ILLINOIS POLLUTION CONTROL BOARD
January
20,
1994
IN THE HATTER 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.
)
Proposed Rule. Second Notice.
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 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.
AGENCY PROPOSAL
The Agency states that it has identified certain
inconsistencies between the Board’s permit appeals regulations in
Part 105 and requirements for a the 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
maximum achievable control technology
(MACT)
for a source.
Therefore,
the Agency proposed an amendment to Part 106 of the
Board’s rules.
2
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 source.
(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 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.
3
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
ApDlication 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 coinmentors, including the Agency, have asked that the Board
remain silent on this issue.
Ms. Steinhour testified on behalf of IERG and 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 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.l2/8/93 at
8.)
4
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 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” include 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
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
1
The Association cites to BorQ—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
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
object
to
the
proposed
determination within 90 days of receipt, THE
BOARD
SHALL,
WITHIN
7 DAYS OF RECEIPT OF USEPA’S FINAL
APPROVAL or within ~Z1 days after expiration of
the 90-day period,t.thlchever 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(i)
of
the
Act
as amended bY
P.A.
88—
464.
effective
August
20.
1993.)
121
fl
If USEPA ob~iectsto the Proposed
determination within 90 days of receipt, THE
AGENCY SHALL SUBMIT USEPA’S OBJECTION AND THE
AGENCY’S
COMMENTS
AND
RECOMMENDATION
ON
THE
OBJECTION
TO
THE
BOARD
~
an~per~~1ttee
i~pon
~ç~iO~
of, t~ ~eçt~..ç~
~it~4r~1~5
4~
receipt
of
USEPAt~ob1e~tion~
the
A~er~cy
~
~
+.
~Y*LYt~ ~U~7J
~
1~fl
£
~
J
.4.
~P
~.4I~4U
~
.~£4
£.J
RECOMMENDATION 0
~ND
PERMITTEE.
-
~Section
i9.~t1.~.1&UiiTcf
t’hEACt
áiámended
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)
in this proposal.
6
CONCLUSION
The Board finds that the Agency’s proposal
is supported by
the
record
and
therefore,
with
the
changes
discussed
above,
the
Board sends this proposal to second notice.
ORDER
The Board directs the Clerk to cause the filing of the
following proposal for Second Notice with the Joint Committee on
Administrative Rules:
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
Appendix: Old Rule Numbers Referenced
AUTHORITY:
Authorized by Section 26 of the Environmental
Protection
Act
(Ill.
Rev.
Stat.
19791991,
ch.
111½, par.
1026)
1415
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,
1040 and 1040.1,
as amended by P.A.
82-682, P.A. 87—1213, effective September 26,
1992,
and P.A. 88—464, effective August 20,
1993)
1415 ILCS 5/5,
39,
39.5,
40,
40.1
and
40.2.
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,~ppeals
~Qther
than
NPDES
(National
Pollutant
Discharge Elimination System) and CAAPP (Clean Air Act
Permit
Program)
I~ermit
A~ppea1s:
1)
If the Agency denies the permit,
it shall advise
the permit applicant in writing in accordance with
7
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
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:
8
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
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 fade true and
9
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:
fl
The definitions of 35
Ill. Adm. Code 101.101 and
Section 39.5 of the Environmental Protection Act
(P.A.
87—1213.
effective
September
26,
1992)
1415
ILCS
5/39.51
(“Act”)
shall
aP~lv to
this
subsection.
21
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 ludicial review under Sections
40.2 and 41 of the Act a copy of 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 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) (1) or Section 39.5(13)
of the Act,
as
applicable,
or the failure of the A~encvto take
final_action within 90 days of receipt of an
application
requesting
minor
permit
modification
10
procedures
(or 180 days for modifications subiect
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
~udicia1 review pursuant to Section 41(a)
of the
Act oblects. 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.
~41
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.
~j
The petition filed pursuant to subsection
(c) (3)
above shall be filed within 35 days of 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
petition may be filed within 35 daYs after the new
~rounds 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 shall be filed before the A~encv
takes such final action.
Under no circumstances,
however, may a petition cha1lengin~the final
permit action on a Phase II acid rain permit be
filed more than 90 days subsequent 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 Part
thereof to be reviewed;
A lustification as to why the Agency’s
decision or part thereof was
in error;
and
~j
Such other materials upon which the
petitioner relies in its petition.
