4

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

APPENDIX F Notice of Withdrawal

APPENDIX G Comparison of Former and Current Rules

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 Reg. 8357; Part repealed, new Part adopted in R88-5A at 13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repealed, new Part adopted in R00-20 at 25 Ill.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 102 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.

b) The provisions of the Code of Civil Procedure [735 ILCS

5] 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

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5

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, the adjudication does not affect the validity

of this Part as a whole or of any portion not adjudged invalid.

Section 101.104 Repeals

All Board resolutions adopted before January 1, 2001 that relate

to procedural matters for Board proceedings are repealed and are

superseded by 35 Ill. Adm. Code 101-130.

Section 101.106 Board Authority

a) 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 the Act

[415 ILCS 5/5(b)].

b) The Board has the

authority to conduct hearings upon

complaints charging violations of the 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 the Act; upon

petition to remove a seal under Section 34 of the 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)].

c) 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

a) Board proceedings can generally be divided into two

categories: rulemaking proceedings and adjudicatory

proceedings.

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6

b) 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.

c) The following are examples of Board adjudicatory

proceedings: Enforcement Proceedings (35 Ill. Adm.

Code 103), Variance Petitions (35 Ill. Adm. Code 104),

Adjusted Standard Petitions (35 Ill. Adm. Code 104),

Permit Appeals (35 Ill. Adm. Code 105), Leaking

Underground Storage Tank Appeals (35 Ill. Adm. Code

105), Pollution Control Facility Siting Appeals (35

Ill. Adm. Code 107), and Administrative Citations (35

Ill. Adm. Code 108).

d) 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.

e) 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

a) General. The Board encourages public participation in

all of its proceedings. The extent to which the law

allows for the 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.

b) 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

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7

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. A person who

wishes to participate in a Board regulatory proceeding

will be deemed a participant and will have only those

rights specifically provided in these rules.

c) 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. The

 

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. The briefs will not delay

decision-making of the Board. (See also Section

101.302(k) of this Part.)

Section 101.112 Bias and Conflict of Interest

a) No Board Member or Board employee may represent any

other person in any Board proceeding.

b) 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 consulting on

legal or technical matters, and Board employee means a

person the Board employs on a full-time, part-time,

contract, or intern basis.

c) The Board, on its own motion or the motion of any

party, may disqualify a hearing officer for bias or

conflict of interest as provided by Section 10-30(b) of

the IAPA [5 ILCS 100/10-30(b)].

Section 101.114 Ex Parte Communications

a) Adjudicatory Proceedings. Board members and employees

are prohibited from engaging in ex parte communications

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8

with respect to a pending adjudicatory proceeding.

(See definition of “ ex parte communication” in

Section 101.202 of this Part.) For purposes of this

Section, Board employee means a person the Board

employs on a full-time, part-time, contract, or intern

basis.

b) Regulatory Proceedings. Board Members and Board

employees should not engage in an ex parte

communication designed to influence their 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.

c) Nothing in this Section precludes Board Members or

Board employees from receiving informal complaints

about individual pollution sources, or forbids the

administrative contacts as would be appropriate for

judges and other judicial officers. 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.

d) 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

---

9

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 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 delegate

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.

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10

“ 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 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 who is not a party. (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.

“ 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).

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11

“ 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 USC 7401 et seq.

[415 ILCS

5/ 39.5]

“ 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.

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12

“ 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 against a complainant. (See 35

Ill. Adm. Code 103.206.)

“ Cross-complaint” means a pleading that a party files

setting forth a claim 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 pre-hearing process that can be used

to obtain facts and information about the adjudicatory

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13

proceeding in order to prepare for hearing. The discovery

tools include 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.

“ Duplicitous” 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

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14

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 I 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].

“ 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

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15

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 35 Ill. Adm.

Code 106.Subpart G.)

“ 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 101.908 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

(see 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 with respect to any

properly included party.

“ Motion” means a request made to the Board or the hearing

officer for the purposes of obtaining a ruling or order

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16

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 the 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 decision deadline

waiver has been filed. The 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.

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17

“ 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.)

“ Peremptory rulemaking” means

any rulemaking that is

required as a result of federal law, federal rules and

regulations, or an order of a court, under conditions that

preclude compliance with the general rulemaking requirements

of Section 5-40 of the IAPA and that preclude the exercise

by the

Board

as to the content of the rule it is required to

adopt

. [5 ILCS 100/5-50]

“ 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

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18

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 the 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

of the Act;

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

of the Act;

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19

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)

of the Act

are

exempt under this

definition

;

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 the 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 with

the Board pursuant to Section 40.1 of the Act.

“ 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,

---

20

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) and (ii)]. (See also definition of “ recycled

paper” in this Section.)

“ 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., rulemaking 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,

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21

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 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. (See 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 (see 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.).

“ 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.).

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“ Service” means delivery of documents upon a person. (See

Sections 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

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23

entitled to judgment as a matter of law. (See Section

101.516 of this Part.)

“ Third party complaint” means a pleading that a

respondent files setting forth a claim 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 measures 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].

“ 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 ILCS

5/35(a)].

“ Waiver” means the intentional relinquishing of a known

right, usually with respect to a hearing before the Board or

entry of a Board decision within the decision period. (See

also Section 101.308 of this Part.)

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“ 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

a) 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.

b) 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.

1) 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.

2) If a document is filed by U.S. Mail subsequent to

a filing deadline, yet the postmark date precedes

the filing deadline, the document will be deemed

filed on the postmark date, provided all filing

requirements are met as set forth in Section

101.302 of this Part.

3) Documents filed 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.

4) For purposes of Board decision deadlines, time

does not begin until the date on which the initial

filing is date-stamped by the Clerk.

c) Time of Service. In the case of personal service,

service is deemed complete on the date personal

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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. The

presumption can be rebutted by proper proof.

d) Date of Board Decision.

1) 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.

2) For purposes of appeal, the date of the party’s

certified mail receipt 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 party’s certified mail receipt 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

a) This Section contains the Board’s general filing

requirements. Additional requirements may exist for

specific proceedings elsewhere in these rules. The

Clerk will refuse for filing any document that does not

comply with the minimum requirements of this Section.

b) 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 unless the

document is submitted to the hearing officer during the

course of a hearing. Documents may be filed at:

Pollution Control Board, Attn: Clerk

100 West Randolph Street

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James R. Thompson Center, Suite 11-500

Chicago, Illinois 60601-3218

c) Documents may be filed by U.S. Mail or other mail

delivery service, in person or by messenger.

d) 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 Agency may file a provisional variance

recommendation with the Board through electronic

transmission or facsimile within 2 days prior to a

regularly scheduled meeting date followed by a hard

copy submission.

e) 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:

1) Petition for Site-Specific Regulation, $75;

2) Petition for Variance, $75;

3) Petition for Review of Agency Permit Decision, UST

Decision, or any other appeal filed pursuant to

Section 40 of the Act, $75;

4) Petition to Review Pollution Control Facility

Siting Decisions, pursuant to Section 40.1 of the

Act, $75; and

5) Petition for Adjusted Standard, pursuant to

Section 28.1 of the Act, $75.

f) All documents filed must be served in accordance with

Subpart C of this Part.

g) All documents filed with the Board 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, and double sided if

feasible.

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h) Unless the Board or its procedural rules provide

otherwise, all documents must be filed with a signed

original and 9 duplicate copies (10 total), except

that:

1) Documents and motions specifically directed

to the assigned hearing officer must be filed

with the Clerk with a signed original and 4

duplicate copies (5 total), or as the hearing

officer orders;

2) The Agency may file a signed original and 4

duplicate copies (5 total) of the record

required by Section 105.116, 105.302, and

105.410;

3) The OSFM may file a signed original and 4

duplicate copies (5 total) of the record

required by Section 105.508; and

4) The siting authority may file a signed

original and 4 duplicate copies (5 total) of

the record required by Sections 107.300 and

302.

i) No written discovery, including interrogatories,

requests to produce, and requests for admission, or any

response to written discovery, may be filed with the

Clerk of the Board except upon leave or direction of

the Board or hearing officer. Any discovery request

under these rules to any nonparty must be filed with

the Clerk of the Board with a signed original and 4

duplicate copies (5 total), or as the hearing officer

directs.

j) 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.

k) Page Limitation. No motion, brief in support of

motion, or brief may exceed 50 pages, and no amicus

curiae brief may exceed 20 pages, without prior

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approval of the Board or hearing officer. These limits

do not include appendices containing relevant material.

Section 101.304 Service of Documents

a) Service Requirements. This Section contains the

Board’s general service requirements. However, the

more specific Part for a proceeding type may contain

additional requirements.

b) 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.

c) Method of Service. Service may be effectuated by U.S.

Mail or other mail delivery service, in person, by

messenger, or 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.

d) 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.

e) 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.

f) Service of Comments of Participants in an Adjudicatory

Proceeding. Participants are required to serve their

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comments upon the parties to the proceeding. The Board

will consider the comments as time and the Act or other

applicable law allow.

g) Service on State Agencies. Service must be at the

addresses listed below unless a specific person has an

appearance on file with the Board.

