ILLINOIS POLLUTION CONTROL BOARD

June

 8, 1989

THE

flATTER

OF:

PROCEDURAL

RULES

REVISION

ILL.

.ADM.

CODE

)

R88-5

(A)

101,

106

(Subpart

G),

and

107

ADOPTED RULE.

 FINAL ORDER.

OPINION

AND

ORDER OF THE BOARD

 (by J.

 Theodore Meyer):

This matter

 is before t~1eBoard

 for adoption

 of some new

procedural

 rules.

 On September

 8, 1988,

 the Board proposed

for

first notice revisions

 of some

of

 its procedural

 rules.

 That

proposal

 included proposed

new

general

rules

(35

Ill.

Adrn.

Code

101),

new

rules

covering

regulatory

proceedings

(35

Ill.

Adm.

Code

102),

and

new

rules

for

adjusted

standards

proceedings

(35

Ill.

Adm.

Code

106).

The

Board

also

proposed

repeal

existing

Parts

101,

102,

and

107.

(Part

107

currently

contains

rules

pertaining

sanctions.

Rules

sanctions

have

been

proposed

part

the

new

Part

101

general

rules.)

opinion

supporting

the

proposed

rules

was

adopted

September

22,

1988.

 The proposed rules were published

 in the

Illinois

on September

23,

 1988 at

12

 Ill.

 Reg.

 14822, 14853,

 14865,

 14886,

14918,

and

 14933.

 Merit hearings were

 held

October

13,

1988

Springfield,

and

October

21,

1988

 in Chicago.

The

 first

notice

comment

period

 closed on Llonday, November

7,

 1988.

January

19,

1989

the

Board

took

two

actions

this

procedural

rules

revision.

First,

the

docket

 was split

 into two

dockets.

Docket

R88—5(A)

includes

the

proposed

rules

 Part 101

(general

provisions),

the

proposed

rules

 in Subpart

G

 of Part

106

(adjusted standard proceedings),

 and the proposed repeal

 of Part

107.

 Docket R89—5(B) will

 include

the

proposed

rules

for

regulatory proceedings

 (Part

 102)

 and non—substantive revisions

to Subparts D,

E,

and

F

 of Part

 106.

 This

 split of the docket

was done

 to allow Parts 101,

106

 (Subpart G), and 107

 to proceed

second

notice

while

the

Board

further

considers

the

comments

Part

102

received

hearing

and

during

the

first

notice

comment

period.

The

Board

anticipates

taking

 further action

on

Part

102

 in the near future.

The

Board wishes

 to acknowledge

 the contributions of

attorney assistants Elizabeth Schroer Harvey and John

M.

 Vandlik,

as well

 as the rest

 of the Board’s

 legal

 staff,

to

 the drafting

of these

 rules

and

 the supporting opinion.

100—95

—2--

The second action taken on January 19 was the proposal for

second notice

 of the rules in R88—5(A).

 The second notice order

was withheld from submission

 to the Joint Committee on

administrative Rules

 (JCAR)

 to allow interested persons

to

comment on the rules.

 That public comment period ended on

Wednesday, February

8,

 1989.

The Board received

 fifteen comments during the first notice

comment period.

 (Public Comments

 (P.C.)

 #11—25;

 please note that

P.C. ~1—l0 pertain to

 an earlier proposal which was not

adopted.)

 The Board also rc~eivedeight comments after

 the close

of the comment period.

 (P.C.

 #26—33.)

 These

 late comments were

filed between one week and five weeks late.

 The Board did not

accept these comments and did not consider them in adopting these

rules.

 Finally,

 the Board received six public comments during

the “second

 notice” comment period which ended

 on February

8,

1989.

 (P.C.

#35

—

 40.)

 Except

for

 the eight late comments,

the

Board has considered

all

of

 the comments when revising the

proposed rules.

 To the extent that the public comments address

the proposed revisions to Part

102

 (regulatory proceedings),

those comments will also be considered when the Board

 takes

further action

 in R88—5(B).

On March

 2, 1989,

 the Board proposed the rules

 in Part 101

and Subpart G of Part

 1.06 and the repeal

 of Part 107

for

 second

second notice.

 The rules

 were then submitted

to

 the Joint

Committee

 on Administrative Rules

 (JCAR)

 for second notice

review.

 The second notice period expired on ~1ay8, 1989.

On

May

9,

 1989 ~3CAR issued

 its Certification

 of No Objection to Subpart

G of Part

106

 (adjusted

 standards)

and

 to the repeal

 of existing

Part 101 (general rules) and Part

 107 (sanctions).

 JCAR issued

its Certification of Objection

 to the rules

 in new Part 101 on

May 9,

 1989.

 The Board’s response

 to that objection

 is discussed

below.

Please note that

 this opinion contains only the Board’s

 comments

on

the

 rules as

 they are adopted.

 The Board’s responses

to first and second notice comments are contained

 in the March

2,

1989 opinion and order,

 and will

 not be

 repeated here.

Substantive changes agreed

 to with JCAR will

 be discussed

 in the

opinion.

JCAR Objection

On May

9,

 1989 JCAR

 issued

 its Certification and Statement

of Objection

 to new Part 101 (general rules).

 As previously

noted,

 the second notice period expired

on

 flay

8,

 1989.

 JCAR did

not request

 an extension of the review period.

 Despite

 the fact

that

 JCAR action occurred one day after

 the second notice period

ended,

 the Board will formally respond

 to the objection.

The

Board does

so

in

 a spirit

 of cooperation with the members of

JCAR,

 although

 it could simply ignore the objection

 and adopt

the

rules.

 iii.

 Rev.

 Stat.

 1987,

ch.

 127, par.

 1007.06(c);

1

 Ill.

Adrn.

 Code 100.510(b).

100—96

—3—

JCAR

 first objected to Sections 101.241(c),

 101.243(a),

and

101.245 based upon

 its contention that those

 rules

 do not contain

standards

 for determining what constitutes “material prejudice”

as that term relates to discretionary determinations

 by the Board

and

 its hearing officers.

 However,

 the Board finds that the

phrase

 “material prejudice”

 is indeed the standard by which the

Board and

 its hearing officers make the determinations specified

in the rules.

 The term “material”

 is defined

 in the definitions

section

 (Section 101.101), and the word

 “prejudice” has

its

ordinary meaning.

 If the Board

or

 its hearing officer finds

“material prejudice” when applying the facts

of

 a case,

 then

it

will do whatever

 is specified

 in the

 rules.

 The Board declines

to provide standards for

 its standards.

 Therefore,

 the Board

refuses

 to modify or withdraw Sections 101.241(c),

 101.243(a),

or

101.245.1

Second,

 JCAR objected

 to Section 101.106(a),

 stating that

the rule

 fails

 to state the standards

 to be used

 in determining

whether materials from another Board docket will be allowed

to

be

 incorporated into the record

of

 a pending Board proceeding.

Again,

 the Board

 finds

 that the

 rule does contain the standard to

be used

 in determining whether

 to allow incorporation

 of other

material.

 The rule specifically states that the person seeking

incorporation “shall demonstrate

 to the Board or the hearing

officer

 that the material

to

 be incorporated

is

 relevant to the

proceeding.”

 Section

 1.01.1.01 specifically defines

 “relevant”

as

“having any tendency to make the existence

 of any fact that

 is of

consequence

 to the determination

 of the proceeding more probable

Or

 less probable than

 it would

 be without

 that

 information.”

Tne

Board maintains that Section 101.106(a) contains

 all standards

and policies relating to the incorporation of material from other

Board dockets.

 Therefore,

 the Board refuses

 to modify or

Withdraw Section 101.106(a).

Third,

 JCAR objected

 to Section 101.120,

 based upon its

contention that the rule does not contain relevant Board policies

on filing fees,

 detailed

in

 a December

15,

 1988 Board

resolution.

 The two “policies” which JCAR states are missing

 from Section

 101.1.20

 are:

(1)

 the Board’s interpretation

 of the

statutory language “petition

 for variance”

 as meaning

 only

variances filed pursuant

 to Section

 35(a)

 of the Er~vironmental

Protection Act

 (Act),

 Ill.

 Rev.

 Stat.

 1987,

ch.

 111½,

 par.

lO35(a),

 thus exempting provisional variances from filing fees;

and

C2)

 the Board’s

 interpretation

of

 “petition for review

of

Permit” as applying

 to all actions brought pursuant

 to Section

40

1The Board

 notes

 that on page

 of the Statement

 of Objection,

JCAR states that

 it also objects

 to Section 101.247(c)

 for the

same

 reasons.

 That section

 is not listed earlier

 in the

objection.

 The Board’s response would be

 the same for Section

‘01.247(c)

 as for the other sections.

100—97

—4—

of

 the Act.

 The Board first points out

 that Section

101.120(b)(3) does indeed contain

 the phrase

 “or any petition for

review pursuant

 to Section

 40 of

 the Act”,

 thus incorporating the

second “policy” which JCAR stated was missing from the rule.

Second,

 the Board “policies” which are allegedly not set out

in

the

 rule are Board interpretations

 of statutory language

establishing filing fees.

 Because

 of the nature of

 the Board’s

statutory mandate,

 the Board often interprets statutory language

and

 its own rules

 in its opinions,

 orders,

 and resolutions.

It

would be

 literally impossible

to

 include

 all such interpretations

in rules.

 The Board does not believe

 that the interpretatiDns

at

issue here are Board “policies” which would hinder

 a person’s

ability to pay the statutorily—mandated

 filing fees.

 The Board

declines

 to withdraw or modify Section 101.120.

PART

101

 GENERAL RULES

Subpart

A:

 General Provisions

This Subpart sets out some

of

 the basic

 requirements

and

procedures

 for all Board proceedings.

 Section 101.100

“Applicability” states that Part 101

 is applicable

 to all

proceedings conducted by the Board, and clarifies that Part 101

is

 to be

 read

 in conjunction with the Board’s other procedural

rules

in

35

 111.

 Adm.

 Code

 102 through

 120.

 Subsection

(b)

states

 that

 in the absence of

 a specific provision

 in the

procedural

 rules,

 the parties or participants may argue

 that

a

provision of the Code of Civil Procedure,

 Ill.

 Rev.

 Stat.

 1987,

ch.

 110,

 par.

 1—101

 et seq.,

or

 the Illinois Supreme Court Rules,

Ill.

 Rev.

 Stat.

 1987,

ch.

 I1OA, par.

I

 et seq.,

 provide guidance

for the Board

 or hearing officer.

 This provision codifies

current practice, with

 the goal

 of achieving consistency

throughout

 all types

 of Board proceedings.

 Subsection

(c)

of

Section 101.100 provides

 that the procedural

 rules

are

in

addition

 to the provisions

 of the Illinois Administrative

Procedure Act,

 ill.

 Rev.

 Stat.

 1937,

ch.

 127,

 par.

1001

 et. seq.,

unless otherwise provided

 by the Act.

 Again,

 this merely

codifies current practice and statutory requirement.

Section 101.101 contains definitions

 of terms used

 in Part

101.

 The Board has added

 a definition

of

 “undue delay”

to

satisfy JCAR concerns.

Section 101.102

 “Filing

of

 Doctiments” includes

 the Board’s

correct Chicago address, and provides that filing of documents

with the Clerk may be done by certified,

 registered,

 or First

Class mail,

 by messenger

 service,

 or personally at

 the Board’s

Chicago office.

 Filing by electronic transmission,

 such

as

telefax

machine

computer

modem,

prohibited,

unless

the

Board

specifically

requests

such

filing.

~hi1e

the

Board

a..’are

that

some

court

systems

are

experimenting

with

electronic

filing,

 the Board’s staffing levels cannot presently accommodate

such

experimentation.

This

prohibition

allows

for

better

recordkeeping and tracking of

 filed documents,

 since

 all filings

100—98

—5—

will

accepted

one

central

point,

the

receptionist’s

 desk.

 Any document which

 is filed

 by telefax without

 the Board’s

request will be

 ignored

 and no action taken

 on it.

Section 101.102 changes current practice

 by providing that

filing,

 inspection,

 and copying

 of documents may be done

 in the

Clerk’s office from 3:30

 a.m.

 to 4:30

 p.m.,

 instead of

 until 5:00

p.m.

 This change allows staff

 to complete the duties associated

with filing and inspection

 before the Board’s offices

 close.

Board offices

 will continue to

 be open until

 5:00 p.m.

 for phone

calls,

 etc.

Subsections

(d)

and

(e)

 of Section 101.102 address

 the issue

of when

 a document

 is considered “filed.”

 Subsection

(d)

provides that the time of

 filing

 of any document will

 be the date

on which

it

 is date—stamped

 by the Clerk, unless date—stamped

after any due date.

 If the document

 is received after any due

date,

 the time

 of mailing will

 be deemed

 the time

 of filing.

Proof

 of the date

 of mailing will be the certificate

of

 service,

made pursuant

 to Section 101.143.

 The date

 of the postmark will

not be the relevant date.

 The Board

 sees that this provision

could

 be abused,

 but believes that

 a certificate

of

 service

(which

 is made by affidavit of

 a non—attorney and

 by certificate

of an attorney)

is

 the best way

 to prove mailing.

It

 is true

that

 a person could “misstate”

 the date of mailing,

 but he

or

she

would do

 so under oath.

It

 is equally possible that

 an envelope

could be metered

 with

 a date prior

 to the date

it

 is actually

mailed,

 but that action would not be done under

 oath.

 This

 “time

of filing” rule of subsection

(d)

 is based upon Supreme Court

Rule

 373.

