasonable hardship. Such

provisional variances shall be issued within 2 working days of notification from the Agency

[415 ILCS 5/35(b)]

Section 104.304 Initiating a Request

Any person seeking a provisional variance pursuant to

Section 104.401 of this Part

shall make a

request to the Agency. The Agency shall promptly investigate and consider the merits of the

request. The Agency may notify the Board of its recommendation. If the Agency fails to take

final action within 30 days after receipt of the request, the person may initiate

variance

proceeding pursuant to Section 104.120 of this Part. [415 ILCS 5/37(b)]

Section 104.306 Notice

The Board shall give prompt notice of its action on provisional variance requests to the public

by issuing a press release for distribution to newspapers of general circulation in the county

[415 ILCS 5/37(b)]

Section 104.308 Term

Any provisional variance granted by the Board pursuant to subsection (b) of Section 35 shall be

for a period of time not to exceed 45 days. Upon receipt of a recommendation from the Agency

to extend this time period, the Board shall grant up to an additional 45 days. The provisional

variances granted to any one person shall not exceed a total of 90 days during any calendar

year

. [415 ILCS 5/36(c)]

Section 104.310 Simultaneous Variance Prohibition

The Board will not grant a provisional variance pursuant to this Subpart to the extent that the

petitioner holds a variance pursuant to Subpart B of this Part from the same regulation or order

of the Board for the same time period.

SUBPART D: ADJUSTED STANDARDS

Section 104.400 General

Description. An adjusted standard has the effect of an environmental regulation

that would apply to petitioner, if granted, in lieu of the general regulation that

would otherwise be applicable to a petitioner and the regulated community.

Applicability. This Subpart will apply to any person seeking an adjusted standard

pursuant to Section 28.1 of the Act. This includes an adjusted standard sought

pursuant to 35 Ill. Adm. Code 212.126 (CAA) and 35 Ill. Adm. Code 700 through

750 (RCRA). This Subpart must be read in conjunction with 35 Ill. Adm. Code

Part 101 which contains procedures generally applicable to all adjudicatory

proceedings before the Board. In the event of a conflict between the requirements

of 35 Ill. Adm. Code 101 and those of this Subpart, the provisions of this Subpart

apply.

Section 104.402 Initiation of Proceeding

A person may initiate an adjusted standard proceeding by filing a petition that meets the

requirements of Section 104.406 of this Part. A petition for an adjusted standard (petition) may

be filed either jointly with the Agency or singly pursuant to the filing requirements of 35 Ill.

Adm. Code 101. If filed singly the petitioner shall also serve the petition upon the Agency in

accordance with 35 Ill. Adm. Code 101. Additionally, a person may file a petition and request

the Agency to join as a co-petitioner as set forth in Section 104.404 of this Part.

Section 104.404 Request to Agency to Join as Co-Petitioner

The Agency may, in its discretion, act as a co-petitioner in any adjusted standard

proceeding.

Any person may request Agency assistance in initiating a petition for adjusted

standard. The Agency may require the person to submit to the Agency any

background information in the person's possession relevant to the adjusted

standard which is sought. The Agency shall promptly notify the person in writing

of its determination either to join as a co-petitioner, or to decline to join as a co-

petitioner. If the Agency declines to join as a co-petitioner, the Agency must state

the basis for this decision.

Discretionary decisions made by the Agency pursuant to this Section are not

appealable to the Board.

Subsequent to the filing of the petition and prior to hearing, the Board will grant

the Agency co-petitioner status upon joint motion of the Agency and the

petitioner who originally filed the petition.

Section 104.406 Petition Content Requirements

If the Agency is a co-petitioner, the petition must so state. The petition must contain headings

corresponding to the informational requirements of each subsection of this Section. If the

petitioner believes that any of the informational requirements are not applicable to the specific

adjusted standard requested, the petitioner must so state and explain his reasoning. The

following information must be contained in the petition:

A statement describing the standard from which an adjusted standard is sought.

This must include the Illinois Administrative Code citation to the regulation of

general applicability imposing the standard as well as the effective date of that

regulation;

A statement that indicates whether the regulation of general applicability was

promulgated to implement, in whole or in part, the requirements of the CWA (33

USC 1251 et seq.), Safe Drinking Water Act (42 U.S.C. 300(f) et seq.),

Comprehensive Environmental Response, Compensation and Liability Act (42

USC 9601 et seq.), CAA (42 USC 7401 et seq.), or the State programs concerning

RCRA, UIC, or NPDES [415 ILCS 5/28.1];

The level of justification as well as other information or requirements necessary

for an adjusted standard as specified by the regulation of general applicability or a

statement that the regulation of general applicability does not specify a level of

justification or other requirements [415 ILCS 5/28.1] (See Section 104.426);

A description of the nature of the petitioner's activity that is the subject of the

proposed adjusted standard. The description must include the location of and area

affected by the petitioner's activity. This description must also include the

number of persons employed by the petitioner's facility at issue, age of that

facility, relevant pollution control equipment already in use, and the qualitative

and quantitative description of the nature of emissions, discharges or releases

currently generated by the petitioner's activity;

A description of the efforts that would be necessary if the petitioner were to

comply with the regulation of general applicability. All compliance alternatives,

with the corresponding costs for each alternative, must be discussed. The

discussion of costs must include the overall capital costs as well as the annualized

capital and operating costs;

A narrative description of the proposed adjusted standard as well as proposed

language for a Board order that would impose the standard. Efforts necessary to

achieve this proposed standard and the corresponding costs must also be

presented;

The quantitative and qualitative description of the impact of the petitioner's

activity on the environment if the petitioner were to comply with the regulation of

general applicability as compared to the quantitative and qualitative impact on the

environment if the petitioner were to comply only with the proposed adjusted

standard. To the extent applicable, cross-media impacts must be discussed. Also,

the petitioner must compare the qualitative and quantitative nature of emissions,

discharges or releases that would be expected from compliance with the

regulation of general applicability as opposed to that which would be expected

from compliance with the proposed adjusted standard;

A statement which explains how the petitioner seeks to justify, pursuant to the

applicable level of justification, the proposed adjusted standard;

A statement with supporting reasons that the Board may grant the proposed

adjusted standard consistent with federal law. The petitioner must also inform the

Board of all procedural requirements applicable to the Board's decision on the

petition that are imposed by federal law and not required by this Subpart.

Relevant regulatory and statutory authorities must be cited;

100

A statement requesting or waiving a hearing on the petition (pursuant to Section

104.422(a)(4) of this Part a hearing will be held in all petitions for adjusted

standards filed pursuant to 35 Ill. Adm. Code 212.126 (CAA));

The petition must cite to supporting documents or legal authorities whenever such

are used as a basis for the petitioner's proof. Relevant portions of such documents

and legal authorities other than Board decisions, State regulations, statutes, and

reported cases must be appended to the petition;

Any additional information which may be required in the regulation of general

applicability.

Section 104.408 Petition Notice Requirements

The petitioner shall submit to the Board proof that, within 14 days after the filing

of the petition, it has published notice of the filing of the petition by advertisement

in a newspaper of general circulation in the area likely to be affected

by the

petitioner's activity that is the subject of the adjusted standard proceeding. [415

ILCS 5/28.1.]

The title of the notice must be in the form as follows: "Notice of Petition by

[petitioner's name] for an Adjusted Standard before the Illinois Pollution Control

Board." The notice must contain the name and address of the petitioner and the

statement that the petitioner has filed with the Board a petition for an adjusted

standard. The notice must also provide the date upon which the petition was

filed, the Board docket number, the regulatory standard (with appropriate

Administrative Code citation) from which an adjusted standard is sought, the

proposed adjusted standard, and a general description of the petitioner's activity

that is the subject of the adjusted standard proceeding, and the location of that

activity. This information must be presented so as to be understood in accordance

with the context of this Section's requirements. The concluding portion of the

notice must read as follows:

"Any person may cause a public hearing to be held in the above-described

adjusted standard proceeding by filing a hearing request with the Illinois Pollution

Control Board within 21 days after the date of the publication of this notice. The

hearing request should clearly indicate the docket number for the adjusted

standard proceeding, as found in this notice, and must be mailed to the Clerk of

the Board, Illinois Pollution Control Board, 100 W. Randolph Street, Suite 11-

500, Chicago, Illinois 60601."

Section 104.410 Proof of Petition Notice Requirements

Within 30 days after the filing of the petition, the petitioner must file a certificate of publication,

issued by the publisher of the petition notice certifying the publication of that notice. The

101

certificate must be issued in accordance with Section 1 of "Notice by Publication Act" [715

ILCS 5/1].

Section 104.412 Effect of Filing a Petition: Stay

If any person files a petition for an individual adjusted standard in lieu of

complying with the applicable regulation within 20 days after the effective date of

the regulation, the operation of the regulation shall be stayed as to such person

pending the disposition of the petition; provided, however, that the operation of

any regulation shall not be stayed if that regulation was adopted by the Board to

implement, in whole or in part, the requirements of the federal Clean Air Act,

Safe Drinking Water Act or Comprehensive Environmental Response,

Compensation, and Liability Act, or the state RCRA, UIC or NPDES programs

[415 ILCS 5/28.1(e)]

Within 20 days after the effective date of any regulation that implements in whole

or in part the requirements of the Clean Air Act, if any person files a petition for

an individual adjusted standard in lieu of complying with the regulation, such

source will be exempt from the regulation until the Board makes a final

determination on the petition. If the regulation adopted by the Board from which

the individual adjusted standard is sought replaces a previously adopted Board

regulation, the source shall be subject to the previously adopted Board regulation

until final action is taken by the Board on the petition

. [415 ILCS 5/28.1(f)]

Section 104.414 Dismissal of Petition

The Board may at any time dismiss a petition for any of the following reasons:

The Board determines that the petition is frivolous, duplicative, or deficient with

respect to the requirements of Section 104.406, 104.408, and 104.410 of this Part;

The Board determines that the petitioner is not pursuing disposition of the petition

in a timely manner.

Section 104.416 Agency Recommendation and Petitioner Response

Unless otherwise ordered by the hearing officer, the recommendation must be

filed with the Board within 45 days after the filing of the petition or amended

petition. If a hearing has been scheduled, the recommendation must be filed at

least 30 days before hearing. The recommendation must set forth the rationale for

the Agency’s position and may present any information which the Agency

believes is relevant to the Board's consideration of the proposed adjusted

standard. If the Agency recommends a denial of the petition due to informational

deficiencies within the petition, the recommendation must identify the types of

information needed to correct the deficiencies.

102

At a minimum, the Agency must address and respond to the petition with respect

to each issue raised by the requirements of subsections (a) through (j) of Section

104.406 of this Part.

The recommendation must cite to supporting documents or legal authorities

whenever such are used as a basis for the Agency's conclusion. Relevant portions

of such documents and legal authorities other than Board decisions, State

regulations, statutes and reported cases must be appended to the recommendation

if not already in the record of the proceeding.

The petitioner may file a response to the recommendation within 14 days after the

date of service of the recommendation.

Section 104.418 Amended Petition, Amended Recommendation, and Amended Response

Amended Petition. The petitioner may amend its petition at any time. Such an

amendment must be in writing and filed with the Board unless made orally at

hearing. If the petitioner amends the petition such that the amendment is a

substantive change to the requested relief in that it requests additional or

alternative relief, petitioner must re-notice the amended petition pursuant to

Section 104.408 of this Part.

Amended Recommendation. The Agency may amend its recommendation at any

time, even if the petitioner has not amended its petition, if such amendment does

not cause material prejudice. Such an amendment must be in writing and filed

with the Board unless made orally at hearing.

Amended Response. The petitioner may file a reply to a written amended

recommendation within 14 days after the date of receipt of the amended

recommendation or within 14 days after the hearing when the Agency orally

amended its recommendation.

Written amendments to the petition or recommendations need not repeat the entire

unchanged portion of the original filing provided that a sufficient portion of the

original filing is repeated so that the context of the amendment is made clear.

Section 104.420 Request for Public Hearing

Any person can request that a public hearing be held in an adjusted standard

proceeding. Such requests must be filed not later than 21 days after the date of

the publication of the petition notice in accordance with subsections (a) and (b)

of Section 104.408 of this Part. Requests for hearing should make reference to

the Board docket number assigned to the proceeding. A copy of each timely

hearing request will be mailed to the petitioner and Agency by the Clerk of the

103

Board. Participation by the public at such hearing must be in accordance with 35

Ill. Adm. Code 101.110 and 101.628.

Where all parties and participants who have requested a hearing pursuant to this

Subpart have withdrawn their requests for a hearing, the hearing will not be held

unless the Board in its discretion deems it advisable.

Section 104.422 Public Hearing

A public hearing will be held and the Board will assign a hearing officer to an

adjusted standard proceeding when:

The petitioner requests a hearing be held; or

The Board receives a hearing request by any person pursuant to Section

104.420 of this Part, not later than 21 days after the date of the publication

of the petition notice in accordance with Section 104.408 of this Part; or

3) The

Board

in its discretion determines that a hearing would be advisable

[415 ILCS 5/28.1]; or

The adjusted standard is sought pursuant to 35 Ill. Adm. Code 212.126

(CAA).

The hearing officer will set a time and place for the hearing. The hearing officer

will make an attempt to consult with the petitioner and the Agency prior to the

scheduling of a hearing. Hearings are to be held in the county

likely to be

affected by the petitioner's activity that is the subject of the proposed adjusted

standard.

Section 104.424 Hearing Notice

After receiving notification from the hearing officer of the scheduled hearing date made pursuant

to Section 104.422 of this Part, the Clerk will cause the publication of a hearing in accordance

with Section 28.1 of the Act and 35 Ill. Adm. Code 101. [415 ILCS 5/28.1]

Section 104.426 Burden of Proof

The burden of proof in an adjusted standard proceeding is on the petitioner. A petitioner must

justify an adjusted standard consistent with subsection (a) of Section 27 of the Act.

If the regulation of general applicability does not specify a level of justification

required of a petitioner to qualify for an adjusted standard, the Board may grant

individual adjusted standards whenever the Board determines, upon adequate

proof by petitioner, that:

104

factors relating to that petitioner are substantially and significantly

different from the factors relied upon by the Board in adopting the general

regulation applicable to that petitioner

;

the existence of those factors justifies an adjusted standard

;

the requested standard will not result in environmental or health effects

substantially and significantly more adverse than the effects considered by

the Board in adopting the rule of general applicability; and

the adjusted standard is consistent with any applicable federal law.

[415

ILCS 5/28.1(c)].

If the regulation of general applicability specifies a level of justification for an

adjusted standard, the Board may adopt the proposed adjusted standard, if the

petitioner proves the level of justification specified by the regulation of general

applicability.

Section 104.428 Board Action

In adopting adjusted standards the Board may impose such conditions as may be

necessary to accomplish the purposes of the Act.

Subsequent to the Board's adoption of an adjusted standard, the Board will

publish, in the Environmental Register, the name of the petitioner, date of the

Order that adopted the adjusted standard, and a brief narrative description of the

adopted adjusted standard.

Board orders and opinions shall be maintained for public inspection by the Clerk

of the Board and a listing of all determinations made pursuant to

Section 28.1 of

the Act

shall be published in the Illinois Register and the Environmental Register

at the end of each fiscal year.

[415 ILCS 5/28.1(d)]

Board opinions and orders

will also be available from the Board’s Web site.

105

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE A: GENERAL PROVISIONS

CHAPTER I: POLLUTION CONTROL BOARD

PART 105

APPEALS OF FINAL DECISIONS OF STATE AGENCIES

SUBPART A: GENERAL PROVISIONS

Section

105.100 Applicability

105.102 Severability

105.104 Definitions

105.106

Computation of Time, Filing and Service Requirements

105.108

Dismissal of Petition

Calculation of Decision Deadline

105.116 Record

Filing

105.118

Sanctions for Untimely Filing of the Record

SUBPART B: APPEAL OF AGENCY PERMIT DECISIONS AND OTHER FINAL

DECISIONS OF THE AGENCY

Section

105.200 Applicability

105.202 Parties

105.204

Who May File a Petition for Review

105.206

Time to File the Petition or Request for Extension

105.208

Extension of Time to File a Petition for Review

105.210

Petition Content Requirements

SUBPART C: CAAPP PERMIT APPEALS

105.300 Applicability

105.302 General

Requirements

105.304

Petition Content Requirements

SUBPART D: APPEAL OF AGENCY LEAKING UNDERGROUND

STORAGE TANK (LUST) DECISIONS

Who May File a Petition for Review

105.404

Time for Filing the Petition

105.406

Extension of Time to File a Petition for Review

105.408

Petition Content Requirements

SUBPART E: APPEAL OF OSFM LUST DECISIONS

Section

105.500 Applicability

Petition Content Requirements

105.508

OSFM Record and Appearance

105.510

Location of Hearing

SUBPART F: APPEALS OF OTHER FINAL DECISIONS OF STATE AGENCIES

Who May File a Petition for Review

105.608

Time to File the Petition; Service

105.610

Petition Content Requirements

Illustration A: Agency LUST Final Decisions that are Reviewable

AUTHORITY: Authorized by Sections 26 and 27 of the Environmental Protection Act (Act)

[415 ILCS 5/26 and 27] and implementing Sections 5, 39, 39.5, 40, 40.1, 40.2, and 57 of the Act

[415 ILCS 5/5, 39, 39.5, 40, 40.1, 40.2 and 57].

SOURCE: Filed with Secretary of State January 1, 1978; amended 4 Ill. Reg. 52, page 41,

effective December 11, 1980; codified 6 Ill. Reg. 8357; amended in R93-24 at 18 Ill. Reg. 4244,

effective March 8, 1994; amended in R94-11 at 18 Ill. Reg. 16594, effective November 1, 1994.

Old Part repealed, new Part adopted in R00-20 at 24 Ill. Reg. __, effective____.

SUBPART A: GENERAL PROVISIONS

Section 105.100 Applicability

107

This Part applies to appeals of final decisions of State agencies to the Board as

authorized by law.

This Part must be read in conjunction with 35 Ill. Adm. Code 101, which contains

procedures generally applicable to all of the Board’s adjudicatory 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 105.102 Severability

If any provision of this Part or its application to any person is adjudged invalid, such

adjudication does not affect the validity of this Part as a whole or of any portion not adjudged

invalid.

Section 105.104 Definitions

For the purpose of this Part, words and terms will have the meaning as defined in 35 Ill. Adm.

Code 101.Subpart B unless otherwise provided, or unless the context clearly indicates otherwise.

Section 105.106 Computation of Time, Filing and Service Requirements

Unless applicable law or this Part provides otherwise, service, filing, and computation of time

must be in accordance with 35 Ill. Adm. Code 101.Subpart C.

