ILLINOIS POLLUTION CONTROL BOARD

May 10,

1990

IN THE MATTER OF:

)

PROCEDtXRAL RULES REVISION

)

R88—5(B)

35

ILL.

ADM. CODE 102

AND

)

(Rulema)c’ing)

106

(Subparts

D,

E,

and

F)

)

ADOPTED RULE.

FINAL ORDER.

OPINION AND ORDER OF THE BOARD

(by J.

Theodore Meyer):

This

matter

is

before

the Board

for

final

adoption

of

new

procedural rules for rulemaking proceedings.

On September

8,

1988,

the Board proposed for first notice revisions to Parts

101,

102,

106,

and

107

of

its procedural

rules,

found

at

Title

35

of

the

Illinois

Administrative

Code.

After

two

public

hearings

and

consideration

of

written

comments,

the

Board

split

the

docket.

Docket

R88-5(A)

contained

new

rules

in

Part

101

(general

provisions)

and

Subpart

C

of

Part

106

(adjusted

standard

proceedings), and the repeal of Part 107

(sanctions, which are now

covered

in Part

101)

.

The rules

in docket R88-5(A) were adopted

by the Board and became effective

on July

10,

1989.

This docket

(R88-5(B))

contains

new

rules

for regulatory

proceedings

(Part

102),

the repeal

of the existing Part

102 rules, and revisions to

Subparts D,

E, and F of Part 106.

(Please note that these Subparts

are

being

revised

only

to

update

references

to

Part

102.)

On

August

31,

1989,

the

Board

adopted

a

second

first

notice order,

after revising the rules

in response to comment.

First notice of

the rules was published on September 22, 1989, beginning at 13 Ill.

Req.

14693.

A public hearing was held

on November

9,

1989.

The Board received fifteen written public comments during the

1988 first notice period

(Public Comments

(P.C.)

# 11—25), and ten

written comments during the

1989

comment period

(P.C.

#

41-50)

On

February

8,

1990,

after

consideration

of

all

testimony

and

comments,

the Board proposed these rules

for second notice.

The

rules were then submitted to the Joint Committee on Administrative

Rules

(JCAR)

for second notice

review.

On April

3,

1990,

JCAR

issued its Certification of No Objection to the amendments

to Part

106 and to the repeal of the existing Part 102

(rulemaking rules)

JCAR issued its Certification of Objection to the rules in new Part

102 on April

3,

1990.

The Board’s

response

to that objection

is

discussed below.

The Board wishes to acknowledge the contributions of attorney

assistant

Elizabeth

Schroer

Harvey

and

the

rest

of

the Board’s

legal

staff

to

the drafting

of

these

rules

and

the supporting

opinion.

111

1(~7

---

Please

note

that

this

opinion

contains

only

the

Board’s

comments on the rules as they are adopted.

The Board’s responses

to comments

are contained

in

the opinions

adopted

on August

31,

1989

and

February

8,

1990,

and

will

not

be

repeated

here.

Substantive changes

to the rules made

at

JCAR’s request will be

discussed below.

These rules will become effective immediately upon filing with

the

Secretary

of

State’s

Administrative

Code

Unit.

The

Board

expects that this filing will

be completed this month.

Once the

rules

are filed and effective,

the Board will begin to

implement

the rules immediately.

The rules will be applied to all pending

rulemakings to the extent reasonably practicable, as well as to all

rulemakings filed with the Board after the effective date of these

rules.

JCAR

OBJECTION

On April

3,

1990,

JCAR issued its Certification and Statement

of Objection to new Part 102 (rulemaking rules)

.

JCAR specifically

objects

to

Section

102.240,

which

covers

the

initiation

and

scheduling

of

pre-hearing

conferences.

JCAR

contends

that

the

Board

has

failed

to

provide

standards

governing

how

a

hearing

officer will determine who are potentially affected persons to be

included

in pre-hearing conferences.

The objection

states

that

“Ei)n one instance particular categories

of individuals could

be

deemed to be potentially affected persons and invited to attend

a

pre—hearing

conference,

while

the

absence

of

standards

in

the

Board’s rules could work to deny an opportunity to participate to

similarly positioned

individuals

in

a

setting

in

which the same

regulatory

issues are considered.”

The Board will modify Section 102.240(a)

in response to JCAR’s

objection.

An additional sentence will be added to subsection

(a)

stating,

“A

‘potentially

affected person’

is any person,

defined

by the Act and Section

102.101, who demonstrates any nexus

to

a

source

of

the pollutant

to

be controlled

by

the proposal or who

shows

an

impact

from

the

pollutant

to

be

controlled

by

the

proposal.”

The Board believes that this additional sentence will

remedy JCAR’s concern that the rule does not contain standards for

determining who

is

a “potentially affected person”.

However,

the

Board must point out that this definition will not be used

in any

way

to

exclude

persons

from participation

in

that

pre-hearing

conference.

The

Board

believes

that

in

the

normal

course

of

events,

there

will

be

r.o

need

to

make

any determination

as

to

whether a particular person is “potentially affected.”

Only

if the

issue specifically

arises will there

be

any

type of

inquiry into

whether

a person

is

“potentially affected.”

Finally,

the Board

notes that this definition does not require an environmental group

to

prove

that

it

has

a

specific

member

who

is

“potentially

affected.”

1

1

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3

PART

102--REGULATORY

AND

INFORMATIONAL

HEARINGS

AND PROCEEDINGS

Subpart

A:

General Provisions

This

Subpart contains introductory provisions for these new

Part 102 rules.

Section 102.100 states that this Part applies to

all regulatory and informational hearings and proceedings, and that

the rules shall be read in conjunction with 35 Ill. Adm. Code 101.

(Part

101

contains

general

procedural

rules

for

all

Board

proceedings.)

Hearings conducted pursuant to Part

102 are quasi-

legislative in nature, and all persons taking part in such hearings

are termed “participants”,

rather than “parties”,

as

in contested

cases.

Section

102.101

contains definitions

of

terms

used

in this

Part.

The

Board

has

added

a

definition

of

“quasi—legislative

proceeding” to satisfy JCAR concerns.

Section 102.102

“Types

of

Regulatory

Proposals”

is

a

“roadmap”

of the types

of

regulatory

proposals

and

the

ways

in

which

a

regulatory

proposal

may

be

adopted.

Section 102.103 provides for a waiver of any of the non-

statutory

requirements

of

this

Part

upon

a

showing

that

a

particular requirement would create an undue burden on that person.

In response to JCAR questions, the Board has added two examples of

situations where the Board may find an “undue burden”:

where the

burden

of

compliance

with

a

requirement

would

impose

financial

costs which would preclude further participation in the rulemaking,

or where compliance would result

in the provision of

information

already provided

in that proceeding.

The Board notes that these

examples are illustrations and in

no way preclude the Board

from

finding an “undue burden”

in other situations.

Finally, Section 102.104 “Other Proceedings” states that the

Board may conduct other noncontested hearings

as are necessary to

accomplish the purposes of the Environmental Protection Act

(Act)

Ill.

Rev.

Stat.

1987,

ch.

111

1/2,

par.

1001

et

seq.

At JCAR’s

request, the Board has added a sentence which illustrates the type

of

noncontested

hearing

contemplated

by

this

section.

The new

sentence states “s)uch

hearings may include, but are not limited

to, inquiry hearings to gather information on any subject the Board

is authorized

to regulate.”

Subpart

B:

Regulations

of General Acolicability

Subpart

B

is

a guide

to the filing

of

a sufficient proposal

of regulations of general applicability.

Section 102.120 provides

that any person may file

a regulatory proposal.

The original and

nine copies of each proposal shall be

filed with the Clerk of the

Board,

and one copy each with the Attorney General,

the Illinois

Environmental Protection Agency

(Agency)

,

and the

Department

of

Energy and Natural Resources

(ENR)

.

Section 102.121 sets forth the

11 1—1(~~

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4

required

contents

of

all

regulatory

proposals.

Among

other

things,

all proposals must include a synopsis of all testimony to

be presented by the proponent at hearing.

As the Board stated

in

its August 31, 1989 second first notice opinion, the synopsis need

not

identify

specific witnesses,

but must

provide

a

summary

of

information which will

be presented

at hearing.

Fcr example,

if

the proponent plans to present two witnesses

on technical issues

and one witness

on

economic considerations,

the proposal

should

include

summaries

of the information which will

be presented

by

those

witnesses.

This

requirement

will

enable

the

Board

and

interested persons

to more fully understand the scope

and impact

of the proposal, while allowing the proponent to identify specific

witnesses and update testimony just before hearing.1

As the Board has repeatedly stated throughout

the course

of

this proceeding, the Board believes that these content requirements

are reasonable expectations of the vast majority of proponents, and

that

the

requirements

are

necessary

to

focus

and

expedite

the

regulatory

process.

The

requirements

simply

mandate

that

a

proponent

provide

basic

information

“up

front”.

Because

the

proponent ordinarily controls when a proposal is filed, the support

for a particular proposal should be

in place before the proposal

is

filed.

The Board

recognizes

that

proposals

are

subject

to

change during the course of

a proceeding,

and believes that these

rules allow for that change.

Section

102.122

“Dismissal”

states

a proponent’s failure

to

satisfy

content

requirements,

respond

to

Board

requests

for

additional

information,

or

pursue

timely

disposition

of

the

proposal will render the proposal subject

to dismissal.

Several

additions have been made to this section to satisfy JCAR concerns.

A sentence has been added to subsection

(b)

,

which states that

in

determining

whether

to dismiss

a proposal

for failure

to pursue

timely disposition, the Board will consider factors including, but

not limited to,

the history

of the prcceeding and the proponent’s

compliance with Board and hearing officer orders.

A new subsection

(d)

states

that

if

the

Board

is

unable

to

determine

the

jurisdictional

basis

for

a

proposal,

the Board

will dismiss

the

proposal.

Such

dismissal

will

not bar

the

proponent

from re-

submitting a proposal in the absence of any deadline imposed by the

Act

or

Board

regulations.

Finally,

Section

102.123

contains

additional

rules

for

any

proposal

to

amend

the

regulations

implementing

the Resource

Conservation

and Recovery Act

(RCRA)

42 U.S.C.

6901 et seq.

1

The

Board

points

out

that

Section

l02.2S0(a),

discussed

below,

requires

the

proponent

to

submit

actual

testimony

and

exhibits

21 days prior to hearing.

111—1

7()

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5

Subpart

C:

Site—Soecific Regulations

Subpart C

is

a guide

to filing a complete proposal of site—

specific

regulations,

and thus

is the counterpart

to

Subpart

B.

As with the proposal

of

general regulations,

the .proponent must

file the original and 9 copies with the Clerk,

and serve one copy

each upon

the Attorney

General,

the

Agency,

and

ENR.

