ILLINOIS POLLUTION CONTROL BOARD
March
3, 1994
IN THE MATTER OF:
)
)
AMENDMENTS TO ThE RULES
)
FOR CLEAN AIR ACT PERMIT
)
R93-24
APPEALS AND
HEARINGS
)
(Rulemaking)
PURSUANT TO SPECIFIC RULES
)
35
ILL.
ADM.
CODE PARTS
)
105
AND
106.
)
Protosed Rule.
Final Order.
OPINION
AND
ORDER OF THE BOARD
(by G.
T. Girard):
On September 14,
1993, the Illinois Environmental Protection
Agency
(Agency)
filed this proposal for rulemaking.
The proposal
is intended to address permit appeals under the Clean Air Act and
procedures for review of emissions limitations for a proposed
case-by-case maximum achievable control technology
(MACT)
determination pursuant to Section 112 of the Clean Air Act.
The
proposal represents one part of Illinois’ submittal of a complete
state implementation plan
(SIP).
Pursuant to Section 502(d) of
the Clean Air Act, as amended in 1990,
Illinois is to adopt and
submit its permit program by November 15,
1993.
This proposal was filed pursuant to Section 28.5 of the Act
and was accepted for hearing by the Board on September 23,
1993.
(P.A. 87—1213, effective September 26,
1992;
415 ILCS 5/28.5.)
Pursuant to the provisions of that section the Board is required
to proceed within set time-frames toward the adoption of this
regulation.
The Board has no discretion to adjust these time-
frames under any circumstances.
Therefore, the Board also sent
the proposal to first notice under the Illinois Administrative
Procedure Act without commenting on the merits of the proposal on
September 23,
1993.
Hearings on this proposal were held on November 8,
1993, and
December 8,
1993.
The comment period for this rulemaking closed
on December 27,
1993.
The Board received
5 comments during that
period which are discussed in detail below.
On January 20,
1994, the Board proceeded to second notice
with the proposal.
The proposal was amended pursuant to comments
at first notice.
The proposal was submitted to the Joint
Committee on Administrative Rules
(JCAR) on January 21,
1994.
On
February 15,
1994,
JCAR
voted a certification of no objection to
the proposal.
AGENCY PROPOSAL
The Board granted a motion filed with the proposal waiving
certain filing requirements.
Specifically, the Agency asked that
2
it be allowed to submit the original and five complete copies of
the proposal and four partial copies of the proposal, rather than
the original and nine complete copies to the Board.
Further, the
Agency asked that it not be required to supply the Attorney
General or the Department of Energy and Natural Resources with a
complete copy of the proposal.
Lastly, the Agency asked that it
not be required to submit documents which are readily available
to the Board on which the Agency will rely at hearing.
The Agency states that it has identified certain
inconsistencies between the Board’s permit appeals regulations in
Part 105 and requirements for a Clean Air Act permit.
In
addition, under the Clean Air Act permit program (CAAPP), the
Agency is required to determine, on a case—by-case basis,
the
MACT for a source.
Therefore,
the Agency proposed an amendment
to Part 106 of the Board’s rules.
In Part 105,
the Agency has included provisions which will
allow any person who participated in the public comment process
or the hearing before the Agency on a permit to appeal the
Agency’s determination on the permit.
Also, under the CAAPP
there is no default issuance of a CAAPP permit.
An appeal of the
Agency’s action on a permit may be sought more than 35 days after
the Agency’s action if the appeal
is based solely on grounds
arising after the 35 days has expired.
The Agency has proposed amendments to Part 106 to address
the procedures for Board hearings conducted pursuant to Section
39.5(15)(b)
and
(16)
of the Act regarding the revocation and
reopening of a CAAPP permit.
Section 39.5(16) (a) sets forth the
circumstances under which the Agency may determine to revoke or
reissue a CAAPP permit.
Prior to revoking or reissuing a permit
the Agency must file
a petition with the Board and serve a
petition upon the respondent that states the grounds for
revocation.
The Board is required to conduct a hearing pursuant
to 35 Ill. Adm. Code 103.
The Agency has also proposed
amendments to Part 106 to specify Board procedures when an owner
or operator of a source files a petition to review an emission
limitation for a proposed case—by—case MACT determination.
In support of the proposal the Agency presented the
testimony of Mr. Christopher Romaine and Mr. Donald Sutton at the
November 8,
1993, hearing.
Mr. Romaine testified that the
federal permit program will be a primary mechanism to apply the
various air pollution control requirements established pursuant
to the Clean Air Act to significant stationary sources.