 Please note that even

 a statutory appeal period

is

subject to

 the “mailed

 is filed unless

 received before

 the due

date”

 rule.

 The Agency argued

 in its first notice comments that

an appeal must be actually received

 by the Clerk within the

statutory appeal time,

and

 that any use of

 a mailbox rule

 in that

situation would impermissibly extend the appeal time.

 (P.C.

~l9.)

 However, the Supreme Court of Illinois recently held

 that

notices of

 appeal mailed within the 30—day period and received

thereafter

 are timely filed.

 Although that case involved the

application of Supreme Court Rule

 303,

 the court specifically

noted that Rule

 373 has a “pro—mailing policy” which should be

applied where possible.

 The court

 noted

 that

 a liberal

 “pro—

mailing policy”

 is more equitable,

 since

 it places law firms

which may lack access

 to messenger services on an equal

 footing

with firms

 that have such access.

 Harrisburg—Raleigh Airport

Authority

v.

 Department of Revenue Nos.

 66381, 66544

 (cons.).

The Board agrees with

 the court’s reasoning,

 and believes that

this rule

 is the most equitable procedure.

 The Board notes that

there may

 be some disadvantages to this rule,

 and that several

comments urged

 the use of

 a “received

 is filed”

 rule.

 However,

the use of

a

 “received

 is filed”

 rule puts persons not located

in

the Chicago area at

 a severe disadvantage,

 because they do not

have the option of using

 a messenger service or personal delivery

to file documents at the Clerk’s Chicago office.

 Subsection

(e)

has been added

 to state

 that the Board or

 the hearing officer may

100—99

—6—

accelerate

 a filing schedule upon written notice

 to the

participants or parties.

 This will allow

 the Board

 or hearing

officer

 to specify that a required document must actually arrive

in the Clerk’s office by a certain date,

 if application of

subsection

 (d) would

 result

 in undue delay.

Subsection

 (d) also provides that

 a statutory decision time

does not begin to run until

 the initial

 filing in a deadline

proceeding

 (such

as

 a permit appeal)

 is actually received

 by the

Clerk.

 For example,

if

 a permit appeal must be filed by March

and

it

 is mailed on March

1,

 it will be considered timely

filed.

 However,

 the 120—day decision time will not begin until

the appeal

 is actually date—stamped by the Clerk.

“Form of Documents”, Section 101.103, provides

 guidance on

the form and number

 of copies

 of documents to be filed with the

Clerk.

 The Board notes that the requirement

 of the original and

nine copies of most documents filed with the Clerkmay

 seem like

a lot of

 copies,

 but believes that the requirement

is

necessary.

 The original

 is kept by the Clerk and seven copies

are distributed

 to the Board members,

 leaving only two copies for

review by staff and the public and

 to serve as “extras”.

The

Board believes that Section 101.103(e), which allows

for

 a waiver

of the filing requirements upon written motion to the Board,

is

the proper remedy for situations where

 a person truly cannot

comply with these requirements.

 Subsection

(g)

 requires that all

original documents

 be signed

 by the person filing the document

and include that person’s business address

 and telephone

number.

 The Clerk

 will refuse

 to accept for filing any document

which does not comply with subsection

 (g).

Section 101.104

 sets limits on the length of briefs which

may be

 filed in Board proceedings without

 prior approval; the

Board

 has become increasingly burdened with excessively

 lengthy

pleadings.

 Briefs

 in support of

or

 in opposition

 to any motion

are

limited

pages.

Post—hearing

briefs,

briefs

submitted

in

 response

to

 a Board order,

 and public comments submitted

in

lieu of a brief

 are limited

to

 50 pages, and reply briefs shall

not exceed

 25 pages.

 This

 rule

 is based upon Rule

 28 of the

Federal Rules of Appellate Procedure.

 The page limits do not

include appendixes containing regulations,

 cases, and other

relevant material.

 The Board believes that page limitations

are

necessary.

 The number

 of proceedings before the Board continues

to grow,

 and the Board wishes

 to encourage brevity where

possible.

 In a specific situation where

 the limitations

 truly do

not allow

 for sufficient discussion of the issues,

 the remedy

is

a motion

 to exceed the limitations.

 The Board points out that

a

motion

 to exceed shoUld be filed

 with the Board

 or the hearin9

oft~icer before the brief

 is filed,

 not concurrently.

 Subsection

(c) articulates

 the factors considered

 when ruling upon a motion

to exceed.

 In the event that a brief which exceeds the

limitations of Section 101.104

 is filed

 without prior approval

of

the Board

or

 the hearing

 officer,

 the portion which exceeds the

limitations will not be considered.

109—100

—7—

Section 101.105 “Waivers” requires that all waivers of

a

deadline

 for Board action be

 filed

as

 a separate document.

 This

will enable the Clerk

 to better monitor these waivers,

 instead

of

having

 to read every document tiled,

 in search of

 a possible

waiver.

 Section 101.105 also requires all waivers

to

 be open

waivers

 or those

to

 a calendar date certain.

 The Board believes

that

this provision will enable the Board

 to meet its decision

deadlines while allowing petitioners

 to waive those deadlines

when they choose.

 Given the volume of decision deadline cases

pending before the Board,

 and the endless possible variations

of

contigent waivers,

 it would

 be close to

 impossible

 to track

decision deadlines

 if the Board

 accepted contingent waivers, even

on

 a case—by-case basis.

 The section does allow the Board

to

accept waivers

 in some other

 form (such

 as an emergency oral

waiver)

 in rare cases.

Section 101.106 “Incorporation Of Prior Proceedings”

provides that

 a request

for

 incorporation of any portion

of

the

record of another Board proceeding must

be

 a separate written

request

 (not requested within another document).

 The person

seeking incorporation shall file four

 copies of the material

to

be incorporated.

 This allows one copy

 for the Clerk’s official

files, one copy

 for each of the downstate offices,

 and One copy

for the file of the Board member assigned

 to the proceeding.

The

section also requires the person seeking incorporation

 to give

notice

 of the request

 to all identified parties or

participants.

 (Please note that only notice of

 the request

is

required,

 not service

of

 a copy of the material.)

 Subsection

(b), which

 sets forth

 the weight the Board will give

 incorporated

material,

 provides for consideration

 of the circumstances under

which

 the material was developed,

 including the past and current

opportunity

 for cross—questioning.

If

 a person feels that the

Board may overlook some important cross—questioning,

 that person

is free

 to request incorporation of that material.

Section 101.107

 sets out procedures

 for appearances and

withdrawals.

 The rule requires

 attorneys to file separate

written appearances

 and notices of withdrawal.

 Attorneys may not

simply appear by means of

 a pleading.

 “Substitution

of

Attorneys”,

 Section 101.108, requires any attorney who

substitutes

for

 an attorney

 of record

 to file

 a written

appearance,

 and identify the attorney

 for whom the substitution

is made.

 These

 rules

 will enable Board staff

 to more easily keep

track

 of who represents

 a particular person

in

 a Board

proceeding.

Section 101.109

 “Computation of Time”

 provides that

computation

any

period

time

prescribed

rule

the

ACL

begins

the

calendar

day.

The

old

rule

stated

that

computation of time begins on the next business

 day.

 This change

was made to conform the rule

 to the statutory mandate of Section

1.11

of

 “An Act

 to revise the law

 in relation to the construction

of statutes.”

 (Ill.

 Rev.

 Stat.

 1987,

ch.

1,

 par.

 1012.)

100—10.

—8—

Subpart

B:

 Filing And Photocopying Fees

Section 101.120

 implements

 the new filing fee provisions of

P.A. 85—1331.

 These provisions are found at Section 7.2 of the

Act.

 The rule requires that

 a person filing an action for which

a filing

fee

 is required by the Act

 (petitions

 for site—specific

regulation,

 variance,

 review of

 a permit,

 to contest

 a local

government siting decision,

 and for adjusted standard) must pay

that fee at

the time the petition

 is presented

 to the Clerk

for

filing.

 The Clerk will refuse to accept any petition which

is

not accompanied

 by the required fee.

 At this

timo,

 the fee

is

statutorily set at $75.

 As stated earlier,

 the Board interprets

the statutory language

 “petition for variance” as meaning only

variances filed pursuant

 to Section 35(a)

of

 the Act,

 thus

exempting provisional variances from filing

 fees.

“Photocopying Fees”,

 Section 101.121, provides information

on fees for photocopying of

 files,

 records,

 and data.

 Section

101.122

 “Forms of Payment”

 specifies that both filing

 fees and

photocopying fees may be paid by money order

 or check.

 Cash will

be

 accepted,

but

 is strongly discouraged.

 Subsection

(c)

provides for issuance of

 a sanction order

in cases where

 a check

written

for

a

fee

 is not honored by the maker’s bank.

Subpart

C:

 Service

Section 101.141 “Service of

 Initial

 Filings” allows service

of

 initial filings

 in almost all types

 of Board proceedings

 to be

made by First

 Class mail,

 in addition to by personal delivery,

messenger

 service, or by registered or

 certified mail.

 However,

initial

 complaints

 in enforcement proceedings may not

 be served

by First Class mail,

 but must be served personally,

 by messenger

service,

 or by registered

 or certified mail.

 This provision

continues the current requirements

 in enforcement cases

 (see

35

Ill.

 Adrn.

 Code 103.123),

and

 is analogous to the requirements of

the Code

 of Civil Procedure.

 The Board believes that

it

is

necessary

 to have proof of actual

 receipt

 of the complaint

initiating

 an enforcement action,

 not merely proof of the

initiation of service.

 First Class mail cannot provide such

 proof of

 receipt,

 and thus service must be made by one of the

tour enumerated methods which do provide proof of receipt.

Section 101.142 allows service of subsequent filings

 by United

States mail,

 by messenger service, or personally.

 Section

101.143

 sets out requirements for proof of service.

Subsection

(c)

 of Section 101.144

 “Effective Date of

Service” states that there

is

 a rebuttable presumption that

service by First Cla~smail

 is complete four days after

mailing.

 This

is

 a change from the prior wording

 that service

by

First Class mail

 is presumed complete four days after mailing.

Where

 evidence indicates the actual service was made sooner or

later than the presumed

 four days from mailing,

 that evidence can

be

 presented

 to prove

 the actual date

 of service.

100—102

—9—

Subpart

Public

Information

There are four types

of

 information

 in terms of that

information’s availability

 to the public.

 Section 101.160 states

that all files maintained

 by the Clerk will be open to

 reasonable

public inspection,

 except:

1)

 internal communications between

and among Board members and staff;

2)

 trade secret material

pursuant to Section 7.1 of

the Act and

35

 Ill.

 Adm. Code

 120;

and

material

which

stamped

“Not

Subject

Disclosure”

Board

order, pursuant

 to Section

7

 of the Act and Section 101.161

“Non—

Disciosable Information”.

 (Please note

 that trade secrets

and

non—disclosable

 information are two separate types of information

and are governed by different

 rules.)

 Several changes have been

made

 to subsection

(h)

 of Section 101.161

 to satisfy JOAR

concerns.

 First,

 the phrase “upon

 the request of

 a Board member”

has been deleted,

so

that material will

be

 stamped

 “not subject

to disclosure” only upon written application at the time the

material

 is filed.

 The provision for

 stamping material not

subject

 to disclosure upon the request

of

 a Board member

was

merely

 a carry—over

 from the old rule, which

 included internal

 communications.

 Internal communications are now automatically

exempt from public disclosures under Section lOl.l60(b)(l),

and

thus the provision

 is unnecessary.

 Second,

 the phrase

 “by

affidavit” has been added

 to clarify how an application

is

 to be

verified.

 Finally,

 the words “data and” have been deleted

as

redundant.

Subpart

E:

 Board Meetings

Section 101.180 “Board Meetings” gives general

 information

on Board meetings.

 Section 101.181

states that no document

received

 by the Clerk

 after

 4:30

 p.m.

 two days

 before

 a scheduled

Board meeting will

 be placed on the agenda

 for that meeting.

Instead,

any

such filing will appear on the agenda for the next

regularly scheduled Board meeting.

 (“4:30 p.m.

 two days before

a

scheduled Board meeting”,

 in the context of

 a Thursday Board

meeting, means 4:30 p.m.

 on Tuesday, not 4:30 p.m.

 on Monday.)

The Board will make exception to

 this rule only when

it

finds

that undue delay or material prejudice will result.

 That

determination will

 be made upon motion by

 a Board member

 at the

 meeting, without hearing or briefing by

 the parties or

Participants.

 The purpose

 of the deadline

is

 to allow Board

members

 and staff

 at least one day

 to review all filings before

any action

 is taken.

Subpart

F:

 Ex Parte Contacts

Section 101.200

 sets forth prohibitions on cx parte contacts

on contested

and

non—contested

cases.

contested

case

defined

 in Section 101.101

as

 “an adjudicatory proceeding,

not

including regulatory,

 quasi—legislative,

 informational,

or

Similar proceedings.”)

 This

 section clarifies that ex parte

communications in contested cases

 are prohibited

 only with

respect to the substance of the proceeding.

 Subsection

(c)

100—103

—10—

specifically states that

 this section does not preclude Board

members, hearing officers,

 and Board staff from receiving

informal complaints

 about individual pollution sources,

 or forbid

administrative contacts on a pending proceeding.

 In response to

JCAR concerns,

 a sentence has been added

 to subsection

(d)

to

state some

 of the ways

 in which

an

ex

parte contact may be made

part of the record.

Subpart

G:

 Hearings

“Authority of Hearing Off~’er”,Section 101.220,

 sets out

the hearing officer’s duties and powers.