(Section

102.140.)

Section 102.141 contains the content

requirements for

proposals

of

site-specific regulations.

At

JC.kR’s

request,

the

Board has added a phrase to subsection

(f) which clarifies that the

proposal must demonstrate that the requested relief

is consistent

with

federal

law governing

the subject

of

the proposal,

such

as

RCRA or the Underground Injection Control program.

Section 102.142 “Dismissal”

is identical

to Section 102.122,

but governs dismissal

of

proposals

of

site—specific rules.

The

Board has added

the language discussed

above

in connection with

Section 102.122

in order to satisfy JCAR concerns.

Suboart D:

Authorization,

Scheduling, and Notice of Hearings

Section

102.160

“Authorization

of

Hearing”

sets

forth

the

initial

steps

taken

by the Board

after

a regulatory proposal

is

filed.

All proposals are reviewed by the Board for a determination

of

adequacy

under

the

Act

and

Sections

102.121

and

102.141.

Hearing

will

be

authorized

only

if

the

proposal

meets

those

criteria.2

If

the

Board

determines

that

a

proposal

meets

all

requirements,

and

if any

filing

fee

required by

the Act and

35

Ill.Adm.Code 101.120 has been paid,3 the Board will issue an order

accepting the proposal for hearing.

Such an order will start the

timeclock

for

purposes

of

any applicable

economic

impact

study

(EcIS) and first notice publication deadlines pursuant to Sections

27 and 28.2

of the Act.

Section 102.16? “Scheduling Of Hearings”

contains information

2

The Board notes that the language of Section

102.160(a) may

imply that the Agency,

ENR,

and the Department

of Nuclear Safety

(DNS)

need

not

comply

with

the

requirements

of

Part

102

before

a

proposal will proceed

to hearing.

The Board specifically states

that this

is not the case.

As the last sentence of that subsection

states,

“t)he

proponent

must. cure any

inadequacy

identified

by

Board order before

the proposal will

proceed

to hearing.”

This

provision applies to all proponents, including the Agency,

ENR,

and

DNS.

Please note that the Clerk will refuse to accept for filing

any proposal which

is not accompanied by any required filing fee.

Pursuant

to

Section

7.2

of

the

Act,

all

petitions

for site-

specific regulation must

include

a

$75

filing fee.

I

I 1-171

---

6

on the number and location of hearings on regulatory proposals, and

also provides for the issuance of an order preliminarily specifying

the number of hearings which will be held on a given proposal.

The

hearing officer will issue that order, after considering the number

and

complexity

of

issues

involved

in

the

proposal.

If

the

proponent or

any participant

wishes to

request

a ~iearing beyond

that number, that person must demonstrate that failing

to hold an

additional

hearing

would

result

in

material

prejudice

to

the

inovant.

The

rnovant must also show that he or she exercised due

diligence

in

its participation

in

the proceeding,

and

that

an

additional

hearing,

as

opposed

to

the

opportunity

to

present

written

comments,

is necessary.

Additionally,

the

Board

or

the

hearing officer will schedule an additional hearing or hearings if

it finds that additional hearing will aid the Board on its decision

on the proposal.

Section 102.162 establishes provisions for notice

of

public hearings

on regulatory proposals,

and Section

102.163

contains notice requirements for site-specific

RCRA

proposals.

Subpart

B:

Economic Imoact Study Determinations

This Subpart implements the EcIS determination provisions

of

Sections

27(a)

and

28.2

of

the

Act.

Section

102.180

“Board

Determinations”

requires that the Board determine,

within

60 days

of

accepting

a

proposal

for hearing,

whether

an

EcIS

should be

prepared.

In all proceedings except a required rulemaking pursuant

to Section 28.2 of the Act, the Board may also,

at any time before

the close of the record, determine that an EcIS should be prepared.

Section

102.181

“Request

For

Determination”

sets

forth

the

procedure

for any person to

file

a statement that an EcIS should

or should not be prepared.

At JCAR’s request,

a sentence has been

added

to

subsection

(b)

which

states

that

a description

of

the

economic

impact

of

the

proposed

rule

may

include,

but

is

not

limited

to,

the

projected

cost

of

compliance,

the

number

of

affected persons,

and the impact

of compliance costs on affected

persons.

No hearing will be held on any request for or against

the

preparation of

an EcIS.

Section

102.181

sets

forth

the

issues which

the

Board will

consider when making

it EcIS

determination.

Subsection

(e)

has

been revised to satisfy

JCAP.

concerns.

A

new

sentence

states

that

among

the

other

considerations

before

the Board

in

making

its

determination are any statutory deadline for promulgation of rules

and

possible

impact

of

the

proposal

on

natural

and

cultural

resources.

Finally,

Section

102.183

“Notice

Of

Board

Determination”

states

that

the

Board

will

issue

a

written

interlocutory order giving the reasons for its determination.

EcIS

determination orders

may

be appealed only pursuant to 35 Ill.

Adm.

Code

101.304,

which

provides

for

Board

certification

of

interlocutory orders for appeal.

111-172

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7

Subpart F:

Certification Of Required Rules

This Subpartestablishes a procedure for challenging an Agency

certification that a proposed rule

is

a federally required rule

pursuant to Section 28.2 of the Act.

Section 102.200 requires the

Agency, when it proposes a rule which

it believes to be federally

required,

to so certify in its proposal.

The certification must

include citation to the specific section

of the specific federal

law

to

which

the proposed

rule

will

respond.

Section

102.201

“Challenge To Agency Certification”

allows any person to file an

objection to an Agency certification within 21 days of the Board’s

order

accepting

the proposal for hearing.

The objection

shall

state

the reasons

for the

objection,

and include

all arguments

which the objector wishes the Board

to consider.

The Agency may

file

a response within

10 days

of the service

of the objection.

No hearing will be held on any objection.

Pursuant

to

Section

102.202,

the

Board

will

rule

upon

any

objection within

60 days of

its order accepting the proposal for

hearing.

The Board’s ruling will be made in its order determining

whether

an EcIS

will

be prepared.

Like

EcIS determinations,

a

Board

ruling

on

an

objection

to

an

Agency certification ~nay be

appealed only pursuant to 35

Ill. Adm.

Code 101.304.

Please note that the tirneframes

in this procedure track the

timeframes

for

EcIS

determinations.

The

Board

recognizes

that

these tinieframes are very tight.

However, the strict time periods

are necessary because Section 28.2(e)

of the Act requires th~Board

to publish first notice of required rules in the Illinois Register

no later than six months from the date the Board determines whether

an EcIS should be prepared.

Additionally,

Section 28.2(d)

allows

the Board to adopt a required rule without an EcIS

if the EcIS

is

not submitted within six months of the Board’s determination that

an

EcIS should

be prepared.

Therefore,

it

is very

important to

resolve any question as

to whether

a proposed rule

is

a required

rule at the beginning of the proceeding.

The Board will not look

kindly upon any request for extension of these time periods.

The Board notes that it must refer to any Agency certification

that

a

proposed

rule

is

a

required

rule

in

the

first

notice

publication of the proposal.

(Section 28.2(e)

of the Act.)

In the

event that the

Board

is to

find,

upon objection,

that

a proposed

rule

is not a required rule,

at first notice

it will simply state

that the Agency

had certified

the

rule,

but that

the Board

has

found that the proposed rule was not federally required.

Subpart G:

Authority Of Hearing Officer

Section 102.220 establishes the duties and powers of hearing

officers

in regulatory

proceedings.

Section

102.221 “Notice And

Service

Lists” states

that

the hearing

officer shall maintain

a

111—173

---

8

notice list for each regulatory proceeding.

Notice

of all Board

action and hearing officer orders will be given to all persons

on

the notice

list.

Additionally,

the hearing officer may establish

a

separate

service

list.

The

hearing

officer

may

direct

participants to serve copies of all documents upon persons listed

on the service

list.

The

Board

stresses that every regulatory

proceeding has a notice list,

and that any person may be included

on that

list simply by giving his or her name and address

to the

hearing

officer.

The

option

of

establishing

a service

list

in

addition to the notice list allows the hearing officer to

draw

a

distinction between those who simply wish to be notified of Board

action

on

a

specific proposal

and those who wish

to participate

more fully

in the proceeding.

This option is especially helpful

in

proceedings which

have

a

large

notice

list

but

a

relatively

small number of actual participants.

Section

102.282

concerns

the

effect

of

a

hearing

officer

ruling.

All

decisions,

orders,

and rulings

made

by

a

hearing

officer shall remain

in effect during the pendency

of any appeal

to the Board

of that decision,

order,

or ruling.

This provision

will cut down on any delay during any appeal

of

•a hearing officer

ruling on, for example,

a motion to continue a hearing or

a motion

for sanctions.

Subpart H:

Pre—Hearinq Conferences

Subpart H establishes procedures for pre—hearing conferences,

which are authorized by Section 27(e)

of the Act.

Section 102.240

contains

the

procedures

for

initiating

and

scheduling

a

pre—

hearing conference.

To the extent consistent with any deadline for

adoption of regulations,

the hearing officer may schedule

a pre-

hearing

conference

on any regulatory

proposal.

The pre—hearing

conference may be scheduled on the hearing officer’s own motion,

or

upon the motion

of the proponent

or any potentially

affected

person.

The usual notice requirements

for notice

of hearings do

not apply to pre—hearing conferences, but the hearing officer will

give notice to all persons on the notice list for that proceeding.

That

notice

may

be

either written

or

oral,

in

order

to

retain

flexibility in the scheduling of pre-hearing conferences.

This is

the section to which JCAR objected.

As discussed above,

the Board

has modified the rule

in response to that objection.

Section

102.141

sets

forth

the

purposes

of

a

pre-hearing

conference.

These purposes are statutorily articulated in Section

27(e)

of

the Act.

Section

102.242

“Pre-hearing

Order” provides

that discussions at the pre-hearing conference are not binding upon

any participant in the conference or upon

the

Board.

However, with

the consent

of

all participants

in

the conference,

the hearing

officer may enter

art order delineating issues

in

the

proceeding,

agreed facts,

and other matters.

If the participants

in the pre-

hearing conference

agree

to the entering

of

a pre—hearing

order,

the hearing officer may require that those participants furnish an

111

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9

proposed

order

setting

forth

the

substance

of

the

agreements

reached at the pre-hearing conference.

The order

shall identify

which participants

have agreed to the order.

This provision

is

intended to address the possibility that all~participantsin a pre—

hearing conference agree that an order should be entered, but not

all

of those participants agree to all aspects of the order.

The

Board points out that as stated in Section 27(e)

of the Act and in

subsection

(d)

of

Section

102.242,

a

pre-hearing

order

is

not

binding on nonparticipants in the pre-hearing conference.