1) 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

1021 North Grand Avenue East

P.O. Box 19276

Springfield, IL 62794-9276

2) 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

3) 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

4) 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

5) Service on the Illinois Department of

Transportation (IDOT). IDOT must be served at:

Office of Chief Counsel

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DOT Administration Building

2300 S. Dirksen Parkway, Room 300

Springfield, IL 62764

6) Service on Region V of the United States

Environmental Protection Agency (USEPA). USEPA

Region V must be served at:

USEPA, Region V

77 West Jackson St.

Chicago, IL 60604

Section 101.306 Incorporation of Documents by Reference

a) 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 4 copies of the

material to be incorporated. The Board or hearing

officer may approve a reduced number of copies for

documents incorporated in other Board dockets. The

person seeking incorporation must demonstrate to the

Board or the hearing officer that the material to be

incorporated is authentic, credible, and relevant to

the proceeding. Notice of the request must be given to

all identified participants or parties by the person

seeking incorporation.

b) 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

a) 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

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proceedings may be subject to decision deadlines as

provided by law.

b) Where the petitioner does not waive the decision

deadline, the Board will proceed expeditiously to

establish all hearing and filing requirements. Willful

or unexcused failure to follow Board requirements on

the 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

in subsection (c).

c) 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, nor does it preclude

the filing of a motion seeking a decision on the

matter.

1)

 

Open Waiver. Waives the decision

deadline completely and unequivocally until the

petitioner elects to reinstate the 120-day

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.

2) 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 40

days. If the extension is not renewed for at

least 40 days prior to the decision deadline, the

Board will set the matter for hearing.

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SUBPART D: PARTIES, JOINDER, AND CONSOLIDATION

Section 101.400 Appearances, Withdrawals, and Substitutions

of Attorneys in Adjudicatory Proceedings

a) Appearances. A person who is a party in a Board

adjudicatory proceeding may appear as follows:

1) 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 ])

2) 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 Practice of Law

Prohibition Act [705 ILCS 220/1] and Section 1 of

the Attorney Act [705 ILCS 205/1])

3) 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.

4) 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. Absent a separate

written notice, the Board will designate the

attorney whose signature appears first on the

complaint as the lead attorney.

5) Any person appearing before the Board may appear

in a special limited capacity to contest

jurisdiction.

b) Withdrawals. An attorney who has appeared in a

representative capacity and who wishes to withdraw from

that representation must file a notice of withdrawal

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with the Clerk, together with proof of service and

notice of filing on all parties or their

representatives.

c) 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.

d) 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

a) 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.

b) 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.

c) Subject to subsection (b) of this Section, the Board

will permit any person to intervene in any adjudicatory

proceeding if:

1) The person has an unconditional statutory right to

intervene in the proceeding; or

2) It may be necessary for the Board to impose a

condition on the person.

d) Subject to subsection (b) of this Section, the Board

may permit any person to intervene in any adjudicatory

proceeding if:

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1) The person has a conditional statutory right to

intervene in the proceeding;

2) The person may be materially prejudiced absent

intervention; or

3) The person is so situated that the person may be

adversely affected by a final Board order.

e) 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. The limits may include 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

a) The Board, on its own motion or the motion of any

party, may add a person as a party to any adjudicatory

proceeding if:

1) A complete determination of a controversy cannot

be had without the presence of the person who is

not already a party to the proceeding;

2) The person who is not already a party to the

proceeding has an interest that the Board’s order

may affect; or

3) It may be necessary for the Board to impose a

condition on the person who is not already a party

to the proceeding.

b) The Board will not dismiss an adjudicatory proceeding

for misjoinder of parties. The Board will not dismiss

an adjudicatory proceeding for nonjoinder of persons

who must be added to allow the Board to decide an

action on the merits without first providing a

reasonable opportunity to add the persons as parties.

As justice may require, the Board may add new parties

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35

and dismiss misjoined parties at any stage of an

adjudicatory proceeding.

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

a) 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.

b) All motions must be in writing, unless made orally on

the record during a hearing or during a status

conference, and must state whether directed to the

Board or to the hearing officer. Motions that should

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36

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.

c) Motions may be filed at any time unless otherwise

specifically provided.

d) Within 14 days after service of a motion, a party may

file a response to the motion. If no response is

filed, the party will be deemed to have waived

objection to the granting of the motion, but the 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 14 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.

e) 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 14

days after service of the response.

Section 101.502 Motions Directed to the Hearing Officer

a) 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. Oral motions directed to

a hearing officer at a status conference will be

summarized in a written hearing officer order. The

duties and authorities of the hearing officer are

further set out in Section 101.610 of this Part.

b) An objection to a hearing officer ruling made at

hearing or any oral motion to the Board made at hearing

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37

will be deemed waived if not filed within 14 days after

the Board receives the hearing transcript.

c) Unless otherwise ordered by the Board, neither the

filing of a motion, 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, affidavit, or

certification in accordance with Section 1-109 of the Code of

Civil Procedure [735 ILCS 5/1-109]. 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 30 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

a) 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 a motion filed after the prescribed time only if

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38

the movant demonstrates that the movant will suffer

material prejudice if the hearing is not canceled.

b) 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.

c) 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.

d) 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.

Section 101.512 Motions for Expedited Review

a) Motions for expedited review must be directed to the

Board. All motions for expedited review must contain a

complete statement of the facts and reasons for the

request and must be accompanied by an oath or

affirmation attesting that the facts cited are true.

b) 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.

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39

c) The Board will grant a motion for expedited review

consistent with available resources and decision

deadlines.

Section 101.514 Motions to Stay Proceedings

a) 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.)

b) 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

a) 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. The hearing officer may

extend the filing and response deadlines contained in

this subsection upon written motion by a party,

consistent with any statutory deadlines.

b) If 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, the Board will enter summary judgment.

c) 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.

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40

Section 101.518 Motions for Interlocutory Appeal from Hearing

Officer Orders

Interlocutory appeals from a ruling of the hearing officer may be

taken to the Board. The Board may consider an interlocutory

appeal upon the filing of a written motion.

Section 101.520 Motions for Reconsideration

a) 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 101.902 of this

Part.)

b) Any response to a motion for reconsideration or

modification must be filed within 14 days after the

filing of the motion.

c) 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

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41

a) 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.

b)

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 municipally owned or publicly regulated company, the

Board shall at least 30 days prior to the scheduled

date for the first hearing in the proceeding, give

notice of the date, time, place, and purpose of the

hearing by public advertisement in a newspaper of

general circulation in the area of the State concerned

[415 ILCS 5/33(c)].

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 21 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 a waiver of the 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

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42

a) Failure of a party to appear at the hearing, or failure

to proceed as ordered by the Board or hearing officer,

will constitute default.

b) If a respondent fails to appear at hearing, the

complainant or petitioner must prove its 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:

a) Require parties to proceed to hearing and establish a

schedule for, and notice and service of, any prefiled

submission of testimony and written exhibits;

b) Administer oaths and affirmations;

c) Allow for the examination of or examine witnesses to

ensure a clear and complete record;

d) Regulate the course of the hearing, including

controlling the order of proceedings;

e) Establish reasonable limits on the duration of the

testimony and questioning of any witness, and limit

repetitive or cumulative testimony and questioning;

f) Determine that a witness is adverse, hostile, or

unwilling pursuant to Section 101.624 of this Part;

g) Issue an order compelling the answers to

interrogatories or responses to other discovery

requests;

h) Order the production of evidence pursuant to Section

101.614 of this Part;

i) Order the filing of any required record or

recommendation in a manner which provides for a timely

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43

review and development of issues prior to the hearing

and consistent with any statutory decision deadline;

j) Initiate, schedule, and conduct a pre-hearing

conference;

k) Order a briefing and comment schedule and exclude

late-filed briefs and comments from the record;

l) Rule upon objections and evidentiary questions;

m) Order discovery pursuant to Sections 101.614 and

101.616 of this Part;

n) 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;

o) Set status report schedules;

p) Require all participants in a rulemaking proceeding to

state their positions with respect to the proposal; and

q) Rule upon offers of proof and receive evidence and rule

upon objections to the introduction of evidence.

Section 101.612 Schedule to Complete the Record

a) The hearing officer must establish a schedule to

complete the record. The schedule may provide dates

and deadlines for pre-hearing 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.

b) The hearing officer may rule upon any motion to revise

the schedule to complete the record. The hearing

officer may grant the motion to the extent that the

revised schedule provides for a completed record at

least 30 days before the decision date or to prevent

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44

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 consistent

with Board deadlines. For purposes of discovery, 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 (see

Section 101.100(b)). All discovery disputes will be handled by

the assigned hearing officer.

a) All relevant information and information calculated to

lead to relevant information is discoverable, excluding

those materials that would be protected from disclosure

in the courts of this State pursuant to statute,

Supreme Court Rules or common law, and materials

protected from disclosure under 35 Ill. Adm. Code 130.

b) 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.

c) All discovery must be completed at least 10 days prior

to the scheduled hearing in the proceeding unless the

hearing officer orders otherwise.

d) 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

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45

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.

e) 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.

f) Failure to comply with any order regarding discovery

may subject the offending persons to sanctions pursuant

to Subpart H of this Part.

g) If any person serves 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.

h) 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

a) General. All requests to admit must be served upon a

party no later than 35 days before hearing. All

answers or objections to requests to admit must be

served upon the party requesting the admission within

28 days after the service of the request.

b) 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

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46

objection either before or after the expiration of

time.

c) 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 28 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.”

d) 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.

e) 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 unless the document has

already been furnished in the present proceeding.

f) 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

28 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.

g) 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

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qualification, the party must specify the part which is

denied or qualified and admit only the remainder.

h)

 

Objection. Any objection to a request or to any

answer must be stated with specificity, and will be

heard by the hearing officer upon notice and motion of

the party making the request.

i) 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.