 The hearing officer

must conduct

a

 fair hearing,

 take all necessary action

 to avoid

delay,

 maintain order,

 and ensure development of

 a clear,

complete,

 and concise record.

 The hearing officer has all powers

necessary to achieve these objectives and the section lists

Several

 specific areas of authority.

 Please

 note that the

 list

is merely an example

 of the hearing officer’s powers,

 and does

not limit

 those powers.

 Among

 other

 things,

 the section

specifically allows the hearing officer

 to require pre—filed

testimony, regulate the course of the hearing

 (including

establishing

 reasonable limits on the testimony and questioning

of witnesses), establish

 a schedule for discovery,

 and rule upon

motions,

 objections,

 and evidentiary questions.

 The section also

states that the hearing officer has the power

 to issue subpoenas

and

 to compel

 the answering

 of interrogatories or other discovery

requests without Board direction.

 Note, however,

 that parties

should conduct discovery among themselves, with intervention

by

the hearing officer necessary only

if

 a problem arises.

Additionally,

 the Board points out that

 it does not believe that

either the hearing officer

 or the Board

 has the authority

to

order

 the production of evidence which does not already exist or

cannot be compiled without imposition of an undue burden.

Section

 101.221

 “Hearing Decorum” governs

 the rucording,

either audio or visual,

 of Board hearings.

 The section gives any

person

 a right

 to record

 a hearing, subject

to

 rules prescribed

Dy the hearing officer.

 However,

 if the hearing officer

determines that recording

 is disruptive or detrimental

 to proper

development

 of the record, he or

 she may limit or prohibit

recording.

 The Board finds that its hearings are not subject

tO

the Open Meetings Act.

 Ill.

 Rev. Stat.,

 1987,

ch.

 102, par.

41

et

 seq.

 The statute requires all meetings of public bodies

 to be

public meetings, with

 a corresponding right to record

 those

public meetings.

 A meeting

 is defined as

 “any gathering

of

a

majority of

 a quorum of the members of

 a public body held for the

purpose of discussing public business.”

 (Ill.

 Rev.

 Stat.

 1987,

ch.

 102,

 par.

 41.02.)

 The Board

 finds

 that. this definition

applies

 to Board meetings, but not

 to Board hearings,

 since

flearings are only very rarely attended

by

a

 “majority of

a

9uorurfl”

 of Board members.

 Additionally, hearings

are not held

Lor the purpose of discussing public business,

but

are held

for

information gathering purposes.

 Thus,

 the Board finds that the

Open Meetings Act does not apply to its hearing.

 However,

the

100—104

—11—

subsection

governing recording of hearings has been written

to

given any person

the

 right

 to record,

 subject

 to rules prescribed

by the hearing officer.

 Only

 if the hearing officer

 finds that

recording

 is disruptive

 or detrimental

 to proper development

of

 the record may he

 or she limit or prohibit recording.

 The Board

believes that these provisions will allow recording

 of most Board

hearings while also allowing the hearing officer

 to control the

hearing.

Subpart

H:

 Motion Practice

This Subpart includes filing

 and timing requirements

for

general motions and more

specific types

 of motions,

 such

as

motions attacking jurisdiction, motions for summary

 judgment,

and

motions

 for reconsideration.

 Section

101.241(b)

 “Filing Of

Motions And Responses” provides

 that

 a participant

 (if a

regulatory proceeding)

or

 a party

(if

 a contested case) may file

a response to

 a motion within seven days after

service of

a

motion.

 The phrase “participant or party”

 is used because this

Part applies

 to all Board proceedings,

 and does not extend any

right

 to respond

to

 a non—party in

 a contested case.

 Subsection

(b)

 also states that unless material prejudice

or

 undue delay

would

 result, neither

 the Board nor the hearing officer will

grant any motion before

 the expiration

of

 the 7—day response

 period,

 please note that this provision does not preclude the

Board from denying

 a motion within that period,

 since ordinarily

the denial

of

 a motion will not prejudice the responding party or

participant.

 However,

 in most cases the Board

or

 the hearing

officer will

 not take any action on

 a motion until after

 the 7—

day response period has passed.

 Only

 in cases

 where

 undue delay

or material prejudice would result

 (for example,

 where

a

statutory decision deadline

 is approaching) will the Board

or

hearing officer grant a motion before expiration

of

 the response

period.

Section 101.243 “Motions Attacking Jurisdiction

Or

Sufficiency Of the Pleadings”

 requires

 all motions

 to strike or

dismiss challenging the sufficiency of any pleading

 to be

 tiled

within 21 days after service

 of the challenged document.

In

a

regulatory proceeding,

 however,

 such motions must be filed

 within

30 days

 of the Board order

 formally accepting the regulatory

proposal

 for hearing.

 (See Application of Procedural

 Amendments

of P.A.

 85—1048 to Newly—filed and Pending Regulatory

Proceedings, Th~S89—1,

PP.

 5—6 (January

5,

 1989).)

 Subsection

(b)

 requires all motions challenging the jurisdiction

 of the

Board

 to be filed before the movant files any other

 document.

This provision ensures

 that jurisdictional

 objections are raised

“up front”,

 while allowing

 a party who

 is joined during the

Pendancy

of

 a proceeding to

 raise such objections

 at that party’s

first opportunity.

The Board has added

 subsection

(d)

 to Section 101.246

“Motions For Reconsideration”

 in order

 fulfill

 an agreement with

JCAR.

 This new subsection sets out the types

 of things the Board

100—105

—12—

will consider when ruling upon a motion for reconsideration.

Those factors include,

 but are not limited

 to, possible error

in

the Board’s decision and facts

 in the record which may have been

overlooked.

“Disposition of Motion”, Section 101.247, sets forth the

types of motions on which

 a hearing

 officer may rule.

All

motions on which the hearing officer

 is empowered

 to rule should

ordinarily be directed

 to the hearing

 officer,

 not the Board.

This section also establishes the fact that no interlocutory

 appeal

of

 a hearing officer

 ruling may be taken

 to the Board

unless the Board grants

 a motion to do

so.

 The hearing officer

may also refer

 a ruling

 to the Board

 if he

 or she

 feels that such

action

 is necessary

 to prevent harm to the public interest

or

to

avoid unusual

 delay or

 expense.

Z~

continuing objection

to

a

hearing officer ruling must be restated

 at the close of hearing

or

 in post—hearing submissions.

 Subsection

 (c) provides that all

hearing officer orders remain

 in effect during the.pendancy

of

any appeal

 to the Board.

 The filing of

 a motion,

 or any related

appeal

of

 the ruling on that motion,

 shall not stay the

proceeding

or

 extend the time for the performance

 of any act.

Again,

 these provisions allow the Board

 to ensure that

proceedings move forward at

 a reasonable

 pace.

Subpart

I:

 Discovery

Section 101.260

 “Subpoenas”

 provides for the issuance of

subpoenas

 in both contested cases and regulatory proceedings.

Subsection

 (a) states that upon request

 by any party to

a

contested case,

 the Clerk will issue subpoenas

 for attendance

of

witnesses at

 a hearing or deposition.

 Subsection

(b)

 requires

participants

in

 a regulatory proceeding to file

 a motion for

subpoena with the hearing officer

 or the Board.

 This distinction

between

 “automatic”

 issuance of subpoenas

 in contested cases and

discretionary issuance

 in regulatory proceedings

 is based upon

the Board’s review of Section

 5(e)

 of the Act.

 The Board

concludes

 that Section

 5(e)

 requires it

to

 issue

 a subpoena upon

the request of any party to

 a variance,

 enforcement or permit

review proceeding,

 a proceeding

 to remove

 a seal,

 and any

proceeding

 to review

 a final determination made pursuant

 to the

~ct

 or Board regulation.

 On the other

 hand,

 the issuance of

a

subpoena

in

 a regulatory proceeding

 is discretionary.

 The Board

believes that although

 it must issue

 a subpoena

 in adjudicatory

cases

 it does have the necessary authority to review that

subpoena and

 rule upon any motion to quash

 the subpoena.

The

Board

 or hearing officer may quash or modify

 a subpoena

if

it

100—106

—13—

finds

 that ~he subpoena

 is unreasonable, oppressive,

or

irrelevant.

The Board notes

 in connection with this Subpart that

 it does

not believe that

 it or

 its hearing officers currently have

authority to subpoena or order the production

 of information

which

 does not already exist

 in the required form or cannot be

compiled without

imposition of

 an undue

 burden.

 Likewise,

because of the language of Section

5

 of the Act,

 the Board finds

that

 it does not have the authority

 to use

 its discovery powers

in any way except

 in connection with

 a pending Board

proceeding.

 In other words,

 the Board’s discovery authority

cannot be used to gather

 information

to

 be used in developing

a

regulatory proposal.

 Without legislative action,

 the language

of

Section

5(e)

 of the Act

 (that

 the Board’s discovery authority may

be used “in connection

with any hearing”) precludes

 the use of

 the Board’s discovery powers

 to gather data

for

use

 in developing

a regulatory proposal.

Subpart

3:

 Sanctions

This Subpart contains rules governing sanctions for refusal

to comply with procedural

 rules.

 Board orders,

 or hearing

officer orders,

 or for abuse of discovery procedures.

 Rules

regarding sanctions were formerly found

 in Part

107,

 which the

Board has today

 repealed.

During the proposal of this rulemaking,

 the Board received

several comments alleging that the Board has

 no authority

to

order

 the payment of expenses incurred

 in obtaining an order

for

sanctions,

as

 is provided

 by Section lOl.280(a)(7).

 The Board

finds

 that

 it does indeed have such authority,

 however.

The

appellate court has both explicitly and implicitly recognized

the

Board’s authority to

 impose sanctions.

 Illinois Environmental

Protection

v.

 Celotex Corporation

 (3d Dist.

 1988), 168 Ill.

App.

3d

 592,

 522 N.E.

 2d 888,

 119 Ill.

 Dec.

 226;

Alton Packaging

Corporation

v.

 Pollution Control Board

 (5th

Dist.

 1986), 146 Ill.

App.

 3d 1090,

 497 N.E.

2d

 864;

100

 Iii.

 Dec.

 686.

 The Celotex

court explicitly upheld

 the Board’s promulgation

 of procedural

rules

 on sanctions identical to Supreme Court Rule 219,

 including

‘~TheBoard notes that the statutory standard

 for subpoenas and

Orders

 to produce information “reasonably necessary

 to the

resolution of

 the matter

 under consideration” has been stated

as

relevant”

 in these regulations.

 This change has been made

for

purposes of JCAR review.

 Since the Section 101.101 definition

of

relevant” includes the requirement that the information or

witness

 be related

 to the establishment

 of any fact which

is

of

consequence

 to the determination

 of the proceeding,

 the Board

believes that the relevancy standard

is

 equivalent

 to the

statutory standard of Section

5(e) of the Act.

100—107

—14—

dismissal of an action.

 The Board’s former rules on sanctions

did not discuss the imposition of costs except

as

 a sanction for

 failure or

 refusal to answer

 a discovery question,

 although

Supreme Court Rule 219 does.

 Compared with a sanction like

dismissing an action,

 imposing costs

is

 a relatively

 light

sanction.

 Since the Board has authority to order

 an execution

(dismissal with prejudice),

 the authority to order

 a slap on the

wrist

 (imposition

of

 costs)

 is clear.

 The Board has the power

to

impose sanctions so that it may control proceedings and manage

its docket,

 and finds that

 it has authority to order the payment

of

 costs.

In both Sections 101.280 and

 101.281 the phrase

 “the Board

may order” sanctions or suppression of information has been

changed

 to “the Board will order”

 such action.

 This change

is

made

 to satisfy JCAR concerns.

 The Board believes that this

is

not

 a substantive change,

 and that

 the language of

 these sections

now reflects the Board’s intent more clearly.

 The, focus

of

a

sanction determination pursuant

 to Section 101.280

 is whether

a

party or person has unreasonably refused or

 failed

 to comply with

procedural

 rules

or

 a Board or hearing officer order.

 If the

Board

 finds an

 unreasonable refusal

 or failure,

 it will order

sanctions.

 Likewise,

 the issue under Section 101.281

 is whether

information was obtained through

 an abuse

 of discovery

procedures.

Also pursuant to

 an agreement with JCAR,

 the Board has added

subsection

(b)

 to Section 101.280.

 This new subsection states

that in deciding what sanction to

 impose,

 the Board will consider

factors including,

 but not limited

to,

 the relative severity of

the refusal

 or failure

 to comply,

 the past history

 of the

proceeding,

 and the degree

 to which

 the proceeding has been

Delayed or prejudiced.

At hearing

and

in

 its written comments,

 the Agency stated

a

concern

 that the Board

 needs

 to apply meaningful sanctions

in

an

even—handed way

 to all parties

 and participants.

 The Agency

believes that

 such sanctions should

 be adhered

 to in the vast

majority of cases where violations occur, wi~thexceptions only

when necessary

 to avoid injustice.

 Several

 other comments

articulated

 a concern that sanctions might be applied only

against

 the regulated community and not against the Agency.

The

Board stresses that

 it will apply sanctions

 as often as

necessary,

and

 that all participants

 and parties are subject

to

sanctions

 for violations of procedural

 rules,

 Board

 and hearing

officer

 orders,

 and discovery procedures.

Subpart K:

 Relief From and Review

 of Final Orders

This Subpart contains procedures

 for motions

for

reconsideration,

 relief from final orders,

 judicial review

of

final Board orders,

 stays

 of Board orders,

 and interlocutory

appeals.

100—108

—15—

Appendices

The Board has added

 five

 appendices

 to Part

 101.