(Exh.
1
at 2.)
The permits will identify all relevant requirements that
apply to the various emission units at a source as well as
establishing detailed provisions for testing, monitoring,
recordkeeping and reporting.
(Exh.
1 at 2.)
The permits will be
based on detailed applications describing activities and
equipment, the current operations,
and the range of operations at
3
a source.
(Exh.
1 at 3.)
Mr. Romaine also stated that a permit
cannot be issued if USEPA finds the permit objectionable.
(Exh.
1 at 3.)
Mr. Romaine also testified that under the CAAPP,
an
applicant that “submits a timely and complete application for a
CAAPP permit is ‘shielded’
from enforcement for operation without
a CAAPP permit until the Agency takes final action on the
submitted application,
i.e., issues or denies a permit.”
(Exh.
1
at 5.)
Mr. Romaine stated that the “application shield is not
automatically extended if a permit denial is appealed.
Rather,
an applicant can request a stay of the Agency’s final action to
deny a CAAPP permit from the Board in its permit appeal
petition.”
(Exh.
1 at 5.)
The Agency included in its proposal a
provision requiring an applicant to specifically seek a stay of
the effectiveness of the Agency’s action when appealing a permit
decision.
Mr. Romaine was asked at hearing if the Agency would agree
to delete this subsection.
Mr. Romaine indicated that the Agency
would so agree.
(Tr. 11/8/93 at 14.)
The Agency,
in response to
a question from the hearing officer indicated that removal of the
section was acceptable because the Agency believes the
legislation speaks for itself and a stay is necessary during the
Board review.
(Tr. 11/8/93 at 33—34.)
DISCUSSION
Application shield.
The participants are in agreement with the Agency’s proposal
except on the issue involving the shield from enforcement and
whether such a shield is in place, automatically, when a permit
decision is appealed to the Board until the Board renders a
decision.
The testimony at the December
8,
1993, hearing by Ms.
Beth Steinhour on behalf of the Illinois Environmental Regulatory
Group
(IERG)
addressed this issue solely.
Further, the comments
filed by IERG
(P.C.
6) and the American Automobile Manufacturers
Association
(P.C.
5) discussed exclusively this issue.
However,
with the Agency’s agreement to delete Section 105.102(c) (7), all
the commentors, including the Agency, have asked that the Board
remain silent on this issue.
Ms. Steinhour specifically asked that the Board delete
Section 105.102(c)(7).
Ms. Steinhour indicated that while the
Agency does not object to the deletion, IERG and the Agency do
not concur on the reason for dropping the provision.
(Tr.
12/8/94 at 5-6.)
Ms. Steinhour testified that the Agency and
IERG agree that once the Agency has issued or renewed a CAAPP
permit the source is shielded from an enforcement action.
(Tr.
12/8/93 at 6.)
Thus,
the issue of an enforcement shield arises
4
only in the case of a CAAPP permit denial.
(Tr. 12/8/93 at 6-7.)
Ms. Steinhour further stated:
IERG believes that both the application shield and the
existing permit,
in the case of a renewal, continue in
full force and effect until such time as either the
time for appeal has passed or the Board issues a final
decision in case of an appeal.
Furthermore,
it is my
understanding that the Illinois Administrative
Procedure Act, the Illinois Environmental Protection
Act, and cases construing the same, support IERG’s
position that the permitting process involving the
Agency and the Board is an administrative continuum,
which becomes complete only after the Board rules.
(Tr. 12/8/93 at 8.)
Ms. Steinhour goes on to testify that IERG does not believe
“it is either necessary, prudent or productive for the Board to
address or decide this issue at this time”.
(Tr.12/8/93 at 8.)
Ms. Steinhour urges that the “appropriate time to adjudicate this
issue is if and when a CAAPP permit is denied by the Agency and
if and when an enforcement action is brought against the source”.
(Tr. 12/8/93 at 11.)
IERG in its final comment states that it will not reiterate
Ms. Steinhour’s testimony.
(P.C.
6 at 2.)
IERG does state that
it “urges the Board to delete proposed Section 105.102(c) (7)
and
to remain silent on the issue of the application shield,
except
to note that if a controversy exists, it will be resolved at a
future appropriate time in an appropriate forum”.
(P.C.
6 at 2.)
The American Automobile Manufacturers Association
(Association) submitted a comment on this issue.
(P.C.
5.)
The
Association agrees with the IERG position that an enforcement
shield is in place until the Board reaches its decision.
(P.C.
