ILLINOIS

POLLUTI.ON

 CONTROL BOARD

February

8,

1990

IN THE MATTER OF:

~ENDMENTS

TO

35

 ILL.

 ADM.

 CODE

105.102; REPEAL OF DE NOVO

HEARINGS FOR APPEALS OF NPDES

)

 R90—8

PERMITS.

)

 (Rulemakinc)

PROPOSED RULE

 FIRST NOTICE

OPINION AND ORDER OF THE BOARD

 (by B.

 Forcade):

This matter arises on the Board’s own motion.

 Recently,

the

appellate court interpretations of

 a Board regulation have been

different than

 the Board’s

 interpretation

 of that regulation. To

ensure the Board’s objective

 is secured,

 the Board today proposes

to amend that

 regulatory language

 to more clearly

 reflect the

Board’s present intentions.

The regulation

 at issue,

35

 Ill. Adm.

 Code 105.l02(b)(8)

provides for de novo hearings

 on disputed issues of fact

 in NPDES

permit appeals.

 The Second District,

 in Dean Foods Company

v.

PCB,

 143 Ill. App.

3d

 322,

 492 N.E.

2d

1344

 (Second DistricL,

1986),

 held the

 “de novo”

 required the Board

 to entertain facts

 not before the Agency

 in its permit review.

 In City

 of East

Moline

v.

 Illinois Environmental Protection Agency,

 PCB 86—218

(September

8,

 1988),

 the Board reevaluated

 the regulation and

held that ‘de novo” meant

a

 ‘new and fresh”

 look at the facts

before the Agency and a decision that did not grant deference

to

the prior Agency decision.

 The Board

 felt that allowing new

information

 to be introduced,

 information that was not before

the

Agency, would make this Board

 the permit issuing entity

in

Illinois

 in contravention of Section

 39(a)

 of the Environmental

Protection Act (hereinafter

 “the Act”), and Village of Hillside

v. John Sexton Sand

 & Gravel Company,

 105 Ill.

 App.

 3d 533,

434

N.

E.

 2d 382

 (First District,

 1982).

The Board’s interpretation appears

 to be

 at least partially

at odds with two cases very recently decided by the appellate

courts,

 City of East Moline

 PCB,

188

 Ill.

 App.

3d

 349,

544

N.E.

2d

82

 (Third District,

 1989),

 and Citizens Utilities

v.

PCB,

—

 Ill. App.

3d

—,

—

 N.E.2d

—

 (Third District,

 Sli.p

Opinion January

5,

 1990).

The Board intends

 to correct

 this discrepancy

 in interpre-

tation by proposing

 to amend the regulatory language

 to more

clearly

 reflect

 the Board’s

 intentions.

Today’s proposal flows from the authorization of Section

26

of

 the Act,

 allowing the Board

 to adopt procedural

 rules pursuant

I PS—i 7:~

—2—

to the Administrative Procedures Act (hereinafter

 “APA”).

The

Board intends

 to follow the procedures of Section

 5.01

 of the APA

by allowing comment for

 at least

 45 days after

 first notice

publication

 in the Illinois Register.

 Because of the limited

scope

 of the proposed amendments,

 the Board does not intend

to

i~itiatehearings

 in this matter.

 Interested persons are

requested to provide all comments

 in written format

 to the Clerk

of

 the Board.

The Board’s intention

 in this proceeding

is

 to make the

NPDES permit appeal process function

 in the same manner as

the

appeal o~all other Agency issued permits.

 :n those other

circumstances,

 the Board gives

 no deference

 ro the Agency’s

decision,

 but neither does the Board allow a hearing based on

totally new factual material

 not previously before the Agency.

The Board believes

 implementation of this concept can be

accomplished

 in NPDES permit appeals by including the language,

‘The decision of the Board

 shall be based excusively

 on the

record before the Agency incuding

 the record of hearing,

if

any.”

 This language,

 as well as the burden o~proof language,

is

found with minor semantic differences

 in Section

 40(b),

 Cc),

and

(d)

of

 the Act governing permit appeals.