The

appendices set forth

 forms

to

 be used

 as examples when appearing

before the Board.

 Appendix

A gives examples of captions

 to be

used in the various types

of Board proceedings.

 Appendix

 B gives

a sample appearance

 form, while Appendix

C

is

 an example of

a

notice of withdrawal of appearance.

 Appendi~cD

is

 a sample

“notice

of

 filing”

 to be attached

 to all documents filed with the

clerk.

 Finally, Appendix

E

 includes examples

 of certificates

of

service.

The Board notes that the various forms contained

 in the

appendices are not mandatory.

 Several comments reflected

a

concern that persons appearing before the Board,

 especially those

unrepresented

 by counsel,

 still

 be allowed

 to file variances,

permit appeals, public comments,

 and other

 filings

 by other means

such

 as letter.

 The Board has included these

 forms merely as

guides,

 not as required forms.

 Indeed,

 the forms are especially

directed

 to those

 not represented

 by counsel,

 for help only.

Board

 staff often

 receives questions

 on the correct form of

various documents,

 and the

 forms are intended

 to be examples.

The Board will continue to accept filings

 in the form of

letters.

 The Board also received

 a comment on

 illustration

F

of

Appendix

 A, which provides

 a sample caption for administrative

citations.

 That comment

 is correct

 that administrative citation

cases were

 formerly captioned

 “In the Matter of”, rather than

listing

 a complainant and

 a respondent.

 This has been changed to

reflect

 that administrative citations are

 a type of enforcement

case, not a regulatory proceeding.

PART 106,

 SUBPART G: ADJUSTED STANDARDS

The Board’s amendments

add

 a new Subpart 3

to

35

 Ill.

 Adm.

Code

106.

 This new Subpart

 imposes procedural

 requirements

for

adjusted standard proceedings that are held pursuant

 to Section

28.1

 of the Act

 as amended by P.A. 85—1048

 (effective January

1,

1989).

 On the

whole,

the

requirements

Subpart

speak

for

themselves.

 However,

 the Board will broadly outline

 the workings

of

an adjusted standard proceeding

 as held

 in accordance with the

proposed Subpart.

The Board received numerous questions and comments at

hearing concerning

 the proposed rules

 for adjusted standards.

In

addition,

 many persons filed written comments subsequent

 to the

Board’s Orders of September

22,

1988

and January

19,

 1989.

The

comments that the Board has received are varied

 in nature and

often quite detailed.

 Except for

 those public comments which the

Board has expressly excluded the

Board

 has considered

all

comments received;

 the Board does not find

 it necessary

to

discuss the substance of all comments

 in this Opinion.

It

has been suggested

 that the Board does

 not need

 to adopt

procedural rules

 for adjusted standards but that the current

100—109

—16—

variance procedure need only be amended slightly to accommodate

adjusted standards.

 (P.C.

 #35.)

 While Section 28.1 of the Act

provides that adjusted standards are adjudicatory proceedings,

an

adjusted standard

 is not a variance.

 A variance acts

as

a

temporary shield against enforcement

of

 a regulatory provision

while the variance recipient works toward achieving compliance

with that provision.

 Conversely,

 an adjusted standard proceeding

may result

 in a Board—adopted standard

 as an alternative

to

a

particular regulation—based standard,

 and an adjusted standard

could apply

to

 a person

for

 an indefinite period of

 time.

Public Act 85—1048 amended Section 28.1 to allow adjusted

standards from any Board regulation

 regardless

 of whether

 that

regulation expressly provides for an adjusted standard

proceeding.

 Prior

 to P.A.85—1048 adjusted standards could only

be obtained from regulations which expressly provided

 an adjusted

standard option.

 Given this new,

 sweeping applicability of

adjusted standards,

it

 is necessary to promulgate general

procedures which apply

 to adjusted standard proceedings.

 Also,

Section 28.1(d)

 itself requires the Board

 to adopt adjusted

standard procedures.

Also,

 there apparently

 is some confusion over whether the

rules of Subpart G of Part 106 apply

 to regulatory proceedings.

(P.C #35.)

 Just

 as adjusted

 standards are not variances,

 they

are also not regulatory proceedings.

 Although standards adopted

by the Board through an adjusted

 standard procedure have similar

force and effect as standards adopted via the regulatory process,

adjusted standard proceedings are exempt from the “rule—making

provisions

 of the

Illinois Administrative Procedure Act and Title

VII

of

 Ethel

 Act”.

 Section

 28.1(a)

 of the Act.

 Consequently,

 the rules of Part

 106, Subpart G, only apply

 to those persons

seeking an adjusted standard pursuant

 to Section

 28.1.

Section l06~~pli~bility

Section 106.701 “Applicability” provides that the proposed

procedures

 of Subpart G will

 not apply to proceedings conducted

pursuant to existing Subparts

A,

B,

C,

D,

E

or

F

 of Part 106.

It

further

 provides that the requirements

of

 35 Ill.

 Adm. Code 101

do apply to proceedings conducted pursuant to Subpart

G.

In

other words, one must read Subpart G

in

conjunction with Part 101

to determine all of the procedural requirements for an adjusted

standard proceeding.

 In the event that the requirements

 of Part

101 conflict with those

 of Subpart

G,

 the provisions of Subpart

G

govern

 in an adjusted standard proceeding.

Section

 106.703

 Joint

 or Single Petition

An adjusted standard proceeding begins with

 the filing

of

a

petition.

 A petition may

 be filed either singly or jointly with

the Agency.

 Section 106.703 requires that petitions for

adjusted

standards which are filed with the Board must be served upon ENR

as

 well as the Agency.

100—110

—17—

Section 106.704

 Request to Agency

 to Join

 as Co—Petitioner

Pursuant to Section 106.704,

 any person who wishes to file

an adjusted standard petition may request that the Agency join as

a co—petitioner.

 The Agency

 is not required

 to act as

 a co—

petitioner

 if requested.

 The Board believes that

it

is

appropriate

 for the Agency

 to decline

 to co—petition

 in the event

that the Agency

 is faced with

 a lack

 of resources with which

to

investigate and co—petition.

 Therefore,

 a simple statement to

that effect

 is the minimum that would

 be required under

 this

Section

 for the Agency’s response

 to a request

 to co—petition.

If the Agency

 is requested

 to be

 a co—petitioner

 it may require

information from the petitioner

 in order

 to evaluate the

request.

Section 106.705

 Petition Contents

Section 106.705

sets forth detailed requirements

for

the

contents of

 a petition.

 These informational requirements are the

minimum necessary

 to ensure a proper evaluation

of

an adjusted

standard request.

 However,

 subsection

(1)

 provides a

mechanism

which enables

 a petitioner

 to initially file

 a petition that does

not address all

 of the informational requirements.

 Yet,

the

Board may still require the petitioner

 to meet the petition

requirements of Section 106.705.

 All the factual information

asserted

 in the petition must be verified

 by affidavit

accompanying

 the petition.

 The petition must

 also either request

or waive

 a public hearing.

Section 106.808 states that

the burden of proof

in

an

adjusted standard

 is on the petitioner.

If

 a petitioner fails

to

provide

the

Board

with

the

necessary

information

enable

the

Board

 to make

 a decision on the petition,

 the petitioner does

so

at its own risk.

 As stated

 in subsection

 (1), the Board may

require the petitioner

 to provide additional

 information

 in its

petition

 to more fully address the petition requirements of

Section

106.705

or

 to aid the Board

 in its decision—making

process.

If

 the petitioner

 fails

 to do

so,

 the Board may dismiss

the petition pursuant

 to Section 106.902.

 The Board has utilized

such more—information Orders

 in dealing

 with deficient variance

petitions.

 There

is

 no apparent reason why such

 a mechanism not

he sucessfully applied

 to an adjusted standard proceeding.

Also,

 the petition must show that the proposed adjusted

standard may

 be granted consistent with federal

 law.

 Both

Section 28.l(c)(4)

 of the Act and proposed Section 106.903(a)

require this.

 In addition,

 the petitioner must identify any

procedural

 requirements,

 such

as

 a hearing,

 which are mandated

by

federal

 law and necessary for ultimate federal approval

 of the

adjusted standard.

If the Agency

 is not a co—petitioner,

 it must file

a

response.

In

that response,

 the Agency must address the

100— 111

—18—

petition’s assertions which must include the statements

concerning federal

 law.

 If the Agency believes that the petition

is deficient,

 the Agency shall identify how

 it is deficient in

the

response.

Section

106.715

(see

following)

expressly

allows

for

amended

petitions

and

amended

responses.

This

makes

 it clear that the

petitioner may amend

 its petition to address Agency concerns

which are identified through informal communications with the

Agency or

 by way of an Agency response filed pursuant to Section

106.714.

In summary,

 there are methods

 to correct deficient petitions

for adjusted standards.

If

 the petitioner does not ultimately

provide the Board with adequate information

 to support its

request

for

 an adjusted standard,

 such a

 request will be denied

and the regulation of general applicability or

 a standard

equivalent

 to that regulation will apply

 to that person.

Subsection

(e)

 of Section 106.705 requires that all

compliance alternatives with the corresponding costs for each

alternative be discussed.

 The intent behind

 this subsection

is

to ensure

 that the Board

 is fully informed

as

 to all options

of

compliance with the regulation of general applicability.

 This

naturally includes cost information.

 Obviously, other persons

may disagree with the cost conclusions of the petitioner.

Subsection

(e)

 requires disclosure

 of estimates upon which

the

petitioner

 is drawing

 its conclusions.

 This will enable other

persons,

 and more importantly the Board,

 to independently

evaluate whether the petitioner

 has presented adequate

justification

for

 an adjusted standard.

Comrnenters had suggested that the required cost information

should only relate

 to the “least costly” compliance

alternative.

 The Board

 is not looking

 for detailed

 itemized cost

data

for

 the compliance alternatives

 in an initial petition,

although such information may be required later

by

 the Board;

broad estimates

 of costs may be acceptable.

 The Boatd’s

requirement ensures that the petitioner

 itself,

 at least on

a

general level has evaluated the costs

 for each compliance

alternative.

 Furthermore,

 if the commenters are willing

to

provide cost information regarding the least costly compliance

alternative,

 it would

 not be much of

 a burden to give the Board

cost estimates for the other

 alternatives.

In

other words,

if

the petitioner did not have cost estimates for each compliance

 alternative,

 then

 it could

 not conclude which of those

alternatives was the

 “least costly” alternative.

Section 106.707

 Federal Procedural Requirements

A petitioner must ensure compliance with any procedural

requirements pursuant

 to federal

 law.

 A petitioner does not have

a duty

 to ensure that the Board acts

 in compliance

with federal

procedural

 requirements.

 However,

 this does not relieve the

100—112

—19—

petitioner from the duty to

 inform the Board

 of applicable

federal

 requirements pursuant to Section

 106.705(i),

or

 to carry

out federal requirements which the petitioner

 itself

 is capable

of fulfilling.

Sections

106.711

 Petition Notice and

106.712

 Proof

 of Petition

Notice

Sections 106.711

 and 106.712 implement

 Section 28.1(d)

of

the Act

 (P.A.

 85—1048),

 which places the burden of the initial

noticing

of

 a petition on the petitioner.

 Within

 14 days after

filing of

 a petition,

 the petitioner must cause

 the publication

of

 a notice

stating that an adjusted standard petition has been

filed with the Board.

 The notice

is

to

be an advertisement

in

a

newspaper

 of general circulation

 in the area likely to

be

affected by the petitioner’s activity which

 is the subject

 of the

adjusted standard request.

 The publication

 of the petition

notice

 is accomplished

 at the petitioner’s own expense.

 Among

other requirements,

 the petition notice must

 state that

any

person may request that

 a hearing be held in the proceeding by

filing

 a hearing

 request within

21

days of the date of the

notice’s publication.

 Within 30 days of

the filing of

a

petition, the petitioner must file proof of the petition notice

publication.

Section 106.713

 Request

 for Public Hearing

Section 106.713 provides

 that any person may

 request

a

hearing

 on any adjusted standard proceeding.

 Such

 a hearing

request must be filed within

21

days after

 the publication of the

petition notice.

 If the Board receives

 a timely request,

 it will

hold

 a hearing

 in the proceeding.

 In addition,

 if the Board

determines that

 a hearing would

 be advisable,

 it will hold

a

hearing irrespective

 of whether

 it has received

 a hearing

 request

from the petitioner

or

 a member

 of the public.

Section 106.714

 Agency Response

Section 106.714 “Agency Response”

 provides that not later

than

 30 days after

 the filing

 of the petition the Agency must

file

 a response

if

it

 is not

 a co—petitioner.

At

 a minimum,

the

response must address and respond

 to the petition with respect

to

informational requirements

 of a petition.

 Also,

 the Agency may

include

in

its

 response any information which the Agency believes

is relevant to

 the Board’s consideration of the proposed adjusted

standard.

Section 106.715

 Amended Petition and Amended Response

Section 106.715 expressly provides that

 a petitioner may

amend

 its petition and correspondingly

 the Agency shall file

an

amended

 response.

 Such amendments may be made prior

 to the close

of

 a hearing,

if

 a hearing

 is held

 in the proceeding.

Alternatively,

 if no hearing

 is held,

 amendments may occur

100—113

—20—

anytime prior

to

 the Board’s decision.

 However,

 the Agency

is

given

 30 days

 to issue

 its amended response.

 If the Agency does

not wish

 to change

 its position after considering the

petitioner’s amendment, such may be stated

in

 its “Amended

Response”.

 Also,

 the Agency may amend

 its previously filed

response even

if

 the petitioner has not amended its petition.

