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
V.
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
eee~e
ert
q~etie~s
ef
fae~ ehall
be
p~+ma fae+e
~t~e
a~d
eerree~-~
ff
~he
~.ger~ey~-~ eee+er~e
ef
fae~ are
d~e~~ed
by the parey
er
~f
~iee
ef
feet
are
reieed
~
the review
preeeed±~7 the
Beard
may make
ewr~determ~riatieri
ef
feet
baeed
er~the
reeerdT
ff
arty
parry
deciree
te
~ntredt~ee
ev~de~ee
befere
the
beard
with
respeet
re
arty
d~ptited
iee~e
ef
faet~
the
Beard
eha~+ eer~dtiet
a
de
eee~heari~
a~d reee~ve ev~der~eewith
re~eeet
te
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
5
lution Control Board
108—178