Section 105.108 Dismissal of Petition

A petition is subject to dismissal if the Board determines that:

The petition does not contain the informational requirements set forth in Section

105.210, 105.308, 105.408, 105.506 or 105.610 of this Part;

The petition is untimely pursuant to Section 105.206, 105.304, 105.404, 105.504

or 105.608 of this Part;

The petitioner fails to timely comply with any order issued by the Board or the

hearing officer, including an order requiring additional information; or

The petitioner does not have standing under applicable law to petition the Board

for review of the State agency’s final decision.

Section 105.110 Hearing Process

Unless applicable law or this Part provides otherwise, proceedings held pursuant to this Part will

be in accordance with the rules set forth in 35 Ill. Adm. Code 101.Subpart F.

Section 105.112 Burden of Proof

108

Unless applicable law or this Part provides otherwise:

The burden of proof shall be on the petitioner

except as provided in subsection (b)

of this Section. [415 ILCS 5/40(a)(1), 40(b) and (e)(3) and 40.2(a)]

The burden of proof is on the Agency if

the Agency issues an NPDES permit that

imposes limits which are based upon a criterion or denies a permit based upon

application of a criterion, then the Agency shall have the burden of going forward

with the basis for the derivation of those limits or criterion which were derived

under the Board’s rules

. [415 ILCS 5/40(a)(1)]

Section 105.114 Calculation of Decision Deadline

The Board will render its final decision on the petition within any applicable decision period

(which commences when the petition is filed in accordance with 35 Ill. Adm. Code

101.300(b)(4)), except:

When the petitioner waives its right to a decision within the prescribed decision

period in accordance with 35 Ill. Adm. Code 101.Subpart C; or

When the petitioner files an amended petition, in which case the decision period

recommences when the amended petition is filed in accordance with 35 Ill. Adm.

Code 101.300(b)(4).

Section 105.116 Record Filing

Unless applicable law or this Part provides otherwise, the State agency must file the entire record

of its decision with the Clerk as the Board or hearing officer directs and in accordance with any

applicable decision deadline, but in no event later than 30 days before the date of any scheduled

hearing. If the State agency wishes to seek additional time to file the record, it must file a

request for extension before the date on which the record is due to be filed.

Section 105.118 Sanctions for Untimely Filing of the Record

If the State agency fails to file the record on or before the date required under this Part, the Board

may sanction the State agency in accordance with 35 Ill. Adm. Code 101.Subpart H.

SUBPART B: APPEAL OF AGENCY PERMIT DECISIONS AND OTHER FINAL

DECISIONS OF THE AGENCY

Section 105.200 Applicability

This Subpart applies to any appeal to the Board of the Agency’s final permit decisions and other

final decisions of the Agency, except:

109

When the appeal is of a final CAAPP decision of the Agency, which is addressed

in Subpart C of this Part; and

When the appeal is of a final leaking underground storage tank decision of the

Agency, which is addressed in Subpart D of this Part.

Section 105.202 Parties

Petitioner. The person who files a petition for review of the Agency’s final

decision must be named the petitioner.

Respondent(s). The Agency must be named the respondent. If a petition is filed

pursuant to Section 105.204(b), (c) or (d) by a person other than the permit

applicant, the permit applicant must be named as a respondent in addition to the

Agency.

Section 105.204 Who May File a Petition for Review

a) General.

If the Agency refuses to grant or grants with conditions a permit under

Section 39 of the Act, the applicant may. . . petition for a hearing before the

Board to contest the decision of the Agency

. [415 ILCS 5/40(a)(1)]

National Pollutant Discharge Elimination System (NPDES) permit.

If the Agency

grants or denies a permit under subsection (b) of Section 39 of the Act, a third

party, other than the permit applicant or Agency, may petition the Board . . . for a

hearing to contest the decision of the Agency.

[415 ILCS 5/40(e)(1)]

Resource Conservation and Recovery Act (RCRA) Permit for a Hazardous Waste

Disposal Site.

If the Agency grants a RCRA permit for a hazardous waste

disposal site, a third party, other than the permit applicant or Agency, may

petition the Board . . . for a hearing to contest the issuance

of the permit.

This

subsection does not apply to the

granting of permits issued for the disposal or

utilization of sludge from publicly-owned sewage works.

[415 ILCS 5/40(b)]

Hazardous Waste Permit.

Any party to an Agency proceeding conducted

pursuant to Section 39.3 of this Act may petition as of right to the Board for

review of the Agency’s decision.

[415 ILCS 5/40(c)]

EMSAs. If the Agency terminates an EMSA under Section 52.3-4(b) of the Act,

the sponsor may petition the Board for review of the Agency’s final decision.

Other Agency Final Decisions. If the Agency’s final decision is to deny or to

conditionally grant or approve, the person who applied for or otherwise requested

the Agency decision, or the person to whom the Agency directs its final decision,

may petition the Board for review of the Agency’s final decision. In addition, any

110

third party authorized by law to appeal a final decision of the Agency to the

Board may file a petition for review with the Clerk.

Section 105.206 Time to File the Petition or Request For Extension

Except as provided in subsection (b) of this Section, if a person who may petition

the Board under Section 105.204 of this Subpart wishes to appeal the Agency’s

final decision to the Board under this Subpart, the person must file the petition

with the Clerk within 35 days after the date of service of the Agency’s final

decision.

If a person with standing as described in Section 105.204(d) of this Subpart, or

any third party who is authorized by law to appeal a final decision of the Agency

to the Board, wishes to appeal the Agency’s final decision to the Board under this

Subpart, the person must file a petition for review with the Clerk within 35 days

after the date of issuance of the Agency’s final decision.

Except as provided in subsection (d) of this Section, if a person who may petition

the Board under Section 105.204 of this Subpart wishes to request an extension of

time to file a petition for review pursuant to Section 105.208(a) of this Subpart,

the person must file the request within 35 days after the date of service of the

Agency’s final decision.

If a person with standing as described in Section 105.204(d), or any third party

who is authorized by law to appeal a final decision of the Agency to the Board,

wishes to request an extension of time to file a petition for review pursuant to

Section 105.208(b) of this Subpart, the person must file the request within 35

days after the date of issuance of the Agency’s final decision.

Section 105.208 Extension of Time to File a Petition for Review

Permit or Other Agency Final Decision. For appeals pursuant to Section 40(a)(1)

of the Act,

the 35-day period

described in Section 105.206(a) of this Subpart

for

petitioning for a hearing may be extended by the applicant for a period of time

not to exceed 90 days by written notice provided to the Board from the applicant

and the Agency within the initial appeal period

. [415 ILCS 5/40(a)(1).]

The applicant and the Agency must jointly file a request for extension

within 35 days after the date of service of the Agency’s final decision.

The joint request described in subsection (a)(1) of this Section may seek

an appeal period not exceeding 125 days from the date of service of the

Agency’s final decision to file a petition for review under this Subpart.

Hazardous Waste Permit. For appeals pursuant to Section 40(c) of the Act,

the

35-day period

described in Section 105.206(b) of this Subpart

for petitioning for

111

a hearing may be extended by the applicant for a period of time not to exceed 90

days by written notice provided to the Board from the applicant and the Agency

within the initial appeal period

If another person with standing to appeal a

hazardous waste disposal permit wishes to obtain an extension, there must be a

written notice provided to the Board by that person, the Agency, and the

applicant, within the initial appeal period

. [415 ILCS 5/40(c).]

If the applicant is the petitioner, the applicant and the Agency must jointly

file a request for extension within 35 days after the date of issuance of the

Agency’s final decision.

If a person with standing other than the applicant is the petitioner, the

Agency, the applicant and the other person must jointly file a request for

extension within 35 days after the date of issuance of the Agency’s final

decision.

The joint request described in subsection (b)(1) or (2) of this Section may

seek an appeal period not exceeding 125 days from the date of issuance of

the Agency’s final decision to file a petition for review under this Subpart.

Any request for extension of time under this Section must be accompanied by

written evidence that the Agency joins in the request, e.g., affidavit of the

petitioner or signature of the Agency’s representative.

Extensions of time to file petitions under Section 105.204(b), (c), or (e) of this

Subpart are not available.

Section 105.210 Petition Content Requirements

In addition to the requirements of 35 Ill. Adm. Code 101.Subpart C, the petition must include:

The Agency’s final decision or issued permit;

A statement specifying the date of issuance or service of the Agency’s final

decision or issued permit, as applicable pursuant to Section 105.206 of this

Subpart;

A statement specifying the grounds of appeal; and

For petitions under Section 105.204(b) of this Subpart,

a demonstration that the

petitioner raised the issues contained within the petition during the public notice

period or during the public hearing on the NPDES permit application, if a public

hearing was held, and a demonstration that the petitioner is so situated as to be

affected by the permitted facility.

[415 ILCS 5/40(e)(2)]

Section 105.212 Agency Record

112

The Agency must file its entire record of its decision with the Clerk in accordance

with Section 105.116 of this Part.

The record must include:

Any permit application or other request that resulted in the Agency’s final

decision;

Correspondence with the petitioner and any documents or materials

submitted by the petitioner to the Agency;

The permit denial letter that conforms to the requirements of Section 39(a)

of the Act or the issued permit or other Agency final decision;

The hearing file of any hearing that may have been held before the

Agency, including any transcripts and exhibits; and

Any other information the Agency relied upon in making its final

decision.

Section 105.214 Board Hearing

Except as provided in subsections (b), (c) and (d) of this Section, the Board will

conduct a public hearing, in accordance with 35 Ill. Adm. Code 101.Subpart F,

upon an appropriately filed petition for review under this Subpart. The hearing

will be based exclusively on the record before the Agency at the time the permit

or decision was issued, unless the parties agree to supplement the record pursuant

to Section 40(d) of the Act.

The Board will not hold a hearing on a petition for review under this Subpart if

the Board disposes of the petition on a motion for summary judgment brought

pursuant to 35 Ill. Adm. Code 101.516.

The Board will not hold a hearing on a petition for review under Section

105.204(c) of this Subpart if the Board determines that:

The petition is duplicitous or frivolous; or

The petitioner is so located as to not be affected by the permitted facility.

The Board will not hold a hearing on a petition for review under Section

105.204(b) or (d) of this Subpart if the Board determines that the petition is

duplicitous or frivolous.

113

If the Board determines to hold a hearing, the Clerk will give notice of the hearing

pursuant to 35 Ill. Adm. Code 101.602.

SUBPARTC: CAAPP PERMIT APPEALS

Section 105.300

Applicability

This Subpart applies to proceedings before the Board concerning appeals from CAAPP final

determinations made pursuant to Section 39.5 of the Act.

Section 105.302

General Requirements

The definitions of 35 Ill. Adm. Code 101.202 and Section 39.5 of the Act will

apply to this Subpart unless otherwise provided, or unless the context clearly

indicates otherwise.

If the Agency denies a CAAPP permit, permit modification, or permit renewal it

shall provide to USEPA, the permit applicant and, upon request, affected states,

any person who participated in the public comment process and any other person

who could obtain judicial review under Section 40.2 and 41 of the Act a copy of

each notification of denial pertaining to the permit applicant.

In the case of a denial of a CAAPP permit, including a permit revision or permit

renewal, or a determination of incompleteness by the Agency regarding a

submitted CAAPP application, or the issuance by the Agency of a CAAPP permit

with one or more conditions or limitations, or the failure of the Agency to act on

an application for a CAAPP permit, permit renewal, administrative permit

amendment or significant permit modification within the time frames specified in

Section 39.5(5)(j) or Section 39.5(13) of the Act, as applicable, or the failure of

the Agency to take final action within 90 days after receipt of an application

requesting minor permit modification procedures (or 180 days for modifications

subject to group processing requirements) pursuant to Section 39.5(14) of the Act,

to which the applicant, any person who participated in the public comment

process pursuant to Section 39.5(8) of the Act, or any other person who could

obtain judicial review pursuant to Section 41(a) of the Act objects, such persons

may contest the decision of the Agency by filing with the Clerk a petition for

review of the Agency’s action in accordance with this Section.

For purposes of this Subpart, a person who participated in the public comment

process is someone who, during the public comment period, either commented on

the draft permit, submitted written comments, or requested notice of the final

action on a specific permit application.

The petition filed pursuant to subsection (c) of this Section must be filed within

35 days after the Agency’s final permit action. Notwithstanding the above, if the

petition is based solely on grounds arising after the 35 day period expires, the

114

petition may be filed within 35 days after the new grounds for review arise. If the

applicant is challenging the Agency’s failure to timely take final action pursuant

to Section 39.5 of the Act, the petition must be filed before the Agency takes such

final action. Under no circumstances may a petition challenging the final permit

action on a Phase II acid rain permit be filed more than 90 days subsequent to

such final permit action.

The Agency must appear as respondent at the hearing and must file within 30

days after service of the petition, an answer consisting of the entire Agency record

of the CAAPP application including the CAAPP permit application, the hearing

record, the CAAPP permit denial or issuance letter, and correspondence with the

applicant concerning the CAAPP permit application.

The Clerk will give notice of the petition and hearing in accordance with 35 Ill.

Adm. Code 101.

The proceeding will be conducted in accordance with 35 Ill. Adm. Code 101.

The Agency shall notify USEPA, in writing, of any petition for hearing brought

under this Part involving a provision or denial of a Phase II acid rain permit

within 30 days of the filing of the petition. USEPA may intervene as a matter of

right in any such hearing. The Agency shall notify USEPA, in writing, of any

determination or order in a hearing brought under this Section that interprets,

voids, or otherwise relates to any portion of a Phase II acid rain permit.

[415

ILCS 5/40.2(e)]

Section 105.304

Petition Content Requirements

The petition must include:

a concise description of the CAAPP source for which the permit is sought;

a statement of the Agency’s decision or part thereof to be reviewed;

a justification as to why the Agency’s decision or part thereof was in

error; and

such other materials upon which the petitioner relies in its petition.

The petition may include a request to stay the effectiveness of a denial of the

CAAPP permit until final action is taken by the Board pursuant to Section 40.2 of

the Act.

SUBPART D: APPEAL OF AGENCY LEAKING UNDERGROUND

STORAGE TANK (LUST) DECISIONS

115

Section 105.400 Parties

Petitioner. The person who files a petition for review of the Agency’s final

decision made pursuant to Sections 57.1

et seq

. of the Act must be named as

petitioner.

Respondent. The Agency must be named as the respondent.

Section 105.402 Who May File a Petition for Review

Any owner or operator may file a petition for review pursuant to Section 40 of the Act of an

Agency final determination made pursuant to Sections 57.1

et seq.

of the Act. There are several

Agency determinations that may be appealed pursuant to Section 40 of the Act. The Agency

determinations that may be appealed are included in Illustration A of this Part.

Section 105.404

Time for Filing the Petition

Petitions must be filed in accordance with this Section or the Board does not have the authority

to review the Agency’s decision and will dismiss the proceeding on its own motion or on the

motion of any party. Within 35 days after the date of service of the Agency’s final decision the

petitioner may file with the Clerk of the Board:

a petition for review that contains the requirements of Section 105.408 of this Part; or

a request for an extension of time to file a petition for hearing pursuant to Section

105.406 of this Part.

Section 105.406 Extension of Time to File a Petition for Review

Pursuant to Section 40(a)(1) of the Act,

the 35-day period for petitioning for a hearing may be

extended by the applicant for a period of time not to exceed 90 days by written notice provided to

the Board from the applicant and the Agency within the initial appeal period

. [415 ILCS 5/40(c)]

The applicant and the Agency must jointly file a request for extension with the Board within 35

days after the date of service of the Agency’s final decision. Upon an appropriately filed request

for an extension, the applicant has a period not exceeding 125 days after the date of service of

the Agency’s final decision to file a petition for review before the Board pursuant to Section

105.408 of this Part.

Section 105.408 Petition Content Requirements

In addition to the requirements of 35 Ill. Adm. Code 101.Subpart C the petition must contain:

The Agency’s final decision;

A statement specifying the date of service of the Agency’s final decision; and

116

A statement specifying the grounds of appeal.

Section 105.410 Agency Record

The entire Agency record of its decision must be filed with the Board as directed

by the Board or hearing officer pursuant to Section 105.116 of this Part.

The record must include:

The plan or budget submittal or other request that requires an Agency

decision;

Correspondence with the petitioner and any documents or materials

submitted by the petitioner to the Agency;

The final determination letter; and

Any other information the Agency relied upon in making its

determination.

Section 105.412 Board Hearing

The Board will conduct a public hearing, in accordance with 35 Ill. Adm. Code 101.Subpart F

upon an appropriately filed petition for review, unless a petition is disposed of by a motion for

summary judgment brought pursuant to 35 Ill. Adm. Code 101.516. Such hearing will be

based

exclusively on the record before the Agency

at the time the permit or decision was issued. [415

ILCS 5/40(d) and 5/40.2]

SUBPART E: APPEAL OF OSFM LUST DECISIONS

Section 105.500 Applicability

This Subpart applies to proceedings before the Board concerning appeals from OSFM final

determinations made pursuant to Section 57.9(c) of the Act.

Section 105.502 General Overview

OSFM final determinations are made either through the issuance of an “Eligibility and

Deductibility Final Determination” letter or by the failure of OSFM to act upon receipt of such

form within 60 days pursuant to Section 57.9(c)(2) of the Act. The process before the Board for

review of final determinations by the OSFM includes, but is not limited to, the following steps.

Upon receipt of a petition for review, unless the Board determines that the petition is

insufficient, a hearing date and location will be assigned. Hearings will be publicly-noticed in

the county where the underground storage tank site is located. Most hearings will be held in

either Chicago or Springfield. If the parties enter into a settlement agreement prior to or during

117

the hearing process, the parties may request that the Board accept and enter a final order

adopting a proposed settlement agreement; such an order may be requested with or without a

hearing.

Section 105.504 General Requirements

Who may file. Any owner or operator of an underground storage tank who has

been issued an "Eligibility and Deductibility Final Determination" letter or who

has not received an “Eligibility and Deductibility Determination” from the OSFM

within the time prescribed by 415 ILCS 5/57.9(c), which is deemed to be a final

decision appealable to the Board, may file a petition with the Board seeking

review of that final decision. The owner/operator must be named as the

petitioner, and the OSFM must be named as the respondent. Filing requirements

are set forth at 35 Ill. Adm. Code 101.Subpart C.

Timely Petition. The petition for review must be filed with the Board within 35

days after the date of the OSFM's "Eligibility and Deductibility Final

Determination" letter or within 35 days from the OSFM’s final decision due to its

failure to act as required under 415 ILCS 5/57.9(c). There will be a rebuttable

presumption that petitioner received the OSFM's "Eligibility and Deductibility

Final Determination" letter four days from the date indicated on the letter.