In

such an instance,

 an Agency response may only be amended prior

to

the close of the hearing

if

 a hearing

 is held or prior

 to the

Board’s decision

if

 a hearing

 is not held.

As

 amendments

 to the petition and response may change facts,

positions,

 or issues previously presented

to

 the Board,

 such

amendments may properly be

 a basis

 for the Board

to:

 hold a

hearing when one was previously considered unnecessary; grant

a

continuance of

 a previously scheduled hearing; postpone

a

decision on the proceeding;

 require the re—noticing of

 a petition

in

 a newspaper;

 or cause other appropriate actions

 to be taken.

Sections 106.801

 Hearing Scheduled

 and 106.802

 Hearing Notice

If

 a hearing

 is held

 in an adjusted

 standard proceeding,

it

will be held

 in the county likely

to

 be affected by the

petitioner’s activity which

 is the subject of the proposed

adjusted

 standard.

 In accordance with the requirements of

Section

 28.1(d), notice of the hearing will be given by

advertisement in

 a newspaper

 of general circulation at least 20

days prior to the date of the hearing.

 The Clerk

 of the Board

will cause

 the publication of the hearing

 notice.

Section 106.803

 Pre—Hearing Submission of Testimony and Exhibits

Although the pre—hearing submission of

 testimony and

exhibits

 is not automatically required,

 the hearing officer may

impose such

 a requirement

if

it

would

provide

for

 a more

efficient hearing.

 The Board received comments that

 the pre—

hearing

submissions

should

subject

modification

hearing.

Subsection

(b)

provides

mechanism

for

making

changes

to pre—hearing submissions.

 If such changes

 are non—substantive

or would

 not materially prejudice another person’s participation

at hearing, they may

 be allowed by the hearing officer.

For

 pre—

hearing submissions to have any value,

 they must be reliable.

Hence,

 changes at hearing to pre—hearing submissions must be

limited or

 at least scrutinized.

 Obviously,

if

situation

develops where pre—hearing submissions are wholely unreliable the

hearing

 officer may vacate the order which required the pre—

hearing filing of

 testimony and exhibits.

 Then,

 a person’s

hearing presentation would not be bound

 in any way by any pre—

hearing

submission.

Section 106.805

 Admissible Evidence

Section 106.805(e)

 provides that any person

may

introduce

evidence at hearing and any person may ask questions of any

person who testifies

 at hearing.

 Section 106.807 provides that

100—114

—21—

subsequent

to the hearing,

 any person may file comments which

present his or her

 views concerning the record before the

Board.

Section

 28.1(a)

 states that adjusted standard determinations

are “adjudicatory determinations”.

 However,

 the Act does not

define particular “parties” for

 an adjusted standard

proceeding.

 This further indicates

 that public participation

need not be limited

 in scope.

In

other words,

 adjusted standard

proceedings

 are not contested cases between two or more distinct

parties.

 Yet,

 at the same time,

 the “adjudicatory” language may

not

ignored.

As

 a result,

 Section

106.805

sets

forth

standard

for

admissable evidence which

 is equivalent

 to that currently used

in

the contested case proceedings of enforcement actions, permit

appeals,

 and variances.

It

 is also consistent with the

requirements

Section

12

 of the Illinois Administrative

Procedure

Act

(APA).

Ill.

Rev.

Stat.

1987,

ch.

127,

par.

1012.

In addition,

 the opportunity

 for cross—examination

any

person

who testifies

 is afforded by Subpart

G.

 This,

 too,

 coinports with

the Board’s current procedures

 as well

 as Section

 12 of the APA.

Section

106.806

 Order

 of Hearing

Subpart G provides for broad public participation

 in an

adjusted standard hearing.

 The level of

 such public

participation

 is patterned

 after

 that which

is

 found

 in the

current

rulemaking

procedures.

Adjusted

 standard proceedings

result

 in the establishment

 of environmental standards.

 Such

standards have the same force

 and effect as those which are

Promulgated

 as rules.

 It follows

naturally

that

the

public

should have participation rights

in

 an adjusted standard

Proceeding which

 are equivalent

 to those afforded

in

rulemakings.

 It would

 be seem inconsistant with the intent of

the Act to allow adjusted standard proceedings

 to become forums

which effectively exclude the public from meaningful

Participation in the determination of environmental standards.

Consequently,

 the procedures

 of Subpart G provide opportunities

for the public

 to meaningfully contribute

 to the adjusted

standard decision—making process.

Section

106.807

Post—hearing

Comments

Section 106.807 requires that

 no new information may be

entered

 into the record

 by way

 of post—hearing comments.

The

Post—hearing comments are intended

 to address,

 comment

 upon,

or

argue trom the record which has been built

 by the hearing

Process.

 The post—hearing comment procedure

 is not

 an additional

mechanism

which

build

the

evidentiary

portion

the

record.

Although

some

commenters

did

not

wish

bound

such

requirement,

the

Board

must,

some

time

during

proceeding,

draw the line as

 to when

 it closes the evidentiary portion of

the

100—115

—22—

record.

 That line is now drawn prior

 to the submission of post—

hearing comments.

The timing of the submission of post—hearing comments may be

staggered pursuant

 to hearing officer order to reflect the

petitioner’s burden

 of proof.

 For example, the hearing officer

may require that the petitioner file comments first.

 Then, other

persons would file their comments,

and

 the petitioner’s rebuttal

comments would be filed last.

Additionally,

 the Board received comments that

 14 days

is

too short of

a

 time period

 in which

 to file post—hearing

comments.

 This mischaracterizes the requirement

 of the proposed

Section.

 The 14—day time period only applies

if

 the hearing

officer does not set

 a different comment deadline.

 This reflects

the Board’s intent that the proceedings not be prolonged

unnecessarily once the evidentiary

 record has been closed.

Section

106.902

 Dismissal

 of Petition

Section 106.902 provides that

 at any time during

 an adjusted

standard proceeding,

 the Board may dismiss

 a petition upon

several bases.

 If the Board determines

 that the petition

is

frivolous,

 duplicative, or deficient with respect to the

petition’s contents, petition verification,

proof

service,

petition notice.

 Also,

 if the Board determines that the

petitioner

 is not pursuing disposition

 of the petition

in

a

timely manner

 the Board may order

 a dismissal.

Section

 106.903

 Board Decision

At hearing,

 the burden

 of proof

 is on the petitioner

to

prove,

 by a preponderance of the

 evidence,

 the applicable level

Of

 justification for

 an adjusted standard proceeding.

 If the

regulation

 of general applicability,

 from which an adjusted

standard

is

 sought,

 specifies

 the level

of

 justification for

an

adjusted standard,

 then that

 standard will

 be applicable.

 If the

regulation of general applicability

is

 silent concerning the

level

 of justification, then the standard imposed

 by Section

l06.903(a) will govern.

 The standard set forth by subsection

(a)

is

 identical

 to that imposed by Section

 28.1(c)

 of the Act.

(P.A.85—lo48)

If the petitioner proves the applicable level

of

justification for an adjusted standard then the Board may,

Consistent with Section 27(a)

 of the Act, grant

 the adjusted

standard.

 The use

 by Section 106.903

 of the permissive term

“may”

 is statutory

 ih origin.

 Section

 28.1(c)

 of the Act

 (P.A.

85—1048).

 Consequently,

 even

 if the petitioner

 meets

 its burden

Of

 proof

 regarding the applicable level

 of justification,

 the Act

does

 not require

 the Board

 to adopt

 the proposed adjusted

Standard.

 To conclude otherwise would frustrate both the plain

meaning

 of the Act and the mandate

 to consider factors set forth

Section

27(a).

the

Act,

Subpart

provides

that

the

100—116

—23—

Board may

 impose conditions on the granting

of

 an adjusted

standard.

In the case

 of the Clean Air Act regulation of general

applicability,

 the Board,

as

 a final determination, must either

adopt the proposed adjusted

 standard,

 if the applicable level

of

justification has been proven,

 or adopt

a

 standard the same

as

that imposed by the regulation of general applicability.

 Section

106.903(c).

 This provision

 is found

 in Section

 28.1(f)

 of the

 Act.

 (P.A.

 85—1048).

In

 a Clean Air Act regulation/adjusted

standard proceeding where the petitioner

 has failed its burden of

proof,

 the recotd need not justify the adoption of the standard

of the regulation of general applicability.

It

 is clear from the Act that the Board must adopt either

the standard imposed by the regulation

 of general applicability

the

proposed

adjusted

 standard when

 a proceeding involves the

Clean Air Act.

equally

clear

that

the

burden

proof

an adjusted

 standard proceeding

 is on

 the petitioner.

 Section

28.1(c)

 of the Act,

 (P.A. 85—1048).

 The petitioner

for

an

adjusted standard certainly will

not prove that the regulation of

general applicability should be applied

 to the petitioner.

Neither does the Act provide for such

 a proof.

 Consequently,

Section 106.903(c) hinges

 the imposition

 of the standard

 of the

regulation of general applicability upon the failure by the

petitioner

 to prove

 the applicable level of justification for the

proposed adjusted standard.

Section 106.905

 Appeal

 of Board Decisions

Section 106.905 addresses an appeal

 of the Board’s final

decision.

 The Section merely restates

 the language of Section

28.1(g)

 of the Act which provides that appeal may be pursued

Pursuant

 to Section 41 of

 the Act.

 Since Section 28.1

 of the Act

does not specifically name

 “parties”

 to an adjusted standard

Proceeding

 the Board believes that an appeal

 of an adjusted

standard decision would be available

 to any person,

as

it

is

in

a

rulemaking

 context.

 The Board cannot see a distinction between

the public’s interest

in

 an appeal

 of an environmental standard

which was promulgated

as

 a rule as opposed

 to one which was

adopted pursuant

 to an adjusted standard proceeding.

 The Act has

Provided for broad public participation in the adoption and

appeal

 of environmental standards.

 There

 is no apparent reason

to deviate from that theme

 for adjusted standard proceedings.

Ultimately,

though,

it

 is for the courts

 to decide who has

Standing

 to appeal

 a Board decision made pursuant

 to Section

 28.1

the

Act.

Section 106.907

 Effect of Filing

 a Petition

Section 106.907(a)

 states that

 if the Board does not adopt

the proposed adjusted standard,

 the regulation

 of general

applicability remains applicable

 to the pollution source.

Section

 28.1(e)

 of the Act

 (P.A.

 85—1048) states

 that the

100—117

—24—

operation of the regulation from which the adjusted standard

is

sought

 is stayed, pending the Board’s final decision,

as

 to the

petioner,

 if the petition is filed within

 20 days after

the

effective date of that regulation.

However,

 if the regulation of general applicability

implements

 in whole or

 in part the Clean Air Act,

 a petitioner

becomes exempt from that regulation

if

 a petition is filed within

20 days

 of the effective date of the regulation.

 Section 28.1(f)

of

 the Act

 (P.A.

 85—1048).

 This provision

 is also set forth by

Section

 106.907(b).

ORDER

For the reasons set forth in the opinion,

 the Board refuses

to modify

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 amendments

to be filed with the Secretary of State.

 These amendments

include the repeal

 of current 35

 Ill.

 Adm. Code 101 and

 107.

TITLE

35:

 ENVIRONMENTAL PROTECTION

SUBTITLE

A:

 GENERAL PROVISIONS

CHAPTER

I:

 POLLUTION CONTROL BOARD

GENERAL RULES

SUBPART A:

 GENERAL PROVISIONS

Section

101.100

101.101

101.102

101.103

101.104

101.105

101.106

101.107

101.108

101.109

Section

101 .120

101.121

101.122

Applicability

Definitions

Filing

Documents

Form Of Documents

Length

Briefs

Waivers

Incorporation Of Prior Proceedings

Appearances And Withdrawals

Substitution Of Attorneys

Computation Of Time

SUBPART

B:

 FILING

 At’ID PHOTOCOPYING FEES

Filing Fees

Photocopying

Fees

Forms

Payment

SUBPART

SERVICE

Section

101.140

 Appl icabi1ity

100—118

—25—

Board Meetings

Agenda For Board Meetings

Section

101.200

 Ex Parte Contacts

Section

101.220

101.221

Section

101.240

101.241

101.242

101 .243

101.244

101.245

101.246

101 .247

Section

101

260

101. 261

Authority

Hearing

Officer

Hearing Decorum

SUBPART

 MOTION PRACTICE

Applicability

Filing Of Motions And Responses

Contents Of

 t~’1otionsAnd Responses

Motions Attacking Jurisdiction Or Sufficiency Of

The

Pleadings

Motions

 For Summary Judgment

Motions Preliminary To Hearing

Motions For Reconsideration

Disposition Of Motion

SUBPART

I:

 DISCOVERY

Subpoenas

Production

Of

 Information

SUBPART

SANCTIONS

Section

101.280

101.281

Sanctions For Refusal

 To Comply With Procedural

Rules, Board Orders,

 Or Hearing Officer Orders

Sanctions

 For Abuse

 Of Discovery Procedures

101.141

101.142

101.143

101.144

Section

101.160

101.161

101.162

Section

101.180

101.181

Service Of

 Initial Filings

Service Of Subsequent Filings

Proof Of Service

Effective Date Of Service

SUBPART

D:

 PUBLIC INFORMATION

Public Information

Non—Disclosabl e Information

Publications

SUBPART E:

 BOARD MEETINGS

SUBPART

PARTE

CONTACTS

SUBPART

HEARINGS

100— 119

—26—

SUBPART

K:

 RELIEF FROM AND REVIEW OF FINAL ORDERS

Section

101.300

 Motions For Reconsideration

101.301

 Relief From Final Orders

101.302

 Judicial Review Of Final Board Orders

101.303

 Stay Procedures

101.304

 Interlocutory Appeals

Appondix A

 Captions

Illustration A

 General Rulemaking

Illustration B

 Site—specific Rulemaking

Illustration C

 Adjusted Standard Petition

Illustration

D

 Permit Appeal Or Variance

Illustration

E

 Enforcement Case

Illustration

F

 Administrative Citation

Appendix B

 Appearance Form

Appendix C

 Withdrawal Of Appearance Form

Appendix D

 Notice Of Filing

Appendix

B

 Certificates Of Service

Illustration

A

 Service By Non—Attorney

Illustration B

 Service By Attorney

AUTHORITY:

 Implementing Sections

5,

 7.1, 7.2,

 27, 28,

 29, 31,

32,

33,

35,

36,

37,

 38, 40 and

41

of

the Environmental Protection

Act

 (111.