5
at 5.)
The Association cites to Section 10-65(b)
of the Illinois
Administrative Procedure Act as well as case law in support of
its position.1
The Association further argues that the Agency
has misinterpreted federal regulations regarding the enforcement
shield in that the federal regulations reference to “final agency
action” includes full administrative review.
According to the
Association, full administrative review,
in Illinois, includes
Board review of Agency decisions.
(P.
C.
5 at 9.)
The
Association ends its comment by asking that “should the Board
decide not to remain silent” the Board adopt a rule or issue a
1
The Association cites to Borg—Warner Corporation v.
Mauzy,
100 Ill.
App.
3d 862,
426 N.E.2d 415
(3rd Dist.
1981)
and Wells
Manufacturing Company v.
IEPA,
195 Ill. App.
5931, 552 N.E.2d 1074
(1st Dist.
1990).
5
finding that the effectiveness of an Agency denial is
automatically stayed pending Board review.
(P.C.
5 at 12.)
The Agency in its final comment points out that Section
39.5(5)(h)
of the Act provides that an applicant is “shielded”
from an enforcement action for failing to have a CAAPP permit
until the Agency takes final action.
(P.C.
4 at 3.)
However,
the Agency maintains that the shield does not extend into the
permit appeal process.
(P.C.
4 at 4.)
The Agency argues that
the Agency’s position is consistent with federal requirements.
(P.C.
4 at 4.)
The Agency also agrees that the “appropriate time
to decide this issue
is when a CAAPP permit is denied by the
Agency and the source appeals the denial.”
(P.C.
4 at 5.)
The Board in reviewing the extensive comments on this issue
is convinced that the issue of an “application shield” and its
effectiveness is significant.
The Board is also convinced,
however, that this is not the appropriate forum in which to
decide the issue.
Although the issue may be raised in the
future,
at this point the parties are in agreement that the
controversial section should be deleted.
By deleting Section
105.102(c) (7), the issue of the “application shield” is not ripe
for decision in this rulemaking.
Therefore, the Board will not
comment on the reasoning put forth by the participants for
removing Section 105.102(c) (7) at this time.
The Board will
simply delete the subsection from the proposal.
Other issues.
The Agency,
in response to questions from the Board,
agreed
to amend Section 106.916.
The Board had asked the Agency about
possible timing problems with filings if Section 106.916 were
adopted as the Agency proposed.
The Agency agreed with the
Board’s interpretation and suggested amending Section 106.916 to
make clear that the Agency will serve the Board with any
objections filed by USEPA as well as giving additional time to
act if the USEPA does not object.
(P.C.
4 at 1-2.)
The Board
notes that no objections were raised to the Agency’s amended
language and the amended language alleviates the concerns
originally raised by the Board.
Therefore, Section 106.916 will
be amended to read:
~j
If USEPA does not obiect to the ~ro~osed
determination within 90 days of receipt, THE BOARD
SHALL.
WITHIN
7 DAYS OF RECEIPT OF USEPA’S FINAL
APPROVAL or within ~1
days after exoiration of
the 90-day ~eriod.’~thichever 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 SHALL TAKE FINAL ACTION IN
ACCORDANCE WITH THE BOARD’S FINAL ORDER.
(Section
6
39.5(16)(c)(i) of the Act as amended by P.A.
88-
464. effective Au~ust20~1993.)
~j
fl~
If USEPA objects to the Dro~osed
determination within 90 days of receipt.
THE
AGENCY SHALL SUBMIT USEPA’S OBJECTION
AND THE
AGENCY’S COMMENTS
ANT) RECOMMENDATION ON ThE
OBJECTION
TO
THE
BOARD~~
~4
~
*~o~
recitt
Cf ~he
ob~eqt~n~
WitI4n
15, d~ysof
~
~
~gertoy
shall
~ub~nit
~HE
AGENCVS
CONMENT~AND
~9MMENP~OWI~
~
Q~~O~!
~‘9~
~
~.NDPERM1fl’~E
(Section 39.5(16Hc)(ii~of
th’éAàt”aiámended by P.A. 88-464. effective
August 20.
1993.)
The Board also received a comment from the City of Chicago
(P.C.
3) which generally supports the proposal.
The Board has
made the changes requested by the Secretary of State’s
Administrative Code Unit
(P.C.
2)
as well as nonsubstantive
changes requested by JCAR.
CONCLUSION
At second notice, the Board found that the Agency’s proposal
was supported by the record and therefore, with the changes
discussed above, the Board sent the proposal to second notice.