Section 101.620 Interrogatories

a) Unless ordered otherwise by the hearing officer, a

party may serve a maximum of 30 written

interrogatories, including subparts, on any other

party, no later than 35 days before hearing.

b) Within 28 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. 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.

c) Grounds for an objection to an interrogatory must be

stated with specificity, and be accompanied by a copy

of the interrogatory. Any ground that is not stated in

a timely objection is waived unless it results in

material prejudice or good cause for the delay is

shown.

Section 101.622 Subpoenas and Depositions

a) 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

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person requesting the subpoena is responsible for

completing the subpoena and serving it upon the

witness.

b) Service of the subpoena on the witness must be

completed no later than 10 days before the date of the

required appearance. A copy of the subpoena must be

filed with the Clerk and served upon the hearing

officer within 7 days after service upon the witness.

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.

c) Subpoenas may include a command to produce books,

papers, documents, or other tangible things designated

therein and relevant to the matter under consideration.

d) 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 Section in accordance with the

standards articulated in Section 101.614 of this Part.

e) Each witness subpoenaed by a party under this Section

is entitled to receive witness fees from that party as

provided in Section 4.3 of the Circuit Courts Act [705

ILCS 35/4.3].

f) 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

Supreme Court Rule 206(d), all depositions must be

limited to 3 hours in length unless the parties and the

non-party deponent 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).)

g) 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

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49

may, upon proper motion by the party requesting the

subpoena, request the Attorney General to pursue

judicial enforcement of the subpoena on behalf of the

Board.

Section 101.624 Examination of Adverse, Hostile or Unwilling

Witnesses

a) 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.

(See Section 2-1102 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.

b) 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.

a) Evidence. The hearing officer may admit evidence that

is material, relevant, and would be relied upon by

prudent persons in the conduct of serious affairs,

unless the evidence is privileged.

b) Admissibility of Evidence. When the admissibility of

evidence depends upon a good faith argument as to the

interpretation of substantive law, the hearing officer

will admit the evidence.

c) Scientific Articles and Treatises. Relevant scientific

or technical articles, treatises, or materials may be

introduced into evidence by a party. The materials are

subject to refutation or disputation through

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introduction of documentary evidence or expert

testimony.

d) Written Testimony. Written testimony may be introduced

by a party in a hearing only if provided to all other

parties of record prior to the date of the hearing and

only after the opposing parties have had an opportunity

to object to the written testimony and to obtain a

ruling on the objections prior to its introduction.

Written testimony may be introduced by a party only if

the persons whose written testimony is introduced are

available for cross-examination at hearing.

e) 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 the memorandum or

record at the time of the 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.

f) 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.

g) 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

a) 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

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51

hearing record so allow. The oral statements must be

made under oath and are subject to cross-examination.

b) 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.

c) 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 will be allowed in

accordance with Section 101.110 of this Part.

1) 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.

2) All public comments must present arguments or

comments based on evidence contained in the

record. The comments may also present legal

argument citing legal authorities.

3) Comments must be filed with the Board. Comments

will be distributed to parties and the hearing

officer by the Clerk’s office.

Section 101.630 Official Notice

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Official notice may be taken of all facts of which judicial

notice may be taken and of other facts within the specialized

knowledge and experience of the Board.

Section 101.632 Site Visits

Upon the request of any party or the Board’s own motion, the

Board may conduct a site visit to establish a more comprehensive

record. If the site visit is part of an adjudicatory proceeding,

the Board will notify all parties in advance.

SUBPART G: ORAL ARGUMENT

Section 101.700 Oral Argument

a) The Board may hear oral argument upon written motion of

a party or the Board's own motion. The 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.

b) 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.

c) 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.

d) 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

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a) If any person unreasonably fails to comply with any

provision of 35 Ill. Adm. Code 101 through 130 or 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 party.

b) Sanctions include the following:

1) 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;

2) The offending person may be barred from filing any

other pleading or other document relating to any

issue to which the refusal or failure relates;

3) The offending person may be barred from

maintaining any particular claim, counterclaim,

third-party complaint, or defense relating to that

issue;

4) As to claims or defenses asserted in any pleading

or other document 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;

5) Any portion of the offending person's pleadings or

other documents relating to that issue may be

stricken and, if appropriate, judgment may be

entered as to that issue; and

6) The witness may be barred from testifying

concerning that issue.

c) 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

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54

absence of bad faith on the part of the offending party

or person.

Section 101.802 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 for reconsideration, the Board will

consider factors including new evidence, or a change in the law,

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

a) 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. The mistakes may be so corrected by the

Board before the appeal is docketed in the appellate

court. Thereafter, while the appeal is pending, the

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.

b) On written motion, the Board may relieve a party from a

final order entered in a contested proceeding, for the

following:

1) Newly discovered evidence that existed at the time

of hearing and that by due diligence could not

have been timely discovered;

2) Fraud (whether intrinsic or extrinsic),

misrepresentation, or other misconduct of an

adverse party; or

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55

3) Void order, such as an order based upon

jurisdictional defects.

c) 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.

d) 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.

e) Any response to a motion under this Section must be

filed within 14 days after the filing of the motion.

f) A motion for reconsideration of a final Board order is

not a prerequisite for the appeal of that final Board

order.

Section 101.906 Judicial Review of Board Orders

a) Pursuant to Sections 29 and 41 of the Act, Supreme

Court Rule 335, and Section 10-50 of the IAPA, judicial

review of final Board orders is available from the

appellate court.

b) For purposes of judicial review, final Board orders are

appealable as of the date of service by the Board upon

the appealing party.

c) 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

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56

Upon motion of any party the Board may consider an interlocutory

appeal in accordance with Supreme Court Rule 308. (Ill. S. Ct.

Rule 308).

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57

APPENDIX A

Captions

ILLUSTRATION A Enforcement Case

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF )

ILLINOIS, )

)

Complainant, )

)

v. ) PCB xx-xxx

) (Enforcement-X)

W. R. JONES Co., )

)

Respondent. )

ILLUSTRATION B Citizen’s Enforcement Case

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

JOHN DOE, )

)

Complainant, )

)

v. ) PCB xx-xxx

) (Enforcement-X)

W. R. JONES Co., )

)

Respondent. )

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58

ILLUSTRATION C Variance

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

W.R. WATER CO., )

)

Petitioner, )

)

v. ) PCB xx-xxx

) (Variance-X)

ILLINOIS ENVIRONMENTAL )

PROTECTION AGENCY, )

)

Respondent. )

ILLUSTRATION D Adjusted Standard Petition

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF: )

)

PETITION OF ABC COMPANY ) AS xx-xxx

FOR AN ADJUSTED STANDARD ) (Adjusted Standard-X)

FROM 35 Ill. Adm. Code XXX.XXX )

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ILLUSTRATION EJoint Petition for an Adjusted Standard

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF: )

)

PETITION OF ABC COMPANY AND ) AS xx-xxx

THE ILLINOIS ENVIRONMENTAL ) (Adjusted Standard-X)

PROTECTION AGENCY FOR )

ADJUSTED STANDARD FROM )

35 Ill. Adm. Code XXX.XXX )

ILLUSTRATION F Permit Appeal

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

GENERAL COMPANY, )

)

Petitioner, )

)

v. ) PCB xx-xxx

) (Permit Appeal-X)

ILLINOIS ENVIRONMENTAL )

PROTECTION AGENCY, )

)

Respondent. )

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60

ILLUSTRATION G Underground Storage Tank Appeal

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

GENERAL COMPANY, )

)

Petitioner, )

)

v. ) PCB xx-xxx

) (UST Fund Appeal)

ILLINOIS ENVIRONMENTAL )

PROTECTION AGENCY, )

)

Respondent. )

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

GENERAL COMPANY, )

)

Petitioner, )

)

v. ) PCB xx-xxx

) (UST Appeal)

OFFICE OF THE STATE )

FIRE MARSHAL, )

)

Respondent. )

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ILLUSTRATION H Pollution Control Facility Siting Appeal

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

GENERAL COMPANY, )

)

Petitioner, )

)

v. ) PCB xx-xxx

) (Pollution Control Facility

Siting Appeal)

)

XXX COUNTY AND ABC DISPOSAL )

COMPANY, )

)

Respondents. )

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

ABC DISPOSAL COMPANY, )

)

Petitioner, )

)

v. ) PCB xx-xxx

) (Pollution Control Facility

Siting Appeal)

)

XXX COUNTY, )

)

Respondent. )

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ILLUSTRATION I Administrative Citation

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

COUNTY OF COOK, )

)

Complainant, )

)

v. ) AC xx-xxx

) IEPA or County Number

ABC DISPOSAL AND ) (Administrative Citation)

RECYCLING, INC., )

)

Respondent. )

ILLUSTRATION J General Rulemaking

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF: )

)

REVISION OF THE FLUORIDE ) Rxx-xxx

DRINKING WATER STANDARD: ) (Rulemaking-X)

PROPOSED AMENDMENTS TO )

35 Ill. Adm. Code XXX.XXX )

ILLUSTRATION K Site-specific Rulemaking

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF: )

)

PROPOSED SITE SPECIFIC WATER ) Rxx-xxx

POLLUTION REGULATIONS ) (Site-Specific Rulemaking-X)

APPLICABLE TO XYZ )

UTILITIES COMPANY OF ILLINOIS )

DISCHARGE TO XYZ CREEK: )

35 Ill. Adm. Code )

BOARD NOTE:

The Board notes that all docket numbers consist of

letter(s) followed by two numbers. The first two digit number is

the fiscal year the matter was filed. Then the second number is

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63

the sequential number for that type of filing the Board has

received that year. Persons making filings are not responsible

for the Board docket number on the original filing. The Clerk of

the Board will assign the appropriate docket number when the

matter is filed. All filings in a matter that has been assigned

a docket number should contain a docket number located as

indicated on the examples above. The Board will also be

designating its opinion and orders with the type of case and

media involved in the matter. Where the above examples have the

type of case proceeded by "X" the Board will, for example if the

case is dealing with a variance from certain water regulations,

put the media, water, after variance to become "Variance-Water".