11
~
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
a~p1ication
including the
CAAPP
permit a~~lication.the
hearing record, the
CAAPP
permit denial or
issuance letter. and correspondence with the
applicant concerning the CAAPP permit application.
~
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.
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 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 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.)
(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
Petition
106.102
Requirements for Petition
106.103
Parties
106. 104
Recommendation
106.105
Notice and Hearing
106.106
Transcripts
106.107
Opinion and Order
12
SUBPART B:
ARTIFICIAL COOLING
LAKE
DEMONSTRATIONS
Section
106.301
106.302
106.303
106.304
106.305
106.306
Section
106.401
106.402
106.403
106.404
106.405
106.406
106.407
106.408
106.
4 10
106 .411
106.412
106.413
106 .414
106.
415
106.
416
Section
106.501
106.502
106.503
106.
504
106.
505
106.506
106.507
Petition
Requirements for Petition
Parties
Recommendation
Notice and Hearing
Transcripts
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)
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
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
Section
106.201
106.202
106.203
106.204
Petition
Notice and Hearing
Transcripts
Effective Date
SUBPART C:
SULFUR
DIOXIDE DEMONSTRATIONS
13
Section
106.
601
106.602
106.603
106. 604
106.605
Scope and Applicability
Contents of Petition
Response and Reply
Notice and Conduct of
Opinions and Orders
Hearing
SUBPART G:
ADJUSTED STANDARDS
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
106.806
106. 807
106.808
106.
901
106.902
106.903
106.904
106.905
106.906
106.907
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
Order of Hearing
Post—hearing Comments
Burden of Proof
Board Deliberations
Dismissal of Petition
Board Decision
Opinion and Order
Appeal of Board Decisions
Publication of Adjusted Standards
Effect of Filing a Petition
SUBPART H:
REVOCATION
AND
REOPENING
OF
CLEAN
AIR ACT PERMIT
PROGRAM
(CAAPP)
PERMITS
Section
106.910
106.911
106.912
106.913
106.914
106.915
106.916
Applicability
Definitions
Petition
Response and Reply
Notice and Hearing
Qpinion
and
Order
USEPA
Review of Proposed Determination
14
SUBPART
I:
MAXIMUM
ACHIEVABLE CONTROL TECHNOLOGY DETERMINATIONS
Section
106.920
Applicability
106.921
Definitions
106.922
Petition
106.923
Response and Reply
106.924
Notice and Hearing
106.925
Opinion and Order
Appendix A:
Old Rule Numbers Referenced
AUTHORITY:
Implementing Sections
5,
14.2(c),
22.4,
27, 28~an4
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,
1028.1-~-.L.and 1026),
(P.A.
87—1213.
effective September 26,
1992, and P.A.
88—464,
effective August 28,
1993)
1415 ILCS 5/5, 14.2(c), 22.4,
27,
28,
28.1,
28.5,
26 and 39.51.
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
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
A~~licability
The provisions of this Subpart shall apply to:
.~j
Any revocation proceeding initiated by the Agency when
it determines that there are grounds 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)1
(“Act”); and
~j
Any reopening proceeding initiated by USEPA when USEPA
determines that there are grounds to terminate or
revoke and reissue a CAAPP permit for cause, pursuant
to Section 39.5(16) of the Act.
15
(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 apply to this Subpart.
(Source:
Added at
—
Ill.
Reg.
________,
effective
_________________________________
.)
Section 106.912
Petition
,~j
Agency Revocation Proceeding
fl
A revocation proceeding shall be commenced by the
Agency 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
3~1
If the A~encvreceives from USEPA a notice to
terminate or revoke and reissue a CAAPP permit for
cause, the Agency shall, within 30 days of receipt
of TJ5EPA’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 proposed
determination.
(Source:
Added at
—
Ill.
Reg.
_________,
effective
Section 106.913
Response and Re~lv
~j
The respondent may file a response to the Agency’s
petition within
21 days after service of the petition.
~j
The Agency may file a re~lvwithin 21 days after filing
of any response.
(Source:
Added at
Ill. Reg.
effective
16
Section 106.914
Notice and Hearing
~j
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.
~j
In a hearing, the burden of Proof shall be on the
Agency.
(Source:
Added at
—
Ill. Reg.
_________,
effective
Section 106.915
Opinion and Order
~j
A~encyRevocation 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.
21
If the Board determines that the permit should be
revoked and reissued.
its final order shall direct
the Agency to revoke and reissue the CAAPP permit
consistent with Section 39.5 of the Act.