 Today’s proceeding

is

not intended

 to make any changes

 in the manner

 in which other

non-NPDES permit appeal proceedings are conducted.

The Board specifically encourages all interested persons to

comment

 on what unique aspects of the NPDES permitting process

would require divergence

 from the traditional Board permit

 review

procedures which are limited

 to the record before the Agency,

and

whether such divergence

 could be accomplished without making the

Board the permitting

 agency.

ORDER

The Board hereby proposes

 for First Notice the following

amendments

to

35

 Ill. Adm.

 Code

 105,

 Subtitle A:

 General

Provisions,

 Chapter

I,

 Pollution Control Board,

 Section 105.102,

Permit Appeals.

 The Clerk

 of the Board

 is directed

 to file these

proposed amendments

 with the Secretary of State.

TITLE

35:

 ENVIRONMENTAL PROTECTION

SUBTITLE

A:

 GENERAL PROVISIONS

CHAPTER

I:

 POLLUTION

 CONTROL

 BOARD

PART

105

PERMITS

Sect ion

105.101

 Setting

 Standards

105.102

 Permit Appeals

105.103

 Permit Review

105.104

 Cost of Review

APPENDIX A

 Old Rule Numbers Referenced

lOS— 174

—3—

AUTHORITY:

 Authorized by Section

26

 of the Environmental

Protection Act (Ill.

 Rev.

 Stat.

 1979,

 ch. lll~,par.

 1026)

and

implementing Sections

5,

39,

 40 and 40.1 of the Illinois

Environmental Protection Act

 (Ill.

 Rev.

 Stat.

 1979,

 ch. 1ll~,

pars.

 1005,

 1039,

 1040 and 1040.1,

 as amended by P.A.

 82—682).

SOURCE:

 Filed with Secretary of State January

1,

 1978;

 amended

4

Ill.

 Reg.

52,

 page

 41, effective December

11,

 1980;

 codified

6

Ill.

 Reg.

 8357;

 amended

 in R90—8 at

14

 Ill.

 Reg.

_________

effective _________________________

Section 105.102

 Permit Appeals

a)

 Permit Appeals Other

 than NPDES

 (National Pollutant

Discharge Elimination System)

 Permit Appeals:

1)

 If the Agency denies the permit,

 it shall advise

the permit applicant

 in writing

 in accordance with

the requirements

 of Section

 39(a)

 of the

Environmental Protection Act

 (Act).

2)

 In the case of

 a denial of

 a permit

 or issuance by

the Agency of a permit with one or more conditions

or

 limitations

 to which an applicant objects,

an

applicant who seeks

 to appeal

 the Agency decision

shall

 file a petition for a hearing before

the

Board within

 35 days of

 the date of mailing

 of the

Agency’s final decision.

 The petition shall

include:

A)

 Citation of the particular standards under

which a permit

 is sought;

B)

 A complete and precise description of the

facility,

 equipment,

 vehicle, vessel,

or

aircraft for which

 a permit

 is sought,

including

 its location;

C)

 A complete description of contaminant

emissions and of proposed methods

for

 their

control;

and

D)

 Such other materials

 as may be necessary to

demonstrate that the activity

 for which the

permit

 is sought will

 not cause

 a violation

of

the Act or

 the regulations.

3)

 The method of filing service

 shall

be

 in accordance

with Sections 103.122 and 103.123.

4)

 The Agency shall appear

as

 respondent

 in the

hearing and shall,

 within

 14 days,

 upon notice of

inS— 175

—4—

the petition,

 file with the Board

 the entire Agency

record of the permit appllcation,

 including:

A)

 The application;

B)

 Correspondence with

 the applicant; and

C)

 The denial.

5)

 The Clerk shall give notice

 of the petition and

hearing

 in accordance with Part

 103.

6)

 The proceedings shall

he

 in accordance with

the

rules set forth

 in Part

 103.

b)

 NPDES Permit Appeals:

1)

 If the Agency denies an NPDES Permit,

it

 shall

advise the permit applicant

 in writing

in

accordance with the requirements

 of Section

 39(a)

of

 the Act.