 Rev.

 Stat.

 1987,

ch.

 lll1/~~pars.

 1005,

 1007.1, 1007.2,

1027,

 1028,

 1029,

 1031,

 1032,

 1033,

 1035,

 1036,

 1037,

 1038,

1040

and 1041,

 as amended

 by Public Acts 85—1048 and 85—1331);

and

Section

4

 of “An Act

 in relation to natural resources,

 research,

data collec;ion and environmental studies,”

 (Ill.

 Rev.

 Stat.

1987,

ch.

 9&/2,

 par.

 7404); and authorized by Section 26

 of the

Environmental Protection Act

 (Ill.

 Rev.

 Stat.

 1987,

ch.

 1111/2,

par.

1026).

SOURCE:

 Filed with Secretary

 of State January

1,

 1978;

 codified

6

 Ill. Reg.

 8357; Part repealed

 new Part adopted in R88—5(A)

at

13

 Ill.

 Reg.

__________

 effective _________________________

NOTE:

 Capitalization denotes statutory language.

SUBPART A:

 GENERAL PROVISIONS

Section 101.100

 Applicability

a)

 This Part governs

 the practices and procedures

 of the

Pollution

Control

Board,

and

contains

rules

which

are

applicable

 to all proceedings

conducted

 by the Board.

This Part should

be

 read

 in conjunction with

 35 Ill.

Adm.

 Code 102 through

 120, which contain

 rules

applicable

 to specific proceedings conducted by the

Board.

 The provisions

 of this Part apply to

35

 Ill.

100—120

—27—

Adm.

 Code 102 through

 120; however,

 in the event

of

a

conflict

between

the

rules

this

Part

and

subsequent

 Parts,

 the more specific requirement

 of the subsequent

Part applies.

b)

 The provisions

of

 the Code

 of Civil Procedure

 (Ill.

Rev.

 Stat.

 1987,

 ch. 110,

 par.

 1—101

 et seq.) and the

Illinois Supreme Court Rules

 (Ill.

 Rev.

 Stat.

 1987,

ch.

llOA,

 par.

1

seq.)

do

 not expressly apply

to

proceedings before the Board.

 However,

 in any absence

of

 a specific provision

 in these procedural

 rules

to

govern

 a particular

 situation,

 the parties or

participants may argue that

 a particular provision

of

the Code of Civil Procedure or the Illinois Supreme

Court Rules provides guidance

 for the Board

 or hearing

officer.

c)

 The provisions contained

 in this Part and in 35

 Ill.

Adm.

Code

102

through

120

 are in addition

 to the

provisions

 of the Illinois Administrative Procedure Act

(Ill.

 Rev.

 Stat.

 1987,

 ch. 127,

 par.

1001

 et seq.),

unless otherwise provided by the Act.

Section

101.101

Definitions

The definitions of the Environmental Protection Act

 (Ill.

 Rev.

Stat.

 1987,

ch.

 111 1/2,

 par.

1001

et

 seq.) apply

 to this Part

unless otherwise provided.

 The following definitions also 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.

“Clean Air Act” means the federal

 Clean Air Act

(42

U.S.C.

7401

et

 seq.

 (1988)).

“Clean

Water

Act”

means

the

federal

Clean

Water

Act

(33

U.S.C.

 1251 et

 seq.

 (1988)).

“Clerk” means the Clerk

 of the Board.

100—12

—28—

“Contested case” means

 an adjudicatory proceeding,

including but not limited

 to enforcement, variance,

permit appeal, adjusted standard, and administrative

citation proceedings, but not including regulatory,

quasi—legislative,

 informational, or similar

proceedings.

“Document” means pleading, notice,

 motion,

 affidavit,

memorandum,

 brief, petition,

 or other

 paper

or

combination of papers required or permitted

 to be

filed.

“DNS” means the Illinois Department

 of Nuclear Safety.

“ENR” means

 the Illinois

Department

 of Energy and

Natural Resources.

“Evidence” means

 a paper,

 drawing,

 map,

 chart,

 report,

study,

 or other tangible thing produced and submitted

at hearing, or testimony received at hearing.

“Initial

filing”

means

the

filing

which

initiates

Board proceeding.

 For example,

 the initial

 filing in

an enforcement proceeding

 is the complaint;

 in a permit

appeal

is

 a petition for review,

and

 in a

 regulatory

proceeding

 is the proposal.

 There

 is only one initial

filing in each Board proceeding.

“JCAR” means

 the Joint Committee on Administrative

Rules.

“MateriaL”

 means relating

 to any substantive issue

 that

consequence

 the determination

of

 a proceeding.

“Participant”

means

any

person,

not

including

 the Board

or

 its staff,

 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

hearing.

“Party” means

 a person authorized by the Act

 to bring,

defend,

 or intervene

in

 a contested

 case before the

Board.

“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.

“Procedural

 rules” means the Board’s procedural

 rules,

contained in

35

 Ill. Adm. Code

 101 through

 120.

100—122

—29—

“Registered

agent”

means

person

registered

with

the

Secretary of State

 for the purpose of accepting service

notices

for

any

entity,

person

otherwise

authorized

writing

agent

for

the

purpose

accepting service of

 notices

 for that entity in Board

proceedings.

“Relevant” means having any tendency

 to make the

existence

 of any fact that

is

 of consequence

 to the

determination of

 the proceeding more probable or

 less

probable than it would be without that

 information.

“RCRA” means the Solid Waste Disposal Act,

 as amended

by the Resource Conservation

 and Recovery Act

 of 1976

(42 U.S.C.

6901

et

 seq.

 (1988)).

“SDWA” means

 the federal Safe Drinking Water Act

(42

U.S.C.

 300f et

 seq.

 (1988)).

“Site—specific rule” means

a

proposed or adopted

regulation, not of general applicability, which applies

only to a specific facility

 or geographic site.

“Undue

delay”

means

delay

which

unwarranted,

unjustified,

 improper,

or

 is more delay than necessary.

“USEPA” means the United States Environmental

Protection Agency.

Section 101.102

 Filing Of Documents

a)

 Documents and requests permitted

 or required

 to be

filed with the Board

or

 its Clerk

 shall

 be addressed

and mailed

 to or filed with the Clerk

 at 100 West

Randolph Street, State of

 Illinois Center, Suite

 11—

500,

 Chicago,

 Illinois 60601.

 Filing,

 inspection,

and

Copying

 of documents may he done

 in the Clerk’s office

from 8:30

 a.m.

 to 4:30 p.m.

 Monday through Friday,

except for national

 and state legal holidays.

The

Board offices

 are open

 from 8:30

 a.m.

 to 5:00

 p.m.

Monday through Friday,

 except for national

 and state

legal holidays.

Filings

received

after

 4:30 p.m.

 will be date—stamped

the following business day.

 Documents may be filed

 with the Clerk

 by certified,

registered,

 or First Class mail,

 by messenger service,

Or

personally at

 the Board’s Chicago office.

 Filing by

electronic

transmission,

such

telefax

 machine or

Computer modem, will not be accepted,

 except when

specifically requested

 by the Board.

d)

 The time

 of filing

 of documents will be the date on

100—123

—30—

which

 they are date—stamped by the Clerk, unless date—

stamped

 after any due date.

 If received after any due

date,

 the time of mailing shall

 be deemed

 the time of

filing.

 Proof

 of mailing shall

 be made pursuant

to

Section 101.143.

 However,

 the time for

 a decision

deadline pursuant to Sections 38, 40, 40.1,

 and 41

of

the Act does not begin until the date on which the

initial filing

 in such

 a proceeding

 is date—stamped by

the Clerk.

e)

 Notwithstanding subsection

 (d),

 the Board or

the

 hearing officer may accelerate

 a filing schedule

to

prevent undue delay, upon written notice

 to the

participants

 or parties.

 The notice will specify a

date by which the document must be

 received in the

Clerk’s office.

Section 101.103

 Form Of Documents

a)

 Documents

 shall

 clearly show the title

 of the

proceeding

 in which they are filed.

 Appendix A of this

Part sets forth examples of proper captions.

 Documents

shall bear

 a heading which clearly describes the nature

of the relief sought,

 such

 as, but not limited

to

“Petition for Amendment

 to Regulation,” “Complaint,”

“Petition

 for Variance,”

 “Petition

 for Review,”

“Motion,”

 or “Public Comment.”

b)

 Except as otherwise provided,

 the original and nine

(9)

copies of all documents shall

 be filed with the

Clerk.

Only

the

original

and

four

 (4) copies of any

discovery

motion,

deposition,

interrogatory,

answer

interrogatory,

 or subpoena need be filed with the

Clerk.

c)

 After the filing of the

 initial document

in

a

 proceeding,

 all filings,

 including

 exhibits,

 shall

include the Board docket number

 for the proceeding

in

which the item

 is to be filed.

 If the filing

is

a

document,

 the docket number shall appear on the first

cage

 of the filing.

 For filings which are not

aocuments,

 the docket number shall

 appear on

 a readily

visible portion

 of the

 filing.

ci)

 Documents,

 excluding exhibits,

 shall

 be typewritten or

reproduced from typewritten copy and double—spaced on

unglazed white paper

 of greater

 than 12 pound weight

and measur~ing8”

 x 10

 1/2”

or

 8 1/2”

x

 11”.

Reproductions

may

made

 any process

 that produces

legible black—on—white

 copies.

 All documents

 shall be

fastened on the left side or

 in the upper

 left hand

corner.

 The left margin of each page shall be

 at least

1 1/2 inches and the right margin at least one inch.

100—124

—31—

e)

 The requirements of subsections

 (b),

 (c),

and

 (ci) may

be waived

 by the Board upon written request.

 A request

for

 a filing waiver shall

 be presented

 to the Board

in

the form of

 a motion accompanied

 by affidavits

necessary to verify any factual

 assertions contained

in

the motion.

 It the Board finds that compliance withthe

filing requirements would impose

 an undue burden,

the

Board will

grant

 the motion.

f)

 Exhibits,

 where possible,

 shall

 be reduced

 to conform

to the size

 requirements of subsection

 (d).

 However,

one non-conforming

 copy may be filed with the Clerk’s

office.

g)

 The original

 of each document filed shall be signed by

the party

or

 by its authorized representative

or

attorney.

 All documents

 shall bear the business

address and telephone number

 of the attorney filing the

document,

or

 of the party who appears on his or her own

behalf.

 The Clerk will refuse

 to accept for filing any

document which does not comply with this subsection.

h)

 Except

 as otherwise provided by Sections

 1 through

 4 of

“AN ACT

 in relation

 to the reproduction of public

records on film and the destruction

of records

so

reproduced”

 (Ill.

 Rev.

 Stat.

 1987,

ch.

 116, pars.

 35—

38),

or

 by leave

 of the Board, documents

 on microfiche

are not acceptable

for

 filing..

Section 101.104

 Length Of Briefs

a)

 No brief

 in support of

or

 in Opposition

 to any motion

shall

exceed

pages

without

prior

approval

the

Board

 or hearing officer.

 This

 limit does not include

appendices containing

 relevant material.

b)

 No post—hearing brief or

 response brief,

 brief

submitted

 in response

to

 a Board order,

 or public

comment submitted

 in lieu of

 a brief shall exceed

50

pages without prior

 approval of the Board

 or hearing

officer.

 No reply brief shall exceed

 25 pages.

 These

limits do not include appendices containing relevant

material.

c)

 In considering any motion to exceed these limits,

the

Board

 or the hearing officer will

 take into account

factors such

as,

 but not limited

to,

 the complexity

of

the proceeding,

 the number

 of issues involved,

 and the

length of

 the record.

Section 101.105

 waiverS

A waiver

of

 a deadline for

 final 3oard action,

 as specified

in

Sections 38,

40,

 40.1 and 41

 of the Act,

 shall

 be filed

as

a

100— 125

—32—

separate document.

 The waiver shall be clearly titled

as

 such,

identify the proceeding by name and docket number,

 and be signed

by the party or by his authorized representative or

 attorney.

The waiver shall be an open waiver

or

 a waiver until

 a calendar

date certain.

 However,

 the Board reserves the right

 to accept

waivers in other

 forms where

 it finds

 it necessary to prevent

undue delay or material prejudice.

 A contingent waiver

is

not

acceptable.

Section 101.106

 Incorporation Of Prior Proceedings

a)

 Upon the separate written request

 of any person or on

its own initiative,

 the Board or hearing officer may

incorporate materials from the record of another Board

docket into any proceeding.

 The person seeking

incorporation shall file with the Board four copies

of

 the material

 to be incorporated.

 The person seeking

incorporation shall demonstrate

 to the Board

or

the

hearing officer that the material

 to be

 incorporated

is

relevant

 to the proceeding.