Service and Filing. The petitioner must serve all filings upon the OSFM at the

address listed in 35 Ill. Adm. Code 101.Subpart C. All filings must be

accompanied by a notice of filing. Methods and proof of service, as well as the

effective date of service, are governed by 35 Ill. Adm. Code 101.Subpart C.

Section 105.506 Petition Content Requirements

In addition to the requirements of 35 Ill. Adm. Code 101.Subpart C the petition must include:

A copy of the OSFM's "Eligibility and Deductibility Final Determination" letter;

A complete and precise description of the underground storage tank site,

including the location of the site, including the county, the number of

underground storage tanks on-site, the substance(s) stored in each tank, the date

of the tank(s) registration; and the date of Illinois Emergency Management

Agency notification;

A statement specifying the date of service of the OSFM’s final determination

letter and documentation to demonstrate the petition's timely filing;

A statement specifying the grounds of appeal;

If the owner or operator is represented by counsel, an appearance must be filed in

conjunction with the petition; and

118

A request to hold the hearing in either Springfield or Chicago, or a request to

conduct the hearing at a specified location other than Springfield or Chicago,

specifying the reasons for that request. A hearing will be held in an alternate

location only to prevent material prejudice or undue delay.

Section 105.508 OSFM Record and Appearance

Within 14 days after a petition for review of an OSFM eligibility or deductibility

determination, the attorney representing the OSFM must file an appearance with

the Board.

The entire OSFM record of its decision must be filed with the Board as directed

by the Board or hearing officer. The record must include:

The request for OSFM determination of eligibility or deductibility;

Correspondence with the petitioner;

The denial letter; and

Any other information the OSFM relied upon in making its determination.

Section 105.510 Location of Hearing

The hearing will be held in either Springfield or Chicago or in such other location as the hearing

officer or the Board may designate to prevent material prejudice or undue delay. Upon the

proceeding being set for hearing, the Clerk will cause notice of the hearing to be published.

Public notice will be published at least 21 days before the hearing by public advertisement in a

newspaper of general circulation in the county in which the UST site in question is located.

SUBPART F: APPEALS OF OTHER FINAL DECISIONS OF STATE AGENCIES

Section 105.600 Applicability

This Subpart applies to any appeal of a State agency’s final decision to the Board when:

The appeal is authorized by law; and

The appeal is not otherwise addressed in this Part.

Section 105.602 Parties

Petitioner. The person who files a petition for review of the State agency’s final

decision must be named the petitioner.

119

Respondent(s). The State agency must be named the respondent. If the law

authorizing the appeal allows third-party appeals to the Board and such a petition

is filed with the Clerk in accordance with this Subpart, the person who applied for

or otherwise requested the State agency’s final decision, or the person to whom

the State agency directs its final decision must be named as a respondent in

addition to the State agency.

Section 105.604 Burden of Proof

The burden of proof is as prescribed by the law authorizing the appeal. If that law does not

address the burden of proof, the petitioner has the burden of proof.

Section 105.606 Who May File a Petition for Review

Any person authorized by law to appeal a State agency’s final decision to the Board may file

with the Clerk a petition for review of the State agency’s final decision.

Section 105.608 Time to File the Petition; Service

Time to File. If a person who may petition the Board under Section 105.606 of

this Subpart wishes to appeal a State agency’s final decision to the Board under

this Subpart, the person must file the petition with the Clerk within the time

prescribed by the law authorizing the appeal. If that law does not address the time

within which the person must file the petition for review, the petition must be

filed:

within 35 days after the date of service of the State agency’s final decision

if the petitioner is the person who applied for or otherwise requested the

State agency’s final decision, or the person to whom the State agency

directs its final decision; or

within 35 days after the date of issuance of the State agency’s final

decision if the petitioner is a third party.

Service. In addition to any service requirements in the law authorizing the

appeal, the petitioner must serve a copy of the petition on all parties to the

proceeding in accordance with Section 105.106 of this Part.

Section 105.610 Petition Content Requirements

In addition to any information or materials that the law authorizing the appeal may require to be

included in the petition, the petition must include:

The State agency’s final decision;

120

A statement specifying the date of issuance or service of the State agency’s final

decision, as applicable pursuant to Section 105.608(a) of this Subpart;

A statement specifying the grounds of appeal; and

Any filing fee prescribed by the law authorizing the appeal.

Section 105.612 State Agency Record

Time to File. The State agency must file with the Clerk the entire agency record

of its decision within the time prescribed by the law authorizing the appeal. If

that law does not address the time within which the State agency must file the

record, the State agency must file the record in accordance with Section 105.116

of this Part.

Contents. In addition to any information or materials that the law authorizing the

appeal may require to be included in the State agency’s record of its decision, the

record must include:

Any application or other request that resulted in the State agency’s final

decision;

Correspondence with the petitioner and any documents or materials that

the petitioner submitted to the State agency;

The State agency’s final decision;

The hearing file of any hearing that may have been held before the State

agency, including any transcripts and exhibits; and

Any other information that the State agency relied upon in making its final

decision.

Service. In addition to any service requirements in the law authorizing the

appeal, the State Agency must serve a copy of the record on all parties to the

proceeding in accordance with Section 105.106 of this Part.

Section 105.614 Board Hearing

The Board will conduct a public hearing as prescribed by the law authorizing the

appeal. If that law does not address the conduct of a public hearing, the Board

will conduct a public hearing in accordance with 35 Ill. Adm. Code 101.Subpart

The basis of a public hearing will be as prescribed in the law authorizing the

appeal. If that law does not address the basis for a public hearing, the hearing will

121

be based exclusively on the record before the State agency at the time it issued the

final decision.

The Clerk will give notice of the hearing as prescribed in the law authorizing the

appeal. If that law does not address the notice of a public hearing, the Clerk will

give notice of the hearing pursuant to 35 Ill. Adm. Code 101.602.

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Illustration A: Agency LUST Final Decisions that are Reviewable

The following table includes Agency final determinations which may be appealed to the Board

pursuant to the Leaking Underground Storage Tank Program, Title XVI of the Act. Appealable

determinations are listed in Title XVI, so the reader should consult the Act for amendments to

Title XVI which may affect this list.

Description of Final Determination

Agency’s determination concerning the

owner’s or operator’s physical soil

classification and groundwater

Agency’s determination as to a request for

reimbursement for costs associated with

early action pursuant to Section 57.6(b) of

the Act.

57.7(a)(1)(B)

732.305(b)(1) and

Agency’s determination concerning the

owner’s or operator’s budget for the

physical soil classification and

groundwater investigation plan.

57.7(a)(2)

732.305(b)(2) and

and (f)

Agency’s determination concerning the site

Agency’s determination concerning the

corrective action plan submitted for a high

Agency’s determination concerning the

budget associated with a corrective action

plan submitted for a high priority site.

57.7(c)(1)(B)

732.405(b) and

732.503(b) and (f)

Agency’s determination as to issuance of a

no further remediation letter in accordance

with Section 57.10 of the Act for a high

priority site.

57.7(c)(1)(E)

732.410(a) and (d)

Agency’s determination concerning the

groundwater monitoring plan and

associated budget submitted for a low

Agency’s determination associated with a

groundwater monitoring completion report.

57.7(c)(2)(C)

732.403(g)

Agency’s determination as to issuance of a

no further remediation letter in accordance

with Section 57.10 of the Act for a low

Agency’s determination as to the site

classification for a no further action site.

57.7(c)(3)(B)

732.402 and

732.410(d)

Agency’s determination as to amount of

reimbursement.

57.8(i)

732.602(h)

Agency’s determination concerning the

completeness of plan or budget submittals

by the owner or operator.

732.502(b),

732.503(f)

Agency’s determination concerning the

completeness of reimbursement submittals

by the owner or operator.

732.602(a) and (b)

(Board Note: The above list was complete at time of adoption. However, the list is subject to

subsequent changes in the Act, the Board’s regulations and the interpretation of the

corresponding law. By no means should this list be interpreted to limit any right to appeal an

Agency final determination before the Board. The list should only be used as an aid for

interpreting Title XVI and the corresponding law.)

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE A: GENERAL PROVISIONS

CHAPTER I: POLLUTION CONTROL BOARD

PART 106

PROCEEDINGS PURSUANT TO SPECIFIC RULES OR STATUTORY PROVISIONS

SUBPART A: GENERAL PROVISIONS

Section

106.100 Applicability

106.102 Severability

106.104 Definitions

SUBPART B: HEATED EFFLUENT, ARTIFICIAL COOLING LAKE AND SULFUR

DIOXIDE DEMONSTRATIONS

Additional Petition Requirements in Sulfur Dioxide Demonstration

106.206 Notice

106.208

Agency Recommendation and Petitioner Response

106.210

Burden of Proof

SUBPART C: WATER WELL SETBACK EXCEPTION PROCEDURES

Section

106.300 General

106.302

Initiation of Proceeding

106.304

Petition Content Requirements

SUBPART D: REVOCATION AND REOPENING OF

CLEAN AIR ACT PERMIT PROGRAM (CAAPP) PERMITS

Initiation of Proceedings

106.406

Petition Content Requirements

USEPA Review of Proposed Determination

SUBPART E: MAXIMUM ACHIEVABLE CONTROL TECHNOLOGY

Initiation of Proceedings

106.506

Petition Content Requirements

SUBPART F: CULPABILITY DETERMINATIONS FOR PARTICULATE MATTER LESS

THAN OR EQUAL TO 10 MICRONS (PM-10)

Section

106.600 General

106.602

Initiation of Proceeding

106.604

Petition Content Requirements

SUBPART G: INVOLUNTARY TERMINATION OF ENVIRONMENTAL MANAGEMENT

SYSTEM AGREEMENTS (EMSAs)

Section

106.700

Purpose

106.702 Applicability

106.704

Termination Under Section 52.3-4(b) of the Act

106.706

Who May Initiate, Parties

106.707

Notice, Statement of Deficiency, Answer

Authority of Hearing Officer, Board Members, and Board Assistants

106.732

Order and Conduct of Hearing

Motion After Entry of Final Order

106.740

Relief from Final Orders

AUTHORITY: Implementing and authorized by Sections 5, 14.2,(c), 22.4, 26, 27, 28, 28.1, 28.5

35, 36, 37, 38, 39.5 and 52.3 of the Environmental Protection Act. [415 ILCS 5/5]

SOURCE: Subpart B: Originally adopted as Chapter I: Procedural Rules, 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 1978, amended in R79-9, 35 PCB 433, at 3 Ill. Reg. 51, p. 128, effective

December 7, 1979; amended in R80-12, 40 PCB 451, at 5 Ill. Reg. 2763, effective March 2,

1981; codified at 6 Ill. Reg. 8357; amended in R84-10, 62 PCB 87, at 9 Ill. Reg. 1409, effective

January 16, 1985; Old Part repealed, new Part adopted in R00-20 at 24 Ill. Reg. _____, effective

______________.

SUBPART A: GENERAL PROVISIONS

Section 106.100

Applicability

This Part applies to adjudicatory proceedings pursuant to specific rules or

statutory provisions. Specifically, the Part applies to heated effluent, artificial

cooling lake and sulfur dioxide demonstrations, water well setback exception

procedures, revocation and reopening of CAAPP permits, maximum achievable

control technology determinations, culpability determinations for particulate

matter less than or equal to 10 microns, and the involuntary termination of

environmental management system agreements.

This Part must be read in conjunction with 35 Ill. Adm. Code 101 which contains

procedures generally applicable to all of the Board’s adjudicatory 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 is adjudged invalid such adjudication

does not affect the validity of this Part as a whole or of any petition not adjudged invalid.

Section 106.104

Definitions

For the purpose of this Subpart, words and terms will have the meaning as defined in 35 Ill.

Adm. Code 101.Subpart B unless otherwise provided, or unless the context clearly indicates

otherwise.

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SUBPART B: HEATED EFFLUENT, ARTIFICIAL COOLING LAKE, AND SULFUR

DIOXIDE DEMONSTRATIONS

Section 106.200 General

a) Description

Heated Effluent Demonstration

The owner or operator of a source of heated effluent that

discharges 150 megawatts (0.5 billion British thermal units per

hour) or more must demonstrate in an adjudicatory proceeding

before the Board, pursuant to 35 Ill. Adm. Code 302.211(f), that

discharges from that source have not caused and cannot be

reasonably expected to cause significant ecological damage to the

receiving waters.

The owner or operator must make the demonstration under

subsection (a)(1)(A) of this Section not less than 5 years nor more

than 6 years after operations commence.

If the Board finds that the proof of the owner or operator under

subsection (a)(1)(A) of this Section is inadequate, the Board’s

order will include, but not be limited to, a requirement that the

owner or operator perform appropriate corrective measures within

a reasonable time as determined by the Board.

Artificial Cooling Lake Demonstration

If a discharger wishes to have the Board establish specific thermal

standards for its discharge to an artificial cooling lake pursuant to

35 Ill. Adm. Code 302.211(j)(5) that would apply to the discharge

in lieu of the applicable provisions of the thermal water quality

standards set forth in 35 Ill. Adm. Code 302.211 and 303, the

discharger must demonstrate in an adjudicatory proceeding before

the Board, pursuant to 35 Ill. Adm. Code 302.211(j)(3), that the

artificial cooling lake receiving the heated effluent will be

environmentally acceptable and within the intent of the Act.

If the Board finds that the proof of the discharger under subsection

(a)(2)(A) of this Section is adequate, the Board will establish,

pursuant to 35 Ill. Adm. Code 302.211(j)(5), specific thermal

standards to be applied to the discharge to the artificial cooling in

lieu of the applicable provisions of the thermal water quality

standards set forth in 35 Ill. Adm. Code 302.211 and 303.

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A Board order providing alternate thermal standards under

subsection (a)(2)(B) of this Section will include, but not be limited

to, the following conditions:

Pursuant to 35 Ill. Adm. Code 302.211(j)(1), all discharges

from the artificial cooling lake to other waters of the State

must comply with the applicable provisions of 35 Ill. Adm.

Code 302.211(b) through (e); and

ii)

Pursuant to 35 Ill. Adm. Code 302.211(j)(2), the heated

effluent discharged to the artificial cooling lake must

comply with all applicable provisions of 35 Ill. Adm. Code

Subtitle C, Chapter I, except 35 Ill. Adm. Code 302.211(b)

through (e).

Sulfur Dioxide Demonstrations. Any owner or operator of a fuel

combustion emission source may petition the Board, pursuant to 35 Ill.

Adm. Code 214.185 and this Subpart, for approval of substitute standards

from those set forth in 35 Ill. Adm. Code 214.183 and 214.184.

Initiation of Proceeding. The owner or operator may initiate a heated effluent,

artificial cooling lake or sulfur dioxide demonstration by filing with the Clerk a

petition in accordance with this Subpart.

Parties. The owner or operator must be named the petitioner and the Agency

must be named the respondent.

Filing and Service. Filing and service must be in accordance with 35 Ill. Adm.

Code 101.Subpart C.

Section 106.202 Petition Requirements

Heated Effluent Demonstration. The petition must include, where applicable, the

following information but may include additional information that the petitioner

believes will be relevant to the proceeding:

General Plant Description:

A) Generating

capacity;

Type of fuel used;

Operating characteristics of the condenser cooling system;

129

History of the load factor of the plant for the time during which the

plant has operated, but for no more than the last 5 years;

Projected load factors for the life of the plant;

Estimated date of retirement for each unit at the plant and any

plans for additional units at the plant;

History of plant shutdowns; and

Planned, emergency, and projected shutdowns with frequency and

duration.

Description of Method for Heat Dissipation:

Type of system used (such as once-through, mechanical, and draft

cooling towers) in narrative form; and

Summary information on temperature of discharge to receiving

waters in narrative form.

3) Plume

Studies:

Actual plume studies in the last 5 years correlated with plant

operation and meteorological conditions;

Theoretical plume studies for all four seasons for typical and worst

case conditions. Worst case conditions must be identified as worst

conditions of plant load factors, precipitation, ambient water

temperature, air temperature; such studies must consider the

frequency of occurrence and their joint probabilities of occurrence;

and

Theoretical plume studies that identify isotherms at 3

Fahrenheit

(1.7

Centigrade) intervals down to ambient temperature indicating

three dimensional effects.

A demonstration that discharges from the source of heated effluent have

not caused and cannot be reasonably expected to cause significant

ecological damage to the receiving waters, including:

Biological studies in the last 5 years on receiving waters, including

species studied, location of studies, and conclusions reached,

including conclusions as to both the lethal and sublethal effects of

the thermal discharge;

130

The impact on other animal life (such as waterfowl and

amphibians) in the area as a result of the thermal discharge; and

C) Secondary

Considerations

Possible and known impact on recreation from thermal

discharges; and

ii)

Management practices employed or planned in order to

limit the effect of any environmental harm established

under this subsection (a)(4).

The demonstration required under this subsection (a)(4) may take

any of the forms described in subsection (b)(2) of this Section.

A citation to any prior proceedings, in which the petitioner was a party,

brought pursuant to 35 Ill. Adm. Code 302.211(f) or (j)(3).

Artificial Cooling Lake Demonstration. The petition must include, where

applicable, the following information but may include additional information that

the petitioner believes will be relevant to the proceeding:

A demonstration that the artificial cooling lake receiving the heated

effluent will be environmentally acceptable and within the intent of the

Act, including:

Provision of conditions capable of supporting shellfish, fish and

wildlife, and recreational uses consistent with good management

practices; and

Control of the thermal component of the discharger’s effluent by a

technologically feasible and economically reasonable method.

The demonstration required under subsection (b)(1) of this Section may

take the form of any of the following:

A final environmental impact statement;

Pertinent provisions of environmental assessments used to prepare

the final environmental impact statement; or

A showing pursuant to Section 316(a) of the Clean Water Act [33

USC 1326].

A citation to any prior proceedings, in which the petitioner was a party,

brought pursuant to 35 Ill. Adm. Code 302.211(f) or (j)(3).

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Sulfur Dioxide Demonstration. The petition must include but not be limited to

the following information:

An explicit statement of the site-specific emission limitation (in pounds of

sulfur dioxide per million British Thermal Units (btu) actual heat input

and total pounds of sulfur dioxide per hour) that is proposed for the

facility.

Emission Sources Description:

The diameter, height, exit gas temperature, and exit gas velocity

for all stacks or vents through which sulfur dioxide is emitted into

the atmosphere;

A description of the fuels used including type, ultimate analysis,

sulfur content, and heat content;

A description of the type of fuel combustion equipment including

method of firing and size (in million btu per hour capacity);

A topographic map of terrain within 30 miles of the emission

source(s);

A specific description of the location of the emission sources,

including a plot plan; and

A specific description of the operating conditions which produce

maximum sulfur dioxide emissions.