Again, persons making filings need not place this on original

filings. However, all filings in a matter that has been assigned

the media should indicate that media in the location as in the

above examples. Where there are specific procedural rules

developed for specific types of cases, as in a "UST Appeal",

persons making filings should follow those examples.

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APPENDIX B

Appearance Form

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

)

Applicable Caption )

(see Appendix A) ) docket number

)

APPEARANCE

I hereby file my appearance in this proceeding, on behalf of

ABC Company.

Attorney's Name

Name of Attorney and Firm

Address

Telephone Number

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APPENDIX C

Withdrawal of Appearance Form

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

)

Applicable Caption )

(see Appendix A) ) docket number

)

NOTICE OF WITHDRAWAL OF APPEARANCE

I hereby give notice of withdrawal of my appearance as

representative of ABC Company in this proceeding.

Attorney's Name

Name of Attorney and Firm

Address

Telephone Number

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66

APPENDIX D

Notice of Filing

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

)

Applicable Caption )

(see Appendix A) ) docket number

)

)

NOTICE OF FILING

To: (List all persons served.)

PLEASE TAKE NOTICE that I have today filed with the Office of the

Clerk of the Pollution Control Board the [specify what document

was filed] of [name of persons filing the document], a copy of

which is herewith served upon you.

Name of Attorney or Other Representative

Date

Name

Address

Telephone Number

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APPENDIX E

Certificates Of Service

ILLUSTRATION A Service by Non-Attorney

PROOF OF SERVICE

I, the undersigned, on oath [or affirmation] state that I have

served on the date of ________, the attached [describe document

served], by [describe method of service], upon the following

persons:

(list persons served)

[signature]

Notary Seal

SUBSCRIBED AND SWORN TO BEFORE ME this day of ,

20 .

Notary Public

ILLUSTRATION B Service By Attorney

CERTIFICATE OF SERVICE

I, the undersigned, certify that I have served the attached

[describe document served], by [describe method of service], upon

the following persons:

(list of persons served)

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APPENDIX F

Notice of Withdrawal

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

)

Applicable Caption )

(see Appendix A) ) docket number

)

)

NOTICE OF WITHDRAWAL

NOW COMES [Petitioner’s or Complainant’s name], by one of

its attorneys,[Attorney’s name] pursuant to 35 Ill. Adm. Code

101.302(l) hereby gives notice of withdrawal of this case.

Attorney's Name

Name of Attorney and Firm

Address

Telephone Number

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APPENDIX G Comparison of Former and Current Rules

The following table compares the former procedural rules (in

effect on December 31, 2000) with the current procedural rules

(effective January 1, 2000).

FORMER PART 101

CURRENT SECTION

101.100 101.100

101.101 101.200

101.202

101.102 101.302

101.103 101.302

101.104 101.302

101.105 101.308

101.106 101.306

101.107 101.400

101.108 101.400

101.109 101.300

101.120 101.302

101.121 2 Ill. Adm. Code 2175.210

(current)

101.122 2 Ill. Adm. Code 2175.215

(current)

101.140 101.304(a)

101.141 101.304

101.142 101.304(c)

101.143 101.304(d)

101.144 101.300

101.160 2 Ill. Adm. Code 2175.300

(current)

101.161 130.Subpart A

130.Subpart D

101.162 2 Ill. Adm. Code 2175.305

(current)

101.180 101.700

2 Ill. Adm. Code 2175.210

(current)

101.181 2 Ill. Adm. Code 2175.130

(current)

101.200 101.114

101.612

101.220 101.610

101.221 101.606

101.241 101.500

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101.242 101.504

101.243 101.506

101.244 101.516

101.245 101.508

101.510

101.246 101.520

101.902

101.247 101.502

101.518

101.522

101.260 101.622

101.261 101.614

101.280 101.608

101.800

101.281 101.802

101.300 101.520

101.301 101.904

101.302 101.906

101.304 101.908

101.Appendix A Illustration A 101.Appendix A Illustration J

101.Appendix A Illustration B 101.Appendix A Illustration K

101.Appendix A Illustration C 101.Appendix A Illustration D

101.Appendix A Illustration D 101.Appendix A Illustration C

101.Appendix A Illustration F

101.Appendix A Illustration E 101.Appendix A Illustration A

101.Appendix A Illustration F 101.Appendix A Illustration I

101.Appendix B 101.Appendix B

101.Appendix C 101.Appendix C

101.Appendix D 101.Appendix D

101.Appendix E Illustration A 101.Appendix E Illustration A

101.Appendix E Illustration B 101.Appendix E Illustration B

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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

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72

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: MOTIONS FOR RECONSIDERATION AND APPEAL

Section

102.700 Filing of Motions for Reconsideration

102.702 Disposition of Motions for Reconsideration

102.704 Correction of Publication Errors

102.706 Appeal

Appendix A Comparison of Former and Current Rules

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73

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 25 Ill. Reg.______,

effective________________________________.

SUBPART A: GENERAL PROVISIONS

Section 102.100 Applicability

a) 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 the hearings is to gather

information and comments to guide the Board in its

rulemaking process. All testimony must be sworn.

b) 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, the 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 Part, words and terms will have the

meanings as defined in 35 Ill. Adm. Code 101.Subpart B unless

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74

otherwise provided, or unless the context clearly indicates

otherwise.

Section 102.106 Types of Regulatory Proposals

a) The Act provides for 4 types of regulatory proposals:

1) 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];

2) Federally required rules, as defined in Section

28.2 of the Act [415 ILCS 5/28.2];

3) 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

4) Clean Air Act fast track rulemakings as defined by

Section 28.5 of the Act [415 ILCS 5/28.5].

b) The IAPA provides for three types of rulemakings:

1) General rulemaking pursuant to Section 5-40 of the

IAPA [5 ILCS 100/5-40];

2) Emergency rulemaking pursuant to Section 5-45 of

the IAPA [5 ILCS 100/5-45]; and

3) Peremptory rulemaking pursuant to Section 5-50 of

the IAPA [5 ILCS 100/5-50].

Section 102.108 Public Comments

a) 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 Register in accordance with

Section 102.610 of this Part.

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75

b) 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.

c) 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.

d) 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. The hearings may include 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

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76

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:

a) 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

C;

b) 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;

c) A synopsis of all testimony to be presented by the

proponent at hearing;

d) 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];

e) Proof of service upon all persons required to be served

pursuant to Section 102.422 of this Part;

f) 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;

g) When the Agency proposes a rule it believes is

federally required, a certification in accordance with

Section 102.500 of this Part;

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77

h) For a proposed rule that amends an existing Board rule,

a written statement or certification that the proposal

amends the most recent version of the rule as published

on the Board’s Web site or as obtained from the Clerk;

i) When the proponent is a State agency, an electronic

version of the information required under subsection

(a) of this Section; and

j) When any information required under this Section is

inapplicable or unavailable, a complete justification

for the 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:

a) Indicate whether it is made pursuant to the provisions

of Section 22.4(a), 22.4(b) or 22.4(c) of the Act;

b) 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

c) 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

a) Public notice of hearings on site-specific RCRA

proposals will be given at least 30 days before the

date of the hearing.

b) 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:

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78

1) Federal agencies as designated by the USEPA;

2) Illinois Department of Transportation;

3) Illinois Department of Natural Resources;

4) Illinois Department of Public Health;

5) The Governor of any other state adjacent to the

county in which the facility is located; and

6) 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.

c) 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.

d) A hearing notice on a site-specific RCRA proposal will

include the following information:

1) The address of the Board office;

2) Name and address of the proponent and, if

different, of the facility for which the

site-specific rule is sought;

3) A brief description of the business conducted at

the facility and the activity described in the

proposal;

4) A description of the relief requested in the

proposal;

5) Name, address and telephone number of the Clerk of

the Board, from whom interested persons may obtain

further information, including copies of the

proposal;

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79

6) The name, address and telephone number of the

Agency's representative in the rulemaking;

7) A description of any written comment period or a

statement that a comment period will be

established in the future;

8) 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;

9) A statement that site-specific rules may be

adopted pursuant to 415 ILCS 5/27 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:

a) 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

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80

be proposed as an amendment to the general rule.