2)

 In the case of the denial

of

 an NPDES Permit

 or the

issuance by the Agency of

 an NPDES Permit with one

or more conditions or limitations

 to which

the

applicant objects,

 the applicant may contest

the

decision of the Agency by filing with the Clerk of

the Board

 a petition for review of the Agency

s

action

 in accordance with this Section.

3)

 Any person other

 than the applicant who has been

a

party

to

 or participant

 at an Agency hearing with

respect

 to the issuance or denial

of

 an NPDES

Permit by the Agency,

 or any person who requested

such

 a hearing

 in accordance with applicable

 rules,

may contest

the

 final decision of

 the Agency by

filing with the Clerk

 a petition for review of the

Agency’s action.

4)

 The petition shall be filed and notice issued

within

 30 days

 from the date

 the Agency’s final

decision has been malled to the applicant and all

other persons who have right

 of appeal.

 The method

of

 filing and service shall

be

 in accordance with

Sections 103.122 and 103.123.

5)

 The Agency shall appear

as

 respondent and shall

file an answer consisting

 of the hearing

 file of

any hearing which may have been held before

the

Agency,

 including any exhibits, and the following

documents:

 NPDES Permit application, NPDES Permit

denial

or

 issuance letter,

 and all correspondence

with the applicant concerning the application.

1 08—1 7(

—5—

6)

 All parties other than the petitioner who were

parties to or

 participants at any Agency hearing

shall

 be made respondents.

7)

 The petition shall

 contain

 a statement

of

the

decision or part thereof

 to be

 reviewed.

 The Board

upon motion of any respondent shall,

 or upon its

own motion may,

 require of

 the petitioner

a

specification of

 the errors upon which

the

petitioner

 relies

 in his petition.

8)

 The her~r~ bef~e ~he Board

~a~

 e~er~td~e

er~

feet

 eee~tedby ~1ieer~t~e

~eee~.--

 The A~er~ey~-e

 fir~d~g3a~d

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fae~ ehall

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~.ger~ey~-~ eee+er~e

fae~ are

d~e~~ed

by the parey

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feet

are

reieed

 the review

preeeed±~7 the

Beard

 may make

ewr~determ~riatieri

feet

baeed

er~the

reeerdT

arty

parry

deciree

~ntredt~ee

ev~de~ee

befere

the

beard

with

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arty

d~ptited

iee~e

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eha~+ eer~dtiet

eee~heari~

a~d reee~ve ev~der~eewith

re~eeet

s~eh i~e~eef

faet-

In

 a permit appeal proceeding,

 the burden of

proof

 shall

 be on the petitioner.

 It shall be the

duty of

 the petitioner,

 at hearing,

 to prove

for

each and every material fact that

 its permit

application,

 as submitted to the Agency,

establishes that

 the facility will not

 cause a

violation

 of the Act

 or Board

 regulations.

If

conditions are challenged,

 the petitioner must

prove

 that

 they are not necessary

 to accomplish the

purposes

 of the Act and therefore,

 were imposed

unreasonably.

 The decision

 of the Board shall

be

based exclusively on the record before the Agency

including the record of the Agency hearing,

 if any.

9)

 This proceeding shall be

 in accordance with Part

103.

10)

 The order

 of the Board entered pursuant

 to hearing

may affirm or reverse

 the decision of the Agency,

in whole

or

 in part,

 may remand the proceeding

to

the Agency

 for the taking of

 further evidence,

or

may direct

 the issuance of the permit

 in such form

as

 it deems

 just,

 based upon the law and the

evidence.

(Source:

 Amended

 Ill.

 Reg.

 effective

________-

IT

 IS SO ORDERED

Board Member

 J. Anderson dissented.

108—177

—6—

I,

 Dorothy

 M. Gunn,

 Clerk of the Illinois Pollution Control

Board, hereby certify

 that the above Proposed Rule,

 First Notice

Opinion an~Order

 was adopted on the

‘~

day

of

__________________

 1990,

 by a vote of

~

Illi

 lution Control Board

108—178