A summary of any and all ambient air quality data collected by the owner

or operator of the source(s) since January 1, 1973. The summary must

include annual averages; maximum and second-highest one-hour, three-

hour, and 24-hour averages for each month; and the number of times the

three-hour and 24-hour sulfur dioxide standards were exceeded during

each month.

A summary of any and all meteorological data collected by the owner or

operator of the source(s) since January 1, 1973, if such data are used in the

development of the site-specific emission standard.

A complete description of and justification for all dispersion models and

plume rise equations that are used to develop the site-specific emission

limitation including all model equations.

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A description of and justification for the use of all data that were inputs to

the dispersion and plume rise formula used to establish the site-specific

emission standard. The description and justification must cover, as a

minimum, the following input data;

Stack diameters, stack heights, exit gas temperatures, and exit gas

velocities for all stacks and vents emitting sulfur dioxide at the

subject facility as well as for any other sources of sulfur dioxide

that were modeled;

All sulfur dioxide emission sources that were modeled; and

All meteorological data.

Calculated maximum ground-level concentrations using the following

method, or such other method (or modification of the hereinafter stated

method) that the petitioner proves to the satisfaction of the Board to be

acceptable.

Selection of simulation model:

Gaussian models that allow the input of hourly

meteorological data must be used which are appropriate for

the specific location and type of source(s) in question.

ii)

Dispersion models presented in "Guidelines on Air Quality

Models" (EPA-450/2-78-027), as amended from time to

time, or those deemed by the Board to be equivalent to

these models must be used for detailed air quality studies.

Selection of meteorological data and stack parameters:

The most recent 5 years of hour-by-hour meteorological

data reasonably available, including wind speed, wind

direction, atmospheric stability, mixing height and surface

temperature must be used, unless the petitioner

demonstrates that one of the 5 years causes substantially

higher concentrations than the other four, in which case

detailed analyses conducted for only that "worst case" year

would be acceptable. Notwithstanding the previous

sentence, one year of on-site data may be used in lieu of the

5-year data requirement;

ii)

Data must be from the nearest, representative, quality

controlled meteorological collecting site; and

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iii)

Stack parameters (including emission rate, stack height,

stack diameter, exit velocity, and exit temperature) must

reflect the maximum operating rate for comparison with the

24-hour and 3-hour sulfur dioxide standards.

C) Receptors:

Receptors must be located so as to ensure that the source's

maximum impact is detected;

ii)

The determination of the receptor grid must be fully

documented in the modeling study;

D) Special

conditions:

All special conditions that may affect the dispersion of the

effluent plume, including local terrain effects and

aerodynamic downwash, must be considered in the

modeling study;

ii)

If terrain is a factor in the vicinity of the source, a model

capable of handling variable-height receptors must be used;

and

iii)

If the computed height of the effluent plume is less than 2.5

times the height of nearby buildings or local obstructions,

aerodynamic downwash must be studied and considered as

a possible factor in the dispersion of that effluent.

Determination of violation: The determination of whether

an applicable air quality increment or standard is being

violated must be based on the second highest predicted

concentration over the receptor grid for short-term

averaging times and on the highest predicted concentration

for annual averaging times. However, if only one year of

meteorological data is used in the short-term analysis, then

the highest-predicted concentration may be compared to the

applicable standard to determine whether a violation has

occurred.

Other sources: Effects of other sources of sulfur dioxide

must be taken into account in the modeling study. Methods

by which other sources of sulfur dioxide may be accounted

are as follows:

134

An acceptable method is to estimate the "background" from

monitoring data which has been subjected to adequate

quality control where available. When monitored data is

used, the background must be estimated using monitoring

days with meteorological conditions similar to those

identified as "worst case" for the source in question; or

ii)

If monitoring data is not available, then all sources of sulfur

dioxide having a significant impact in the area of the

source's impact area must be used in the simulation model.

These sources of sulfur dioxide must also be modeled at

their maximum allowable emission rate for any studies

addressing 24-hour or 3-hour averaging times.

Estimates of the frequency, characteristics, probable time of occurrence,

and duration of the meteorological conditions associated with the

maximum ground-level concentration of sulfur dioxide to which the

facility under study contributes. A description of the techniques used in

arriving at the above estimates must be included.

Background concentrations that were determined for all meteorological

conditions required to be examined under subsection (c)(7) of this Section

and for any other meteorological conditions considered in the

development of the alternative standard.

10)

A description of the method that was used to determine background sulfur

dioxide concentrations in the vicinity of the subject facility for each of the

meteorological conditions required to be examined under subsection (7) of

this Section and for any additional meteorological conditions considered

in developing the alternative standard.

11)

An evaluation and calibration of the dispersion model if air quality

monitoring data were available to perform such evaluation and calibration.

Section 106.204 Additional Petition Requirements in Sulfur Dioxide Demonstrations

In addition to meeting the petition contends requirements of Section 106.202(c) of this Part the

petitioner must ensure that the procedural requirements of 40 CFR 51.4 (1977) are met and, at

least 30 days prior to the date of the hearing, petitioner must:

Give notice to the public by prominent advertisement in the Air Quality Control

Region affected announcing the date, time and place of such hearing;

Make available a copy of the petition for public inspection in at least one location

in the Air Quality Control Region in which the source is located;

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Notify the Administrator of USEPA (through the appropriate Regional Office);

Notify each local air pollution control agency located within the affected Air

Quality Control Region; and

Notify, in the case of an interstate Air Quality Control Region, any air pollution

control agencies of other states included, in whole or in part, in the Region.

Section 106.206 Notice

The Clerk will give notice of the petition and hearing in accordance with 35 Ill. Adm. Code

101.602. The proceedings must be in accordance with 35 Ill. Adm. Code 101.Subpart F.

Section 106.208 Agency Recommendation and Response

The Agency must file a recommendation on a petition under this Subpart as prescribed below.

The petitioner or any other party to the proceeding may file a response to the Agency

recommendation within 14 days after service of the petition. Any person other than a party to

the proceeding may file a response to the Agency recommendation within 14 days after the

Agency files the recommendation.

Heated Effluent Demonstration

Within 60 days after the owner or operator files the petition, the Agency

must make a recommendation to the Board on the petition. The

recommendation may include, but is not limited to:

A description of the Agency’s efforts in conducting its review of

the petition;

The Agency's conclusion as to whether discharges from the source

have caused or can reasonably be expected to cause significant

ecological damage to the receiving waters;

The factual basis for the Agency's conclusion;

Any corrective measures that the Agency recommends be taken

The Agency's recommendation on how the Board should dispose

of the petition.

Artificial Cooling Lake Demonstration

136

Within 60 days after the owner or operator files the petition, the Agency

must make a recommendation to the Board on the petition. The

recommendation may include, but is not limited to:

A description of the Agency’s efforts in conducting its review of

the petition;

The Agency's conclusion as to whether the artificial cooling lake

receiving the heated effluent will be environmentally acceptable

and within the intent of the Act;

The factual basis for the Agency's conclusion; and

The Agency's recommendation on how the Board should dispose

of the petition.

Sulfur Dioxide Demonstration

Within 90 days after the filing of the petition the Agency must make a

recommendation to the Board as to be proposed site-specific emission

limitation. Such recommendation may include, but is not limited to, the

following:

A description of the efforts made by the Agency in conducting its

review;

The Agency's conclusion as to whether the proposed site-specific

emission limitation is adequate to prevent violations of the Primary

and Secondary Sulfur Dioxide Ambient Air Quality Standards; and

The Agency's conclusion as to what disposition should be made of

the petition.

Section 106.210 Burden of Proof

The burden of proof will be on the petitioner.

SUBPART C: WATER WELL SETBACK EXCEPTION PROCEDURES

Section 106.300 General

Description. This Subpart applies to any

owner of a new potential route, a new

potential primary source other than landfilling or land treating, or new potential

secondary source

who files a petition for an exception from the setback

requirements of Sections 14.2 and 14.3(e) of the Act pursuant to Section 14.2(c)

of the Act and this Subpart. [415 ILCS 5/14.2(c)]

137

Parties. The owner filing the petition for an exception must be named the

petitioner and the Agency must be named the respondent. Affected well owners

who are not petitioners also must be named respondents.

Filing and service. The filing and service requirements of 35 Ill. Adm. Code

101.Subpart C will apply to the proceedings of this Subpart.

Section 106.302 Initiation of Proceeding

The petitioner must file the petition for exception with the Clerk of the Board, and

must serve one copy upon the Agency.

The petitioner must notify and provide a copy of the petition to the owners of

each potable water supply for which the setback

requirements would be affected

by the exception.

Section 106.304 Petition Content Requirements

The petition must contain the following information:

A written statement, signed by the petitioner or an authorized representative,

outlining the scope of the evaluation, the nature of, the reasons for and the basis

of the exception, consistent with the burden of proof contained in Section 106.310

of this Part;

The nature of the petitioner's operations and control equipment;

Proof of service on owners required to be notified and provided with a copy of the

petition as required by Section 106.302(b) of this Part, 35 Ill. Adm. Code 101, and

Section 14.2(c) of the Act; and

Any other information which may be required by Section 14.2 of the Act.

Section 106.306 Response and Reply

Within 21 days after the filing of a petition, the Agency and any owner required

to be notified may file a response to any petition in which it has not joined as co-

petitioner. The response must include the comments concerning potential Board

action on the petition.

The petitioner may file a reply within 14 days after the service of any response.

Section 106.308 Hearing

138

The Board will hold at least one public hearing in an exception proceeding. The hearing officer

will schedule the hearing. The Clerk will give notice of hearing in accordance with 35 Ill. Adm.

Code 101. The proceedings will be in accordance with 35 Ill. Adm. Code 101.Subpart F.

Section 106.310 Burden of Proof

The burden of proof is on the petitioner. The petitioner must demonstrate that:

Compliance with the setback requirements of Section 14.2 or 14.3(e) of the Act

would pose an arbitrary and unreasonable hardship;

The petitioner will utilize the best available control technology economically

achievable to minimize the likelihood of contamination of the potable water

supply well;

The maximum feasible alternative setback will be utilized; and

The location of such potential route will not constitute a significant hazard to the

potable water supply well.

SUBPART D: REVOCATION AND REOPENING OF

CLEAN AIR ACT PERMIT PROGRAM (CAAPP) PERMITS

Section 106.400 General

Description. The provisions of this Subpart will apply to:

Any revocation proceeding initiated by the Agency when it determines

that there are grounds to revoke and reissue a Clean Air Act Permit

Program (CAAPP) permit for cause, pursuant to Section 39.5(15)(b) of the

Act; and

Any reopening proceeding initiated by the Agency pursuant to a notice

that there are grounds to terminate or revoke and reissue a CAAPP permit

for cause, pursuant to Section 39.5(16) of the Act.

b) Parties.

In a revocation proceeding initiated by the Agency, the Agency will be

named as petitioner and the holder of the CAAPP will be named as

respondent.

In a reopening proceeding initiated by the Agency, the Agency will be

named as petitioner and the holder of the CAAPP will be named as

respondent.

139

Filing and service. The filing and service requirements of 35 Ill. Adm. Code

101.Subpart C will apply to the proceedings of this Subpart.

Section 106.402 Definitions

The definitions of 35 Ill. Adm. Code 101.Subpart B and Section 39.5 of the Act will apply to this

Subpart unless otherwise provided, or unless the context clearly indicates otherwise. If there is a

conflict, the definitions of Section 39.5 of the Act will apply.

Section 106.404 Initiation of Proceedings

Agency revocation proceeding. The Agency may initiate a revocation proceeding

before the Board by serving a petition for revocation upon the respondent and

filing the petition with the Board.

USEPA reopening proceeding. If the Agency receives from USEPA a notice to

terminate or revoke and reissue a CAAPP permit for cause, the Agency must,

within 30 days after receipt of USEPA's notice, serve a petition upon the

respondent and file the petition with the Board.

Section 106.406 Petition Content Requirements

Agency revocation proceeding. The petition in a revocation proceeding must

include:

The grounds for the revocation of the CAAPP permit;

The associated permit record; and

Any other information necessary to establish that the CAAPP permit

should be revoked.

USEPA reopening proceeding. The petition in a reopening proceeding must

include:

USEPA notice to terminate or revoke and reissue a CAAPP permit for

cause that initiated the matter;

The associated permit record; and

The Agency's proposed determination and the justification for the

proposed determination.

Section 106.408 Response and Reply

140

The respondent may file a response to the Agency's petition within 21 days after

service of the petition.

The Agency may file a reply within 21 days after filing of any response.

Section 106.410 Hearing

The Board will hold at least one public hearing in the county where the CAAPP source is

located. The Clerk will give notice of the petition and hearing in accordance with 35 Ill. Adm.

Code 101.602. The proceeding must be conducted in accordance with 35 Ill. Adm. Code

101.Subpart F.

Section 106.412 Burden of Proof

Agency revocation proceeding. The burden of proof will be on the Agency to

establish that the permit should be revoked under the standards set forth in this

Act and the Clean Air Act.

USEPA reopening proceeding. The burden of proof will be on the Agency.

Section 106.414 Opinion and Order

Agency revocation proceeding:

The Board will issue a written opinion and order within 120 days after the

filing of the petition that sets forth the Board's decision and supporting

rationale.

If the Board determines that the permit should be revoked and reissued, its

final order will direct the Agency to revoke and reissue the CAAPP permit

consistent with Section 39.5 of the Act.

USEPA reopening proceeding:

After due consideration of the written and oral statements, the testimony

and arguments that shall be submitted at hearing, the Board shall issue

and enter an interim order for the proposed determination

within 120

days after the filing of the petition,

which shall set forth all changes, if

any, required in the Agency's proposed determination. The interim order

shall comply with requirements for final order as set forth in Section 33 of

this Act. Issuance of an interim order by the Board under this

[subsection

(b)],

however, shall not affect the permit status and does not constitute a

final action for purposes of this Act or the Administrative Review Law

[415 ILCS 5/39.5(16)(b)(ii)]

141

The Board shall cause a copy of its interim order to be served upon all

parties to the proceeding as well as upon USEPA. The Agency shall

submit the proposed determination to USEPA in accordance with the

Board's interim order within 180 days after receipt of the notification

from USEPA

. [415 ILCS 5/39.5(16)(b)(iii)]

Section 106.416 USEPA Review of Proposed Determination

If USEPA does not object to the proposed determination within 90 days after

receipt, the Board will, within 7 days after receipt of USEPA's final approval or

within 21 days after expiration of the 90-day period, whichever is earlier, enter

the interim order as a final order. The final order may be appealed as provided by

Title XI of the Act. The Agency must take final action in accordance with the

Board's final order.

b) USEPA

Objection.

If USEPA objects to the proposed determination within 90 days after

receipt,

the Agency shall submit USEPA’s objection and the Agency's

comments and recommendation on the objection to the Board

and

permittee upon receipt of the objection. Within 15 days after receipt of

USEPA's objection, the Agency must submit

the Agency's comments and

recommendation on the objection to the Board and permittee

. [415 ILCS

5/39.5(16)(c)(ii)]

The Board shall review its interim order in response to USEPA's objection

and the Agency's comments and recommendation and issue a final order

in accordance with Sections 32 and 33 of this Act

within 60 days after

receipt of the Agency's comments and recommendation on USEPA's

objection.

The Agency shall, within 90 days after receipt of such

objection, respond to USEPA's objection in accordance with the Board's

final order

. [415 ILCS 5/39.5(16)(c)(ii)]

SUBPART E: MAXIMUM ACHIEVABLE CONTROL

TECHNOLOGY DETERMINATIONS

Section 106.500 General

Description. The provisions of this Subpart will apply to any proceeding initiated

by an owner or operator of a CAAPP source pursuant to Section 39.5(19)(a) or (e)

of the Act challenging the Agency’s determination not to utilize the hazardous air

pollutant emission limitation proposed by the CAAPP source or the hazardous air

pollutant limitation for a case-by-case maximum achievable control technology

(MACT) proposed by the CAAPP source.

142

Parties. The owner or operator of the CAAPP source who initiates the proceeding

must be named as petitioner and the Agency must be named as respondent.

Filing and service. The filing and service requirements of 35 Ill. Adm. Code

101.Subpart C will apply to the proceedings of this Subpart.

Section 106.502 Definitions

The definitions of 35 Ill. Adm. Code 101.Subpart B and Section 39.5 of the Act will apply to this

Subpart unless otherwise provided, or unless the context clearly indicates otherwise. If there is a

conflict, the definitions of 39.5 of the Act will apply.

Section 106.504 Initiation of Proceedings

The owner or operator of a CAAPP source may initiate a proceeding before the Board by serving

a petition upon the Agency and filing with the Clerk of the Board.

Section 106.506 Petition Content Requirements

A petition filed pursuant to Sections 39.5(19)(a) and (e) of the must include:

A detailed description of and justification for the emission limitation that is being

proposed for the source and an explanation of how such emission limitation

provides for the level of control required under Section 112 of the CAA (42 USC

7412);

A petition filed pursuant to Section 39.5(19)(a) of the Act must also include

justification for the Board to determine whether the emission limitation proposed

by the owner or operator of the CAAPP source provides for the emission

limitation equivalent to the emission limitation that would apply to the source if

USEPA had promulgated the applicable emission standard pursuant to Section

112(d) of the CAA (42 USC 7412(d)) in a timely manner; and

The Agency’s notification of its refusal to adopt the CAAPP source’s proposed

emission limitation or the CAAPP source’s MACT determination.

Section 106.508 Response and Reply

The Agency may file a response to the petition of the owner or operator within 21

days after service of the petition.

The owner or operator may file a reply within 21 days after the filing of any

response.

Section 106.510 Hearing

143

The Board will hold at least one public hearing in the county where the CAAPP source is

located. The Clerk of the Board will give notice of the petition and any hearing in accordance

with 35 Ill. Adm. Code 101.602. The proceeding will be conducted in accordance with 35 Ill.

Adm. Code 101.Subpart F.

Section 106.512 Burden of Proof

The burden of proof will be on the petitioner to demonstrate that the emission limitation provides

for the level of control required under Section 112 of the Clean Air Act.