Instead, the site-specific rule must be proposed as its

own Section;

b) 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. The documentation must include

relevant information on other similar persons' or

sites' ability to comply with the general rule. Where

relevant to the Board’s consideration, the proposal

must also include information pertaining to

existing

physical conditions, the character of the area

involved, including the character of surrounding land

uses, zoning classifications,

and

the nature of the

existing air quality or receiving body of water

[415

ILCS 5/27(a)]

;

c) 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;

d) 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.);

e) When the proponent is a State agency, the proponent

also must provide an electronic version of the

information required under subsection (a) of this

Section; and

f) When any information required under this Section is

inapplicable or unavailable, the proposal must provide

a complete justification for the inapplicability or

unavailability.

Section 102.212 Dismissal

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81

a) 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.

b) 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.

c) 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.

d) 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

a) When proposing a regulation required by the CAAA, the

Agency must meet the following requirements:

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82

1) The proposal must set forth the proposed rule,

which must be drafted in accordance with 1 Ill.

Adm. Code 100.Subpart C;

2) 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 the Act specifies the method for

adopting a specific rule

[415 ILCS 5/28.5(c)];

3) 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)];

4) The proposal must include

supporting documentation

for

 

the rule that summarizes the basis of the rule

[415 ILCS 5/28.5(e)(4)];

5) The proposal must

describe in general

 

the

alternative selected and the basis for the

alternative

[415 ILCS 5/28.5(e)(5)];

6) The proposal must summarize the economic and

technical data that the Agency relied upon in

drafting the proposed rule;

7) 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;

8) 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

9) The proposal must include a diskette containing

the information required under subsection (a)(1)

of this Section.

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83

b) 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

a) 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. The notice will be published by the

newspaper at least 30 days prior to the date of the

hearing.

b) The first hearing will be held within 55 days after

receipt of the rule and is reserved for the Agency’s

testimony and questions of the Agency’s witnesses.

c) Within 7 days after the first hearing, any person may

request a second hearing. The 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.

d) 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 second hearing

must also permit the

presentation of testimony,

documents, and comments by affected entities and all

other interested persons.

[415 ILCS 5/28.5(g)]

e)

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

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84

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.

f) 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

a) 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.

b) 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.

c) The Board may grant a waiver of the prefiling deadline

or service requirement for good cause.

d) 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

prefile.

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,

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85

and all persons on any service list established pursuant to

Section 102.422(b) of this Part.

Section 102.404 Initiation and Scheduling of Prehearing

Conferences

a)

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)].

b) 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

“ proponent” or “ 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.

c) 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 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:

a)

To maximize understanding of the intent and application

of the proposal;

b)

To reach agreement on aspects of the proposal, if

possible; and

c)

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)]

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86

Section 102.408 Prehearing Order

a)

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)].

b) 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

[415 ILCS 5/27(d)].

c) 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.

d) 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

a) 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.

b) The Board will schedule a hearing on a proposal if it

finds that the 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)].

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87

c) 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)].

d) 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

in

subsection (b) of this Section [415 ILCS 5/28(a)].

e) 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.

f) 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.

g) The Board may consolidate proposals for hearing or

decision.

Section 102.412 Scheduling of Hearings

a) 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,

in the case of state-wide regulations, hearings

shall be held in at least two areas.

[415 ILCS

5/28(a)]

b) 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

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88

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

a) 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)].

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

a) 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:

1) By notice in the Board's Environmental Register

and on the Board’s Web site;

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89

2)

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

3) 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.

b) 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.

c) 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

As necessary to conduct the regulatory hearing, the hearing

officer will have the same authorities in rulemaking proceedings

as those set forth in 35 Ill. Adm. Code 101.Subpart F.

Section 102.422 Notice and Service Lists

a) 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

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90

actions and hearing officer orders will be given to all

persons included on the notice list.

b) 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.

c) 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

a) 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.

b) 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.

c) The original and 9 copies of any prehearing 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 any prehearing

testimony, questions, answers, responses, or exhibits.

One copy of any prehearing 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

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91

hearing officer. The service must be initiated on or

before the date that copies are filed with the Clerk.

d) 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.

e) The proponent and each participant who has filed

testimony, questions, answers, responses, or exhibits

before hearing must bring the number of copies

designated by the hearing officer of that material and

exhibits to the hearing.

f) Testimony, questions, answers, responses, and exhibits

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 material or exhibit read. All persons

testifying will be sworn and will be subject to

examination. Modifications to previously submitted

material and exhibits may be allowed by the hearing

officer at hearing provided that the modifications are

either non-substantive in nature or would not

materially prejudice another person’s participation at

hearing. Objections to the modifications are waived

unless raised at hearing.

g)

 

Where prehearing submission of testimony,

questions, answers, responses, or exhibits, is required

pursuant to subsection (a) or (b) of this Section, any

material or exhibit that is not filed in a timely

manner will be allowed only as time permits, and only

where its submission will not materially prejudice the

proponent or any other participant.

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

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92

a) All witnesses at hearings must be sworn;

b) Testimony must be in narrative form; and

c) Proponents must present testimony in support of the

proposal first. Any questions or testimony in support

of or opposition to the proposal must follow as

directed by the hearing officer.

Section 102.430 Questioning of Witnesses

All witnesses will 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

a)

When the Agency proposes a rule which it believes to be

a required rule,

as 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)]. The

certification must include a citation to the specific

section of the specific federal law to which the

proposed rule will respond.

b)

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

a) 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. The

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93

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.

b) 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.

c) No hearing will be held on any objection filed pursuant

to this Section.

Section 102.504 Board Determination

a) 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.

b) 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.

c) 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.

d) 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

a) 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.

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94

b) 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 the revision where it finds:

1)

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

2)

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

a) Except when otherwise directed by applicable law, the

Board will give second notice of its proposed adoption,

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95

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 that 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.

b) 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. Those 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

a) Prior to adopting identical-in-substance regulations,

the Board will:

1) 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;

2) Publish the proposed regulations in the Illinois

Register;

3) Serve a copy of the proposed opinion and order on

USEPA; and

4) Solicit comments from USEPA, the Agency, the

Attorney General and the public for at least 45

days after the date of publication in the Illinois

Register.

b)

After consideration of comments from USEPA, the Agency,

the Attorney General and the public, the Board will

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96

adopt the verbatim text of the USEPA regulations as are

necessary and appropriate for authorization of the

program

. As provided in Section 7.2 of the Act, the

Board may also make

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)]. Also,

wherever appropriate, the Board

regulations

will

reflect any consistent, more stringent

regulations adopted pursuant to the rulemaking

requirements of Title VII of the Act and Section 5-35

of the Illinois Administrative Procedure Act

[415 ILCS

5/7.2(a)(6)].

c) 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.

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)].

b)

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

[415 ILCS 5/27(c)]. The

Board will proceed with any required hearings while the

regulation continues in effect.

Section 102.614 Adoption of Peremptory Regulations

a) When the Board finds that a peremptory rulemaking is

necessary pursuant to Section 5-50 of the IAPA, and

states in writing its reasons for that finding, the

Board will adopt that peremptory rulemaking upon filing

a notice of rulemaking with the Secretary of State

pursuant to Section 5-70 of the IAPA.

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97

b) Notice of the peremptory rulemaking will be published

in the Illinois Register in accordance with Section 5-

50 of the IAPA.

SUBPART G: MOTIONS FOR RECONSIDERATION AND APPEAL

Section 102.700 Filing of Motions for Reconsideration

Motions 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 101.902. The contents of

such motions are governed by 35 Ill. Adm. Code 101.Subpart I.

Section 102.702 Disposition of Motions for Reconsideration

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 Register or filed with the

Secretary of State, only in accordance with 1 Ill. Adm. Code

100.240. 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 after the service of that order, pursuant to

Sections 29 and 41 of the Act [415 ILCS 5/29 and 41].

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98

APPENDIX A Comparison of Former and Current Rules

The following table compares the former procedural rules (in

effect on December 31, 2000) with the current procedural rules

(effective January 1, 2001).

FORMER PART 102

CURRENT SECTION

102.100 102.100

102.101 102.104

102.102 102.106

102.103 102.110

102.104 102.112

102.120 102.200

102.121 102.202

102.122 102.212

102.123 102.204

102.124 102.206

102.140 102.208

102.141 102.210

102.142 102.212

102.160 102.410

102.161 102.412

102.162 102.416

102.163 102.206

102.164 102.418

102.180 102.414

102.200 102.500

102.201 102.502

102.202 102.504

102.220 102.420

102.221 102.422

102.240 102.404

102.241 102.406

102.242 102.408

102.260 102.402

102.261 102.402

102.262 102.402

102.280 102.424

102.281 102.418

102.282 102.426

102.283 102.428

102.284 102.430

102.285 102.418

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99

102.320 102.108

102.341 102.602

102.342 102.604

102.343 102.606

102.344 102.608

102.345 102.610

102.346 102.612

102.347 102.614

102.360 102.700

102.361 102.702

102.362 102.704

102.363 102.706

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

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100

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

Section

103.500 Default

103.502 Civil Penalties

103.504 Civil Penalties Method of Payment

APPENDIX A Comparison of Former and Current Rules

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, 41, and 42

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, 41, and 42] and authorized by Sections 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 25 Ill. Reg.________,

effective_______________________________.