Subpart

I:

Motions And Discovery

The sections in this Subpart cover motion practice, production

of

information,

and

subpoenas

in

regulatory

proceedings.

The

sections contain references to the appropriate sections of Part 101

of the Board’s procedural

rules.

Subpart J:

Regulatory Hearings

This Subpart deals with the conduct of hearings on regulatory

proposals.

Section 102.280

“Pre-hearing Submission Of Testimony

And Exhibits”

sets forth the requirements and procedures for the

filing of

testimony and exhibits before hearing.

The proponent

must submit all written testimony and any related exhibits 21 days

before the hearing at which the witness is to testify, unless the

hearing officer directs otherwise.

(Please note that the provision

allowing the hearing officer to “direct otherwise”

is intended to

allow the hearing officer

to modify the timing of the submission

of testimony,

not,

in most cases,

to dispense with the requirement

that the proponent pre—file his supporting testimony.)

The hearing

officer may require participants other than the proponent to pre-

submit testimony and exhibits

if

the hearing

officer finds that

pre-submission will

pr~ovide for

a

more

efficient

hearing.

The

Board believes that

in combination with the requirement that the

proponent

provide

a

synopsis

of

supporting

testimony

when

the

proposal

is

filed

(see Section 102.121),

requiring the proponent

to pre-subrnit testimony 21 days before hearing will give the Board

and the participants sufficient time to prepare for hearing, while

allowing

the

proponent

to

update

his

supporting

testimony

in

response

to

events

after

the

filing

of

the

proposal.

Again,

because the proponent controls when a proposal is filed, the Board

believes

that requiring

a

synopsis of

testimony

at

filing,

with

actual testimony submitted 21 days prior to hearing, imposes little

burden on the proponent.

The Board continues to believe that pre-

submission

of

testimony

and

exhibits

by

all

participants

is

important,

and expects

that

pre-submission

by participants will

generally be required.

However, by giving the hearing officer the

authority

to

decide

when

pre-submission

should

be

required,

proceedings can be conducted

in response

to the circumstances

of

the individual proceeding.

Subsection

(f)

addresses the issue

of modifications to pre-

I 11-175

---

10

submitted testimony.

The subsection, which

is

based on

35

Ill.

Adm.

Code

106.803,

permits

the

hearing

officer

to

allow

modifications

if the changes are either non—substantive

or would

not -materially

prejudice

another

person’s

participation

at

hearing.4 This

provision will allow unavoidable modifications to

pre—submitted testimony to be made at hearing,

while providing

a

level

of

scrutiny

to

protect

the

reliability

of

pre-submitted

testimony.

Note that objections to modifications are waived unless

raised at hearing.

Section

102.281

“Transcript” requires

that all testimony be

recorded stenographically.

The section provides that the hearing

officer

will rule on typographical corrections

submitted

by

any

person.

If any witness does not correct the transcript within

14

days of its receipt

in Board offices constitutes

a waiver of

the

witness’

right

to

correct.

Section

102.282

“Admissible

Information” states that all information which is relevant and not

repetitious or privileged

is admissible.

The hearing officer will

rule on objections.

As

the

Board

has repeatedly

stated,

because

of the broad standard of admissibl~eevidence, some objections which

may be appropriate in an adjudicatory hearing are not appropriate

in regulatory proceedings.

Sections 102.283, 102.284, and 102.285

contain

information

on

the

presentation

of

testimony,

the

questioning of witnesses,

and the record for decision.

Subpart

K:

Economic Impact Hearings

Section

102.300

contains

rules

for

hearings

on

any

EcIS

submitted by ENR.

Unless otherwise provided by the Act, the Board

must hold at least one hearing on any EcIS.

An exception to this

is

in the case of

a federally required rule.

Pursuant to Section

28.2 of the Act,

if

a requested EcIS is not submitted to the Board

within six months, the Board may proceed to adopt the required rule

without the EcIS.

However, to the extent possible, the Board shall

hold

a

hearing

on

the economic

impact

of

the proposed required

rule.

This requirement may

he fulfilled

by

considering economic

impact

at any merit hearing.

EcIS hearings may

be consolidated

with any other hearings held pursuant to Part 102.

Section 102.301

establishes the procedures for hearings on any EcIS on an existing

rule.

Subpart

L:

Public Comments

Section 102.320 “Public Comments” provides that any person may

submit written public comments on any proposal within

14 days after

the receipt of the transcript

in Board offices, unless otherwise

specified by the hearing officer

or the Board.

The Board points

The Board points out that this rule does not limit rebuttal

testimony

in any way.

The rule merely refers to modifications to

testimony pre—submitted for direct presentation

at hearing.

1 lI-17(~

---

11

out

that

while

no

formal

notification

of

the

filing

of

the

transcript

is

done,

it

is

quite

easy

to

determine

when

the

transcript has been filed.

Because the Board’s contract with its

court reporting service specifies when the transcript

is due,

the

hearing officer will

always

be able to give participants

a good

idea

of

when

the

transcript

will

be

received

by

the

Board.

Participants

can then easily verify that the transcript actually

was received by calling the Clerk’s office.

As a practical matter,

the

hearing

officer

almost

always

sets

a

date

certain

as

the

deadline

for

comments,

so

the

situation

will

rarely

arise.

Comments which are not timely filed will not be considered,

except

as allowed by the hearing officer or the Board to prevent material

prejudice.

The

Board specifically points out that motions

for

extension of time to file comments are not favored.

Finally, the

Board

is aware that

14 days

is a short period of time in which to

prepare and file comments.

Ordinarily more time will be allowed,

but

in order

to retain flexibility

for the proceedings

in which

only

a

short

comment

period

is

possible,

the

rule

itself

will

specify the short period.

This enables that hearing officer or the

Board to enforce the shorter period when necessary, but extend the

time period when circumstances allow.

Subpart M:

Board Action

This

Subpart

explains

the various

ways

that

the Board may

adopt

regulations.

Section

102.340

allows

the Board

to

revise

proposed regulations

before

adoption,

under

some

circumstances.

Section 102.341

“Adoption Of Regulations”

requires

the Board

to

consider the elements of any EcIS performed by ENR on a particular

proposal,

except

in

a

rulemaking

for

a

federally required rule.

In the case of a required

rule,

the Board must consider any EcIS

submitted within the six month period established by Section 28.2

of the Act and Section 102.300(b).

Sections 102.342, 102.343, and

102.344

provide

for

first

and

second

notice

of

proposed

regulations,

as required by the Illinois Administrative Procedure

Act

(APA)

,

and

for notice

of Board

final

action on

a

proposal.

Finally, Sections 102.345 through 102.348 establish procedures for

the adoption of identical in substance, emergency,

peremptory, and

temporary

rules.

The

great

majority

of

the

language

in

these

sections tracks the statutory language applicable

to each type of

rule.

Subpart

N:

Motions For Reconsideration And Aopeal

Subpart N contains procedures for motions for reconsideration,

correction

of

publication

errors,

and

appeal.

Section

102.360

“Filing

Of

Motion

For Reconsideration”

states that

motions

for

reconsideration

or

modification

of

any

Board

order

taking

substantive

action

on

a

regulatory

proposal

shall

be

filed

in

accordance

with

35

Ill.Adn.Code

101.242

and

101.246.

Section

102.361 “Disposition Of Motions For Reconsideration” addresses the

Board’s disposition of motions for reconsideration at second notice

111=177

---

12

and after final adoption.

Section 102.362 notes that the Board may

make

technical

corrections

to

rules

published

in

the

Illinois

Register or filed with the Secretary of State only

in accordance

with

1

I11.Adm.Code

100.240.

No

hearing will

be

held

on

such

corrections.

Finally, Section 102.363 provides that appeal of any

final

Board

order

is

directly

to

the

appellate

court,

and

is

conducted pursuant to Sections 29 and 41 of the Act.

PART 106--HEARINGS PURSUANT TO SPECIFIC RULES

The

Board

has

made

non-substantive

changes

to

Sections

106.415,

106.506,

106.602,

and

106.604.

These

changes

merely

update

references

to

the

“old”

Part

102

rules

so

that

the

references are to the correct section of the “new” Part 102 rules.

Additionally,

a

reference

in

Section

106.602

to

Part

103

(enforcement

rules)

has been updated

to refer

to the Board’s new

general procedural rules in Part 101.

ORDER

For the reasons set forth in the opinion, the Board hereby to

modifies

its

rules

in

response

to

the

objection

of

the Joint

Committee on Administrative Rules.

A notice of this response will

be published in the Illinois Register.

The Board hereby adopts,

as final, the following rules to be

filed with the Secretary

of

State and published

in the Illinois

Register.

These amendments

include the repeal of current 35

Ill.

Adm.

Code

102.

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

102.101

Definitions

102.102

Types Of Regulatory Proposals

102.103

Waiver Of Requirements

102.104

Other Proceedings

SUBPART B:

REGULATIONS OF GENERAL APPLICABILITY

Section

102.120

Proposal

102.121

Contents

1 11—17~

---

13

102.122

Dismissal

102.123

Proposal Of RCRA Amendments

SUBPART C:

SITE-SPECIFIC REGULATIONS

Section

102.140

102.141

102.142

Proposal

Contents

Dismissal

SUBPART D:

AUTHORIZATION,

SCHEDULING, AND NOTICE OF HEARINGS

Section

102.160

102.161

102 .162

102

.

Section

102.200

102.201

Section

102.220

102.221

Section

102.260

Authorization Of Hearing

Scheduling Of Hearings

Notice Of Hearing

Notice Of Site-Specific

RCRA

Proposals

SUBPART

E:

ECONOMIC IMPACT STUDY DETERMINATIONS

Board Determinations

Request For Determination

Basis For Board Determination

Notice Of Board Determination

Agency Certification

Challenge To Agency Certification

Board Determination

SUBPART G:

AUTHORITY OF HEARING OFFICER

Authority Of Hearing Officer

Notice And Service Lists

Effect Of Hearing Officer Ruling

SUBPART H:

PRE-HEARING CONFERENCES

Initiation And Scheduling

Purpose

Section

102.180

102.181

102.182

102.183

SUBPART

F:

CERTIFICATION OF REQUIRED RULES

Section

102.240

102.241

102.242

SUBPART

I:

MOTIONS

AND

DISCOVERY

111—179

---

14

102.261

Production Of Information

102.262

SUBPART J:

Section

102.280

102.281

102.282

102.283

102.284

102.285

Section

102.300

102.301

Section

102.320

Section

102.360

102.361

102.362

Pre—hearing Submission Of Testimony And Exhibits

Transcript

Admissible Information

Presentation

Of Testimony

Questioning Of Witnesses

Record For Decision

SUBPART K:

ECONOMIC

IMPACT HEARINGS

Hearings On The Economic Impact Study Of

New

Proposals

Hearings On The Economic

Impact Study Of Existing

Regulations

SUBPART

L:

PUBLIC COMMENTS

Public Comments

SUBPART

M:

BOARD ACTION

Revision Of Proposed Regulations

Adoption Of Regulations

First Notice Of Proposed Regulations

Second

Notice Of Proposed Regulations

Notice Of Board Final Action

Adoption Of

Identical In Substance Regulation

Adoption Of Emergency Regulations

Adoption Of Peremptory Regulations

Adoption Of Temporary Regulations

SUBPART N:

MOTIONS FOR RECONSIDERATION AND APPEAL

Filing Of Motion For Reconsideration

Disposition Of Motions

For Reconsideration

Correction of Publication Errors

Appeal

AUTHORITY:

Implementing

Sections

5,

7.2,

13(c),

13.3,

17.5,

22.4(a),

22.4(d),

22.7(d),

27,

28,

28.2,

29,

and

41 •of

the

Environmental Protection Act

(Ill.