Section 106.514 Board Action

The Board shall determine whether the emission limitation proposed by the owner or operator or

an alternative emission limitation proposed by the Agency provides for the level of control

required under Section 112 of the Clean Air Act, or shall otherwise establish an appropriate

emission limitation, pursuant to Section 112 of the Clean Air Act

. [415 ILCS 5/39.5(19(a) and

(e)]

SUBPART F: CULPABILITY DETERMINATIONS FOR PARTICULATE MATTER LESS

THAN OR EQUAL TO 10 MICRONS (PM-10)

Section 106.600 General

Description. The provisions of this Subpart will apply to any appeal initiated

under 35 Ill. Adm. Code 212.702 by an owner or operator of a source pursuant to

a finding of culpability for an exceedence of the 24-hour ambient air quality

standard for particulate matter less than or equal to ten (10) microns (PM-10) at

35 Ill. Adm. Code 243.120 by the Agency.

Parties. The owner or operator of a source who initiated the proceeding will be

named as the petitioner and the Agency will be named as respondent.

Filing and service. The filing and service requirements of 35 Ill. Adm. Code

101.Subpart C will apply to the proceedings of this Subpart.

Section 106.602 Initiation of Proceedings

The owner or operator of a source may initiate a proceeding before the Board by serving a

petition for review of the Agency culpability determination and filing with the Clerk of the

Board.

Section 106.604 Petition Content Requirements

A petition for review filed pursuant to this Subpart must include, but need not be limited to:

144

A copy of the letter, or other written communication, setting forth the Agency's

finding of culpability;

A clear identification of the county in which the source is located; and

A detailed description of, and justification for, the source's position that the

Agency's finding of culpability is incorrect.

Section 106.606 Response and Reply

The Agency must file a response to a petition appealing a determination of

culpability within 21 days after service of the petition.

The Agency's response must contain, at a minimum, the basis of its determination

of the petitioner's culpability, including any meteorological, monitoring, or

sampling data upon which the determination was made.

The petitioner may file a reply within 7 days after the service of any response by

the Agency.

Section 106.608 Hearing

Within 14 days after a petition is filed, the Agency must publish notice of such

petition in a newspaper of general circulation in the county in which the source is

located. Within 30 days after the filing of the petition, any person may file with

the Clerk of the Board a request for hearing on the petition.

The hearing officer will schedule any hearing. The Clerk of the Board must give

notice of the hearing in accordance with 35 Ill. Adm. Code 101.602. The

proceeding will be conducted in accordance with 35 Ill. Adm. Code 101.Subpart

Section 106.610

Burden of Proof

The burden of proof will be on the petitioner to demonstrate that the Agency’s determination of

culpability is incorrect.

SUBPART G: INVOLUNTARY TERMINATION OF ENVIRONMENTAL MANAGEMENT

SYSTEM AGREEMENTS (EMSAs)

Section 106.700

Purpose

The purpose of this Subpart is to set forth the criteria and procedures under which the Board or

the Agency may terminate an EMSA, as defined in 35 Ill. Adm. Code 101.202.

Section 106.702

Applicability

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When the Agency terminates an EMSA under Section 52.3 4(b) of the Act, only

Section 106.704 of this Subpart applies.

This Subpart, except for Section 106.704, applies to proceedings in which the

Board will determine whether to terminate an EMSA.

Section 106.704 Termination Under Section 52.3-4(b) of the Act

To terminate an EMSA under Section 52.3-4(b) of the Act, the Agency must

determine that the sponsor’s performance under the EMSA has failed to:

Achieve emissions reductions or reductions in discharges of wastes

beyond the otherwise applicable statutory and regulatory requirements

through pollution prevention or other suitable means; or

Achieve real environmental risk reduction or foster environmental

compliance by other persons regulated under this Act in a manner that is

clearly superior to the existing regulatory system.

[415 ILCS 5/52.3-1(b)]

b) If the Agency terminates an EMSA under Section 52.3-4(b) of the Act, the sponsor

may file an appeal with the Board. Appeals to the Board will be pursuant to 35 Ill.

Adm. Code 105 Subparts A and B.

Section 106.706 Who May Initiate, Parties

Only the Agency may commence a proceeding to terminate an EMSA under this

Subpart.

The Agency must be designated the complainant. The sponsor must be

designated the respondent.

Misnomer of a party is not a ground for a dismissal; the name of any party may be

corrected at any time.

Section 106.707 Notice, Statement of Deficiency, Answer

A proceeding to terminate an EMSA will be commenced when the Agency serves

a notice of filing and a statement of deficiency upon the respondent and files 1

original plus 9 copies of the notice of filing and statement of deficiency with the

Clerk.

The statement of deficiency must contain:

The stated basis for the respondent’s alleged deficient performance under

Section 106.612(a) of this Subpart;

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The dates, location, nature, extent and duration of any act or omission, and

amount and other characteristics of any discharges or emissions, alleged to

violate provisions of the Act or regulations that apply to the pilot project

that the EMSA does not address;

The dates, location, nature, extent and duration of any act or omission, and

amount and other characteristics of any discharges or emissions, alleged to

violate the EMSA; and

With respect to subsections (b)(1) through (b)(3) of this Section, the

statement of deficiency must contain sufficient detail to advise the

respondent of the extent and nature of the alleged violations to reasonably

allow the respondent to prepare a defense.

The respondent must file an answer within 15 days after receipt of the statement

of deficiency, unless the Board or the hearing officer extends the 15-day period

for good cause. All material allegations of the statement of deficiency will be

taken as admitted if not specifically denied by the answer, or if no answer is filed.

Any facts that constitute an affirmative defense that would be likely to surprise

the complainant must be plainly set forth in the answer before hearing.

Section 106.708 Service

The Agency must serve a copy of the notice of filing and statement of deficiency

either personally on the respondent or the respondent’s authorized agent, or by

registered or certified mail with return receipt signed by the respondent or the

respondent’s authorized agent. Proof must be made by affidavit of the person

who makes personal service, or by properly executed registered or certified mail

receipt. The Agency must file proof of service of the notice of filing and

statement of deficiency with the Clerk immediately upon completion of service.

The Agency and the respondent must serve all motions and all other notices

personally, by First Class United States mail, with sufficient postage, or by

overnight delivery by a nationally recognized courier service. The Agency and

the respondent must file an original and 9 copies of the motions and notices with

the Clerk with proof of service.

Service is presumed complete upon personal service, four days after deposit in the

United States First Class mail, with sufficient postage, or the next business day

upon deposit with a nationally recognized courier service for overnight delivery.

Section 106.710 Notice of Hearing

The Clerk will assign a docket number to each statement of deficiency filed. Any

hearing will be held not later than 60 days after the respondent files the answer,

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subject to any extensions ordered under subsection (c) of this Section.

The Chairman of the Board will designate a hearing officer and the Clerk will

notify the parties of the designation. The hearing officer may be a Member of the

Board if otherwise qualified.

The hearing officer, after reasonable efforts to consult with the parties, will set a

time and place for hearing. The Board or the hearing officer may extend the time

for hearing if all parties agree or there are extreme and unanticipated or

uncontrollable circumstances that warrant a delay. The Board or the hearing

officer may delay the hearing more than once. In each event, the Board or the

hearing officer will not delay the hearing for more than 30 days.

The hearing will be held in the county in which the pilot project is located, or in

another county that the hearing officer designates for cause.

The hearing officer or the Clerk will give notice of the hearing, at least 30 days

before the hearing, to the parties under Section 106.708(b) of this Subpart, and to

the public by public advertisement in a newspaper of general circulation in the

county in which the pilot project is located.

The Agency must give notice of each statement of deficiency and hearing

under Section 106.708(b)of this Part at least 10 days before the hearing to:

All stakeholders named or listed in the EMSA; and

Any person who submitted written comments on the respondent’s EMSA

or participated in the public hearing on the respondent’s EMSA by signing

an attendance sheet or signature card under the procedures set forth in 35

Ill. Adm. Code 187.404, if less than 100 persons attended the public

hearing on the respondent’s EMSA as indicated by signatures on the

attendance sheet or signature cards.

Failure to comply with this Section is not a defense to an involuntary termination

proceeding under this Subpart, but the hearing officer may postpone the hearing

upon the motion of any person prejudiced by a failure to comply with this

Section.

Section 106.712 Deficient Performance

For purposes of this Subpart, a respondent’s performance under its EMSA is

deficient if the Agency asserts and the Board finds that any of the following

conditions exist:

The respondent misrepresented the factual basis for entering into the

EMSA.

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The respondent failed to provide access to the pilot project for the Agency

to monitor compliance with an EMSA.

The respondent falsified any monitoring data, recordkeeping information

or reports regarding the pilot project.

The respondent or the owner or operator of the pilot project failed to

comply with any requirement of any federal or local environmental law or

regulation that applies to the pilot project and that the EMSA does not

address, and for which a citizen’s complaint has been filed with a court of

competent jurisdiction or the appropriate authority has sent a notice of

violation, complaint or other notice of failure to comply to the respondent

or the owner or operator of the pilot project.

The respondent or the owner or operator of the pilot project failed to

comply with any requirement of any State environmental law or regulation

that applies to the pilot project and that the EMSA does not address, and

for which a citizen’s complaint has been filed with the Board or the

Agency has mailed a notice of violation to the respondent or the owner or

operator of the pilot project under Section 31(a) or (b) of the Act.

The respondent failed to comply with its EMSA, subject to any grace or

cure periods or rights contained in the EMSA.

Any Board finding of deficient performance under subsection (a)(4) or (a)(5) of

this Section will not be binding for any purpose or in any other proceeding under

the Act, other than under this Subpart.

Section 106.714 Board Decision

The Board will prepare a written opinion and order for all final determinations

that will include findings of fact (with specific page references to principal

supporting items of evidence in the record) and conclusions of law (supported by

adequate reasoning) on all material issues.

The Board will render its decision as expeditiously as practicable. The Board will

render a decision as an order that:

Terminates the EMSA;

Defers termination for a specified time, not to exceed 90 days from the

date of the order, during which the respondent may rectify the deficient

performance; or

Rejects termination of the EMSA.

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The Board may extend the time period under subsection (b)(2) of this Section for

good cause.

The Board may order any or all of the following:

Direct the respondent to cease and desist from violating the Act, the

Board’s regulations, or the EMSA;

Require the respondent to provide performance assurance compensation in

appropriate amounts;

Require the respondent to post a sufficient performance bond or other

security to assure that the respondent corrects the violation within the time

that the Board prescribes;

Enforce any remedy provision of the EMSA; and

Order other relief as appropriate.

The Clerk will publish the order and opinion with the vote of each Board Member

recorded and will notify the parties required to be notified of the hearing from

which the order arose of the order and opinion.

Section 106.716 Burden of Proof

The Agency has the burden to prove, by a preponderance of the evidence, that there has been

deficient performance under the EMSA, as set forth in Section 106.712(a) of this Subpart.

Section 106.718 Motions, Responses

All motions before a hearing must be presented to the hearing officer at least 10

days before the date of the hearing.

The complainant’s motion to voluntarily dismiss an action as to any or all claims

must be directed to the Board and may be made orally upon the hearing record, or

may be made in writing at any time before the Board issues its decision.

All motions must be served on all parties, including the Agency and its

representative and the hearing officer, with proof of service.

Unless made orally on the record during a hearing or unless the hearing officer

directs otherwise, a motion must be in writing, must state the reasons for and

grounds upon which the motion is made, and may be accompanied by any

affidavits or other evidence relied on and, when appropriate, by a proposed order.

150

Within 7 days after a written motion is served, or another period that the Board or

hearing officer may prescribe, a party may file a response to the motion,

accompanied by affidavits or other evidence. If no response is filed, the parties

will be deemed to have waived objection to the motion, but the waiver of

objection does not bind the Board. The moving party does not have the right to

reply, except as the hearing officer or the Board permits.

No oral argument will be heard on a motion before the Board unless the Board

directs otherwise. A written brief may be filed with a motion or an answer to a

motion.

The hearing officer may rule upon all motions, except that the hearing officer has

no authority to dismiss, or rule upon a motion to dismiss or decide a proceeding

on the merits, or for failure to state a claim, or for want of jurisdiction, or to strike

any claim or defense for insufficiency or want of proof.

No interlocutory appeal of a motion may be taken to the Board from a ruling of

the hearing officer.

After the hearing, the Board may review the hearing officer’s rulings. The Board

will set aside the hearing officer’s ruling only to avoid material prejudice to the

rights of a party. The hearing officer, if a member of the Board, may vote upon

motions to review his or her rulings as hearing officer.

Unless the Board orders or this Subpart provides otherwise, the filing of a motion

will not stay the proceeding or extend the time to perform any act.

Section 106.720 Intervention

Upon timely written motion and subject to the need to conduct an orderly and

expeditious hearing, the Board will permit a person to intervene in an involuntary

termination proceeding under this Subpart if the person submitted written

comments on the respondent’s EMSA or participated in the public hearing on the

respondent’s EMSA by signing an attendance sheet or signature card at hearing

under the procedures set forth in 35 Ill. Adm. Code 187.404, or is named or listed

in the respondent’s EMSA as a stakeholder, and if the Board’s final order may

adversely affect the person.

The movant must file an original and 9 copies of a motion to intervene with the

Board and serve a copy on each party not later than 48 hours before the hearing.

The Board may permit a person to intervene at any time before the beginning of

the hearing when that person shows good cause for the delay.

An intervenor has all the rights of an original party, except that the Board may

limit the rights of the intervenor in accordance with 35 Ill. Adm. Code 101.402.

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Section 106.722 Continuances

The hearing officer will grant a motion to continue an involuntary termination proceeding under

this Subpart when justice requires. All motions to continue must be supported by an affidavit or

written motion before the hearing officer by the person or persons with knowledge of the facts

that support the motion. However, if the Board determines that any involuntary termination

proceeding under this Subpart is not proceeding expeditiously, the Board may order actions that

it deems appropriate to expedite the proceeding.

Section 106.724 Discovery, Admissions

Discovery, except requests to produce documents, admit facts and state the

identity and location of persons with knowledge of facts, as set forth in subsection

(b) of this Section, is not permitted unless the hearing officer orders otherwise.

Regarding any matter not privileged, the hearing officer may order a party to

produce documents and to state the identity and location of persons with

knowledge of facts upon the written request of any party when parties cannot

agree on the legitimate scope of the requests. It is not a ground for objection that

the documents will be inadmissible at hearing if the information sought appears

reasonably calculated to lead to the discovery of admissible evidence or is

relevant to the subject matter involved in the pending proceeding.

The hearing officer may order a party:

To state the identity and location of persons with knowledge of relevant

facts.

To produce evidence that a party controls or possesses so that it may be

inspected, copied or duplicated. The order may grant the right to

reasonably inspect the pilot project.

The hearing officer may at any time on his or her own initiative, or on motion of

any party or witness, make a protective order as justice requires. The protective

order may deny, limit, condition or regulate discovery to prevent unreasonable

delay, expense, harassment, or oppression, or to protect non-disclosable materials

from disclosure consistent with Sections 7 and 7.1 of the Act and 35 Ill. Adm.

Code 130.

All objections to rulings of the hearing officer must be made in the record.

Sections 106.718(d), (e), (f), (g), (h), (i) and (j) of this Subpart apply regarding

procedures to rule on objections.

Failure to comply with any ruling will subject the person to sanctions under 35 Ill.

Adm. Code 101, Subpart H.

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A party may serve on any other party, no sooner than 15 days after the Agency

files the statement of deficiency, a written request that the latter admit the truth of

any specified relevant fact set forth in the request.

A party may serve on any other party, no sooner than 15 days after the Agency

files the statement of deficiency, a written request to admit to the genuineness of

any relevant documents described in the request. Copies of the document must be

served with the request unless copies have already been furnished.

Each of the matters of fact and the genuineness of each document of which

admission is requested is admitted unless, within 15 days after service under

subsection (h) or (i) of this Section, the party to whom the request is directed

serves upon the party requesting the admission either a sworn statement that

denies specifically the matters on which the admission is requested or that sets

forth in detail the reasons why the party cannot truthfully admit or deny those

matters or written objections on the ground that some or all of the requested

admissions are privileged or irrelevant or that the request is otherwise improper in

whole or in part. If a party objects in writing to a part of the request, the

remainder of the request must be answered within the period designated in the

request. A denial must fairly meet the substance of the requested admission. If

good faith requires that a party deny only a part, or requires qualification, of a

matter of which an admission is requested, the party must specify so much of it as

is true and deny only the remainder. The hearing officer will hear any objection

to a request or to an answer upon prompt notice and motion of the party making

the request.

Any admission made under this Section is for the purpose of the pending

proceeding 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.

If a party, after being served with a request to admit the genuineness of any

documents or the truth of any matters of fact, serves a sworn denial in response to

the request, and if the party requesting the admissions later proves the

genuineness of the document or the truth of the matter of fact, the latter party may

apply to the Board for an order under 35 Ill. Adm. Code 101.Subpart H for

payment of reasonable expenses incurred.

Section 106.726 Subpoenas

Upon any party’s timely motion to the Board, or on motion of the hearing officer

or the Board, the hearing officer or the Board may issue a subpoena to attend a

hearing. The subpoena may include a command to produce evidence reasonably

necessary to resolve the matter under consideration, subject to this Subpart’s

limitations on discovery. A copy of the subpoena must be served upon the Clerk.

If the witness, other than a respondent or owner or operator of a pilot project, is a

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non-resident of the State, the order may provide terms and conditions regarding

his or her appearance at the hearing that are just, including payment of his or her

reasonable expenses.

Every subpoena must state the title of the proceeding and command each person

to whom it is directed to attend and give testimony at the time and place specified.

The hearing officer or the Board, upon motion made promptly and in any event at

or before the time specified for compliance with the subpoena, may quash or

modify the subpoena if it is unreasonable and oppressive.

Failure of any witness to comply with a Board subpoena will subject the witness

to sanctions under 35 Ill. Adm. Code 101.Subpart H.

Section 106.728 Settlement Procedure

All parties to any proceeding in which a settlement or compromise is proposed

must file with the Clerk before the time of the scheduled hearing a written

statement, signed by the parties or their authorized representatives, that outlines

the nature of, the reasons for, and the purpose to be accomplished by, the

settlement. The statement must contain:

A full stipulation of all material facts that pertain to the nature, extent and

causes of the alleged violations;

The nature of the relevant parties’ operations and control equipment;

Any explanation for past failures to comply and an assessment of the

impact on the public from the failure to comply;

Details about future plans for compliance, including a description of

additional control measures and the dates on which they will be

implemented; and

The proposed performance assurance payment, if any.

If an agreed settlement is filed under this Section, the Board may dismiss the

proceeding without holding a hearing.