The Board now finds that the proposal as amended is sufficient to
adopt the rule.
Therefore, the Board adopts this rule and
directs that the rule be filed with the Secretary of State
Administrative Code Unit as final.
ORDER
The Board directs the Clerk to cause the filing of the
following proposal for Final Notice with the Secretary of State
Administrative Code Unit and to cause publication in the Illinois
Register:
TITLE 35:
ENVIRONMENTAL PROTECTION
SUBTITLE A:
GENERAL PROVISIONS
CHAPTER
I:
POLLUTION CONTROL BOARD
PART
105
PERMITS
Section
105.101
Setting Standards
105.102
Permit Appeals
105.103
Permit Review
105.104
Cost of Review
7
Appendix: Old Rule Numbers Referenced
AUTHORITY:
Authorized by Section 26 of the Environmental
Protection Act
(Ill. Rev. Stat.
19791991, ch.
111½, par.
1026)
r415 ILCS 5/26
and implementing Sections
5,
39,
39.5. 40~an4
40.1 and 40.2 of the Illinois Environmental Protection Act (Ill.
Rev.
Stat.
19791991, ch.
111½,
pars.
1005,
1039,
10403.
en4
‘°40•’T
and 1040.2)aG amondod by P.A. 82—682,
(P.A.
87—1213.
effective September 26.
1992. and P.A. 88—464, effective Au~ust
20.
1993)
(415 ILCS 5/5.
39.
39.5.
40,. 40.1 and 40.21.
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
—
Ill.
Reg.
_________
effective _______________________
NOTE:
Capitalization denotes statutory language.
Section 105.102
Permit Appeals
a)
Permit A~ppealsGQther than NPDES
(National Pollutant
Discharge Elimination System) and CAAPP
(Clean Air Act
Permit Program) P~ermitA~ppea1s:
1)
If the Agency denies the permit,
it shall advise
the permit applicant in writing in accordance with
the requirements of Section 39(a)
of the
Environmental Protection Act (Act).
2)
In the case of a denial of a permit or
issuance by
the Agency of a permit with one or more conditions
or limitations to which an applicant objects, an
applicant who seeks to appeal the Agency decision
shall file a petition for a hearing before the
Board within 35 days of the date of mailing of the
Agency’s final decision.
The petition shall
include:
A)
Citation of the particular standards under
which
a permit is sought;
B)
A complete and precise description of the
facility, equipment,
vehicle, vessel, or
aircraft for which a permit
is sought,
including its location;
C)
A complete description of contaminant
emissions and of proposed methods for their
control; and
D)
Such other materials as may be necessary to
demonstrate that the activity for which the
8
permit is sought will not cause a violation
of the Act or the regulations.
3)
The method of filing service shall be in
accordance with Sections 103.122 and 103.123.
4)
The Agency shall appear as respondent in the
hearing and shall, within 14 days, upon notice of
the petition, file with the Board the entire
Agency record of the permit application,
including:
A)
The application;
B)
Correspondence with the applicant,
and
C)
The denial.
5)
The Clerk shall give notice of the petition and
hearing in accordance with Part 103.
6)
The proceedings shall, be in accordance with the
rules set forth in Part 103.
b)
NPDES Permit Appeals:
1)
If the Agency denies an NPDES Permit,
it shall
advise the permit applicant in writing in
accordance with the requirements of Section 39(a)
of the Act.
2)
In the case of the denial of an NPDES Permit or
the issuance by the Agency of an NPDES Permit with
one or more conditions or limitations to which the
applicant objects, the applicant may contest the
decision of the Agency by filing with the Clerk of
the Board a petition for review of the Agency’s
action in accordance with this Section.
3)
Any person other than the applicant who has been a
party to or participant at an Agency hearing with
respect to the issuance or denial of an NPDES
Permit by the Agency, or any person who requested
such a hearing in accordance with applicable
rules, may contest the final decision of the
Agency by filing with the Clerk a petition for
review of the Agency’s action.
4)
The petition shall be filed and notice issued
within 30 days from the date the Agency’s final
decision has been mailed to the applicant and all
other persons who have right of appeal.
The
9
method of filing and service shall be
in
accordance with Sections 103.122 and 103.123.
5)
The Agency shall appear as respondent and shall
file an answer consisting of the hearing file of
any hearing which may have been held before the
Agency,
including any exhibits, and the following
documents: NPDES Permit application, NPDES Permit
denial or issuance letter, and all correspondence
with the applicant concerning the application
6)
All parties other than the petitioner who were
parties to or participants at any Agency hearing
shall be made respondents.