Rev.

Stat.

1987 and 1988 Supp.,

ch.

111½,

pars.

1005,

1007.2,

1013(c),

1013.3,

1017.5,

1022.4(a),

1022.4(d),

1022.7(d),

1027,

1028,

1028.2,

1029,

and

1041)

and

Section

4

of “AN ACT

in relation

to natural resources,

research,

Section

102.340

102.341

102.342

102.343

102.344

102.345

102.346

102.347

102.348

11

1—lSfl

---

15

data collection and environmental studies”

(Ill.

Rev.

Stat.

1987

and 1988 Supp.,

ch.

96k,

par.

7404)

and authorized by Section

26

of the Environmental

Protection Act

(Ill.

Rev.

Stat.

1987,

ch.

111½, par.

1026).

SOt.TRCE:

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.

Peg. 8357;

amended in P84—10 at

9 Ill.

Peg.

1398, effective January 16, 1985;

Part repealed,

new Part adopted

in P88-5(B)

at

14

Ill.

Reg.

____

___________

effective

_______________________

NOTE:

Capitalization denotes statutory

language.

SUBPART A:

GENERAL PROVISIONS

Section 102.100

Applicability

This Part applies to all regulatory and informational hearings and

proceedings,

and

shall

be read

in

conjunction with

35

Ill.

Adm.

Code 101.

Hearings conducted pursuant to this Part shall be quasi—

legislative in nature.

All testimony shall be sworn.

All persons

taking part in these hearings are participants, rather than parties

as in contested cases.

Section 102.101

Definitions

The following definitions shall apply to this Part:

“Act” means the Environmental Protection Act

(Ill.. Rev.

Stat.

1987,

ch.

111 1/2, par.

1001 et seq.).

“Agency”

means

the

Illinois

Environmental

Protection

Agency.

“APA”

means

the Illinois Administrative

Procedure

Act

(Ill.

Rev.

Stat.

1987,

ch.

127,

par.

1001 et seq.).

“Attorney

General”

means

the

Office

of

the

Attorney

General of the State of Illinois.

“Board” means the Illinois Pollution Control Board.

“Chairman” means the Chairman of the Board.

“Clerk” means the Clerk of the Board.

“Document”

means pleading, notice, motion,

affidavit,

memorandum,

brief,

petition, or other paper required or

permitted to be filed.

“DNS” means the Illinois Department of Nuclear Safety.

1 11—ISI

---

16

“Economic impact study” means the economic impact study

performed

by

ENP.. pursuant to Board determination under

Section

27

of the Act.

“ENR”

means the Illinois Department of Energy and Natural

Resources.

“Fire Marshal” means the Office of the State Fire

Marshal.

“Identical

in substance regulations” means STATE

REGULATIONS WHICH REQUIRE THE

SAME

ACTIONS WITH RESPECT

TO PROTECTION OF THE

ENVIRONMENT,

BY THE

SANE

GROUP OF

AFFECTED

PERSONS,

AS

WOULD

FEDERAL

REGULATIONS

IF

THE

UNITED

STATES

ENVIRONMENTAL

PROTECTION

AGENCY

ADMINISTERED

THE

SUBJECT

PROGRAM

IN

ILLINOIS.

(Section

7.2

of

the

Act.)

“Identical

in substance rulemakings” are those

proceedings conducted pursuant to specific authorization

of the Act,

including but not limited to Sections 13

(C),

13.3,

17.5,

22.4(a),

22.4(d)

and 22.7(d).

“JCAR” means the Joint Committee on Administrative Rules.

“Material” means relating to any substantive issue that

is of consequence to the determination of

a proceeding.

“Participant” means any person,

not including the Board

or its staff but including the proponent, 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,

but

not

limited

to,

filing

a comment, being added to the notice list of a particular

proceeding or testifying

at hearing.

“Peremptory rulemaking” means ANY RULEMAKING WHICH IS

REQUIRED

AS

A

RESULT

OF

FEDERAL

LAW,

FEDERAL

RULES

AND

REGULATIONS,

OR

AN ORDER

OF A

COURT,

UNDER CONDITIONS

WHICH

PRECLUDE

COMPLIANCE

WITH

THE

GENERAL

RULEMAKING

REQUIREMENTS

OF

SECTION

5.01

OF

THE

APA

AND

~THICH

PRECLUDE

THE

EXERCISE

BY

THE

BOARD

AS

TO

THE

CONTENT

OF

THE RULE.

(Section 5.03 of the APA.)

“Person”

means

any

entity

defined

in

Section

3.26

of

the Act,

including but

not limited

to

any

individual,

partnership, company, corporation, political subdivision,

or state agency.

“Proponent” means any person,

not including the Board

or

its staff,

who submits

a regulatory

proposal to the

1.1-182

---

17

Board

for

the

adoption,

amendment,

or

repeal

of

a

regulation.

“Quasi-legislative

proceeding”

means

any

hearing

or

receipt •of

information

on

any

subject

the

Board

is

authorized

to

regulate,

i.e.,

public

information

or

inquiry hearings,

or rulemaking hearings.

“RCRA” means the Resource Conservation and Recovery Act

of 1976

(42 U.S.C.

6901 et seq.).

“RCRA rules” means

35 Ill. Adm. Code 702,

703,

720, 721,

722,

723,

724,

725,

726, and 728.

“Relevant” means having any tendency to make the

existence

of

any

act

that

is

of

consequence

to

the

determination

of

the proceeding

more probable

or

less

probable that it would be without the information.

“Required rule” means

a

rule that

is NEEDED TO FULFILL

THE REQUIREMENTS

OF

THE

FEDERAL

CLEAN

WATER

ACT

(33

U.S.C. 1251 ET SEQ.), SAFE DRINKING WATER ACT,

(42 U.S.C.

300f ET SEQ.),

CLEAN AIR ACT

(42 U.S.C.

7401 ET SEQ.),

OR RESOURCE CONSERVATION AND RECOVERY ACT (42 U.S.C. 6901

ET

SEQ.)

OTHER THAN A RULE TO BE ADOPTED UNDER SECTION

13(c),

13.3,

17.5,

22.4(a), 22.4(d), OR 22.7 OF THE ACT.

(Section 28.2 of the Act.)

“Site-specific regulation” means

a proposed

or adopted

regulation

SPECIFIC

TO

INDIVIDUAL

PERSONS

OR

SITES.

(Section 27(a)

of the Act.)

“Undue

delay”

means

delay

which

is

unwarranted,

unjustified,

or improper.

“USEPA” means the United States Environmental Protection

Agency.

Section 102.102

Types Of Regulatory Proposals

a)

The Act provides for three types of regulatory proposals:

1)

Identical

in substance

rulemakings,

as defined

in

Section

102.101;

2)

Federally

required

rules,

as

defined

in

Section

102.101; and

3)

Other

regulatory

proposals,

both

of

general

applicability and not of general applicability.

b)

Regulations arising from these types of proposals may be

111—133

---

18

adopted through four types of rulemaking:

1)

General rulemaking pursuant to Section 5.01 of the

APA and Sections 26 and 27 of the Act;

2)

Emergency rulemaking pursuant to Section 5.02 of the

APA and Section 27

of the Act;

3)

Peremptory rulemaking pursuant to Section

5.03

of

the APA;

and

4)

Temporary rulemaking pursuant to Section

27(b)

of

the Act.

c)

The provisions

of

Subpart

B of this

Part

apply

to all

types

of

regulatory

proposals

except

identical

in

substance proposals.

Section 102.103

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,

i.e.,

the

burden

of

compliance

imposes

financial

costs

that would

preclude

further

participation,

or

compliance

would

result

in

provision

of

information already provided in that proceeding.

Section 102.104

Other Proceedings

The Board

may conduct

such

other

noncontested

or

informational

hearings as may be necessary to accomplish the purposes of the Act.

Such hearings may include, but are not limited to, inquiry hearings

to gather

information

•on any subject the Board

is

authorized

to

regulate.

SUBPART

B:

REGULATIONS OF

GENERAL

APPLICABILITY

Section 102.120

Proposal

Any

person

may

submit

a

regulatory

proposal

for

the

adoption,

amendment,

or repeal of

a regulation.

The original and nine

(9)

copies of each proposal shall be filed with the Clerk and one copy

each with the Attorney General, the Agency and

ENR.

Section 102.121

Contents

Each proponent shall provide:

a)

The

language

of

the proposed

regulation

or

amendment,

including an

identification of the existing

regulatory

language proposed

to be

amended or

deleted.

Language

being

added

shall

be

indicated

by

underscoring

and

111-1S4

---

19

language

being

deleted

shall

be

indicated

by strike-

outs.

The proposed rule shall be drafted in accordance

with

1 Ill.

Adin. Code 100.Subpart

C;

b)

A

statement

of

the reasons

supporting

the

proposal,

including

a

statement

of

the

facts

which

support

the

proposal,

and a statement of the purpose and effect of

the proposal.

The statement shall discuss the applicable

factors listed

in Section 27(a)

of the Act.

Where the

proposal

covers

more

than

one

substantive

point,

the

statement of reasons shall include statements in support

of each point.

The statement

of reasons shall include

a technical and economic justification for the proposal;

C)

Pursuant to Section 27

of the Act, A RECOMMENDATION

OF

WHETHER

MT

ECONOMIC

IMPACT

STUDY

IS

ADVISABLE.

The

recommendation shall describe, TO THE EXTENT REASONABLY

PRACTICABLE,

THE

UNIVERSE

OF

AFFECTED

SOURCES

AND

FACILITIES

AND

THE ECONOMIC IMPACT OF THE PROPOSED RULE.

The

recommendation

shall

also

address

the

questions

contained

in

the

Analysis

of

Economic

and

Budgetary

Effects of Proposed Rulemaking, set forth at 1 Ill. Adm.