121
USEPA Reopening Proceeding
IL
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 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
lb), 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 as
amended by P.A.
88-464, effective August 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
17
39.5(16) (b)
(iii)
of the Act as
amended by P.A.
88—
464.
effective August 20.
1993.)
(Source:
Added at
—
Ill.
Reg.
________,
effective
________________________________.)
Section 106.916
USEPA Review of Proposed Determination
~j
If USEPA does not obiect to the proposed determination
within 90 days of receipt. THE BOARD SHALL. WITHIN
7
DAYS OF RECEIPT OF USEPA’S FINAL APPROVAL or within ~2L
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 as amended bY P.A.
88—464,
effective August 20,
1993.)
121
Us
EPA OBJ~C~O
IL
If USEPA objects to the proposed determination
within 90 days of receipt, THE AGENCY SHALL SUBMIT
USEPA’S OBJECTION AND THE AGENCY’S COMMENTS AND
RECOMMENDATION ON THE OBJECTION TO THE BOARD AND
and periTlittee ~upon receipt of the obiection.
Within
15 ~avs.of
receipt ofIJSEPA’s objection..,
the Agency shall submit THE AGENCY’S COMMENTS
AND
REcOMMENDATION ON..THE
oBJEc1~ION
TO THE BOARD AND
PERMITTEE.
(Section 39.5(16) (c) (ii)
of the Act as
amended by PA.
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 of receipt of tJ~EPA~G
ob~i~tii~n
~f
the A~ency’scomments and recómméhdatiöh~fl
USEPA’~sobiec~t~on THE AGENCY SHALL
WITHIN 90
~
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
as amended bY P.A.
88—464, effective August 20.
1993.)
(Source:
Added at
—
Ill. Reg.
_________,
effective
ST~PM~T
T:
MAXTMUM
ACHTEVMThE CONTROL TECHNOLOGY DETERMINATTON~
18
Section 106.920
Applicability
The provisions of this Subpart shall a~~lvto any proceeding
initiated by an owner or operator of a CAAPP source pursuant to
Section 39.5(19) (a) or Section 39.5(19)(e)
of the Environmental
Protection Act
(P.A.
87—1213. effective September 26.
1992)
1415
ILCS 5/39.5(19) (a).
5/39.5(19)(e)1
(“Act”) when the A~encvhas
refused to include the emission limitation for a case—by—case
maximum achievable control technoloav
(“MACT”) determination
proposed by the owner or operator of the CAAPP source in the
source’s C.AAPP application.
(Source:
Added at
—
Ill.
Reg.
_________,
effective
___________________________________.)
Section 106.921
Definitions
The definitions of 35 Ill. Adm. Code 101.101 and Section 39.5 of
the Act shall apply to this Subpart.
(Source:
Added at
—
Ill. Reg.
_________,
effective
Section 106.922
Petition
~
A proceeding brought under this Subpart shall be
commenced by the owner or operator of a CAAPP source by
serving
a petition upon the A~encvand filing
10 copies
with the Clerk of the Board.
~j
A petition filed pursuant to sections 39.5(19) (a)
and
39.5(19)(e)
of the Act shall include a detailed
description of and justification for the emission
limitation that is being propr~sedfor the source and an
explanation of how such emission limitation provides
for the level of control reaui~redunder Section 112 of
the Clean Air Act
(42 U.S.C. 7412).
~j
A petition filed pursuant to Section 39.5(19) (a)
of the
Act shall also request that the Board establish 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 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
19
~j
The A~encvmay file
a response to the petition of the
owner or operator within 21 days after service of the
petition.
~j
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
~j
The Clerk of the Board shall give notice of the
petition and any hearing in accordance with Part 103.
The proceedin~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
~j
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.
121
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 Agency provides for the level of
control reguired under Section 112 of the Clean Air Act
(42 U.S.C.
7412), or shall otherwise establish an
ap~ro~riateemission limitation pursuant to Section 112
of the Clean Air Act (42 U.S.C.
7412).
(Source:
Added at
—
Ill. Reg.
,
effective
20
IT
IS
SO
ORDERED.
I, Dorothy N. Gunn,
Clerk of the Illinois Pollution Control
Board,
do hereby certify that the a~oveopinion and order was
adopted on the
~
~Z’
day of
~
,
1994,
by a
vote of
7
(7
.
/2
2
/~-~(
~JfJ~/
~
Dorothy
N.
Grn~in, Clerk
Illinois Po~1/utionControl Board