7)
The petition shall contain a statement of the
decision or part thereof to be reviewed.
The
Board upon motion of any respondent shall, or upon
its own motion may, require of the petitioner a
specification of the errors upon which the
petitioner relies in his petition.
8)
The hearings before the Board shall extend to all
questions of law and fact presented by the entire
record.
The Agency’s findings and conclusions on
questions of fact shall be prima facie true and
correct.
If the Agency’s conclusions of fact are
disputed by the party or if issues of fact are
raised in the review proceeding, the Board may
make its own determination of fact based on the
record.
If any party desires to introduce
evidence before the Board with respect to any
disputed issue of fact, the Board shall conduct a
de novo hearing and receive evidence with respect
to such issue of fact.
9)
This proceeding shall be in accordance with Part
103.
10)
The order of the Board entered pursuant to hearing
may affirm or reverse the decision of the Agency,
in whole or in part, may remand the proceeding to
the Agency for the taking of further evidence,
or
may direct the issuance of the permit in such form
as it deems just, based upon the law and the
evidence.
~j
CAAPP Permit
Appeals:
~j.
The definitions of
35
Ill.
Adin.
Code 101.101 and
Section 39.5 of the Environmental Protection Act
(P.A.
87—1213. effective September 26.
1992)
1415
10
ILCS 5/39.5 1
(“Act”)
shall aP~lvto this
subsection.
2i.
If the Agency denies a CAAPP permit. permit
modification or permit renewal,
it shall provide
to USEPA. the oermit applicant and, upon reguest.
affected states, any Derson who participated in
the public comment process and any other person
who could obtain ludicial review under Sections
40.2 and 41 of the Act a co~vof each notification
of denial pertaining to the permit applicant.
~j
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 A~encvof a CAAPP permit with one
or more conditions or limitations, or the failure
of the A~encvto act on an application for a CAAPP
permit. permit renewal
administrative permit
amendment or sicmificant permit modification
within the time frames specified in Section
39.5(5) (1) or
(13)
of the Act. as applicable, or
the failure of the A~encvto 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 recniirements) 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 ludicial review
pursuant to Section 41(a)
of the Act obiects. such
persons may contest the decision of the Agency by
filing with the Clerk of the Board
a petition for
review of the Agency’s action in accordance with
this Section.
~
For purposes of this subsection.
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 reauested notice of the final
action on a specific permit application.
51
The petition filed pursuant to subsection
(a) (3)
above shall be filed within 35 days after the
Agency’s final permit action.
Notwithstanding the
above,
if the petition is based solely on ~rounds
arising after the 35-day period expires. the
petition may be filed within 35 days after the new
~rounds for review arise.
If the applicant is
11
challenging the Agency’s failure to timely take
final action pursuant to Section 39.5 of the Act1
the petition shall be filed before the Agency
takes such final action.
Under no circumstances.
however. may a petition challenging the final
permit action on a Phase II acid rain permit be
filed more than 90 days subseauent to such final
permit action.
~J..
The petition shall include:
~
A concise description of the CAAPP source for
which the permit
is sought
~
A statement of the Agency’s decision or cart
thereof to be reviewed
Qj
A lustification as to why the Agency’s
decision or part thereof was in error; and
Q1
Such other materials upon which the
petitioner relies in its petition.
fl
The Agency shall appear as respondent at the
hearing and shall
file, within 30 days after
service of the petition,
an answer consisting of
the entire Agency record of the CAAPP application
including the CAAPP oermit application, the
hearing record,
the CAAPP permit denial or
issuance letter and correspondence with the
applicant concerning the CAAPP permit application.
51
The Clerk shall give notice of the petition and
hearing in accordance with Part 103.
51
The proceeding shall be conducted in accordance
with Part 103.
1Qj
THE AGENCY
SHALL
NOTIFY USEPA,
IN WRITING. OF
ANY
PETITION BROUGHT
UNDER
THIS SUBSECTION INVOLVING A
PROVISION OR DENIAL OF A PHASE II ACID RAIN PERMIT
WITHIN 30 DAYS AFTER 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 SUBSECTION THAT
INTERPRETS, VOIDS. OR OTHERWISE RELATES TO
ANY
PORTION OF A PHASE II ACID
RAIN
PERMIT.
(Section
40.2(e)
of the Act as amended by P.A. 88-464,
effective August
20.
1993.)
12
(Source:
Amended at
)
Ill. Reg.