SUBPART A: GENERAL PROVISIONS

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101

Section 103.100 Applicability

a) 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.

b) 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, the 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

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

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a) 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. Upon motion of the Agency, the Board may

align the Agency with any other party or parties as

appropriate.

b) With leave of the Board and in accordance with Section

103.206 of this Part, cross-complainants, counter-

complainants, and third-party complainants may be named

as parties.

c) 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

a) An enforcement proceeding will be commenced by the

service of a notice and complaint by registered

certified mail, messenger service, or personal service

upon all respondents and the filing of 1 original and 9

copies of the notice and complaint with the Clerk.

b) 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.

c) The complaint must be captioned in accordance with 35

Ill. Adm. Code 101.Appendix A, Illustration A and

contain:

1) A reference to the provision of the Act and

regulations that the respondents are alleged to be

violating;

2) 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

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3)

 

A concise statement of the relief that the

complainant seeks.

d) Except as provided in subsection (e) of this Section,

the respondent may 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, unless respondent asserts a lack of

knowledge sufficient to form a belief. Any facts

constituting an affirmative defense must be plainly set

forth before hearing in the answer or in a supplemental

answer, unless the affirmative defense could not have

been known before hearing.

e) 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 (d) of

this Section will be stayed. The stay will begin when

the motion is filed and end when the Board disposes of

the motion.

f) Any party serving a complaint upon another party must

include the following language in the notice: “ 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

a) The Board, on its own motion or the motion of a

respondent, may order a person to be added as a

respondent if a complete determination of a controversy

cannot be had without the presence of the person who is

not already a party to the proceeding.

b) If the Board orders a person to be added as a

respondent pursuant to subsection (a) of this Section,

the Board will grant the complainant leave to file an

amended complaint that sets forth a claim against the

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added respondent. The amended complaint must meet the

requirements of Section 103.204 of this Subpart.

c) Misjoinder and nonjoinder of parties with respect to

enforcement proceedings are governed by 35 Ill. Adm.

Code 101.403(b).

d) 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 pleading. 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

against another person, the party who wishes to file

the pleading must move the Board for leave to file the

pleading.

e) The pleading sought to be filed pursuant to subsection

(d) of this Section must:

1)

 

Set forth a claim that arises out of the

occurrence or occurrences that are the subject of

the proceeding; and

2) Meet the requirements of Section 103.204 of this

Subpart.

Section 103.208 Request for Informal Agency Investigation

a) Any person may request an informal Agency investigation

by submitting a request to the Board.

b) The Board will forward the request to the Agency with a

copy to the person requesting the investigation. The

Agency must send an acknowledgment of receipt of the

informal investigation request to the Board.

c) 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

a) In addition to the notice of hearing requirements set

forth in 35 Ill. Adm. Code 101, the Office of the

Attorney General or the State’s Attorney of the county

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in which the alleged violation occurred, when

complainant, must give notice of each complaint and

hearing at least 21 days before the hearing to:

1)

any person that has complained to the Agency

respecting the respondent within the six months

preceding the date of the complaint

;

and

2)

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)].

b) 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 the

failure of compliance may upon motion to the hearing

officer have the hearing postponed if prejudice is

shown.

Section 103.212 Hearing on Complaint

a)

Any person may file with the Board a complaint against

any person allegedly violating the Act or any rule or

regulation thereunder or any permit or term or

condition thereof

. 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.

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(e) of this Subpart,

stay the 60 day period for filing an answer to the

complaint.

c) 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.

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d) 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

a)

Whenever 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 accompanied by a request for relief from

the requirement of a 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.

b) 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, 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. The

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.

c)

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)] A copy of the proposed

stipulation and settlement will be entered into and

presented for the record.

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

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nature of, the reasons for, and the purpose to be accomplished by

the settlement. The written statement must include:

a) A full stipulation of all material facts pertaining to

the nature, extent, and causes of the alleged

violations proposed to be settled;

b) The nature of the relevant parties' operations and

control equipment;

c)

Facts and circumstances bearing upon the reasonableness

of the emissions, discharges, or deposits involved,

including:

1)

the character and degree of injury to, or

interference with the protection of the health,

general welfare and physical property of the

people

;

2)

the social and economic value of the pollution

source;

3)

the suitability or unsuitability of the pollution

source to the area in which it is located,

including the question of priority of location in

the area involved;

4)

the technical practicability and economic

reasonableness of reducing or eliminating the

emissions, discharges or deposits resulting from

such pollution source; and

5)

any subsequent compliance.

[415 ILCS 5/33(c)]

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.

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

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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. The statements must be in

accordance with 35 Ill. Adm. Code 101.628.

Section 103.306 Board Order on Proposed Stipulation and

Settlement Agreement

a) The Board will consider the 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 the settlement.

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 D: PROCEEDINGS INVOLVING RCRA PERMITS

Section 103.400 Purpose, Scope, and Applicability

a) This Subpart applies when the Board finds in an interim

order that an enforcement proceeding involves issuance

or modification of a RCRA permit.

b) 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:

1) Revoke a RCRA permit;

2) Order a RCRA permit issued or modified;

3) Enter an order that could require actions that

would be different from the conditions of a RCRA

permit or 35 Ill. Adm. Code 724 or 725; or

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4) 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.

c) 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

a) 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 that the Board must make in subsection (b) of

this Section.

b) An interim order invoking the procedures of this

Subpart will include:

1) A finding or proposed finding of violation and any

penalty or proposed monetary penalty;

2) A finding that the proceeding is an enforcement

action that involves or may involve the issuance

or modification of a RCRA permit;

3) Joinder of the Agency if it is not already a

party; and

4) A time schedule for filing by the Agency of a

partial draft permit.

c) 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. The mailing will

constitute service of process upon the Agency.

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Section 103.406 Draft Permit or Statement

a) 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.

b) 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.

c) The Agency may confer with other parties and enter into

agreements as to the substance of the partial draft

permit that it will recommend to the Board. The Agency

must disclose any such conferences or agreements in the

proposed draft permit. The agreements do not bind the

Board.

d) 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

a) The parties may agree to a stipulated draft remedy.

b) A stipulated draft remedy must include the following:

1) 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:

A) An order to cease and desist conducting

regulated activities;

B) An order to close a facility or unit;

C) An order to execute a post-closure care plan;

D) A compliance plan, including a time schedule

to assure compliance with regulations in the

shortest possible time;

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E) An order to provide a performance bond or

other financial assurance;

F) An order to apply for a permit or permit

modification; and

G) An order revoking a permit.

2) A partial draft permit or statement as provided by

Section 103.406 of this Part.

3) A statement as to whether or not the stipulation

is divisible for purposes of Board determinations.

c) 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

a) 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.

b) In addition to the requirements of the Act and Section

103.210 of this Part, the Agency must, at a minimum,

give notice of the filing of a partial draft permit to

the following persons:

1) Federal agencies as designated by USEPA;

2) Illinois Department of Transportation;

3) Illinois Department of Natural Resources;

4) Illinois Department of Public Health;

5) The Governor of any other state adjacent to the

county in which the facility is located; and

6) 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.

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c) 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).

d) A notice of a partial draft permit must include the

following information:

1) The address of the Board office;

2) Name and address of the respondent and, if

different, of the facility subject to the

enforcement proceeding;

3) A brief description of the business conducted at

the facility and the activity that is the subject

of the enforcement proceeding;

4) A statement of the violations the Board has found

or has proposed to find;

5) A statement that the Agency has filed a partial

draft permit;

6) 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;

7) 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;

8) A statement that the record in the proceeding 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 in accordance with 35 Ill.

Adm. Code 130;

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9) A statement that enforcement proceedings are

considered pursuant to 415 ILCS 5/30; and

10) 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

a) 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.

b) The hearing will be held in the county in which the

facility is located, in the population center in the

county closest to the facility.

c) The Clerk in consultation with the hearing officer will

give notice of the hearing to the persons entitled to

notice in Sections 103.210 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.

d) Notice will be mailed not less than 30 days before the

hearing.

Section 103.416 Contents of Board Order

a) 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.

b) If the Board determines that, to grant complete relief,

it must order the issuance or modification of a RCRA

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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:

1) An order to issue or modify a permit in

conformance with a draft permit;

2) An order to issue or modify a permit in

conformance with a draft permit as modified by the

Board order; or

3) Guidelines for issuance or modification of a

permit in conformance with the order and other

applicable regulations.

c) If the order specifies a schedule leading to compliance

with the Act and Board rules:

1) The schedule will require compliance as soon as

practicable; and

2) The order may require the posting of sufficient

performance bond or other security to assure

correction of the violation within the time

prescribed.

SUBPART E: IMPOSITION OF PENALTIES

Section 103.500 Default

The procedures for default can be found at 35 Ill. Adm. Code

101.608.

Section 103.502 Civil Penalties

Civil penalties will be determined pursuant to Sections 33(c) and

42 of the Act. [415 ILCS 5/33(c) and 42]

Section 103.504 Civil Penalties Method of Payment

a) 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.