 Notice of

 the request

shall be given to all identified participants or

parties by the person seeking incorporation.

b)

 The Board will give the incorporated matter the

appropriate weight

 in light

 of the following factors:

the standard of evidence under which the material was

previously presented

 to the Board;

 the present purpose

tor incorporating the material;

 and the past and

current opportunity for cross—examination of the

matters asserted within the incorporated material.

Section 101.107

 Appearances And Withdrawals

a)

 Any person entitled

 to participate

 in Board proceedings

shall appear

 as follows:

1)

 A natural person

 on his

 or her own behalf

or

 by an

attorney at

 law licensed and registered

 to practicO

in the State

 of Illinois, or both.

2)

 A corporation,

 when

 a respondent

 in an enforcement

case pursuant

to

 35 Ill.

 Adm.

 Code 103,

 by an

attorney at law licensed and registered

 to practice

in the State of Illinois.

 In all other

proceedings,

 a corporation may appear

 through any

Officer, employee,

or

 representative,

 or by an

attorney at law licensed and registered

 to practice

in the State

 of Illinois,

or

 both.

3)

 Any other person,

 including

 a unit of local

government,

 through any officer, employee, or

representative, or

 by an attorney licensed and

registered

 to practice

 in the State of Illinois,

or

both.

101)—126

—33—

b)

 Attorneys

 not licensed and registered

 to practice

in

the State of Illinois may request

 to appear on

a

particular matter on motion filed with the Board.

c)

 An attorney appearing

in

 a representative capacity

shall file

 a separate written notice

 of appearance with

the Clerk,

 together with proof

 of service and notice

of

filing on all parties

 and participants or their

representatives.

 A sample appearance form appears

in

Appendix

B.

d)

 An attorney who has appeared

in

 a representative

capacity and who wishes to withdraw

 from that

representation shall file

 a notice of withdrawal with

the

Clerk,

together

with

proof

service

and

notice

filing on all participants

 or their representatives.

A

sample notice

 of withdrawal appears

 in Appendix

C.

Section 101.108

 Substitution

 Of Attorneys

Any attorney who substitutes

 for an attorney of record shall file

a written appearance pursuant to Section 101.107(c).

 That

appearance

 shall

 identify the attorney for whom the substitution

made.

Section 101.109

 Computation Of Time

Computation

 of any period of time prescribed

 by this Chapter

or

t~ieAct shall begin with the first calendar day following the da

on which the act,

 event or development occurs and shall run unti

the end

 of the last day,

 or the next business day

if

 the last day

is

 a Saturday, Sunday or national or state legal holiday.

SUBPART

B:

 FILING AND PHOTOCOPYING FEES

Section 101.120

 Filing Fees

a)

 A person filing

 an action for which

a

 filing fee

is

prescribed by the Act shall pay that fee at the time

the petition

 is presented

to

 the Clerk

for

 filing.

b)

 The types

 of petitions

 for which fees are required and

the amount of those

 fees are

 as follows:

1)

 PETITION FOR SITE—SPECIFIC REGULATION,

 $75;

2)

 PETITION FOR VARIANCE,

 $75;

3)

 PETITION FOR REVIEW OF PERMIT or any petition for

review pursuant

 to Section 40

 of the Act,

 $75;

4)

 PETITION TO CONTEST LOCAL GOVERNMENT DECISION

PURSUANT TO

SECTION

 40.1

 OF THE ACT,

 $75;

and

100—127

—34—

5)

 PETITION FOR ADJUSTED STANDARD PURSUANT TO SECTION

28.1 OF THE ACT, $75.

 (Section 7.2

 of the Act.)

c)

 The Clerk will refuse to accept any petition which

is

not accompanied

 by the required

 fee.

 The fee must be

paid

 in the form specified in Section 101.122.

Section 101.121

 Photocopying Fees

a)

 All files,

 records,

 and data may be copied

 at Board

offices

 in Chicago UPON PAYMENT OF REASONABLE

REPRODUCTION FEES TO BE DE2ERMINED BY THE BOARD.

(Section

7

 of the Act.

b)

 The Board will contract for any copying that would

impose

 a substantial administrative burden on the

Board.

 The person requesting such copies will

be

charged

 the reproduction charges incurred

 by the Board.

c)

 Requests for copies will be honored

 in as timely

a

manner

 as possible.

 Requests for copies by mail will

be honored.

 However, the Board reserves the right

to

charge the requesting party

 for the mailing costs

incurred by the Board.

Section 101.122

 Forms Of Payment

a)

 Filing fees and photocopying fees may be paid

 by money

order

 or check.

 Cash payments will be accepted,

but

are strongly discouraged.

b)

 All checks and money orders shall be made payable

to

the Illinois Pollution Control Board.

c)

 In the event

 that

 a check

 is not honored

by

petitioner’s bank,

 the Board will enter

 a sanction

order

 in that proceeding.

 Sanctions may include, but

are not limited

 to, dismissal

 of the action for non-

payment,

or

 re—computation of any decision deadline

to

exclude the time in which the filing fee remains

uncollected.

SUBPART

SERVICE

Section 101.140

 Applicability

This Subpart

applies~

all

Board

proceedings

generally.

Ho.~iever,

 the extent

 that

35

 Ill.

 Acim.

Code

102

through

120

conflict

 with or

supplement

this

Subpart,

 that more specific

Part

governs.

Section 101.141

 Service Of

 Initial Filings

100—128

—35—

A copy of all initial

 filings

 in any Board proceeding

 shall

be

served

 upon all persons,

 required by this Chapter

 to be served,

or their registered

 agent.

35

 Ill.

 Adm. Code 102 through 120

set

forth more specifically who must be served

 in any given type of

Board

proceeding.

Service

all

initial

filings

shall

made

personally,

 or by registered, certified,

 or First Class mail,

or

by messenger

 service.

 However,

 initial complaints

 in enforcement

proceedings pursuant

to

35

 Ill.

 Adm.

 Code 103 must be served

personally,

by

 registered

 or certified mail,

or

 by messenger

service.

Section 101.142

 Service Of Subsequent Filings

After

initial

filings

are

served

pursuant

Section

101.141,

all

subsequent filings

 shall

 be served personally,

 or by United

States mail,

or

 by messenger service.

Section 101.143

 Proof

 Of Service

a)

 Service

 of filings

 is proved by:

1.

 In case of service

 by personal delivery, by

certificate of the attorney,

 or affidavit of

the

person other

 than an attorney, who made delivery;

or

2.

 In case of

 service by messenger service,

by

messenger service receipt; or

3.

 In case of service

 by registered

 or certified

 mail,

registered

certified

mail

receipt;

4.

 In case

service

First

Class

mail,

certificate

 of attorney, or affidavit of person

other than attorney, which states the date,

 time,

and place of mailing,

 the complete address which

appeared on the envelope,

and

 the fact

 that proper

 postage was prepaid.

b)

A

sample

 certificate of

 service appears

 in Appendix

E

of

this

 Part.

Section 101.144

 Effective Date Of Service

a)

 In the case

of

 service by personal delivery, service

is

complete on the date of that personal delivery.

b)

 In the case of service by

 registered

 or certified

 mail,

or by messenger service,

 service

 is complete on the

date specified

 on the registered or certified mail

receipt or

 the messenger

 service receipt.

c)

 There

is

 a rebuttable presumption that service by First

Class mail

 is complete four days after mailing.

100—129

—36—

SUBPART

D:

 PUBLIC INFORMATION

Section 101.160

 Public Information

a)

 The Clerk will maintain files containing

all

information submitted to

 or produced by the Board

or

any

 of its members relating

 to matters within the

Board’s jurisdiction.

 Without limiting the foregoing,

the files will include:

 pleadings,

 motions,

 notices,

minutes,

 transcripts,

 exhibits, orders and opinions,

proposed and adopted regulations,

 communications

 to or

from the Board

 or any Board member,

 the Environmental

Register and other Board releases,

 business records,

informal complaints,

 and internal communications filed

at the request

 of any Board member with consent of the

author

that

communication.

b)

 All files maintained by the Clerk will be

 open

to

reasonable

public

inspection

and

copying,

except

the

following material:

1)

 Internal communications between and among Board

members

and

staff

(except

provided

subsection

a)

)

;

2)

 Material

 protected from public disclosure

 under the

trade secret provisions

of

35

 Ill. Adm.

 Code 120;

and

3)

 Material which

 is stamped

 “Not Subject

to

Disclosure”

 by Board order,

 pursuant

 to Section

101.161.

c)

 The Clerk

 shall maintain

 a list of all files open

to

public

inspection.

Section 101.161

 Non—Disclosable Information

a)

 Only

 the following materials may be stamped

 “Not

Subject

 to Disclosure”

 by the Board:

1)

 INFORMATION WHICH CONSTITUTES A TRADE SECRET;

2)

 INFORMATION PRIVILEGED AGAINST INTRODUCTION IN

JUDICIAL

PROCEEDINGS;

3)

 INFORMATION CONCERNING SECRET MANUFACTURING

PROCESSES OR CONFIDENTIAL DATA SUB~1ITTEDBY ANY

PERSON

UNDER

THE

ACT;

AND

4)

 Income and earnings data when

not

 an issue

 in the

proceeding.

 (Section 7(a)

of

 the Act.)

100— 130

—37—

b)

 Material will be stamped “Not Subject

 to Disclosure”

only upon written application at the time the material

is filed.

 Procedures governing the identification and

protection of trade secrets are found

in

 35 Ill.

 Adm.

Code 120.

 An application for non—disclosure

 other than

pertaining

trade

secrets

shall

contain

the

following:

1)

 Identification

 of the precise material,

 or parts

of

material,

 for which non—disclosure

 is sought;

2)

 Indication of the particular non—disclosure

category into which

 the material falls;

and

3)

 A concise statement

 of the reasons

 for requesting

non—disclosure.

 The application shall

 be verified

by affidavit and contain such information as will

inform the Board

 of the nature of material for

which

non—disclosure

sought,

the

reasons

why

non—disclosure

 is necessary,

 and the number and

title

all

persons

familiar

with

such

information,

 and how long the material has been

limited from disclosure.

c)

 A single copy

 of the material for non—disclosure

 shall

filed

with

the

Clerk

with

the

application

and

shall

available

for

examination

only

Board

members,

Board

 assistants,

 Environmental Scientists

of

the

Board’s Scientific/Technical Section,

 the assigned

hearing officer,

 the Clerk,

 and the Assistant Clerk.

This material may also be made available

 to officers,

employees,

 or authorized representatives

of

 this State

the

United

States

provided

Section

7(e)

the

Act.

 If any agency of this State

 or the United States

is

 a participant

 in the proceeding

 in which

the

application

for

non—disclosure

made,

the

applicant

shall

serve

those

agency

participants

with

notice

the application for non—disclosure.

 The Board

 will

rule on the application and inform the applicant

 of its

decision.

 Public inspection of the material for non-

disclosure shall

 be barred until

 the application has

been disposed

of

 by the Board and the time for appeal

has run.

 The Board may enter conditional non-

disclosure orders allowing withdrawal

 by the applicant

of the material covered by such order,

 at which time

the

Board’s

ruling

the

application

shall

based

the record excluding

 the material

 so withdrawn.

ci)

 All material

 found not subject

 to disclosure

is

governed by the procedures and protections

of

35

 ill.

Adm. Code l20.Subpart

C.

Section 101.162

 Publications

100—13 1

—38—

a)

 At least once each month,

 the Board will publish

an

Environmental Register containing reports

 of Board

activities and notices

 of meetings and hearings.

One

copy will be sent

 to any person without charge, upon

request.

b)

 Copies of

 the Act and regulations

 in effect will be

provided without charge, by mail and at the Board’s

Chicago office.

c)

 The Board will regularly compile its decisions and

orders

 into volumes, which subscribers may

buy and

receive by mail at

 a reasonable cost.

SUBPART E:

 BOARD MEETINGS

Section 101.180

 Board Meetings

a)

 All decisions of

 the Board will

 be made at meetings

open

 to the public.

 Four members

 of the Board

constitute

 a quorum.

 Four affirmative votes are

required for any final determinations

 of the Board,

except

in

 a proceeding

 to remove a seal under Section

34(d)

 of the Act.

b)

 THE BOARD WILL HOLD AT LEAST ONE MEETING EACH MONTH AND

WILL

ADOPT

AT

THE

BEGINNING

EACH

CALENDAR

FISCAL

YEAR A SCHEDULE OF MEETINGS WHICH SHALL APPEAR AT LEAST

ONCE

ITS

MINUTES

AND

THE

ENVIRONMENTAL

REGISTER.

 SPECIAL MEETINGS MAY BE CALLED BY THE

CHAIRMAN

ANY

TWO

BOARD

MEMBERS

UPON

DELIVERY

24 HOURS WRITTEN NOTICE TO THE OFFICE OF EACH MEMBER.

PUBLIC NOTICE OF ALL MEETINGS WILL BE GIVEN AT LEAST

24

HOURS IN ADVANCE OF EACH MEETING BY POSTING

 AT THE

BOARD’S

OFFICES.

EMERGENCIES

 WHICH

A

MAJORITY OF

THE

BOARD

CERTIFIES

 THAT

EXIGENCIES

TIME

REQUIRE,

THE REQUIREMENTS OF PUBLIC NOTICE AND 24 HOUR WRITTEN

NOTICE

MEMBERS

MAY

DISPENSED

WITH,

AND

BOARD

MEMBERS WILL RECEIVE SUCH NOTICE AS

 IS REASONABLE UNDER

THE CIRCUMSTANCES.