Section 106.730 Authority of Hearing Officer, Board Members, and Board Assistants

The hearing officer has the duty to conduct a fair hearing, to take all necessary

action to avoid delay, to maintain order, and to ensure development of a clear and

complete record. The hearing officer has all powers necessary to these ends

including the authority to:

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Issue discovery orders;

Rule upon objections to discovery orders;

Make protective orders as justice requires, which may deny, limit

condition or regulate discovery to prevent unreasonable delay, expense,

harassment, or oppression, or to protect materials from disclosure by the

party who obtains the materials;

Administer oaths and affirmations;

Rule upon offers of proof, receive evidence and rule upon objections to

introducing evidence, subject to Section 106.732(b) of this Subpart;

Regulate the course of the hearings and the conduct of the parties and their

counsel;

Examine witnesses solely to clarify the record of the hearing. When any

party is not represented by counsel, the hearing officer may examine and

cross-examine any witness to insure a clear and complete record.

However, the hearing officer may not exclude exhibits or other testimony

because of the examination unless all parties agree; and

Except as otherwise provided, consider and rule as justice may require

upon motions appropriate to an adjudicative proceeding.

Any Board Member or assistant to a Board Member present at the hearing may

advise the hearing officer and may interrogate witnesses but does not have the

authority to rule on objections or motions or to overrule the hearing officer during

the hearing.

Section 106.732 Order and Conduct of Hearing

The following will be the order of all involuntary termination hearings under this

Subpart, unless modified by the hearing officer for good cause:

Present, argue and dispose of preliminary motions on the matters that the

statement of deficiency raises;

Present opening statements;

Complainant’s case in chief;

Respondent’s case in chief;

Complainant’s case in rebuttal;

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Statements from interested citizens, as the hearing officer authorizes;

Complainant’s opening argument, which may include legal argument;

Respondent’s closing argument, which may include legal argument;

Complainant’s closing argument, which may include legal argument;

10)

Present and argue all motions before submitting the transcript to the

Board; and

11)

A schedule to submit briefs to the Board.

All hearings under this Subpart will be public, and any person not a party and not

otherwise a witness for a party may submit written statements relevant to the

subject matter of the hearing. Any party may cross-examine any person who

submits a statement. If the person is not available to be cross-examined upon

timely request, the written statement may be stricken from the record. The

hearing officer will permit any person to offer reasonable oral testimony whether

or not a party to the proceedings.

All witnesses will be sworn.

At the conclusion of the hearing, the hearing officer will make a statement about

the credibility of witnesses. This statement will be based upon the hearing

officer’s legal judgment and experience and will indicate whether he or she finds

credibility to be at issue in the proceeding and if so, the reasons why. This

statement will become a part of the official record and will be transmitted by the

hearing officer to each of the parties. No other statement will be made or be

appropriate unless the Board orders otherwise.

Section 106.734 Evidentiary Matters

The provisions of 35 Ill. Adm. Code 101 regarding admissible evidence, written narrative

testimony, official notice, viewing premises, admitting business records, examining adverse

parties or agents and hostile witnesses and compelling them to appear at hearing, and amendment

and variance of pleadings and proof will apply to proceedings under this Subpart.

Section 106.736 Post-Hearing Procedures

The provisions of 35 Ill. Adm. Code 101 regarding default, transcripts, the record, briefs and oral

arguments will apply to proceedings under this Subpart.

Section 106.738 Motion After Entry of Final Order

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Within 35 days after the Board adopts a final order, any party may file a motion to rehear,

modify or vacate the order or for other relief. Response to the motion must be filed within 14

days after the motion is filed. A motion filed within 35 days stays enforcement of the final

order.

Section 106.740 Relief from Final Orders

The Board may at any time correct errors in orders or other parts of the record

that arise from oversight or omission or clerical mistakes. The Board may do so

on its own initiative or on the motion of any party and after notice, if any, as the

Board orders. During the pendency of an appeal, the Board may correct the

mistakes before the appeal is docketed in the appellate court. While the appeal is

pending, the Board may correct the mistakes with leave of the appellate court.

On motion and upon terms that are just, the Board may relieve a party or a party’s

legal representative from a final order, for the following:

Newly discovered evidence that by due diligence could not have been

discovered in time under Section 106.714 of this Subpart;

Fraud (whether previously denominated intrinsic or extrinsic),

misrepresentation, or other misconduct of an adverse party; or

3) Void

order.

A motion under this Section does not affect the finality of a Board order or

suspend the operation of a Board order. The motion must be filed in the same

proceeding in which the Board entered the order but the motion is not a

continuation of the proceeding. The motion must be supported by affidavit or

other appropriate showing as to matters not of record. All parties must be notified

under Section 106.708(b) of this Subpart.

This motion must be filed with the Board within 60 days after entry of the order.

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TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE A: GENERAL PROVISIONS

CHAPTER 1: POLLUTION CONTROL BOARD

PART 107

PETITION TO REVIEW POLLUTION CONTROL FACILITY SITING DECISIONS

SUBPART A: GENERAL PROVISIONS

Section

107.100 Applicability

SUBPART B: PETITION FOR REVIEW

Section

107.200

Who May File Petition

107.202

Parties

107.204

Time For Filing Petition

107.206

Filing and Service Requirements

107.208

Petition Content Requirements

SUBPART C: FILING OF LOCAL RECORD

Preparing of the Record

107.308

Certification of Record

Authority and Duties of Hearing Officer

107.404

Public Participation

SUBPART E: BOARD REVIEW AND DECISION

Section

107.500

Preliminary Board Determination/Set for Hearing

107.502

Dismissal of Petition

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: Filed with Secretary of State January 1, 1978; amended at 4 Ill. Reg. 2, p. 186,

effective December 27, 1979; codified at 6 Ill. Reg. 8357; amended in R85-22 at 10 Ill. Reg.

992, effective February 2, 1986; amended in R86-46 at 11 Ill. Reg. 13457, effective August 4,

1987; amended in R82-1 at 12 Ill. Reg. 12484, effective July 13, 1988; amended in R88-10 at 12

Ill. Reg. 12817, effective July 21, 1988; amended in R88-5(A) at 13 Ill. Reg. 12094, effective

July 10, 1989; amended in R88-5(B) at 14 Ill. Reg. 9442, effective June 5, 1990; amended in

R93-24 at 18 Ill. Reg. 4230, effective March 8, 1994; amended in R93-30 at 18 Ill. Reg. 11579,

effective July 11, 1994; amended in R99-9 at 23 Ill. Reg. 2697, effective February 16, 1999; old

part repealed, new Part adopted in R00-20 at 24 Ill. Reg. , effective .

SUBPART A: GENERAL PROVISIONS

Section 107.100 Applicability

This Part applies to adjudicatory proceedings before the 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 Act.

This Part must be read in conjunction with 35 Ill. Adm. Code 101, which contains

procedures generally applicable to all of the Board’s adjudicatory 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 107.102 Severability

If any provision of this Part or its application to any person is adjudged invalid, such

adjudication does not affect the validity of this Part as a whole or of any portion not adjudged

invalid.

Section 107.104 Definitions

For purposes of this Part, words and terms will have the meaning as defined in 35 Ill. Adm. Code

101.Subpart B unless otherwise provided, or unless the context clearly indicates otherwise.

Section 107.106 Description

Pursuant to Section 39(c) of the Act, any new pollution control facility, prior to receiving a

permit from the Agency to construct and operate, must first receive siting approval from the

159

ounty 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 to be located

. [415 ILCS

5/39(c)] Such siting approval can only be given pursuant to Section 39.2 of the Act and only

after the local unit of government conducts a public hearing that comports with the requirements

of Section 39.2(d) and with general standards of fundamental fairness. 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. The decision of the Board is appealable to the Illinois

appellate court.

SUBPART B: PETITION FOR REVIEW

Section 107.200 Who May File Petition

The following persons may file a petition for review of a decision concerning siting of a new

pollution control facility pursuant to Section 40.1 of the Act:

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 approval of a

new pollution control facility and has been denied siting approval 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

approval.

Other persons. Any person who has participated in the public hearing conducted

by the unit of local government and is so located as to be affected by the proposed

facility may file a petition for review of the decision to grant siting. Associations

that file a petition before the Board must be represented by an attorney in

accordance with 35 Ill. Adm. Code 101.400.

Section 107.202 Parties

In a petition to review a local government’s decision concerning a new pollution

control facility, the following are parties to the proceeding:

The petitioner or petitioners are the persons described in Section 107.200

of this Part. If there is more than one petitioner, they must be referred to

as co-petitioners; and

The unit(s) of local government whose decision is being reviewed must be

named the respondent(s). In an appeal pursuant to Section 107.200(b), the

siting applicant must also be named as a respondent.

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.

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Section 107.204 Time For Filing Petition

A petition for review must be filed within 35 days after the local siting authority’s action to

approve or disapprove siting. Action means the local government’s official written decision

granting or denying local siting approval. Pursuant to Section 39.2(e) of the Act, action includes

failure of the governing body to act within 180 days after receiving request for siting approval.

Section 107.206 Filing and Service Requirements

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 107.208

of this Part.

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 107.208 Petition Content Requirements

In addition to the requirements of 35 Ill. Adm. Code 101.Subpart C the petition must also

include:

A copy of the local siting authority's written decision or ordinance;

A statement as to how the filing party is a proper petitioner under Section 107.200

of this Part; and

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.

SUBPART C: FILING OF LOCAL RECORD

Section 107.300 Record

Pursuant to Sections 39.2 and 40.1 of the Act, the siting authority must compile a complete

record of its proceedings.

Section 107.302 Filing of the Record

The siting authority must file the record of its proceedings with the Board as directed by Board

or hearing officer order. Failure to file the entire record on the date directed by the Board or

hearing officer may subject the respondent to sanctions as may be ordered by the Board in

accordance with 35 Ill. Adm. Code 101.Subpart H.

161

Section 107.304 Record Contents

The record must contain all information or evidence presented to the local siting

authority or relied upon by the local siting authority during its hearing process

including:

The siting application;

Any and all transcripts of local hearings;

All briefs and other arguments and statements of parties and participants;

All exhibits relied upon by the local siting authority in making its

decision;

All written public comments relevant to the local government proceeding;

Minutes of all relevant open meetings of the siting authority;

Notices of hearing or all relevant meetings of the siting authority;

The written decision of the siting authority made pursuant to Section 39.2

of the Act ;

Certificate of Record as described in Section 107.308 of this Part; and

10)

If, prior to making a final local siting decision, a county board or

governing body of a municipality has negotiated and entered into a host

agreement with the local siting applicant, the terms and conditions of the

host agreement, whether written or oral, shall be disclosed and made a

part of the hearing record for that local siting proceeding. In the case of

an oral agreement, the disclosure shall be made in the form of a written

summary jointly prepared and submitted by the county board or governing

body of the municipality and the siting applicant and shall describe the

terms and conditions of the oral agreement.

[415 ILCS 5/39.2(e)]

The record must contain the originals or legible copies of all documents, must be

arranged in chronological sequence, and must be sequentially numbered, placing

the letter "C" before the number of each page.

Seven copies of the transcript and 1original and 9 copies of all other documents in

the record must be filed with the Board.

Section 107.306 Preparing of the Record

162

Unless petitioner is a citizen or citizen’s group, the petitioner must 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

5/39.2(n)]

Section 107.308 Certification of Record

The record filed with the Board must 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 must be

entitled "Certificate of Record on Appeal." The Certificate must 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 must be served on all parties.

SUBPART D: HEARING

Section 107.400 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 107.402 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 107.404 Public Participation

Parties to the proceeding will have all rights of examination and cross-examination relevant in

any judicial proceeding. Persons who are not parties as set forth in Section 107.202 of this Part

are considered participants and will have such hearing participation rights as determined by the

hearing officer in accordance with 35 Ill. Adm. Code 101.628. 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 107.500 Preliminary Board Determination/Set for Hearing

Upon proper filing of the petition, the Board will 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.

Section 107.502 Dismissal of Petition

The Board on its own motion or motion by any party, may dismiss any petition:

163

Which is untimely filed pursuant to Section 107.204 of this Part;

Which fails to name all parties as required by Section 39.2 of the Act;

Which fails to include the required fee and all information as required by

Section 107.206 of this Part; or

Which fails to meet the requirements in 35 Ill. Adm. Code 101.Subpart C.

Upon motion by any unit of local government that is required to prepare and

certify its record alleging that any petitioner required to pay costs has failed to

pay said costs, the Board may enter a dismissal or other order as allowed by

Section 39.2(n) of the Act.

Section 107.504 Decision Deadline

In accordance with Section 40.1 of the Act only the applicant for siting may waive the decision

deadline. 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 will issue its decision

within 120 days after the proper filing and service of a petition for review.

Section 107.506 Burden of Proof/Standard of Review

The petitioner bears the burden of proof in accordance with Section 40.1(a) of the

Act.

The Board may reverse the siting decision of the local siting authority only:

If the decision is against the manifest weight of the evidence presented in

the local siting authority’s record;

If the proceeding of the local siting authority did not comport with general

standards of fundamental fairness; or

If the local siting authority did not have jurisdiction.

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.

164

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE A: GENERAL PROVISIONS

CHAPTER I: POLLUTION CONTROL BOARD

SUBPART A: GENERAL PROVISIONS

Section

108.100 Applicability

108.102 Severability

108.104 Definitions

SUBPART B: ISSUANCE OF THE CITATION AND PETITION TO CONTEST

Section

108.200

Administrative Citation Issuance

108.202

Service of Citation/Filing of Citation with the Board

108.204

Filing Requirements for Petition to Contest

108.206 Petition

Contents

108.208

AC Recipient’s Voluntary Withdrawal

SUBPART C: HEARINGS

Section

108.300

Authorization of Hearing

SUBPART D: BOARD DECISIONS

Section

108.400

Standard of Review/Burden of Proof

108.402 Dismissal

108.404

Default

108.406 Non-Contested

Citations

SUBPART E: ASSESSMENT OF PENALTIES AND COSTS

Section

108.500

Assessment of Penalties and Costs

108.502

Claimed Costs of Agency or Delegated Unit

108.504 Board

Costs

108.506

Response to Claimed Costs and Reply

AUTHORITY: Authorized by Sections 26 and 27 of the Environmental Protection Act (Act)

[415 ILCS 5/26 and 27] and implementing Sections 21(o), 21(p), 31.1, and 42(b)(4) of the Act.

[415 ILCS 5/21(o), 21(p), 31.1, and 42(b)(4)]

165

SOURCE: Adopted in R00-20 at Ill. Reg. _______________, effective __________________.

SUBPART A: GENERAL PROVISIONS

Section 108.100 Applicability

This Part applies to proceedings before the Board concerning petitions to contest

the issuance of an administrative citation pursuant to Section 31.1 of the Act.

This Part must be read in conjunction with 35 Ill. Adm. Code 101 which contains

procedures generally applicable to all of the Board’s adjudicatory proceedings. In

the event of a conflict between the requirements of 35 Ill. Adm. Code 101 and this

Part, the provisions of this Part will apply.

Section 108.102 Severability

If any provision of this Part or its application to any person is adjudged invalid, such

adjudication will not affect the validity of this Part as a whole or of any portion not adjudged

invalid.

Section 108.104 Definitions

For the purpose of this Part, words and terms will have the meaning as defined in 35 Ill. Adm.

Code 101.Subpart B unless otherwise provided, or unless the context clearly indicates otherwise.

SUBPART B: ISSUANCE OF THE CITATION AND PETITION TO CONTEST

Section 108.200 Administrative Citation Issuance

An administrative citation (AC) may be issued by either of the following:

Illinois Environmental Protection Agency (Agency). The Agency may issue an

AC pursuant to Section 31.1 of the Act.

Delegated Unit of Local Government (Delegated Unit). Pursuant to Section 4(r)

of the Act, the Agency may by agreement delegate its AC authority to a unit of

local government which may then issue an AC. All Delegated Units must submit

to the Clerk of the Board a copy of the delegation agreement annually on or

before July 1 of every year.

Section 108.202 Service of Citation/Filing of Citation with the Board

In accordance with Section 31.1 of the Act, the Agency or Delegated Unit may

serve an AC upon any person (AC Recipient) believed, through direct

observation, to have violated subsections (o) or (p) of Section 21 of the Act.

166

Such AC must be issued and served upon the AC Recipient not more than 60 days

after the date of the observed violation and must contain the following

information:

A statement specifying the provisions of subsection (o) or (p) of Section

21 of the Act that the AC Recipient was observed to be in violation;

A copy of the inspection report in which the Agency or Delegated Unit

recorded the violation, which report must include the date and time of

inspection, and weather conditions prevailing during the inspection;

The penalty imposed by Section 42(b)(4) of the Act for such violations;

Instructions for contesting the AC findings, including notification that the

AC Recipient has 35 days within which to file a petition to contest the

AC; and

An affidavit by the personnel observing the violation, attesting to their

material actions and observations;

As required by Section 31.1 of the Act, the Agency or Delegated Unit must file

the AC with the Board no later than 10 days after the date of service upon the AC

Recipient.

Section 108.204 Filing Requirements for Petition to Contest

Who May File. The AC Recipient may file with the Board a petition to contest

the AC. The AC Recipient must be named as the respondent and the Agency or

Delegated Unit must be named as the complainant in accordance with Section

31.1(d)(2) of the Act.

Time to File. The petition to contest must be filed with the Board within 35 days

from the date of the service of the AC as required by Section 31.1(d)(1) of the

Act.

Additional Requirements. Additional filing and service requirements are set forth

at 35 Ill. Adm. Code 101.Subpart C.

Section 108.206 Petition Contents

A formal petition to contest must include:

Any reasons why the AC Recipient believes the AC was improperly issued, including:

The AC Recipient does not own the property;

167

The AC Recipient did not cause or allow the alleged violations;

The AC was not timely filed or properly served; or

The alleged violation was the result of uncontrollable circumstances.

Section 108.208 AC Recipient’s Voluntary Withdrawal

The AC Recipient may, at any time before entry of the Board decision, withdraw its petition to

contest. It must do so in writing or orally on the record at hearing. If an AC Recipient

withdraws its petition to contest, the Board will adopt an order in accordance with Section

108.406 of this Part.

SUBPART C: HEARINGS

Section 108.300 Authorization of Hearing

The hearing date will be set within 60 days after the filing of the petition to

contest unless the hearing officer orders otherwise to prevent material prejudice.

The hearing officer will give the parties at least 21 days written notice of the

hearing in accordance with Section 31.1(d) of the Act

The hearing will be held in accordance with 35 Ill. Adm. Code 101.Subpart F.

The hearing will be held at a time and location consistent with the Board’s

resources as designated by the hearing officer.

SUBPART D: BOARD DECISIONS

Section 108.400 Standard of Review/Burden of Proof

The burden of proof is on the Agency or Delegated Unit.