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b) All remittances must be made payable to the

Environmental Protection Trust Fund or such other fund

as specified by the Board.

c) Any such penalty not paid within the time prescribed in

the Board order will incur interest at the rate set

forth in Section 1003(a) of the Illinois Income Tax Act

[35 ILCS 5/1003(a)].

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APPENDIX A Comparison of Former and Current Rules

The following appendix compares the former procedural rules (in

effect on December 31, 2000) with the current procedural rules

(effective January 1, 2001).

FORMER PART 103 CURRENT SECTION

103.101 102.100

103.120 103.200

103.121 103.202

103.122 103.204

103.123 101.204

103.124 103.212

103.125 101.600

101.602

103.140 101.Subpart E

103.141 101.406

101.408

103.206

103.142 101.502

101.510

103.161 101.616

103.162 101.618

103.163 101.622

103.180 103.Subpart C

103.200 101.610

103.204 101.626

103.206 101.630

103.207 101.632

103.208 101.626

103.209 101.624

103.220 103.500

101.608

103.221 101.604

103.224 103.416

103.Subpart H 101.Subpart I

103.Subpart I 103.Subpart D

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE A: GENERAL PROVISIONS

CHAPTER I: POLLUTION CONTROL BOARD

PART 104

REGULATORY RELIEF MECHANISMS

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117

SUBPART A: GENERAL PROVISIONS

Section

104.100 Applicability

104.102 Severability

104.104 Definitions

SUBPART B: VARIANCES

Section

104.200 General

104.202 Filing Requirements

104.204 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

104.234 Hearing

104.236 Hearing Procedures

104.238 Standard of Review

104.240 Certificate of Acceptance

104.242 Term of Variance

104.244 Variance Conditions

104.246 Performance Bonds

104.248 Objection to Conditions

SUBPART C: PROVISIONAL VARIANCES

Section

104.300 Applicability

104.302 Board Action

104.304 Initiating a Request

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118

104.306 Notice

104.308 Term

104.310 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

104.422 Public Hearing

104.424 Hearing Notice

104.426 Burden of Proof

104.428 Board Action

APPENDIX A Comparison of Former and Current Rules

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]. Subpart D: 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, 1974, 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 25 Ill. Reg. _____, effective

________________________________.

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SUBPART A: GENERAL PROVISIONS

Section 104.100 Applicability

a) 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.

b) 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, the 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 Part, words and terms will have the

meanings 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:

1) 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

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would impose an arbitrary or unreasonable hardship

[415 ILCS 5/35(a)].

2) 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.

b) Effect of Filing:

1) 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.

2)

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

a) 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.

b) 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.

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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:

1) One copy of the petition and all related documents

must be served on the Agency. The 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

2) The petition must contain all information or

documents necessary to satisfy the petition

content 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) 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;

b) A complete and concise description of the nature of

petitioner's activity that is the subject of the

proposed variance, including:

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1) The location of, and area affected by, the

petitioner's activity;

2) 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;

3) An identification, including docket number, of any

prior variance issued to the petitioner and, if

known, the petitioner’s predecessors, concerning

similar relief;

4) An identification, including number, of the

environmental permits held by petitioner for the

activity which may be affected by grant of

variance;

5) The number of persons employed by the petitioner's

facility at issue and the age of that facility;

6) 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;

7) A description of the relevant pollution control

equipment already in use; and

8) The nature and amount of emissions, discharges or

releases of the constituent in question currently

generated by the petitioner's activity;

c) 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;

d) 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.

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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 the 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 the overall capital costs and

the annualized capital and operating costs;

e) 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;

f) A detailed description of the compliance plan,

including:

1) 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;

2) A time schedule for the implementation of all

phases of the control program from initiation of

design to program completion; and

3) The estimated costs involved for each phase and

the total cost to achieve compliance;

g) A description of the environmental impact of the

petitioner's activity including:

1) 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;

2) 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

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required. Cross-media impacts, if any, must be

discussed; and

3) 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;

h) Citation to supporting documents or legal authorities

whenever they are used as a basis for the petition.

Relevant portions of the 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;

i) 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;

j) Any conditions petitioner suggests for the requested

variance;

k) 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

alternative beginning date;

l) 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;

m) An affidavit verifying any facts submitted in the

petition; and

n) A statement requesting or denying that a hearing should

be held in this matter.

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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:

a) 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;

b) 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;

c) 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

d) 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

a) 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.

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b) 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).

c) 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.

d) 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 RCRA, and the

federal regulations adopted pursuant thereto.

e) 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) 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)].

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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(e)(2).

c) 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 the 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 time frame under the existing variance.

d) In addition to the requirements of this Subpart, the

petition for extension of variance must contain:

1) 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)];

2) 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

3) 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

a) 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. The 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

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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.

b) 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

a) Within 14 days after the petition is filed, the Agency

must

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)].

b) Upon receipt of a petition for variance,

the Agency

shall promptly give written notice of such petition to

:

1)

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

;

2) the State's attorney of such county

;

3)

The Chairman of the County Board of such county

;

and

4)

Each member of the General Assembly from the

legislative district in which that installation or

property is located

. [415 ILCS 5/37(a)]

c) Upon receipt of a petition for RCRA variance, the

Agency must promptly give notice of the petition to:

1) Federal agencies as designated by USEPA;

2) Illinois Department of Transportation;

3) Department of Natural Resources;

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4) Illinois Department of Public Health;

5) The Governor of any other state adjacent to the

county in which the facility or pollution source

is located; and

6) 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.

d) 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.

e) All notices required by this Section must include the

following:

1) 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;

2) A description of the requested relief;

3) An indication that any person may request a

hearing by filing with the Board a written

objection to the grant of the variance within 21

days after the publication of the Agency’s notice,

together with a written request for hearing;

4) 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;

5) A statement that the Agency is preparing a

recommendation, the date on which the

recommendation is to be filed, and the name,

address and telephone number of the Agency

employee responsible for the recommendation;

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6) A statement that a hearing may be held after the

filing of the recommendation and that the record

will remain open for written comments for 45 days

after filing of the recommendation. The notice

will include the address of the Board to which the

comments must be mailed;

7) A statement that the record in the variance

proceeding is available at the Board office for

inspection, except those portions that are

protected from disclosure under 35 Ill. Adm. Code

130, and that procedures are available whereby

disclosure may be sought by the public;

8) A statement that variances may be granted pursuant

to Section 35 of the Act [415 ILCS 5/35] and 35

Ill. Adm. Code 104, and a reference to the Board

regulations or order from which a variance is

sought; and

9) Any additional information considered necessary or

proper.

f) Within 21 days after the publication of notice, the

Agency must file with the Board a certification of

publication that states the date on which the notice

was published and must attach a copy of the published

notice.

Section 104.216 Agency Investigation and Recommendation

a) 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)].

b)

The Agency shall make a recommendation to the Board as

to the disposition of the petition

[415 ILCS 5/37(a)].

Unless otherwise ordered 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,

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joined parties, and assigned hearing officer, if

applicable. At a minimum, the recommendation must

include:

1)

 

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;

2)

 

The location of the nearest air monitoring station

maintained by the Agency where applicable;

3) 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;

4) Allegations of any other facts the Agency believes

relevant to the disposition of the petition,

including any past or pending enforcement actions

against petitioner;

5) The Agency's estimate of the costs that compliance

would impose on the petitioner and on others;

6) 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;

7) 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;

8) The status of any permits or pending permit

applications that are associated with or affected

by the requested variance;

9) 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;

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10) Citation to supporting documents or legal

authorities whenever they are used as a basis for

the Agency's recommendation. Relevant portions of

the 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 of 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.

a) 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.

b) 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

a) 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.

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b) 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.

c) 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) A person who files an objection, request for hearing,

or comment is a “ participant” as defined in 35 Ill.

Adm. Code 101.Subpart B.

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.

c) 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.

d) 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.

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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).)

e) In RCRA variances, subsections (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

a) 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. If the petitioner substantively amends

the petition, the filing of the amended petition

recommences the decision period, pursuant to Section

104.232 of this Part.

b) 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 45

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.

c) 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

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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 the 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:

a) The petition requests relief that the Board is not

empowered to grant;

b) 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;

c) 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

d) 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

a) 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:

1) When the petitioner waives its right to a decision

within the prescribed decision period in

accordance with 35 Ill. Adm. Code 101.Subpart C;

2) When the petitioner files an amended petition for

variance pursuant to this Subpart or files a

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136

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

3) When a hearing is canceled pursuant to 35 Ill.

Adm. Code 101.510.

b) 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) 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;

b) A hearing is requested in a response or amended

petition;

c)

The Board, in its discretion, concludes that a hearing

would be advisable

[415 ILCS 5/37(a)];

d)

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)];

e) 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:

a) 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);

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137

b) Hearings may be canceled pursuant to a motion filed in

accordance with 35 Ill. Adm. Code 101.510 at the

discretion of the hearing officer; and

c) 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.

d) The hearing officer shall give notice of RCRA hearings

to the following persons:

1) 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 and the State's attorney of the

county;

2) The Chairman of the county board of the county;

3) Each member of the General Assembly from the

legislative district in which that installation or

property is located;

4) Federal agencies as designated by USEPA;

5) Illinois Department of Transportation;

6) Department of Natural Resources;

7) Illinois Department of Public Health;

8) The Governor of any other state adjacent to the

county in which the facility or pollution source

is located;

9) 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.