Code 220.Exhibit B,

and identify issues to be addressed

by any economic impact study;

d)

A

synopsis

of

all

testimony

to

be

presented

by

the

proponent at hearing;

e)

If

the

Agency

is

the

proponent,

and

if

the

Agency

believes

that

the

proposed

rule

is

a

required

rule

pursuant

to

Section

28.2

of

the Act,

citation to

the

specific section of the specific federal act;

f)

Copies

of

any material

to be

incorporated by reference

within the proposed regulation pursuant to Section

6.02

of the APA;

g)

Proof of service upon all persons required to be served

pursuant to Section 102.120;

h)

Unless

the

proponent

is

the

Agency,

ENR,

or

DNS,

a

petition

signed

by

at

least

200

persons,

pursuant

to

Section 28 of the Act and Section 102.160(a); and

i)

Where

any

information

required

by

this

Subpart

is

inapplicable or unavailable, a complete justification for

such inapplicability or unavailability.

Section 102.122

Dismissal

a)

Failure

of

the

proponent

to

satisfy

the

content

requirements of Section 102.121 or failure to respond to

11 1—85

---

20

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 shall consider factors including,

but not limited

to, the history of the proceeding and the proponent’s

compliance with any Board or hearing officer orders.

c)

Any persoti may file

a motion challenging the sufficiency

of a proposal pursuant to

35

Ill.

Adni.

Code

101.243.

d)

A proposal shall be dismissed for inadequacy in cases in

which the Board,

after evaluating the proposal,

cannot

determine

the

jurisdictional

basis

upon

which

the

proposal

is

made.

In

all

such

cases,

a

statement

informing

the

proponent

of

the

Board’s

basis

for

dismissal shall be made.

Dismissal of

a proposal shall

not bar a proponent from re—submitting a proposal in the

absence

of

any deadline

imposed

by

the

Act

or

Board

regulations.

Section 102.123

Proposal Of RCRA Amendments

In addition to satisfying the requirements of Section 102.121, any

proposal to amend the RCRA regulations shall:

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

b.y 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 United

States

Environmental Protection Agency

(USEPA).

Service shall

be made at the following address:

Director, Waste Management Division

USEPA,

Region V

230 South Dearborn Street

Chicago,

Illinois 60604

SUBPART

C:

SITE-SPECIFIC REGULATIONS

Section 102.140

Proposal

Any

person

may

submit

a

written

proposal

for

the

adoption,

amendment

or

repeal

of

a

substantive

site-specific

regulation.

The original and nine

(9)

copies

of each proposal

shall

be filed

ii 1—1S(

---

21

with the Clerk and one copy each served upon the Agency,

ENR,

and

the Attorney General.

Section 102.141

Contents

a)

The proponent shall identify the regulations which are

to

be

addressed

by

the

proposed

amendment

and

the

language to

be added,

deleted,

or repealed.

Language

being

added

shall

be

indicated

by

underscoring

and

language

being

deleted

shall

be

indicated

by strike-

outs.

If

the

proposed

site-specific

rule

seeks

an

exemption

from

or

modification

of

a

rule

of

general

applicability,

the proposed site-specific rule may not

be

proposed

as

an

amendment

to

the

general

rule.

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

own section.

b)

The proponent

shall provide

a

statement

of reasons and

facts

supporting the proposal,

and

a

statement

of the

purpose and effect of the proposal.

c)

The proposal shall also comply with all requirements set

forth in Section 102.121.

d)

In the

event that

the proposed rule would replace

the

applicability of

a general rule to the pollution source,

the

proposal

shall

specify,

with

supporting

documentation,

the reasons why the general rule

is not

technically feasible or economically reasonable for the

person

or

site.

Such

documentation

shall

include

relevant information on other similar persons’ or sites’

ability to comply with the general rule.

e)

The proposal shall describe the person or site for which

regulatory change is sought and the area affected by the

proposed

change.

The

proposal

shall

also

include

a

detailed assessment

of the environmental

impact of the

proposed

change,

and

include

a

description

of

all

available treatment or control options.

f)

The proposal shall demonstrate that the Board may grant

the

requested

relief

consistent

with

federal

law

governing

the

subject

of

the

proposal

(e.g.

the

Underground

Injection

Control

program,

the

Resource

Conservation and Recovery Act,

etc.)

g)

Where

any

information

required

by

this

Subpart

is

inapplicable or unavailable,

the proposal shall

include

a

complete

justification

for

such

inapplicability

or

unavailability.

111—137

---

22

Section 102.142

Dismissal

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 shall consider factors including,

but not limited

to,

the history

of the proceeding and the proponent’s

compliance with any Board or hearing officer orders.

c)

Any person may file a motion challenging the sufficiency

of the proposal pursuant to

35

Ill.

Adm.

Code 101.243.

d)

A proposal shall be dismissed for inadequacy

in cases in

which the Board,

after evaluating

the proposal,

cannot

determine

the

jurisdictional

basis

upon

which

the

proposal

is

made.

In

all

such

cases,

a

statement

informing

the

proponent

of

the

Board’s

basis

for

dismissal shall be made.

Dismissal of

a proposal shall

not bar a proponent from re—submitting a proposal

in the

absence

of

any

deadline

imposed

by

the Act

or

Board

regulations.

SUBPART

D:

AUTHORIZATION,

SCHEDULING, AND

NOTICE OF HEARINGS

Section 102.160

Authorization Of Hearing

a)

The Clerk shall assign

a docket number to any proposal.

All regulatory

proposals

will

be

placed

on

the

Board

agenda

for determination of

adequacy under

the Act and

Sections 102.121

and 102.141.

IF THE BOARD FINDS THAT

ANY SUCH PROPOSAL

IS

NOT

PLAINLY

DEVOID OF

MERIT,

DOES

NOT DEAL WITH A SUBJECT

ON WHICH

A HEARING HAS BEEN HELD

WITHIN

THE

PRECEDING

6

MONTHS,

IS

ACCOMPANIED

BY

AN

ADEQUATE STATEMENT OF SUPPORTING REASONS

AND

A PETITION

SIGNED

BY

AT

LEAST

200

PERSONS,

and

meets

the

requirements

of

this

Part,

THE

BOARD WILL

SCHEDULE A

PUBLIC HEARING FOR CONSIDERATION OF THE PROPOSAL.

IF A

PROPOSAL

IS MADE BY THE

AGENCY,

ENR,

OR

DNS,

THE BOARD

SHALL SCHEDULE A PUBLIC

HEARING WITHOUT

REGARD TO THE

ABOVE CONDITIONS.

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.

(Section 28 of the Act.)

The proponent must

cure

any

inadequacy identified

by Board order before the

11 1-1SS

---

23

proposal will proceed to hearing.

b)

If

the

Board

determines

that

a

proposal

meets

the

requirements

of

subsection

(a),

and

if

any filing fee

required by the Act and

35

Ill.

Adm.

Code 101.120

has

been paid,

the Board will issue

an order. accepting the

proposal for hearing;

Such an order will

be construed

as starting the timeclock for purposes of any applicable

economic

impact

study

and

first

notice

publication

deadlines pursuant to Sections 27 and 28.2

of the Act.

c)

When the Board authorizes

a hearing,

the Chairman will

designate

an attending Board

member.

A member

of the

Board

may

serve

as

hearing

officer

if

otherwise

qualified,

and

such

hearing

need

not

be

attended

by

another Board member.

d)

In

the case of

a proposed regulatory change under the

provisions of 35 Ill.

Adin. Code 302.211(j)

or 304.141(c),

the

requirement

of

subsection

(a)

relating

to

a

requirement of 200 signatures shall

not apply.

In such

case only a single hearing shall be required, to be held

in the affected county.

e)

The

Board

may

consolidate

proposals

for

hearing

or

decision.

Section 102.161

Scheduling Of Hearings

a)

Except as otherwise provided by the Act,

no substantive

regulation shall be adopted, amended or repealed by the

Board until

after at least one public hearing.

In the

case

of site-specific rules,

a public hearing shall

be

held in the affected county.

In the case of state-wide

regulations,

public hearings shall

be held

in at least

two counties of the state.

b)

The

Board

need

not

hold

a

hearing

on

a

procedural

regulation,

except

as provided by Section

5.01

of

the

APA.

C)

After

consideration

of

the

number

and

complexity

of

issues

involved

in

a

regulatory proposal,

the hearing

officer will issue an order preliminarily specifying the

number of hearings to be held on that proposal.

d)

If the proponent or any participant wishes to request a

hearing beyond the number

of hearings specified

by the

hearing officer pursuant to subsection

(c)

,

that person

must demonstrate,

in a motion to the Board, that failing

to hold

an additional hearing

would result

in material

prejudice to the movant.

The motion may be oral,

if made

11 i—iSa

---

24

at hearing, or written.

The movant must show that

he

or

she exercised due diligence in its participation in the

proceeding, and why an additional hearing, as opposed to

theopportunity

to submit written comments pursuant to

Section 102.320,

is necessary.

e)

Notwithstanding subsection

(d), the Board or the hearing

officer will schedule an additional hearing or hearings

on its own motion,

if

it

finds that additional hearing

would aid the Board in

its decision on the proposal.

Section

102.162

Notice Of Hearing

a)

The

hearing

officer

will

set

a

time

and

place

for

hearing.

The Clerk shall give notice of the date of the

hearing as follows:

1)

By notice in the Board’s Environmental Register; and

2)

At

least

20

days

prior

to

the

hearing

date,

by

public

advertisement

in

a

newspaper

of

general

circulation

in the county

in which the hearing

is

to

be

held.

Where

required

by

federal

law,

including but not limited to air pollution and RCRA

proposals,

newspaper notice

shall

be published

at

least

30 days prior to the hearing date.

b)

The

hearing

officer

will

give

notice

by

mail

to

the

proponent

and to all persons who have

submitted their

names and addresses to the Clerk concerning the proposal.

c)

Hearings which

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)

Section

102.163

Notice Of Site-Specific

RCRA

Proposals

a)

Public notice of hearings on site—specific RCRA proposals

shall

be given at

least

30 days before the date

of the

hearing.

b)

In addition to the requirements of Section

28 of the Act

and Section 102.211, the Board,

at a minimum, will give

notice

of hearings on

a site-specific

RCRA

proposal

to

the

following

persons:

1)

Federal agencies as designated by USEPA;

2)

Illinois Department of Transportation;

3)

Illinois

Department

of

Conservation;

II I-—l~)()

---

25

4)

Illinois Department of Energy and Natural Resources;

5)

Illinois Department of Public Health;

6)

The governor

of

any

other

state

adjacent

to the

county in which the facility is located; and

7)

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 102.241, the Board will

give

notice

by

radio

broadcast

in

the

area

of

the

facility.