The Board will issue an order finding a violation as alleged in the AC and will

impose the penalty as specified in Section 42(b)(4) of the Act if, based on the

record of the proceeding, the alleged violation occurred and the AC Recipient has

not shown that the violation was the result of uncontrollable circumstances.

Section 108.402 Dismissal

The Board may issue an order dismissing the AC and closing the docket upon its own motion or

a motion by the AC Recipient, Agency or Delegated Unit if the AC was not timely and properly

served pursuant to Section 31.1 of the Act and Section 108.200 of this Part.

168

Section 108.404 Default

Failure of a party to appear at the hearing, or failure to proceed as ordered by the Board or

hearing officer, may constitute default. Upon default the Board will issue an order against the

defaulting party.

Section 108.406 Non-Contested Citations

The Board will consider the AC non-contested if the AC Recipient does not file a petition to

contest, fails to timely file a petition to contest, or withdraws its petition to contest pursuant to

Section 108.208. If the AC is non-contested prior to hearing, the Board will adopt a final order

in accordance with Section 108.500(a). If the AC Recipient withdraws its petition to contest

after the hearing the Board, will adopt a final order in accordance with Section 108.500(c) of this

Part.

SUBPART E: ASSESSMENT OF PENALTIES AND COSTS

Section 108.500 Assessment of Penalties and Costs

The Board will assess the penalties and costs in the following manner:

If the AC is non-contested or defaulted as set forth in Sections 108.404 and

108.406 of this Part, the Board will issue an order assessing a $500 penalty per

adjudicated violation against the AC recipient for violations occurring prior to

January 1, 2000, and a $1,500 penalty per adjudicated violation against the AC

recipient for violations occurring on or after January 1, 2000.

If the AC Recipient contests the AC and the Board finds based on the record that

the violations occurred and that the AC Recipient has not shown that the violation

resulted from uncontrollable circumstances, the Board will impose a $1,500

penalty per adjudicated violation in the AC and associated hearing costs as set

forth in Sections 108.502 and 108.504 of this Part against the AC Recipient.

If the AC Recipient contests the AC but voluntarily withdraws the petition for

review pursuant to Section 108.208 of this Part after the start of the hearing but

before the Board issues an order, the Board will impose a $1,500 penalty per

adjudicated violation in the AC and associated hearing costs as set forth in

Sections 108.502 and 108.504 of this Part against the AC Recipient.

Section 108.502 Claimed Costs of Agency or Delegated Unit

Within 30 days after the close of the hearing or as otherwise directed by the hearing officer, the

Agency or Delegated Unit must submit to the Clerk of the Board and serve on all parties an

itemized listing of the costs associated with the hearing. Such costs must not include attorney’s

fees or witness fees for persons employed by the Agency or Delegated Unit.

169

Section 108.504 Board Costs

At the beginning of every fiscal year the Board will place on file a schedule of hearing costs for

AC cases. Such schedule will include a per day breakdown of the Board's costs for holding a

hearing. A copy will be available at the Board’s offices and on the Board's Web site.

Section 108.506 Response to Claimed Costs and Reply

The AC Recipient may challenge the claimed costs submitted by the Agency,

Delegated Unit, or the Board by filing a response. The response must be filed

within 21 days after the service of the claimed costs and must be served on all

parties.

The Agency or Delegated Unit may file a reply to the AC Recipient’s Response to

claimed costs within 14 days after the service of the response.

170

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE A: GENERAL PROVISIONS

CHAPTER I: POLLUTION CONTROL BOARD

PART 125

TAX CERTIFICATIONS

SUBPART A: GENERAL PROVISIONS

Section

125.100 Applicability

125.102 Severability

125.104 Definitions

SUBPART B: TAX CERTIFICATION OF POLLUTION CONTROL FACILITIES AND LOW

SULFUR DIOXIDE EMISSION COAL FUELED DEVICES

Section

125.200 General

125.202

Initiation of Tax Certification Proceeding

125.204

Petition Content Requirements

125.206

Dismissal of Petition

125.208

Agency Recommendation and Petitioner Response

AUTHORITY: Implementing and authorized by Sections 11-5, 11-10, 11-20, 11-25, 11-30, 11-

35, 11-40, 11-50, and 11-55 of the Property Tax Code [35 ILCS 200] and Sections 26 and 27 of

the Environmental Protection Act [415 ILCS 5].

SOURCE: Adopted in R00-20 at 24 Ill. Reg. _____, effective ______________.

SUBPART A: GENERAL PROVISIONS

Section 125.100

Applicability

This Part applies to any person seeking, for property tax purposes, a Board

certification that a facility or portion thereof is a pollution control facility, as

defined in Section 125.200(a)(1) of this Part, or that a device is a low sulfur

dioxide emission coal fueled device as defined in Section 125.200(b)(1) of this

Part.

171

This Subpart must be read in conjunction with 35 Ill. Adm. Code 101, which

contains procedures generally applicable to all adjudicatory proceedings before

the Board. In the event of a conflict between the requirements of 35 Ill. Adm.

Code 101 and those of this Subpart, the provisions of this Subpart apply.

Section 125.102

Severability

If any provision of this Part or its application to any person is adjudged invalid, such

adjudication does not affect the validity of this Part as a whole or of any portion not adjudged

invalid.

Section 125.104

Definitions

For the purpose of this Subpart, words and terms will have the meaning as defined in 35 Ill.

Adm. Code 101.Subpart B unless otherwise provided, or unless the context clearly indicates

otherwise.

SUBPART B: TAX CERTIFICATION OF POLLUTION CONTROL FACILITIES AND LOW

SULFUR DIOXIDE EMISSION COAL FUELED DEVICES

Section 125.200 General

Pollution Control Facilities.

For tax purposes, pollution control facilities shall be

certified as such by the Board.

[35 ILCS 200/11-20]

“Pollution control facility” means, for purposes of this Part,

any system,

method, construction, device or appliance appurtenant thereto, or any

portion of any building or equipment, that is designed, constructed,

installed or operated for the primary purpose of: eliminating, preventing,

or reducing air or water pollution, as the terms “air pollution” and

“water pollution” are defined in the Act; or treating, pretreating,

modifying or disposing of any potential solid, liquid or gaseous pollutant

which if released without treatment, pretreatment, modification or

disposal might be harmful, detrimental or offensive to human, plant or

animal life, or to property.

This term does not include any of the

following:

Any facility with the primary purpose of eliminating, containing,

preventing or reducing radioactive contaminants or energy, or

treating waste water produced by the nuclear generation of

electric power;

A large diameter pipes or piping systems used to remove and

disperse heat from water involved in the nuclear generation of

electric power;

172

Any facility operated by any person other than a unit of

government, whether within or outside of the territorial

boundaries of a unit of local government, for sewage disposal or

treatment; or

land underlying a cooling pond.

[35 ILCS 200/11-10]

It is the policy of this State that pollution control facilities should be

valued, at 33 1/3% of the fair cash value of their economic productivity to

their owners.

[35 ILCS 200/11-5]

Low Sulfur Dioxide Emission Coal Fueled Devices.

For tax purposes, a low

sulfur dioxide emission coal fueled device shall be certified as such by the Board.

[35 ILCS 200/11-50]

“Low sulfur dioxide emission coal fueled device” means, for purposes of

this Part,

any device used or intended for the purpose of burning,

combusting or converting locally available coal in a manner which

eliminates or significantly reduces the need for additional sulfur

abatement that would otherwise be required under State or Federal air

emission standards.

For purposes of this definition, the

word device

includes all machinery, equipment, structures and all related apparatus,

including coal feeding equipment, of a coal gasification facility designed

to convert locally available coal into a low sulfur gaseous fuel and to

manage all waste and by-product streams.

[35 ILCS 200/11-40]

It is the policy of this State that the use of low sulfur dioxide emission coal

fueled devices should be encouraged as conserving nonrenewable

resources, reducing pollution and promoting the use of abundant, high-

sulfur, locally available coal as well as promoting the health and well-

being of the people of this State, and should be valued at 33 1/3% of their

fair cash value.

[35 ILCS 200/11-35]

Section 125.202 Initiation of Tax Certification Proceeding

A person may initiate a tax certification proceeding by filing a petition that meets the

requirements of Section 125.204 of this Subpart. The petitioner also must serve a copy of the

petition on the Agency.

Section 125.204 Petition Content Requirements

Pollution Control Facilities. The following information must be contained in a

petition for a Board certification that a facility or portion thereof is a pollution

control facility:

173

A detailed description of the nature of petitioner’s activities at the location

of the facility or portion thereof for which the petitioner seeks a tax

certification;

A detailed description of the facility or portion thereof for which the

petitioner seeks a tax certification;

A detailed description of the primary purpose for which the facility or

portion thereof is designed, constructed, installed or operated;

A statement requesting or waiving a hearing on the petition;

Citation to supporting documents or legal authorities whenever such are

used as a basis for the petition (relevant portions of such documents and

legal authorities other than Board decisions, reported state and federal

court decisions, and state and federal regulations and statutes must be

appended to the petition);

If the facility or portion thereof for which the petitioner seeks a tax

certification involves an existing environmental permit or a pending

environmental permit application, a copy of the material portion of the

permit or permit application; and

An affidavit verifying any facts submitted in the petition.

Low Sulfur Dioxide Emission Coal Fueled Devices. The following information

must be contained in a petition for a Board certification that a device is a low

sulfur dioxide emission coal fueled device:

A detailed description of the nature of petitioner’s activities at the location

of the device for which the petitioner seeks a tax certification;

A detailed description of the device for which the petitioner seeks a tax

certification;

A detailed description of the purpose for which the device is used or

intended;

A statement requesting or waiving a hearing on the petition;

Citation to supporting documents or legal authorities whenever such are

used as a basis for the petition (relevant portions of such documents and

legal authorities other than Board decisions, reported state and federal

court decisions, and state and federal regulations and statutes must be

appended to the petition);

174

If the device for which the petitioner seeks a tax certification involves an

existing environmental permit or a pending environmental permit

application, a copy of the material portion of the permit or permit

application; and

An affidavit verifying any facts submitted in the petition.

The petition may contain information not required by this Section that is relevant

to whether the facility or portion thereof or the device is entitled to a tax

certification. The petition must contain headings corresponding to the

information described in each subsection of this Section. If the petitioner believes

that any of the informational requirements of this Section do not apply to the tax

certification sought, the petition must so state and provide supporting reasons.

Section 125.206 Dismissal of Petition

The Board may at any time dismiss a petition for any of the following reasons:

The petition fails to comply with any of the requirements of Section 125.204 of

this Part; or

The petitioner is not pursuing disposition of the petition in a timely manner.

Section 125.208 Agency Recommendation and Petitioner Response

If the Agency wishes to file a recommendation on the petition, it must do so

within 45 days after the petition is filed, or when a hearing has been scheduled, at

least 30 days before hearing, whichever is earlier. The recommendation may

present any information that the Agency believes is relevant to the Board’s

consideration of the requested tax certification. The Agency must serve a copy of

the recommendation on the petitioner and the hearing officer.

The petitioner may file a response to any Agency recommendation within 14 days

after the Agency serves the petitioner with a copy of the recommendation. The

petitioner must serve a copy of any response on the Agency and the hearing

officer.

Section 125.210 Public Hearing

The Board will hold a public hearing in a tax certification proceeding when:

The petitioner or the Agency requests a hearing; or

The Board in its discretion determines that a hearing would be advisable.

175

If a hearing is to be held, the hearing officer will set a time and place for the

hearing. The hearing officer will make an attempt to consult with the petitioner

and the Agency before scheduling a hearing. Hearings will be held in the county

where the facility or portion thereof or the device for which the petitioner seeks a

tax certification is located, unless the hearing officer orders otherwise.

Section 125.212 Hearing Notice

After receiving notification from the hearing officer of the scheduled hearing date made pursuant

to Section 125.210 of this Subpart, the Clerk will, in accordance with 35 Ill. Adm. Code 101,

cause publication of a notice of hearing in a newspaper of general circulation in the county

where the facility or portion thereof or the device for which the petitioner seeks a tax

certification is located.

Section 125.214 Burden of Proof

The burden of proof in a tax certification proceeding is on the petitioner. The petitioner must

prove that the facility or portion thereof for which it seeks a tax certification is a pollution

control facility, as defined in Section 125.200(a)(1) of this Part, or that the device for which it

seeks a tax certification is a low sulfur dioxide emission coal fueled device, as defined in Section

125.200(b)(1) of this Part.

Section 125.216 Board Action

Pollution Control Facilities.

If it is found that the claimed facility or relevant

portion thereof is a pollution control facility as defined in

Section 125.200(a)(1)

of this Part,

the Board shall enter a finding and issue a certificate to that effect.

The certificate shall require tax treatment as a pollution control facility, but only

for the portion certified if only a portion is certified. The effective date of a

certificate shall be the date of

the petition

for the certificate or the date of the

construction of the facility, which ever is later.

[35 ILCS 200/11-25]

Low Sulfur Dioxide Emission Coal Fueled Devices.

If it is found that the claimed

device meets the definition

of low sulfur dioxide emission coal fueled device as

set forth in Section 125.200(b)(1) of this Part,

the Board shall enter a finding and

issue a certificate that requires tax treatment as a low sulfur dioxide emission

coal fueled device. The effective date of a certificate shall be on January 1

preceding the date of certification or preceding the date construction or

installation of the device commences, whichever is later.

[35 ILCS 200/11-55]

After notice to the holder of the certificate and an opportunity for a hearing

pursuant to this Subpart,

the Board may on its own initiative revoke or modify a

pollution control certificate or a low sulfur dioxide emission coal fueled device

certificate whenever any of the following appears:

The certificate was obtained by fraud or misrepresentation;

176

The holder of the certificate has failed substantially to proceed with the

construction, reconstruction, installation, or acquisition of pollution

control facilities or a low sulfur dioxide emission coal fueled device; or

The pollution control facility to which the certificate relates has ceased to

be used for the primary purpose of pollution control and is being used for

a different purpose.

[35 ILCS 200/11-30]

The Clerk will provide the petitioner and the Agency with a copy of the Board’s

order setting forth

the Board’s findings and certificate, if any.

[35 ILCS 200/11-

30]

177

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE A: GENERAL PROVISIONS

CHAPTER I: POLLUTION CONTROL BOARD

PART 130

IDENTIFICATION AND PROTECTION OF TRADE SECRETS AND OTHER NON-

DISCLOSABLE INFORMATION

SUBPART A: GENERAL PROVISIONS

Definitions and Severability

130.108

Segregation of Article

130.110

Disposal of Articles

SUBPART B: PROCEDURES FOR IDENTIFYING ARTICLES THAT REPRESENT TRADE

SECRETS

Section

130.200

Initiation of a Claim that an Article is a Trade Secret

130.202

Contents of Statement of Justification

130.204

Waiver of Statutory Deadlines

130.206

Response to the Trade Secret Claim

130.208

Deadline for Agency Trade Secret Determination

130.210

Standards for Agency Determination

130.212

Agency Actions Following a Negative Determination

130.214

Agency Actions Following a Positive Determination

130.216

Review of Agency Trade Secret Determination

130.218

Effect of a Determination of Trade Secret Status on Other Agencies

130.220

Status of Article Determined or Claimed to be a Trade Secret Before the

Effective Date of this Part

130.222

Extension of Deadlines to Participate in Proceedings

SUBPART C: PROCEDURES FOR PROTECTING ARTICLES THAT REPRESENT TRADE

SECRETS

Section

130.300 Applicability

130.302

Owner's Responsibility to Mark Article

130.304

Agency's Responsibility to Mark Article

130.306

Transmission of Article Between Agencies

130.308

Public Access to Information Related to Article

130.310

Access to Claimed or Determined Article

178

130.312

Unauthorized Disclosure or Use of Article

130.314

Limitation on Copying Article

SUBPART D: NON-DISCLOSABLE INFORMATION OTHER THAN TRADE SECRETS

Section

130.400 General

130.402

Who May View Non-Disclosable Information

130.404

Application for Non-Disclosure

AUTHORITY: Implementing Sections 7 and 7.1 of the Environmental Protection Act (Act)

[415 ILCS 5/7 and 7.1] and authorized by Sections 7, 7.1, 26, and 27 of the Act [415 ILCS 5/7,

7.1, 26, 27].

SOURCE: Subparts A, B, and C originally adopted in R81-30 at 7 Ill. Reg. 16149 , effective

November 23, 1983. Subpart D originally adopted in R88-5(A) at 13 Ill. Reg. 12055, effective

July 10, 1989;old Part repealed, new Part adopted in R00-20 at 24 Ill. Reg. __, effective____.

SUBPART A: GENERAL PROVISIONS

Section 130.100 General

In accordance with 2 Ill. Adm. Code 2175.300, all files, records, and data of the Board are open

to reasonable public inspection and copying in the Board’s Chicago office except for information

exempted from inspection by Section 7 of the Environmental Protection Act (Act) and Section 7

of the Freedom of Information Act (FOIA) [5 ILCS 140/7]. The following rules deal specifically

with non-disclosable information and trade secret information.

Section 130.102 Purpose

Section 7 of the Act provides that

all files, records, and data of the Agency, the Board, and the

Department shall be open for reasonable public inspection . . . except for

information which

constitutes a trade secret; information privileged against introduction in judicial proceedings;

internal communications of the several agencies; and information concerning secret

manufacturing processes or confidential data submitted by any person under the Act.

[415 ILCS

5/7] Section 7.1 of the Act provides that

the Board shall adopt regulations . . . which prescribe:

(i) procedures for determining whether articles represent a trade secret; and (ii) procedures to

protect the confidentiality of such articles

. [415 ILCS 5/7.1(b)]

Section 130.104 Additional Procedures

Each agency may adopt additional procedures that are not inconsistent with this Part for the

protection of articles that are claimed or determined to represent a trade secret.

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Section 130.106 Definitions and Severability

Definitions. For the purpose of this Part, words and terms have the meanings set

forth in 35 Ill. Adm. Code 101.Subpart B, unless otherwise provided or unless the

context clearly indicates otherwise.

Severability. If any provision of this Part or its application to any person is

adjudged invalid, such adjudication does not affect the validity of this Part as a

whole or of any portion not adjudged invalid.

Section 130.108 Segregation of Article

Any article, or any page or portion thereof, which is claimed or determined to be a trade secret or

other non-disclosable information must be kept segregated from articles which are open to public

inspection, and must be kept secure from unauthorized access.

Section 130.110 Disposal of Articles

An agency may dispose of an article which is claimed or determined to represent a trade secret

or other non-disclosable information, and any copies made of that article, only by shredding,

burning, or returning the article and any copies to the owner.