_________,
effective
TITLE 35:
ENVIRONMENTAL PROTECTION
SUBTITLE A:
GENERAL
PROVISIONS
CHAPTER I:
POLLUTION CONTROL BOARD
PART 106
HEARINGS
PURSUANT
TO
SPECIFIC
RULES
SUBPART
A:
HEATED
EFFLUENT
DEMONSTRATIONS
Section
106.101
106.102
106.
103
106.104
106.105
106.106
106.107
Section
106. 401
106. 402
106.
403
106. 404
106.405
106.
4 06
106.
4 07
106. 408
Petition
Requirements for Petition
Parties
Recommendation
Notice and Hearing
Transcripts
Opinion and Order
SUBPART B:
ARTIFICIAL COOLING
LAKE
DEMONSTRATIONS
Petition
Notice and Hearing
Transcripts
Effective Date
SUBPART C:
SULFUR DIOXIDE DEMONSTRATIONS
SUBPART
D:
RCRA
ADJUSTED
STANDARD
PROCEDURES
Petition
(Repealed)
Notice of Petition (Repealed)
Recommendation (Repealed)
Response (Repealed)
Public Comment (Repealed)
Public Hearings
(Repealed)
Decision (Repealed)
Appeal
(Repealed)
Section
106. 201
106.
202
106.
203
106.
204
Section
106.301
106.
302
106.
303
106.304
106.
305
106.306
Petition
Requirements for Petition
Parties
Recommendation
Notice and Hearing
Transcripts
13
Scope of Applicability
Joint or Single Petition
Request to Agency to Join as Co-Petitioner
Contents of Petition
Response and Reply
Notice and Conduct of Hearing
Opinions and Orders
SUBPART E:
AIR
ADJUSTED
STANDARD
PROCEDURES
Section
106.501
106.502
106.503
106.504
106.
505
106.
506
106.
507
Section
106.
601
106.602
106.
603
106. 604
106.605
Section
106.701
106.702
106.703
106.704
106.705
106.706
106.707
106.708
106.709
106.710
106.711
106.712
106.
713
106.
714
106.715
106.801
106.802
106.
803
106.
804
106.805
Scope and Applicability
Joint or Single Petition
Request to Agency to Join As Co—Petitioner
Contents of Petition
Response and Reply
Notice and Conduct of Hearing
Opinions and Orders
SUBPART
F:
WATER
WELL
SETBACK
EXCEPTION PROCEDURES
Scope and Applicability
Contents of Petition
Response and Reply
Notice and Conduct of Hearing
Opinions and Orders
SUBPART
G:
ADJUSTED STANDARDS
Applicability
Definitions
Joint or Single Petition
Request to Agency to Join As Co-Petitioner
Petition Contents
Petition Verification
Federal Procedural Requirements
Incorporated Material
Motions
Service of Filings
Petition Notice
Proof of Petition Notice
Request for Public Hearing
Agency Response
Amended Petition and Amended Response
Hearing Scheduled
Hearing Notice
Pre-hearing Submission of Testimony and Exhibits
Discovery
Admissible Evidence
106.410
106.411
106.412
106. 413
106. 414
106.415
106.416
14
106.806
Order of Hearing
106.807
Post-hearing Comments
106.808
Burden of Proof
106.901
Board Deliberations
106.902
Dismissal of Petition
106.903
Board Decision
106.904
Opinion and Order
106.905
Appeal of Board Decisions
106.906
Publication of Adjusted Standards
106.907
Effect of Filing a Petition
SUBPART H:
REVOCATION
AND
REOPENING
OF
CLEAN
AIR
ACT
PERMIT
PROGRAM
(CAAPP) PERMITS
_______
Definitions
_______
Petition
_______
ResPonse and Re~1v
_______
Notice and Hearing
Qpinion and Order
_______
USEPA Review of Proposed Determination
SUBPART I:
MAXIMUM
ACHIEVABLE CONTROL TECHNOLOGY DETERMINATIONS
Section
106.920
______________
106.921
____________
106. 922
_________
106. 923
___________________
106.
924
____________________
106.925
__________________
Appendix A:
Old Rule Numbers Referenced
AUTHORITY:
Implementing Sections
5,
14.2(c),
22.4,
27,
283. afI4
28.1,
28.5 and 39.5 and authorized by Section~26 and 39.5 of the
Environmental Protection Act
(Ill.
Rev.
Stat.
19871991,
ch.
111½,
pars.
1005,
1014.2(c),
1022.4,
1027,
1028,
l028.1-r.