That

notice

will

include

the

information

required by subsections

(d) (2) and

(d) (4) through

(d) (8)

below.

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 petition;

4)

A

description

of

the

relief

requested

in

the

petition

and

the

Board’s

docket

number

of

the

proceeding;

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;

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 which are claimed or determined

to

be trade secrets, and that procedures are available

11 1—1 ~

---

26

whereby

disclosure

may

be

sought

by

the

public

pursuant to 35 Ill.

Adni.

Code 120.

9)

A statement that site-specific rules may be adopted

pursuant

to Title VII

of the Act and

35

Ill.

Adin.

Code 102,

and a reference to the Board regulations

sought to be modified;

and

10)

Any additional information considered necessary or

proper.

SUBPART

E:

ECONOMIC IMPACT STUDY DETERMINATIONS

Section 102.180

Board Determinations

a)

Within

60

days

of

the

date

that

the Board

accepts

a

proposal for hearing pursuant

to Section

28

of the Act

and Section 102.160,

the Board

shall

determine whether

an economic impact study should be prepared.

b)

Notwithstanding subsection

(a), AT

ANY

TIME

PRIOR TO THE

CLOSE OF THE RECORD DURING THE RULEMAKING PROCEEDING, THE

BOARD

MAY DETERMINE THAT AN ECONOMIC IMPACT STUDY SHOULD

BE

PREPARED,

IF

THE

PROPOSAL

HAS

BEEN

SUBSTANTIALLY

MODIFIED OR IF INFORMATION

IN

THE RECORD INDICATES THAT

AN ECONOMIC IMPACT

ST.UDY WOULD

BE ADVISABLE.

(Section

27

of

the

Act.)

However,

this

subsection

is

not

applicable

to

proceedings

involving

required

rules

pursuant to Section 28.2

of the Act.

c)

IF THE BOARD

DETERMINES

THAT

AN

ECONOMIC

IMPACT.

STUDY

SHOULD

BE

CONDUCTED,

ENR

SHALL

CONDUCT

SUCH

A

STUDY

IN

ACCORDANCE

WITH

“AN

ACT

IN

RELATION

TO

NATURAL

RESOURCES,

RESEARCH,

DATA

COLLECTION

AND

ENVIRONMENTAL

STUDIES”

(Ill.

Rev.

Stat.

1987,

ch.

96

1/2,

par.

7401 et seq.).

THE

BOARD

MAY

IDENTIFY

SPECIFIC

ISSUES

TO

BE

ADDRESSED

IN

THE

STUDY.

(Section 27

of the Act.)

Section 102.181

Request For Determination

a)

WITHIN

21

DAYS

OF

THE

DATE

THAT

THE

BOARD

ACCEPTS

A

PROPOSAL FOR HEARING PURSUANT TO SECTION

28

OF THE ACT

AND

SECTION

102.160,

ANY

PERSON

MAY

REQUEST

THAT

THE

BOARD DETERMINE THAT AN

ECONOMIC

IMPACT STUDY SHOULD OR

SHOULD NOT BE PREPARED.

(Section 27 of the Act.)

b)

Such request shall be made

in writing, and shall detail

the reasons for the request.

The request SHALL DESCRIBE,

TO THE EXTENT REASONABLY PRACTICABLE, THE ECONOMIC IMPACT

OF THE PROPOSED

RULE.

(Section

27

of

the

Act.)

The

description

may

include,

but

is

not

limited

to,

the

projected

cost

of

compliance,

the

number

of

affected

I 1l-1~2

---

27

persons, and the impact of compliance costs on affected

persons.

All

material

facts

asserted

in

the

request

shall be verified by affidavit.

c)

The person filing the request shall file the original and

nine

(9)

copies with the Clerk,

and one copy each with

the Agency, ENR, the Attorney General, and the proponent.

d)

No hearing will be held on any request filed pursuant to

this Section.

Section 102.182

Basis For Board Determination

In

determining

whether

an

economic

impact

study

should

be

performed,

the Board will consider:

a)

Information

in

the record

furnished

by

the

proponent

pursuant

to

Sections

102.121

and

102.141

and

by

any

person

filing

a

request

for determination pursuant

to

Section

102.231;

b)

ITS ASSESSMENT OF THE POTENTIAL ECONOMIC IMPACT OF THE

RULE;

c)

THE POTENTIAL FOR CONSIDERATION OF THE ECONOMIC IMPACT

ABSENT SUCH A STUDY;

d)

THE EXTENT,

IF ANY, TO WHICH THE BOARD IS FREE UNDER THE

STATUTE AUTHORIZING THE RULE TO MODIFY THE SUBSTANCE OF

THE RULE BASED UPON THE CONCLUSIONS OF AN ECONOMIC IMPACT

STUDY; and

e)

ANY OTHER CONSIDERATIONS

THE BOARD

DEEMS

APPROPRIATE.

(Sections 27 and 28.2 of the Act.)

Those considerations

may include, but are not limited to, statutory deadlines

for promulgation

of

rules

and possible

impact

of

the

proposal

on

natural

and

cultural

resources

(fish,

wildlife,

endangered

species,

archeological resources,

etc.).

Section 102.183

Notice Of Board Determination

The

Board

will

issue

a

written

interlocutory order

giving

the

reasons

for

its determination.

The

proponent,

the Agency,

ENR,

the Attorney General and any person who has asked to be placed on

the

notice

list

for

the proposal

will

be

given

notice

of

the

Board’s

determination.

Orders

entered pursuant to

this

Section

may be appealed only pursuant to 35

Ill.

Adm.

Code 101.304.

111—1.93

---

28

SUBPART

F:

CERTIFICATION OF REQUIRED RULES

Section. 102.200

Agency Certification

WHEN THE AGENCY PROPOSES A RULE WHICH IT BELIEVES TO BE A REQUIRED

RULE as defined by Section 28.2(a)

of the Act and Section 102.101,

THE

AGENCY

SHALL

SO

CERTIFY

IN

ITS

PROPOSAL,

IDENTIFYING

THE

FEDERAL

LAW

TO

WHICH THE PROPOSED RULE WILL RESPOND.

(Section

28.2(e)

of the Act.)

Such certificaticn shall include citation to

the

specific

section

of

the

specific

federal

law

to

which

the

proposed rule will respond.

Section

102..201

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 shall file an objection to that certification

within 21 days of the date of the Board’s order accepting

a proposal for hearing.

Such objection shall state the

reasons that the objector believes that the proposed rule

is not a required rule,

and shall include all arguments

which the objector wishes the Board to consider.

A copy

of the objection shall be served upon the Agency and ENR.

b)

The Agency may file

a response to any objection within

10 days

of 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 102.202

Board Determination

a)

The Board will rule upon any objection filed pursuant to

this Subpart within 60 days

of the date that the Board

accepts

a proposal for hearing.

The Board’s ruling will

be

made

in

its

order

determining

whether

an

economic

impact study will be prepared, issued pursuant to Section

102.180.

b)

In ruling upon an objection to an Agency certification,

the Board will consider all information in the record of

that

proceeding,

including

but

not

limited

to

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,

ENR,

and any person who has asked

to

be

placed

on

the

notice

list

for

that

proposal.

ii 1.-1~~~

---

29

d)

Orders entered pursuant to this Section are interlocutory

in nature and may be appealed only pursuant to

35 Ill.

Adm.

101.304.

SUBPART

G:

AUTHORITY OF HEARING OFFICER

Section 102.220

Authority Of Hearing Officer

The hearing officer has the duty to conduct a fair hearing, to take

all

necessary

action to avoid

delay,

to maintain

order,

and

to

ensure development

of

a clear,

complete,

and concise

record.

He

or she will have all powers necessary to these ends,

including (but

not limited to) the authority to:

a)

Require

and

establish

a

schedule

for,

and

notice

and

distribution of, any pre-hearing submission of testimony

and written exhibits;

b)

Require

all participants

to

state

their position with

respect to the proposal;

c)

Administer oaths and affirmations;

d)

Examine witnesses and direct witnesses to testify;

e)

Regulate

the course of

the hearing,

including

but not

limited to controlling the order of proceedings;

f)

Establish

reasonable

limits

on

the

duration

of

the

testimony

and

questioning

of

any

witness

and

limit

repetitious or cumulative testimony and questioning;

g)

Issue,

in the name of the Board, an order compelling the

answering of interrogatories or other discovery requests;

h)

Order the production of evidence as specified in Section

102.261 and 35 Ill.

Adni.

Code 101.261;

i)

Initiate,

schedule and conduct

a pre—hearing conference

as specified in Subpart H;

j)

Issue subpoenas pursuant to Section 102.262 and

35

Ill.

Adm. Code 101.260;

k)

Exclude late—filed briefs and comments from inclusion in

the record for decision;

1)

Rule

upon

motions

as

specified

in

35

Ill.

Adm.

Code

101.247 and this Part;

m)

Rule upon objections and evidentiary questions;

11

~_1~5

---

30

n)

Establish

a schedule for discovery,

including

a date by

which discovery must be completed;

and

o)

Where

pre-hearing

submission

of

hearing

testimony

or

exhibits

has

been

required,

allow

the.

admission

of

testimony

or exhibits which were not pre-submitted,

if

necessary to prevent undue delay or material prejudice.

Section 102.221

Notice And Service Lists

a)

The hearing officer shall maintain a notice list for each

regulatory

proceeding.

The

notice

list

will

consist

of

those

persons

who

have

furnished

their

names

and

addresses

for

inclusion

on

the

notice

list

for

a

specific

proceeding.

Notice

of

all

Board

action

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

but not limited to, the complexity of the proceeding and

the number of participants.

Section 102.222

Effect Of Hearing Officer Ruling

All

decisions,

orders,

and

rulings

made

by

the

hearing

officer

remain in effect during the pendency of any appeal to the Board of

that decision,

order,

or ruling.

SUBPART

H:

PRE-HEARING CONFERENCES

Section 102.240

Initiation And Scheduling

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 PRE-HEARING CONFERENCE BETWEEN THE

PROPONENT

AND

ANY

OR

ALL

OF

THE

POTENTIALLY

AFFECTED

PERSONS.

(Section

27(e)

of

the

Act.)

The

hearing

officer may

schedule

a

pre—hearing

conference

on

his

or

her

own

motion,

or

on

the

motion

of

the

proponent

or

any

potentially

affected person.

A

“potentially

affected

person” is any person,

as defined by the Act and Section

102.101, 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

I iL—i

)(~

---

31

proposal.

A motion to schedule a pre—hearing conference

shall be directed to the hearing officer.

b)

THE NOTICE REQUIREMENTS

OF

SECTION

28

of

the Act

and

Section

102.161

SHALL

NOT

APPLY

TO

SUCH

PRE-HEARING

CONFERENCES.

(Section 27(e)

of the Act)..