SUBPART B: PROCEDURES FOR IDENTIFYING ARTICLES THAT REPRESENT TRADE

SECRETS

Section 130.200 Initiation of a Claim that an Article is a Trade Secret

The owner of an article may claim that the article is a trade secret only by

providing the agency with the information required by subsection (b) of this

Section at the time the owner submits the article to the agency. If the owner of

the article submits the article to the agency without the information required by

subsection (b) of this Section, the article will be considered a matter of general

public knowledge and cannot be protected as a trade secret.

Any person wishing to have an article considered as a trade secret must file with

the agency holding the article and any hearing officer, the following information:

A claim letter which clearly states the name of the article, gives a brief

description of the article, and states that the article is claimed to represent

a trade secret, as defined in these rules and the Act;

A copy of the article marked as provided in Section 130.302 of this Part;

and

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A statement of justification for the claim meeting the requirements of

Section 130.202 of this Part and a waiver of the statutory deadlines for any

agency decision as provided in Section 130.204 of this Part.

If an agency is provided with the information required in this Section, it must

consider such article a trade secret and must protect such article from disclosure

pursuant to Subpart C of this Part until a final determination is made by the

agency and the appeal time has expired.

A person claiming trade secret protection for an article must serve all other parties

to the case with the following:

A claim letter that clearly states the name of the article, gives a brief

description of the article, and states that the article is claimed to represent

a trade secret, as defined in these rules and the Act;

Where less than an entire article is claimed to represent a trade secret, a

copy of the article marked and redacted as provided in Section

130.302(b)(4) of this Part; and

A statement of justification for the claim meeting the requirements of

Section 130.202 of this Part and a waiver of the statutory deadlines for any

agency decision as provided in Section 130.204 of this Part.

Section 130.202 Contents of Statement of Justification

A statement of justification must contain the following:

A detailed description of the procedures used by the owner to safeguard the

article from becoming available to persons other than those selected by the owner

to have access thereto for limited purposes;

A detailed statement identifying the persons or class of persons to whom the

article has been disclosed;

A certification that the owner has no knowledge that the article has ever been

published, disseminated or otherwise become a matter of general public

knowledge;

A detailed discussion of why the owner believes the article to be of competitive

value; and

Any other information that will support the claim.

Section 130.204 Waiver of Statutory Deadlines

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When the owner of an article files with the agency an article and a claim that the article is a trade

secret, the owner must simultaneously file with the agency a waiver of any statutory deadline for

the agency to decide the underlying proceeding. The waiver must extend for at least 90 days

past any statutory deadline for the agency to decide the underlying proceeding. This is to allow

45 days for the agency to decide the trade secret claim and 35 days for any appeal of the

agency’s trade secret determination, plus mailing time.

Section 130.206 Response to the Trade Secret Claim

Any party in a contested case before any of the agencies in which a trade secret claim is made

will have 7 days in which to file a response to the trade secret claim. All responses must be filed

with the agency holding the article, and served upon all other parties to the case, and the hearing

officer if applicable.

Section 130.208 Deadline for Agency Trade Secret Determination

The agency must determine whether the article is a trade secret within 45 days

after the date of receipt of a complete statement of justification as prescribed in

Section 130.202 of this Part.

The owner of an article may extend the time period for the agency decision to

determine whether the article is a trade secret by filing with the agency:

waiver of any statutory deadline for the agency to decide the underlying

proceeding as provided for in Section 130.204 of this Part; and

a waiver of the deadline for the agency to determine whether the article is

a trade secret.

The waiver described in subsection (b)(1) of this Section must be for at least the

same amount of time as the waiver described in subsection (b)(2) of this Section,

plus 45 days. This is to allow 35 days for any appeal of the agency’s trade secret

determination, plus mailing time.

Section 130.210 Standards for Agency Determination

An article will be determined to represent a trade secret if:

The owner has complied with the procedures for making a claim and

justification as prescribed by this Part; and

The statement of justification demonstrates that:

The article has not been published, disseminated or otherwise

become a matter of general public knowledge; and

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The article has competitive value.

There will be a rebuttable presumption that an article has not been published,

disseminated or otherwise become a matter of general public knowledge, if:

The owner has taken reasonable measures to prevent the article from

becoming available to persons other than those selected by the owner to

have access to the article for limited purposes; and

The statement of justification contains a certification that the owner has no

knowledge that the article has ever been published, disseminated, or

otherwise become a matter of general public knowledge.

The agency may determine that any page or portion of the article is a trade secret

without finding that the entire article is a trade secret.

Section 130.212 Agency Actions Following a Negative Determination

If the agency determines that an article, or any page or portion thereof, does not

meet the standards specified in subsection 130.210(a)(1) or (2) of this Part, the

agency must deny the claim for trade secret protection for the article or page or

portion thereof, and must give written notice of such denial to the owner of the

article and any requester pursuant to subsection (b) of this Section.

Written notice of the denial of a claim for trade secret protection must be given by

certified mail, return receipt requested, and must contain the following

information:

A statement of the agency's reason for denying the claim;

A notification of the availability of review of the agency decision pursuant

to the procedures prescribed in Section 130.216 of this Part; and

A notification that the agency will cease protecting the article, or the page

or portion thereof, as a trade secret unless the agency is served with notice

of the filing of a petition for review within 35 days after the date of notice

to the owner.

If the agency is served with notice of the filing of a petition for review of its

determination within 35 days after the notice of denial to the owner, the agency

must notify the requester of such action and must continue to protect the article,

or the page or portion thereof, pursuant to Subpart C of this Part until such time as

it receives official notification of a final order by a reviewing body with proper

jurisdiction that does not reverse the agency determination and that is not subject

to further appeal.

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If the agency does not receive the notification of a petition for review within 35

days or does receive official notification of a final, non-appealable action which

does not reverse the agency determination, the article will not be protected

pursuant to Subpart C of this Part and the agency must so notify the owner and

any requester by certified mail, return receipt requested.

Section 130.214 Agency Actions Following a Positive Determination

If the agency determines that an article, or any page or portion thereof, meets the

standards specified in subsection 130.210(a)(1) and (2) of this Part, the agency

must grant the claim for trade secret protection for the article or page or portion

thereof, and must give written notice to the owner and any requester by certified

mail, return receipt requested, of such granting to the owner of the article

pursuant to subsection (b) of this Section.

Written notice of the granting of a claim for trade secret protection must be given

by certified mail to all parties, return receipt requested, and must contain the

following information:

A statement of the agency's reasons for granting the claim;

A notification of the availability of review of the agency's determination

pursuant to the procedures prescribed in Section 130.216 of this Part; and

A notification that the article, or the page or portion thereof, will be

protected pursuant to Subpart C of this Part until such time as the agency

receives official notification of a final order by a reviewing body that

reverses the agency determination and that is not subject to further appeal.

The agency must continue to protect an article, or the page or portion thereof, for

which trade secret protection has been granted pursuant to Subpart C of this Part

until such time as it receives official notification of a final order by a reviewing

body with proper jurisdiction which reverses the agency determination and which

is not subject to further appeal.

Section 130.216 Review of Agency Trade Secret Determination

An owner or requester who is adversely affected by a final determination of either the

Agency or Department pursuant to this Part may petition the Board to review the final

determination within 35 days after entry of the determination.

Appeals to the Board of the Agency’s final decisions will be pursuant to

35 Ill. Adm. Code 105.Subparts A and B.

Appeals to the Board of Department’s final decisions will be pursuant to

35 Ill. Adm. Code 105.Subparts A and F.

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An owner or requester who is adversely affected by a final determination of the

Board pursuant to this Part, may obtain judicial review from the appellate court

by filing a petition for review pursuant to Section 41 of the Act.

The failure of an agency to make a final determination within the time limits

prescribed in this Part may be deemed to be a final determination for purposes of

appeal.

If an agency fails to make a final determination within the time limits, the

agency must continue to protect the article as set out in Subpart C of this

Part during the 35 day appeal time.

If after 35 days no appeal is taken, the article will be treated as if it

received a negative determination from the agency and the article will no

longer be protected pursuant to Subpart C.

Section 130.218 Effect of a Determination of Trade Secret Status on Other Agencies

A claim or determination by one agency that an article is a trade secret made pursuant to this Part

will apply to that same article when in the possession of either of the other two agencies.

Notwithstanding the foregoing sentence, when such an article is the subject of a review before

the Board pursuant to Section 130. 216(a) of this Part, the article will be treated as a trade secret

only unless or until the Board determines that the article is not a trade secret.

Section 130.220 Status of Article Determined or Claimed to be a Trade Secret Before the

Effective Date of this Part

Any article that was determined by an agency prior to the effective date of this

Part to represent a trade secret in accordance with agency procedures adopted

pursuant to the IAPA will be deemed to have been determined to represent a trade

secret for the purposes of this Part. The agency must protect the article in

accordance with Subpart C of this Part

If an agency possesses an article that was claimed before the effective date of this

Part to be a trade secret and the agency did not determine before the effective date

of this Part whether the article is a trade secret in accordance with procedures

adopted pursuant to the APA, the article is deemed to have been claimed to be a

trade secret for the purposes of this Part for 180 days after the effective date of

this Part. If the owner of the article fails to file within the foregoing 180-day

period a claim with the agency under Section 130.200 of this Subpart with respect

to the article, the article will be considered a matter of general public knowledge

and cannot be protected as a trade secret.

Section 130.222 Extension of Deadlines to Participate in Proceedings

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Upon the agency’s finding that any person will be adversely affected in a proceeding before that

agency due to the timing of the agency’s determination of the trade secret status of an article and

that the article is relevant to the proceeding, the agency must extend any deadline for the person

to participate in that proceeding until 10 days after the agency determines the trade secret status

of the article. The person has the burden to demonstrate that the person will be adversely

affected in the proceeding due to the timing of the agency’s trade secret determination and that

the article is relevant to the proceeding.

SUBPART C: PROCEDURES FOR PROTECTING ARTICLES THAT REPRESENT TRADE

SECRETS

Section 130.300 Applicability

Any article that is claimed or determined to represent a trade secret pursuant to Subpart B of this

Part must be protected from unauthorized disclosure pursuant to this Subpart.

Section 130.302 Owner's Responsibility to Mark Article

Where an entire article is claimed to represent a trade secret, the owner must mark

the article with the words "Trade Secret" in red ink on the face or front of the

article.

Where less than an entire article is claimed to represent a trade secret, the owner

must:

Mark the article with the words "Trade Secret" in red ink on the face or

front of the article;

Indicate on the face or front of the article which page or portion of the

article is claimed to represent a trade secret;

Mark every page or portion of the article which is claimed to represent a

trade secret with the words "Trade Secret;" and

Furnish the agency with a second copy of the article which is marked

pursuant to paragraphs (1) and (2) of this subsection and from which the

page or portion of the article that is claimed to represent a trade secret is

deleted.

Section 130.304 Agency's Responsibility to Mark Article

Where an entire article is determined to represent a trade secret pursuant to

Section 130.210 of this Part, the agency must mark the article with the word

“DETERMINED” in red ink on the face or front of the article and must also mark

any claim letter submitted for the article.

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Where less than an entire article is determined to represent a trade secret pursuant

to Section 130.210 of this Part, the agency must:

Mark the article with the word “DETERMINED” in red ink on the face or

front of the article;

Indicate on the face or front of the article and any claim letter submitted

for the article which page or portion of the article is determined to

represent a trade secret; and

Mark every page or portion of the article which is determined to represent

a trade secret with the word "DETERMINED."

Section 130.306 Transmission of Article Between Agencies

Prior to transmitting any article which is claimed or determined to represent a trade secret to

another agency, the agency must insure that the article is properly marked pursuant to Sections

130.302 and 130.304 of this Part and is clearly distinguished and segregated from other

transmitted materials.

Section 130.308 Public Access to Information Related to Article

A copy of the claim letter submitted pursuant to Section 130.200(b)(1) of this Part

will be open to public inspection.

Where an article was determined to represent a trade secret prior to the effective

date of this Part and no claim letter exists, the agency must prepare a statement

that will be open to public inspection, and that names and briefly describes the

article.

Where a page or portion of an article is claimed or determined to represent a trade

secret, a copy of the article must be open to public inspection, with the part or

portion of the article that is claimed or determined to represent a trade secret or

that would lead to disclosure of the trade secret deleted.

Section 130.310 Access to Claimed or Determined Article

The agency must designate the agency employees or officers who are authorized

to review articles that are claimed to represent trade secrets for the purpose of

making a determination pursuant to Section 130.210 of this Part.

Access to an article that is claimed or determined to represent a trade secret must

be limited to:

Employees or officers designated pursuant to subsection (a) of this

Section;

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Other employees, officers, or authorized representatives of the State

specifically authorized by the agency to have access to the article for the

purpose of carrying out the Act or regulations promulgated thereunder or

when relevant to a proceeding under the Act; or

Employees, officers, or authorized representatives of the United States

who are specifically authorized by the agency to have access to the article

for the purpose of carrying out federal environmental statutes or

regulations.

The agency must maintain the following information with regard to an article

which is claimed or determined to represent a trade secret:

A record of the number of copies held by the agency;

A log of the location of all copies; and

A log of all persons who are authorized to review the article or copies

thereof.

Section 130.312 Unauthorized Disclosure or Use of Article

The agency must insure that all persons who are authorized to have access to an

article that is claimed or determined to represent a trade secret are given notice of

the restrictions on disclosure and use of the article contained in this Subpart.

No agency officer, employee, or authorized representative may disclose, except as

authorized by this Subpart, or use for private gain or advantage, any article that is

claimed or determined to represent a trade secret.

Each agency officer, employee, or authorized representative must take reasonable

measures to safeguard an article that is claimed or determined to represent a trade

secret and to protect against disclosure that is inconsistent with these rules.

Each authorized representative of the agency who is furnished with access to an

article that is claimed or determined to represent a trade secret pursuant to this

Part must use or disclose that information only as authorized by the contract or

agreement under which such person is authorized to represent the agency.

Section 130.314 Limitation on Copying Article

No agency officer, employee, or authorized representative of the State or the United States may

copy an article which is claimed or determined to represent a trade secret pursuant to this Part

except where authorized to do so by the agency officer or employee designated to review the

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article pursuant to subsection 130.312(a) of this Part. All copies must be recorded and logged in

accordance with subsection 130.312(c) of this Part.

SUBPART D: NON-DISCLOSABLE INFORMATION OTHER THAN TRADE SECRETS

Section 130.400 General

This Subpart applies only to filings of articles with the Board, and only with respect to Board

determinations of whether articles are non-disclosable information other than trade secrets.

Trade secret determinations are addressed in Subparts A, B and C of this Part. “Non-disclosable

information” will have the meaning as defined in 35 Ill. Adm. Code 101.Subpart B.

Section 130.402 Who May View Non-Disclosable Information

Any information accorded confidential treatment may be disclosed or transmitted to other

officers, employees

, including Board Members, Board attorneys, environmental scientists of the

Board’s technical unit, Board hearing officers, the Clerk, Assistant Clerk,

or authorized

representatives of this State or of the United States concerned with or for the purposes of

carrying out this Act or the federal environmental statutes and regulations; provided, however,

that such information shall be identified as confidential by . . . the Board . . . , the case may be.

[415 ILCS 5/7(e)]

Section 130.404 Application for Non-Disclosure

Except as provided in subsection (c)(4) of this Section, the applicant must file a

single copy of the following:

The article that is sought to be protected from disclosure; and

The application for non-disclosure.

When an entire article is sought to be protected from disclosure, the applicant

must mark the article with the words “NON-DISCLOSABLE INFORMATION”

in red ink on the face or front of the article.

When less than an entire article is sought to be protected from disclosure, the

applicant must:

Mark the article with the words “NON-DISCLOSABLE

INFORMATION” in red ink on the face or front of the article;

Indicate on the face or front of the article which page or portion of the

article is claimed to be non-disclosable information;

Mark every page or portion of the article sought to be protected from

disclosure with the words “NON-DISCLOSABLE INFORMATION;”

189

File with the Clerk a second copy of the article that is marked pursuant to

paragraphs (1) and (2) of this subsection and from which the page or

portion sought to be protected from disclosure is deleted.

In an adjudicatory proceeding, the applicant must serve all other parties to a

proceeding and the hearing officer with the following:

A copy of the application for non-disclosure under subsection (f) of this

Section; and

When less than an entire article is sought to be protected from disclosure,

a copy of the article marked and redacted as provided in subsection (c)(4)

of this Section.

Each party served pursuant to subsection (d) of this Section may file a response to

the application for non-disclosure within 7 days after service. Each party filing a

response must serve the other parties to the adjudicatory proceeding and the

hearing officer.

The application for non-disclosure must contain the following:

Identification of the particular non-disclosure category into which the

material that is sought to be protected from disclosure falls (see 35 Ill.

Adm. Code 101.202 for the definition of “non-disclosable information”);

A concise statement of the reasons for requesting non-disclosure;

Data and information on the nature of the material that is sought to be

protected from disclosure, identification of the number and title of all

persons familiar with such data and information, and a statement of how

long the material has been protected from disclosure;

An affidavit verifying the facts set forth in the application for non-

disclosure that are not of record in the proceeding; and

A waiver of any decision deadline in accordance with Section 130.204 of

this Part.

Section 130.406 Public Inspection

The public cannot inspect material for which a non-disclosure application is

pending before the Board.

If the Board determines that the material is not entitled to be protected from

disclosure, the public cannot inspect the material:

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until the time for appeal of the Board’s determination has expired; or

if an appeal of the Board’s determination is filed, until such time as the

Board receives official notification of a final order of a court with proper

jurisdiction that does not reverse the Board’s determination and that is not

subject to further appeal.

If the Board determines that the material is entitled to be protected from

disclosure, the Board will protect from pubic inspection any page or portion of the

material that the Board determined to be non-disclosable information until such

time as the Board receives official notification of a final order of a court with

proper jurisdiction that reverses the Board’s determination and that is not subject

to further appeal.

Section 130.408 Board Order

If the Board determines that the article or any page or portion thereof is non-

disclosable information, the Board will mark the word “DETERMINED” on the

face or front and on every page or portion determined to be non-disclosable

information.

If the Board determines that the article, or any page or portion thereof is not non-

disclosable information, the Board may enter a conditional non-disclosure order

allowing the applicant to withdraw the material addressed in the order. If the

applicant fails to withdraw the material by the deadline given in the Board order,

the material will be returned to the Clerk’s normal file and will be available for

the public to inspect.

IT IS SO ORDERED.

I, Dorothy M. Gunn, clerk of the Illinois Pollution Control Board, do hereby certify that

the above order was adopted on the 16

of March 2000 by a vote of 5 - 0.