1028.5,
1039.5 and 1026)
(P.A.
87—1213, effective September 26,
1992,
and
PA.
88—464, effective August 28,
1993)
1415 ILCS 5/5,
14.2(c),
22.4,
27.
28.
28.1,
28.5,
39.5 and 26.
SOURCE:
Filed with Secretary of State January 1,
1978;
amended
at
4
Ill.
Reg.
2, page 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
Applicability
Section
106.
910
106.911
106. 912
106.
913
106.
914
106.915
106.916
A~~l
icabi 1ity
Definitions
Petition
Response and Re~lv
Notice and Hearing
Qpinion and Order
15
Ill. Reg.
9442, effective June 5,
1990; amended in R93—
at
Ill. Reg.
_________,
effective
_____________________
NOTE:
Capitalization denotes statutory language.
SUBPART H:
REVOCATION
AND
REOPENING OF CLEAN AIR ACT PERMIT
PROGRAM
(CAAPP)
PERMITS
Section 106.910
Applicability
The provisions of this Subpart shall a~~ly
to:
~j
Any revocation proceedina initiated by the Aaencv when
it determines that there are arounds to revoke and
reissue a CAAPP permit for cause, Pursuant to Section
39.5(15)(b)
of the Environmental Protection Act
(P.A.
87—1213, effective September 26,
1992)
1415 ILCS
5/39.5(15)(b)
(“Act”); and
~
Any reoPening proceedina initiated by USEPA when USEPA
determines that there are arounds to terminate or
revoke and reissue a CAAPP permit for cause, pursuant
to Section 39.5(16)
of the Act.
(Source:
Added at
—
Ill. Reg.
_________,
effective
_____________________________________________________________
)
Section 106.911
Definitions
The definitions of 35
Ill. Adm. Code 101.101 and Section 39.5 of
the Act shall a~~1v
to this Subpart.
(Source:
Added at
Ill. Reg.
_________,
effective
_____________________________________________________________
)
Section 106.912
Petition
~j
Aaency Revocation Proceeding
fl
A revocation proceeding shall be commenced by the
Aaencv by its serving
a petition for revocation
upon the respondent and filing 10 copies with the
Clerk of the Board.
21
The petition shall include the permit record and
the grounds for the revocation of the CAAPP
permit.
~j
USEPA Reopening Proceeding
fl
If the Agency receives from USEPA a notice to
terminate or revoke and reissue a CAAPP permit for
16
cause, the Aaency shall, within 30 daYs after
receipt of USEPA’s notice,
serve a petition uPon
the respondent and file 10 copies with the Clerk
of the Board.
21
The petition shall include USEPA’s obiection. the
permit record, the Agency’s proposed determination
and_the lustification for the ~ro~osed
determination.
(Source:
Added at
—
Ill. Reg.
_________,
effective
_____________________________________________________________
)
Section 106.913
Response and Re~1y
51
The respondent may file a resPonse to the Aaency’s
petition within 21 days after service of the petition.
~
The Aaencv maY file
a reply within 21 days after filing
of any response.
(Source:
Added at
—
Ill. Reg.
________,
effective
_____________________________________________________________
)
Section 106.914
Notice and Hearing
51
The Clerk shall give notice of the petition and hearing
in accordance with Part 103. The proceeding shall be
conducted in accordance with Part 103.
~
In a hearing, the burden of proof shall be on the
Agency.
(Source:
Added at
—
Ill.
Reg.
_________,
effective
_____________________________________________________________
)
Section 106.915
Opinion and Order
51
Aaencv Revocation Proceeding
fl
The Board shall 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.
~j
If the Board determines that the permit should be
revoked and reissued, its final order shall direct
the Aaencv to revoke and reissue the CAAPP permit
consistent with Section 39.5 of the Act.
~
USEPA Reopening Proceeding
17
fl.
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. REOUIRED IN THE AGENCY’S PROPOSED
DETERMINATION.
THE
INTERIM ORDER SHALL COMPLY
WITH
THE
REQUIREMENTS
FOR
FINAL
ORDERS
AS
SET
FORTH
IN
SECTION
33
OF
the
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
the
ACT
OR
THE
ADMINISTRATIVE
REVIEW
LAW.
(Section 39.5(16) (b) (ii)
of the Act; see
P.A.
88—464. effective Auaust
20,
1993.)
21
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.
(Section
39.5(16) (b) (iii) of the Act; see P.A.
88—464.
effective August 20,
1993.)
(Source:
Added at
—
Ill.