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Section 104.238 Standard of Review

a)

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.

b) 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 Board’s order granting a variance will include a certificate

of acceptance. 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

executed certificate is filed with the Board and served on the

Agency. Failure to timely file the executed certificate with the

Board and serve 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 I, 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

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139

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 the 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

The Board may include such conditions in granting a variance and

may adopt such rules and regulations as the policies of the 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.

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

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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,

or if the Agency denies the request,

the

person may initiate

 

a

variance proceeding pursuant to Subpart B

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 to the extent

that the petitioner already holds a variance from the same

regulation or Board order for the same time period.

SUBPART D: ADJUSTED STANDARDS

Section 104.400 General

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a) 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.

b) 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

a) The Agency may, in its discretion, act as a co-

petitioner in any adjusted standard proceeding.

b) 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 that is sought.

c) Discretionary decisions made by the Agency pursuant to

this Section are not appealable to the Board.

d) Subsequent to the filing of the petition and prior to

hearing, the Board will grant the Agency co-petitioner

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142

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) 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;

b) 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 USC 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];

c) 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);

d) 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,

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143

discharges or releases currently generated by the

petitioner's activity;

e) A description of the efforts that would be necessary if

the petitioner was 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;

f) 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;

g) 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;

h) A statement which explains how the petitioner seeks to

justify, pursuant to the applicable level of

justification, the proposed adjusted standard;

i) 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;

j) A statement requesting or waiving a hearing on the

petition (pursuant to Section 104.422(a)(4) of this

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Part a hearing will be held on all petitions for

adjusted standards filed pursuant to 35 Ill. Adm. Code

212.126 (CAA));

k) The petition must cite to supporting documents or legal

authorities whenever they are used as a basis for the

petitioner's proof. Relevant portions of the documents

and legal authorities other than Board decisions, State

regulations, statutes, and reported cases must be

appended to the petition;

l) Any additional information which may be required in the

regulation of general applicability.

Section 104.408 Petition Notice Requirements

a)

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].

b) 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

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145

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 certificate must be issued in accordance with Section 1 of

the Notice by Publication Act [715 ILCS 5/1].

Section 104.412 Effect of Filing a Petition: Stay

a)

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)]

b)

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

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146

The Board may at any time dismiss a petition for any of the

following reasons:

a) The Board determines that the petition is frivolous,

duplicative, or deficient with respect to the

requirements of Sections 104.406, 104.408, and 104.410

of this Part; or

b) 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

a) Unless otherwise ordered 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 a hearing has been

scheduled, at least 30 days before hearing, whichever

is earlier. 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.

b) 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.

c) 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 the

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.

d) The petitioner may file a response to the

recommendation within 14 days after the date of service

of the recommendation.

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Section 104.418 Amended Petition, Amended Recommendation, and

Amended Response

a) Amended Petition. The petitioner may amend its

petition at any time. The 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.

b) Amended Recommendation. The Agency may amend its

recommendation at any time, even if the petitioner has

not amended its petition, if the amendment does not

cause material prejudice. The amendment must be in

writing and filed with the Board unless made orally at

hearing.

c) 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.

d) 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

a) Any person can request that a public hearing be held

in an adjusted standard proceeding. The requests must

be filed not later than 21 days after the date of the

publication of the petition notice in accordance with

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 Board. Participation by

the public at the hearing must be in accordance with

35 Ill. Adm. Code 101.110 and 101.628.

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b) 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) A public hearing will be held and the Board will assign

a hearing officer to an adjusted standard proceeding

when:

1) The petitioner requests a hearing be held; or

2) 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

4) The adjusted standard is sought pursuant to 35

Ill. Adm. Code 212.126 (CAA).

b) 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 [415 ILCS 5/28.1] and 35

Ill. Adm. Code 101.

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 Section 27(a) of the Act.

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a)

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:

1)

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

;

2)

the existence of those factors justifies an

adjusted standard

;

3)

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

4)

the adjusted standard is consistent with any

applicable federal law.

[415 ILCS 5/28.1(c)]

b) 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

a) In adopting adjusted standards the Board may impose

such conditions as may be necessary to accomplish the

purposes of the Act.

b) 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.

c)

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

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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.

Appendix A Comparison of Former and Current Rules

The following table compares the former procedural rules (in

effect on December 31, 2000) with the current procedural rules

(effective January 1, 2001).

FORMER PART 104 CURRENT SECTION

104.102 104.200

104.104 104.206

104.120 104.202

104.121 104.204

104.122 104.208

104.123 104.210

104.124 104.234

104.236

104.125 104.228

104.230

104.126 104.206

104.140 104.214

104.141 104.224

104.142 104.214

104.160 104.228

104.234

104.236

104.232

104.230

104.180 104.216

104.181 104.220

104.182 104.218

104.183 104.224

104.200 104.236

104.201 104.238

101.Subpart F

104.221 104.238

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE A: GENERAL PROVISIONS

CHAPTER I: POLLUTION CONTROL BOARD

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151

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

105.110 Hearing Process

105.112 Burden of Proof

105.114 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

105.212 Agency Record

105.214 Board Hearing

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

Section

105.400 Parties

105.402 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

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152

105.410 Agency Record

105.412 Board Hearing

SUBPART E: APPEAL OF OSFM LUST DECISIONS

Section

105.500 Applicability

105.502 General Overview

105.504 General Requirements

105.506 Petition Content Requirements

105.508 OSFM Record and Appearance

105.510 Location of Hearing

Illustration A: Agency LUST Final Decisions that are Reviewable

APPENDIX A Comparison of Former and Current Rules

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 25 Ill. Reg. _______, effective___________________.

SUBPART A: GENERAL PROVISIONS

Section 105.100 Applicability

a) This Part applies to appeals of final decisions of the

Agency and the OSFM to the Board as described in this

Part.

b) 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

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153

If any provision of this Part or its application to any person is

adjudged invalid, the 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

meanings 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 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:

a) The petition does not contain the informational

requirements set forth in Section 105.210, 105.304,

105.408 or 105.506 of this Part;

b) The petition is untimely pursuant to Section 105.206,

105.302, 105.404 or 105.504 of this Part;

c) The petitioner fails to timely comply with any order

issued by the Board or the hearing officer, including

an order requiring additional information;

d) The petitioner does not have standing under applicable

law to petition the Board for review of the State

agency’s final decision; or

e) Other grounds exist that bar the petitioner from

proceeding.

Section 105.110 Hearing Process

Unless 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.

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154

Section 105.112 Burden of Proof

Unless this Part provides otherwise:

a)

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)].

b) 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:

a) 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

b) When the petitioner files an amended petition, 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

The State agency must file with the Board the entire record of

its decision within 30 days after the filing of the petition for

review, unless this Part provides otherwise, or the Board or

hearing officer orders a different filing date. 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

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155

If the State agency unreasonably fails to timely 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:

a) When the appeal is of a final CAAPP decision of the

Agency, which is addressed in Subpart C of this Part;

and

b) 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

a) Petitioner. The person who files a petition for review

of the Agency’s final decision must be named the

petitioner.

b) 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)]

b)

 

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

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156

the Board for a hearing to contest the decision of the

Agency

[415 ILCS 5/40(e)(1)].

c) 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)]

d) Hazardous Waste Permit.

Any party to an Agency

proceeding conducted pursuant to Section 39.3 of the

Act may petition as of right to the Board for review of

the Agency’s decision.

[415 ILCS 5/40(c)]

e) 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.

f) 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 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

a) 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.

b) 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

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157

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.

c) 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.

d) 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

a) 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)].

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.

2) 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.

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b) 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 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)]

1) 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.

2) 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.

3) 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.

c) 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.

d) 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:

a) The Agency’s final decision or issued permit;

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b) 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;

c) A statement specifying the grounds of appeal; and

d) 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

a) The Agency must file its entire record of its decision

with the Clerk in accordance with Section 105.116 of

this Part.

b) The record must include:

1) Any permit application or other request that

resulted in the Agency’s final decision;

2) Correspondence with the petitioner and any

documents or materials submitted by the petitioner

to the Agency related to the permit application;

3) 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;

4) The hearing file of any hearing that may have been

held before the Agency, including any transcripts

and exhibits; and

5) Any other information the Agency relied upon in

making its final decision.

Section 105.214Board Hearing

a) 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,

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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. If any party desires to introduce evidence before

the Board with respect to any disputed issue of fact,

the Board will conduct a separate hearing and receive

evidence with respect to the issue of fact.

b) 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.

c) 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:

1) The petition is duplicitous or frivolous; or

2) The petitioner is so located as to not be affected

by the permitted facility.

d) 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.

e) If the Board determines to hold a hearing, the Clerk

will give notice of the hearing pursuant to 35 Ill.

Adm. Code 101.602.

SUBPART C: 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

a) The definitions of 35 Ill. Adm. Code 101.202 and

Section 39.5 of the Act will apply to this Subpart

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unless otherwise provided, or unless the context

clearly indicates otherwise.

b)

 

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.

c)

 

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