However,

the

hearing officer will give notice to any person who has

requested inclusion on the notice list of that proposal.

Section 102.241

Purpose

The purpose of

a pre—hearing conference

shall be:

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 THE TIME AT HEARING.

(Section 27(e)

of the Act.)

Section 102.242

Pre-hearing Order

a)

NO RECORD OF THE PRE-HEARING CONFERENCE NEED BE KEPT, NOR

SHALL

ANY

PARTICIPANT

OR THE

BOARD

BE

BOUND

BY

ANY

DISCUSSIONS CONDUCTED AT THE PRE-HEARING CONFERENCE.

b)

Notwithstanding subsection

(a)

,

WITH THE CONSENT OF ALL

PARTICIPANTS

IN THE PRE-HEARING CONFERENCE, THE HEARING

OFFICER

MAY

ENTER A PRE-HEARING ORDER DELINEATING ISSUES

TO BE HEARD,

AGREED FACTS,

AND

OTHER

MATTERS.

c)

If the participants in the pre-hearing conference agree

to

having

a

pre-hearing

order

entered

pursuant

to

subsection(b), the hearing officer may require that those

participants furnish the text of a proposed order setting

forth the substance of the agreements reached at the pre—

hearing conference.

The hearing officer will enter that

order

if

he

or

she

agrees

that

it

sets

forth

the

substance

of

the agreement.

The order shall

identify

which participants have agreed to the substance

of the

order.

d)

A

PRE-HEARING

ORDER

SHALL

NOT

BE

BINDING

ON

NONPARTICIPANTS IN THE PRE-HEARING CONFERENCE.

(Section

27(e)

of the Act.)

11.1—197

---

32

SUBPART

I:

MOTIONS AND DISCOVERY

Section 102.260

Motion Practice

Motion practice

in regulatory proceedings

is gover~~iedby

35

Ill.

Adm. Code 10l.Subpart H.

All motions and responses shall be served

upon the proponent, the Agency,

ENR, the Attorney General, and all

persons

on

any

service

list

established

pursuant

to

Section

102.221(b).

Section

102.261

Production

Of

Information

The production of information in regulatory proceedings is governed

by 35

Ill.

Adm.

Code 101.261.

Section 102.262

Subpoenas

The issuance and enforcement of subpoenas in regulatory proceedings

is governed by 35 Ill.

Adm. Code 101.260(b)

through

(i).

SUBPART J:

REGULATORY HEARINGS

Section 102.280

Pre—hearing Submission Of Testimony And

Exhibits

a)

The proponent shall 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

pre-hearing

submission

of

testimony

and

any

related

exhibits

by

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

four

(4)

copies

of

pre-submitted

testimony and exhibits shall be filed with the Clerk. The

Agency,

ENR,

and,

if

a participant, the Attorney General

shall each be served with one copy of each testimony and

exhibit.

One

copy

shall

also

be

served

upon

the

proponent

and

each

participant

on

any

service

list,

unless

otherwise

specified

or

limited

by

the

hearing

officer.

Such

service

shall

be

initiated

on

or

before

the date that copies are filed with the Clerk.

d)

All testimony and exhibits shall be submitted in the form

required by 35 Ill.

Adm.

Code 101.103 and labelled 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.

ii l—1~S

---

33

e)

The proponent and each participant who has pre-submitted

testimony shall bring copies of

that testimony and any

exhibits to the hearing.

f)

Testimony submitted prior to hearing will be entered into

the

record

as

if

read,

unless

the

hearing

officer

determines that it will aid public understanding to have

the testimony read.

All persons testifying will be sworn

and will

be subject

to examination.

Modifications

to

previously

submitted

testimony

and

exhibits

may

be

allowed by the hearing officer at hearing provided that

such modifications are either non-substantive

in nature

or

would

not

materially

prejudice

another

person’s

participation

at

hearing.

Objections

to

such

modifications are waived unless raised at hearing.

g)

Where

pre-hearing

submission

of

testimony

is

required

pursuant to subsection

(a) and

(b),

any testimony which

is not pre-submitted

in a timely manner will be allowed

only as time permits, pursuant to Section 102.220(0).

Section 102.281

Transcript

All

testimony

shall

be

recorded

stenographically.

When

the

transcript

is

filed

with

the

Clerk,

the

hearing

officer

will

receive and rule on typographical corrections and reporting errors

from

any

person who

may

examine

the

transcript

for

accuracy.

Failure

of any witness

to

correct the transcript within

14

days

after

its receipt

in

Board

offices

constitutes

a waiver

of

any

right

to correct.

Section

102.282

Admissible

Information

All information which is relevant and not repetitious or privileged

shall be admitted by the hearing officer.

The hearing officer will

rule on objections.

Section

102.283

Presentation Of Testimony

a)

All witnesses at hearings shall

be sworn.

b)

Testimony shall

be in narrative form.

Section 102.284

Questioning Of Witnesses

All

witnesses

shall

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 which is presented

in the form of

a question during questioning of any witness.

I11-19~

---

34

Section 102.285

Record For Decision

The record

includes

the transcript,

all written

testimony,

all

exhibits admitted at hearing, and all public comments,

briefs and

other information timely filed with the Clerk.

SUBPART

K:

ECONOMIC IMPACT HEARINGS

Section 102.300

Hearings On The Economic Impact Study Of New

Proposals

a)

Before

the

final

adoption

of

any

proposal,

the

Board

shall conduct at least one hearing on any economic impact

study submitted

by

EN?.

on any proposed regulation,

or

proposed

amendment

to

existing

regulation,

unless

otherwise provided by the Act.

b)

IN THE CASE OF A REQUIRED RULE,

IF THE ECONOMIC IMPACT

STUDY IS NOT SUBMITTED TO

THE

BOARD WITHIN SIX

(6) MONTHS

OF THE BOARD’S DECISION THAT

AN

ECONOMIC IMPACT

STUDY

SHOULD BE CONDUCTED,

THE

BOARD

MAY

PROCEED

TO ADOPT

A

REQUIRED RULE WITHOUT AN ECONOMIC IMPACT STUDY.

However,

TO THE EXTENT POSSIBLE CONSISTENT WITH SECTION

28.2(b)

OF THE ACT,

THE

BOARD

SHALL CONDUCT A HEARING

ON THE

ECONOMIC IMPACT OF THE PROPOSED REQUIRED RULE.

(Section

28.2

of

the Act.)

Pursuant to Section

28

of

the Act,

this requirement may be fulfilled by considering economic

impact

at

any merit hearing

on

the

proposed required

rule.

C)

Hearings

held

pursuant

to

this

Section

may

be

consolidated

with

any other

hearings

held pursuant

to

this Part.

Section 102.301

Hearings On

The

Economic Impact Study Of

Existing Regulations

a)

WITHIN

A REASONABLE TIME,

BUT

NOT

MORE THAN

120 DAYS,

AFTER EACH ECONOMIC IMPACT STUDY ON EXISTING REGULATIONS

HAS BEEN FILED

BY

ENR,

THE BOARD SHALL CONDUCT PUBLIC

HEARINGS ON SUCH STUDY.

b)

AFTER

CONCLUSION OF THE HEARINGS, THE BOARD SHALL PUBLISH

ITS FINDINGS AND

CONCLUSIONS

ON

THE

AREAS

COVERED

BY

THE

STUDY

AND THE TESTIMONY RECEIVED BY THE BOARD.

The Board

will

satisfy

this

requirement

by

entering

a

written

order.

c)

THE BOARD SHALL ALSO SPECIFICALLY

DETERMINE WHETHER,

AS

A

RESULT

OF

ITS

FINDINGS

AND

CONCLUSIONS,

ANY

REGULATIONS

OF

THE

BOARD

SHALL

BE

MODIFIED

OR

REPEALED.

11

1_2(~r~

---

35

d)

IF THE

BOARD

CONCLUDES

THAT

MODIFICATION

OR

REPEAL

MAY

BE

NECESSARY,

IT

SHALL

PROPOSE

SUCH

MODIFICATION

AS

REGULATIONS

AND

CONDUCT

FURTHER

HEARINGS

ON

SAID

MODIFICATION.

e)

ANY

SUCH PROPOSED MODIFICATIONS SHALL NOT REQUIRE

ANY

ADDITIONAL ECONOMIC IMPACT STUDY.

(Section 4(b)

of “AN

ACT

in

relation

to

natural

resources,

research,

data

collection and environmental studies.)

SUBPART

L:

PUBLIC COMMENTS

Section 102.320

Public Comments

Any person may submit written comments on any proposal within

14

days after the receipt of the transcript in Board offices or within

14

days

after regulation revision under Section

102.340,

unless

otherwise specified by the hearing officer or the Board to prevent

material prejudice

or undue delay.

Comments shall

be filed with

the Clerk and served upon the Agency,

ENR, the Attorney General

(if

a participant), the proponent, and the participants on any service

list

established

by

the

hearing

officer

pursuant

to

Section

102.221.

Comments

which

are

not

timely

filed

will

not

be

considered,

except as allowed by the hearing officer or the Board

to prevent material prejudice.

SUBPART M:

BOARD ACTION

Section 102.340

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.

b)

THE

BOARD

MAY

MODIFY AND SUBSEQUENTLY ADOPT ANY PROPOSED

REGULATIONS,

OR

AMENDMENTS

TO

EXISTING

REGULATIONS

WITHOUT ANY ADDITIONAL ECONOMIC IMPACT STUDY;

PROVIDED

THAT

SUCH

MODIFICATION

BY

THE

BOARD

DOES

NOT

SIGNIFICANTLY

ALTER

THE

INTENT

AND

PURPOSE

OF

THE

PROPOSED

REGULATION

WHICH

WAS

THE

SUBJECT

OF

ENR’S

ECONOMIC IMPACT STUDY.

(Section 27(b)

of the Act.)

c)

Unless

otherwise

provided

in

the

Act,

THE

BOARD

MAY

REVISE PROPOSED REGULATIONS AFTER HEARING IN RESPONSE TO

OBJECTIONS

OR

SUGGESTIONS

MADE

BY

JCAP.

PURSUANT

TO

SECTIONS 5.01(b)

AND 7.06(a)

OF THE APA.

THE BOARD

MAY

MAKE

SUCH A REVISION WHERE IT FINDS:

1)

THAT SUCH OBJECTIONS OR SUGGESTIONS RELATE TO

THE

STATUTORY

AUTHORITY

UPON

WHICH THE REGULATION

IS

111-201

---

36

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.

(Section 28 of the Act.)

Section 102.341

Adoption Of Regulations

a)

IN ADOPTING

ANY

NEW

REGULATION,

EXCEPT A REQUIRED RULE

OR AN IDENTICAL IN SUBSTANCE

REGULATION, THE BOARD SHALL

CONSIDER THOSE

ELEMENTS

DETAILED

IN

ANY

ECONOMIC IMPACT

STUDY PERFORMED

BY

ENR

ON

THAT

REGULATION.