Reg.
_________,
effective
_____________________________________________________________)
Section 106.916
USEPA Review of Proposed Determination
51
If USEPA does not object to the ~ro~osed determination
within 90 days after receipt. THE BOARD SHALL, 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 SHALL TAKE
FINAL_ACTION IN ACCORDANCE WITH THE BOARD’S FINAL
ORDER.
(Section 39.5(16)(c)(i)
of the Act; see P.A.
88—464, effective August 20,
1993.)
~
USEPA objection
fl..
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,
18
the Agency shall submit THE AGENCY’S COMMENTS
AND
RECOMMENDATION ON THE OBJECTION TO THE BOARD
AND
PERMITTEE.
(Section 39.5(16)
(C)
(ii)
of the Act;
see P.A.
88—464. effective August 20.
1993.)
21
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 the
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.
(Section
39.5(16) (c) (ii)
of the Act; see P.A.
88—464,
effective Auaust 20.
1993.)
(Source:
Added at
—
Ill. Reg.
_________,
effective
________________________________________________________)
SUBPART
I:
MAXIMUM
ACHIEVABLE CONTROL TECHNOLOGY DETERMINATIONS
Section 106.920
Ap~1icability
The provisions of this Subpart shall apply to any proceeding
initiated by an owner or onerator of a CAAPP source pursuant to
Section 39.5(19) (a)
or
(e)
of the Environmental Protection Act
(P.A.
87—1213, effective September 26.
1992)
1415 ILCS
5/39.5(19) (a) and
(e)1
(“Act”) when the Agency has refused to
include the emission limitation for a case-by—case maximum
achievable control technology
(“MACT”) determination ~ro~osed by
the owner or operator of the CAAPP source in the source’s CAAPP
application.
(Source:
Added at
—
Ill. Reg.
effective
_____________________________________________________________)
Section 106.921
Definitions
The definitions of 35 Ill.
Adm. Code 101.101 and Section 395
of
the Act shall a~~lv
to this Subpart.
(Source:
Added at
—
Ill.
Reg.
_________,
effective
_____________________________________________________________)
Section 106.922
Petition
51
A proceeding brought under this Subpart shall be
commenced
by
the
owner
or
operator
of
a
CAAPP
source
by
serving a petition upon the Agency and filing 10 copies
with the Clerk of the Board.
19
~
A petition filed pursuant to Sections 39.5(19) (a) and
(el of the Act shall include a detailed description of
and justification for the emission limitation that is
being ~ro~osed for the source and an explanation of how
su~chemission limitation provides for the level
of
control required under Section 112 of the Clean Air Act
(42 U.S.C. 74121.
~j
A petition filed pursuant to Section 39.5(19) (a)
of the
Act shall also reauest that the Board establish whether
the emission limitation proposed by the owner or
operator of the CAAPP source provides for the emission
limitation eauivalent to the emission limitation that
would a~plvto the source if USEPA had promulgated the
applicable emission standard Pursuant to Section 112(d)
of the Clean Air Act
(42 U.S.C.
7412(d))
in a timely
manner.
(Source:
Added at
Ill. Reg.
________,
effective
_____________________________________________________________)
Section 106.923
ResPonse and Reply
51
The Aaencv 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 re~lvwithin 21 days
after the filing of any response.
(Source:
Added at
—
Ill.
Reg.
_________,
effective
_____________________________________________________________)
Section 106.924
Notice and Hearing
51
The Clerk of the Board shall give notice of the
petition and any hearing in accordance with Part 103.
The proceedina shall be conducted in accordance with
Part 103.
~
The burden of proof
in such proceedings shall be on the
petitioner.
(Source:
Added at
—
Ill. Reg.
________,
effective
_____________________________________________________________)
Section 106.925
Opinion and Order
51
The Board shall 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.
20
~
The Board shall determine whether the emission
limitation proposed by the owner or operator of the
CAAPP source or an alternative emission limitation
proPosed bY the Aaencv provides for the level of
control reauired under Section 112 of the Clean Air Act
142 U.S.C.
7412). or shall otherwise establish an
appropriate emission limitation pursuant to Section 112
of the Clean Air Act.
(Source:
Added at
—
Ill. Reg.
_________,
effective
_______________________________________________________ )
IT
IS
SO
ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, do hereby ce~~$~
that the above opinion and order was
adopted on the
2
day of
~
,
1994,
by
a
voteof
,~-‘
A~
~
Dorothy M. G~nn, Clerk
Illinois Po~4utionControl Board