THE

BOARD

SHALL,

IN

ITS

WRITTEN

OPINION,

MAKE

A

DETERMINATION,

BASED UPON THE ECONOMIC

IMPACT STUDY AND OTHER EVIDENCE

IN THE RECORD,

AS TO

WHETHER THE PROPOSED REGULATION

HAS

ANY ADVERSE ECONOMIC IMPACT

ON

THE

PEOPLE OF THE STATE

OF ILLINOIS.

(Section 27(b)

of the Act.)

b)

In the case of a required rule, the Board will follow the

procedures

of

subsection

(a),

except

as

provided

in

Section 102.300(b)

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 of the APA shall not apply

to identical

in substance rulemakings.

Section 102.342

First Notice Of Proposed Regulations

Except when otherwise

directed by the Act,

the Board shall give

first

notice

of

its proposed

adoption,

amendment,

or

repeal

of

regulations pursuant to Section 5.01 of the APA.

The first notice

period shall be at least 45

days,

and shall 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

102.343

Second Notice Of Proposed Regulations

a)

Except when

otherwise

directed

by

the

Act,

the Board

shall

give

second

notice

of

its

proposed

adoption,

amendment,

or repeal of regulations to JCAR.

The second

notice period shall begin on the date written notice

is

received by

JCAR,

and

shall expire

45

days after that

date, except as provided

by

Section 5.01 of the APA.

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

11 1.—2fl2

---

37

suggestions

from

JCAR.

Such

changes

will

be

made

pursuant to Section 102.340(c).

Section 102.344

Notice Of Board Final Action

The Board will give notice of its final action on a proposal to the

proponent, the Agency,

ENR,

the Attorney General, and all persons

on the notice

list.

The

Board will publish notice

of its final

action

in

the

Environmental Register,

and will

enter

a written

opinion stating the reasons

in support of its

final action.

Section 102.345

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;

2)

Publish

the

proposed

regulations

in

the

Illinois

Register;

3)

Serve

a copy of the proposed Opinion and Order

on

the USEPA; and

4)

Receive written comments from the USEPA and other

persons

for

at

least

45

days

after

the

date

of

publication in the Illinois Register.

b)

AFTER

CONSIDERATION

OF

COMMENTS

FROM

THE

USEPA,

THE

AGENCY,

THE

ATTORNEY

GENERAL

AND THE PUBLIC,

THE BOARD

SHALL ADOPT THE VERBATIM TEXT OF

SUCH

USEPA

REGULATIONS

AS ARE NECESSARY

AND

APPROPRIATE

FOR AUTHORIZATION OF THE

PROGRAM.

EXCEPT AS PROVIDED

IN

SECTION 7.2 OF THE ACT,

THE ONLY CHANGES THAT

MAY

BE MADE BY THE BOARD

TO THE

FEDERAL REGULATIONS ARE THOSE CHANGES THAT ARE NECESSARY

FOR

COMPLIANCE

WITH

THE

ILLINOIS

ADMINISTRATIVE

CODE,

AND

TECHNICAL

CHANGES

THAT

IN

NO

WAY

CHANGE

THE

SCOPE

OR

MEANING

OF

ANY

PORTION

OF

THE REGULATIONS.

(Section

7.2(a)

of the Act.)

Section 102.346

Adoption Of Emergency Regulations

a)

WHEN

THE

BOARD

FINDS

THAT

A

SITUATION

EXISTS

WHICH

REASONABLY CONSTITUTES A THREAT TO THE PUBLIC INTEREST,

SAFETY,

OR

WELFARE,

THE

BOARD

MAY

ADOPT

REGULATIONS

IN

ACCORDANCE WITH SECTION 5.02 OF THE APA.

(Section 27(c)

of the Act.)

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

TAKE

ii 1—203

---

38

EFFECT WITHOUT DELAY.

THE BOARD SHALL PROCEED WITH ANY

REQUIRED

HEARINGS

WHILE

THE

REGULATION

CONTINUES

IN

EFFECT.

(Section 27(c)

of the Act.)

Section 102.347

Adoption Of Peremptory Regulations

a)

WHEN THE

BOARD

FINDS

THAT A PEREMPTORY

RULEMAKING

IS

NECESSARY

AND

STATES

IN

WRITING

ITS REASONS

FOR THAT

FINDING,

THE

BOARD

WILL

ADOPT

PEREMPTORY

RULEMAKING

UPON

FILING A NOTICE OF

RULEMAKING

WITH THE SECRETARY OF STATE

PURSUANT TO SECTION 6.01 OF THE APA.

b)

NOTICE OF SUCH

PEREMPTORY

RULEMAKING

WILL

BE

PUBLISHED

IN THE ILLINOIS REGISTER.

(Section 5.03

of the APA.)

Section

102.348

Adoption Of Temporary Regulations

a)

THE BOARD

MAY

ADOPT

A

PROPOSED

REGULATION PRIOR TO ITS

CONSIDERATION OF

AN

ECONOMIC IMPACT STUDY

WHEN

SUCH STUDY

IS FILED WITH THE BOARD LESS THAN 120 DAYS IN ADVANCE OF

A DATE ON WHICH A TEMPORARY NON-EMERGENCY REGULATION OR

PROVISION

THEREOF

WOULD

LAPSE

PRIOR TO

ADOPTION

OF A

PERMANENT REGULATION

OR

PROVISION THEREOF

ON THE SAME

SUBJECT, OR LESS

THAN

120 DAYS IN ADVANCE OF A DEADLINE

FOR ADOPTION OF THE REGULATION WHICH

IS ESTABLISHED

IN

A STATE STATUTE.

(Section 27

of the Act.)

b)

SUCH ADOPTED REGULATION SHALL BE. EFFECTIVE UNTIL 180 DAYS

AFTER THE ECONOMIC IMPACT STUDY REQUIRED PURSUANT TO THIS

SECTION

IS FILED WITH THE

BOARD, AND

IN NO EVENT SHALL

A REGULATION ADOPTED

PURSUANT

TO THIS PROCEDURE STAY

IN

EFFECT FOR MORE THAN

ONE

YEAR.

(Section 27 of the Act.)

SUBPART N:

MOTIONS FOR RECONSIDERATION

AND APPEAL

Section 102.360

Filing Of Motion For Reconsideration

Motions

for

reconsideration

or

modification

of

any

Board

order

taking substantive action on

a regulatory proposal shall

be filed

in accordance with 35 Ill. Adm. Code 101.246.

The contents of such

motions are governed by

35 Ill.

Adm.

Code 101.242.

Section 102.361

Disposition Of Motions

For Reconsideration

a)

AFTER

COMMENCEMENT

OF

THE

SECOND

NOTICE

PERIOD,

NO

SUBSTANTIVE CHANGES

MAY BE

MADE

TO A PROPOSED

RULEMAKING

UNLESS

IT

IS

MADE

IN

RESPONSE

TO

AN

OBJECTION

OR

SUGGESTION

OF

JCAR.

(Section

5.01(b)

of

the

APA.)

Therefore,

submission

of second notice of

a proposal

to

JCAR will preclude the Board from revising that proposal

ii 1—2~~’~

---

39

in response to

a motion for reconsideration.

However,

the

Board

may

resubmit

a

rule

for

first

notice

if

necessary to prevent material prejudice.

b)

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 102.362

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 102.363

Appeal

Any final Board order may be appealed to the appellate court within

35 days of the entry of that order, pursuant to Sections 29 and 41

of the Act.

TITLE

35: ENVIRONMENTAL PROTECTION

SUBTITLE A:

GENERAL PROVISIONS

CHAPTER

I:

POLLUTION CONTROL BOARD

PART 106

HEARINGS PURSUANT TO SPECIFIC RULES

SUBPART D

:

RCRA ADJUSTED STANDARD PROCEDURES

Section 106.415

Notice and Conduct of Hearing

a)

The Board will hold at least one public hearing prior to

granting an adjusted standard.

b)

The hearing officer will schedule the hearing.

The Clerk

will give notice

of the hearing

in

accordance with

35

Ill.

Adm. Code 102.162.

c)

The proceeding will be

in accordance

with

35

Ill.

Adm.

Code l02.Subpart J.

(Source:

Amended at

Ill.

Reg.

________

,

effective

_____)

SUBPART E:

AIR ADJUSTED STANDARD PROCEDURES

Section

106.506

Notice and Conduct of Hearing

a)

The Board will hold at least one public hearing prior to

granting an adjusted standard.

111-205

---

A

b)

The hearing officer will schedule the hearing.

The Clerk

will give notice

of

the hearing

in accordance with

35

Ill.

Adm.

Code 102.162.

C)

The proceeding

will be

in accordance with

35

Ill.

Adin.

Code 102.Subpart J.

(Source:

Amended at

Ill.

Reg.

,

effective

)

SUBPART

F:

WATER WELL SETBACK EXCEPTION PROCEDURES

Section 106.602

Contents of Petition

a)

The petitioner shall file ten copies of the petition for

exception with the Clerk of the Pollution Control Board

(Board), and shall serve one copy upon the Agency.

b)

The petition shall contain the following information:

1.

A written statement,

signed by the petitioner or an

authorized

representative,

outlining the

scope

of

the evaluation, the nature

of, the reasons for and

the

basis

of

the

exception,

consistent

with

the

level of justification contained in Section 14.2(c)

of the Act.

2.

The

nature

of

the

petitioner’s

operations

and

control equipment; and

3)

Any additional information which may be required in

Section 14.2(c)

of the Act.

c)

In accordance with

35 Ill. Adm. Code 101.143 the petition

shall contain proof of service on owners required to be

notified

and

provided

with

a

copy

of

the

petition

as

required by Section 14.2(c)

of the Act.

(Source:

Amended at

Ill.Reg.

________

,

effective__________

Section 106.604

Notice and Conduct of Hearing

a)

The Board will hold at least one public hearing prior to

granting an exception.

b)

The hearing officer ‘.;ill schedule the hearing.

The Clerk

will give

notice

of

the hearing

in

accordance with

35

Ill.

Adm.

Code 102.162.

11 1-20’s

---

41

c)

The proceeding will

be

in accordance with

35

Iii.

Adm.

Code 102..Subpart J.

(Source:

Amended at

Ill.

Reg.

________,

effective

_____

IT IS SO ORDERED.

I,

Dorothy

M.

Gunn,

Clerk

of the Illinois Pollution Control

Board, hereby certify that the above Opinion and Order was adopted

on the /~r2~day of

.7~)

~

,

1990,

by

a vote of

7-c.

222.

~

~

Dorothy M.~~unn,Clerk

Illinois Pollution Control Board

111—207