 (Section

 5 of the Act.

 The Board will keep a complete and accurate record of

all meetings including the votes of

 individual members

on

 all adjudications and proposed

 regulations.

ci)

 No oral

 argument will be heard

 at any Board meeting,

except by leave

 of the Board.

Section 101.181

 Agenda

 For Board Meetings

Unless the Board determines

 that undue delay or material

prejudice will result,

 no document received

 by the Clerk

after

4:30 p.m.

 two days before

 a scheduled Board meeting

 will

be

placed on the agenda for

 that Board meeting.

 Any such filing

100—132

—39—

will appear

 on the agenda for the next

 regularly scheduled Board

meeting.

SUBPART F:

 EX PARTE CONTACTS

Section 101.200

 Ex Parte Contacts

a)

 Contested Case Proceedings.

 No Board member,

 hearing

officer, or employee

 of the Board

 shall communicate

cx

parte

with

any

person

not

employed

the

Board

with

respect

 to the substance of any contested

 case

proceeding pending before the Board.

 Ex parte contacts

with respect to

 individual pollution sources which may

become

the

subject

 of such

 a proceeding are permissible

 to the extent that information so received

 is relevant

to and received within

 a rulemaking proceeding,

but

caution shall

 be exercised

 by Board members

and

employees to avoid prejudging the merits of

any

potential

 case.

b)

 Regulatory Proceedings.

 Board members and employees

should not permit ex parte contacts designed

to

influence his or her action

 in any regulatory

proceeding after docketing and authorization

of

hearings.

 Whenever practicable,

 communications shall

be

 in writing

 and addressed

 to the Board rather than

to

individual members.

c)

 Nothing

 in this Section shall preclude Board members,

hearing officers,

 or employees

 from receiving informal

complaints about

 individual pollution sources,

or

forbid such administrative contacts

 as would be

appropriate for judges and other judicial officers.

ci)

the

event

that

cx

parte

contact

does

occur,

Board

members and employees shall make that contact

 a matter

of

public

record,

order

that

the

information

 which the Board bases

 its decision can be subject to

scrutiny and

 to rebuttal.

An

 ex parte contact may be

made

 a matter

 of public record

 in several

 ways,

including,

 but not limited

to,

 inclusion of

 a memo

in

the public file or announcement on the record at

a

public hearing.

SUBPART

G:

 HEARINGS

Section 101.220

 Authority Of Hearing Officer

The hearing officer shall have the duty to conduct

 a fair

hearing,

 to take all necessary action

 to avoid delay,

 to maintain

order, and

 to ensure

development

 clear,

 complete, and

concise

 record.

lie

or

 she shall have

 all powers necessary to

these ends,

 including

 (but not limited

to)

 the authority to:

100—133

—40—

Require

and

establish

schedule

for,

and

notice

and

distribution of, any prior submission of testimony and

written exhibits;

b)

 Require

all participants

 to state their position with

respect

 to the proposal;

c)

 Administer oaths and affirmations;

ci)

 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

cumulative

testimony

and

 questioning;

g)

 Issue,

 in the name of the

Board,

order

compelling

the

answering

interrogatories

other

discovery

requests;

h)

 Order

 the production of evidence pursuant

 to Section

101.261;

i)

 Initiate,

 schedule and conduct

 a pre—hearing

conference;

 Issue subpoenas pursuant to Section 101.260;

k)

 Exclude late—filed briefs

 and comments from inclusion

the

record

for

decision;

1)

 Rule upon motions

 as specified

 in Section 101.247;

m)

 Rule upon objections an~ evidentiary questions;

and

n)

 Establish

 a schedule for discovery,

 including

 a date

by

Which

discovery

must

completed.

Section 101.221

 Hearing Decorum

a)

 Hearings should

 be conducted with fitting dignity and

decorum.

 Any person may record

 the proceedings by

tape,

 film,

 or other means.

 The hearing officer may

prescribe

rules

govern

such

recordings.

the

hearing

officer

determines

that

recording

disruptive

detrimental

proper

development

the

record,

she

may

limit

prohibit

recording.

witness

refuses

testify

the

grounds

that

she

may

not

compelled

testify

any

portion

the

witness’

 testimony

is

 to be broadcast

 or televised or

motion

pictures

are

taken

the

witness

while

the witness

 is testifying,

 the hearing officer will

100—13 4

—41—

prohibit such

 recording during the testimony

 of the

witness.

 The hearing officer shall

 make witnesses

aware

 of this provision before the hearing

 begins.

b)

 Participants

 in proceedings before the Board shall

at

all

times

conduct

themselves

with

 the same degree

of

dignity

and

respect

that

they

would

before

court.

c)

 Board hearings are not “meetings”

 within the provisions

the

Open

Meetings

Act.

(Ill.

Rev.

Stat.

1987,

ch.

102,

 par.

41

 et seq.)

SUBPART

MOTION

PRACTICE

Section

101.240

Applicability

This

Subpart

applies

all

Board

proceedings

generally.

However,

 to the extent that 35

 Ill.

 Adm.

 Code 102 through

120

conflict with or supplement

 this Subpart,

 that more specific Part

governs.

Section 101.241

 Filing Of Motions And Responses

a)

 All motions

 shall be

 in writing, unless made orally on

the record during

 a hearing,

 and shall state whether

directed

 to the Board or

 to the hearing officer.

If

the motion is directed

 to the Board, ten copies shall

filed

with

the

Clerk.

 the motion

 is directed

to

the hearing officer,

 three copies shall

 be filed with

the Clerk

 and one copy served upon the hearing

Officer.

All

other

participants

shall

served

pursuant

 to Section 101.142.

b)

 i~ithin7 days after service

of

 a motion,

 a participant

or

 party may file

 a response

 to the motion.

 If no

response

 is filed,

 such participant

 or party

 shall

be

deemed

 to have waived objection

 to the granting

 of the

motion,

but

such

waiver

objection

does

not

bind

the

Board

the

hearing

officer

the

decision

the

motion.

Unless

undue

delay

material

prejudice

would

 result,

 neither

 the Board

 nor the hearing officer will

grant any motion before expiration

 of the 7—day

response period.

The

moving

person

shall

not

have

the

right

reply,

except

permitted

the

Board

the

hearing

officer

prevent

material

prejudice.

Section

101.242

Contents

Motions

And

Responses

a)

 All motions

 shall clearly state the reasons

 for and

grounds upon which the motion

 is made

and

shall

contain

concise

statement

the

relief

sought.

Facts

asserted

which

are

not

record

the

proceeding

100—135

—42—

shall

 be supported by affidavit.

 A brief may be

included.

b)

 All responses shall clearly state the position of the

responding person and the reasons for that position.

Facts asserted which are not of record

 in the

proceeding shall

 be supported by affidavit.

 A brief

may be included.

Section 101.243

 Motions Attacking Jurisdiction

 Or Sufficiency

Of The Pleadings

a)

 All motions to strike or dismiss

 challenging the

sufficiency of any pleading filed with the Board shall

be

filed

within

 21 days

 after

 the service

of

the

challenged document, unless the Board determines that

material prejudice would

 result.

 In the case of

a

regulatory proceeding pursuant

to

35

 Ill,

 Adm.

 Code

102, however, motions challenging

 the sufficiency

of

a

regulatory proposal shall

 be filed within

 30 days of

the Board order

 formally accepting that proposal

for

hearing.

b)

 All motions challenging the jurisdiction

 of the Board

shall

 be filed prior

 to the filing

 of any other

document by the moving participant

 or party,

 unless the

Board determines

 that material prejudice will result.

Such participant

 or party will be allowed

 to appear

specially

 for the purpose

 of making such motion.

 A person may participate

 in a proceeding without

waiving

 any jurisdictional objection

 if such objection

is timely raised pursuant

 to subsection

 (b).

Section

101.244

Motions

For

Summary

Judgment

A motion for summary judgment prior

 to hearing may be made

 by any

party

 to an enforcement proceeding pursuant

 to Title VIII

 of the

~ct

or

 a permit appeal pursuant

 to Title

 K of the Act.

 Specific

rules

 for such motions for summary judgment are found

in

 35 ill.

Ad~~Code 103

 (enforcement proceedings)

and

35

 Ill.

 Adm.

 Code 105

(permit appeals).

Section 101.245

 Motions Preliminary To Hearing

a)

 All motions preliminary

 to hearing

 shall

 be presented

to the Board or

 the hearing officer

 at least 21 days

prior

 to the date

 of hearing,

 unless allowed by th~

Board

the

hearing

officer

prevent

 material

prejudice.

The

Board

the

hearing

officer

may

direct

that

the

scheduled

hearing

proceed

during

the

penclancy

of the motion.

 The Board may defer

 ruling upon any

motion, except

 a motion pursuant to Section 101.243,

until

 its decision on the merits of

 the case.

100—136

—43—

motion

continue

hearing

 a proceeding with

a

deadline for Board action,

 as specified

 in the Act,

will be granted unless the motion

 to continue is

accompanied by

 a waiver of that decision deadline.

The

waiver

 shall conform with the requirements of Section

101.105.

Section

 101.246

 Motions For Reconsideration

a)

 Any motion for reconsideration

 or modification

of

a

final Board order

 shall

 be filed within

 35 days of the

adoption of

 the order.

b)

 Any response

to

 a motion for reconsideration

or

modification shall

 be filed within 14 days from the

filing of the motion.

c)

 A timely—filed motion for

 reconsideration or

modification stays

 the effect of the final order until

final disposition of the motion.

 The time for appeal

of the Board

 order

 runs anew after

 the Board rules upon

 the motion unless otherwise provided.

d)

 In ruling upon

 a motion under

 this Section, the Board

will consider

 factors including,

 but not limited

to,

error in the decision and facts

 in the record which are

overlooked.

Section

 101.247

 Disposition Of Motion

a)

 The hearing

 officer may

 rule upon all motions except

any

motion

dismiss,

motion

decide

proceeding

the

merits,

motion

strike

 any claim or defense for

insufficiency

 or want of

proof,

motion

claiming

lack

jurisdiction, motion

 for consolidation, motion

for

Summary

 judgment, or motion for reconsideration.

The

hearing officer will refer

 all such motions

 to the

Board.

 If the hearing officer

 refuses

 to act upon any

motion,

he

 or she will

 refer

 such motion

 to the Board

within

days

the

filing

any

response.

b)

 No interlocutory appeal

of

 a motion may

 be taken

 to the

Board

from

ruling

the

hearing

officer,

except

allowance

 the Board after written motion.

Notwithstanding,

when

the

judgment

the

hearing

officer immediate appeal

 of any order

 is necessary

to

Prevent

harm

the

public

interest

 to avoid

 unusual

delay

 or expense,

 the hearing officer may refer

the

ruling promptly to

 the Board and notify the parties

and

participants.

continuing

objection

hearing

officer

ruling

must

restated

the

hearing

or

 in post—hearing

 submissions.

100—13 7

—44--

 Unless otherwise ordered

 by the Board

 to prevent

material prejudice, neither the filing

of

 a motion,

the

certification of

 a question to the Board, nor any

appeal

 to the Board of

 a hearing officer order shall

stay the proceeding or extend the time for the

 performance of any act.

 All hearing officer orders

shall remain

 in effect during the pendancy of any

appeal

 to the Board.

SUBPART

I:

 DISCOVERY

Section 101.260

 Subpoenas

a)

 Upon request by any party

to

 a contested

 case,

the

Clerk

 shall

 issue subpoenas

 for the attendance

of

witnesses at

 a hearing or deposition.

 Subpoena forms

are available at the Board’s Chicago office.

The

person

requesting

the

subpoena

responsible

for

completing

the

subpoena

and

serving

upon

the

witness.

b)

 Upon written motion by any participant

 in a

 regulatory

proceeding pursuant

to

35

 Ill. Adm. Code

 102,

the

hearing officer

 or Board may issue subpoenas

 for the

attendance of witnesses

at

 a hearing or deposition.

The movant

 is responsible

 for serving the subpoena upon

the witness

 if the motion

 is granted.

c)

 Service of

 the subpoena must be completed

 7 days before

the date

 of the required appearance.

 A copy of the

subpoena shall

 be filed

 with the Clerk

 after service

upon the witness

 and served upon the hearing officer.

ci)

 Subpoenas may include

 a command

 to produce books,

papers,

documents,

other

tangible

things

designated

therein

an~

relevant

the

matter

under

consideration.

e)

 The hearing officer

 or the Board,

 upon motion made

promptly and

 in any event

 at or before

 the time

specified

 in the subpoena

 for compliance,

 may quash or

modify

the

subpoena

unreasonable,

oppressive,

or

 irrelevant.

 The hearing officer

 or the Board will

rule upon motions

 to quash or modify material requested

in the subpoena pursuant to subsection

(d)

in

accordance with the standards

 articulated

 in Section

101.261.

f)

 If the wit•ness

is

 a non—resident of the state,

the

hearing officer

 or Board may provide

 for payment of the

Witness’

 reasonable expenses

 by the person requesting

the subpoena.

g)

 Each witness subpoenaed

 by a party or participant

 under

this Section

 is entitled

 to receive witness

 fees from

100—138

—45--

that

party

participant

provided

Section

“AN ACT concerning

 fees and salaries and

 to classify

the several counties of this state with reference

thereto.”

 (Ill.

 Rev.

 Stat.

 1987,

ch.

53,

 par.

 65.)

Any

witness

subpoenaed

for

deposition

may

required

to attend only

 in the county

 in which he or she resides

maintains

office

address,

any

other

place ordered

 by the Board.

i)

 Failure

 of any witness

 to comply with

 a subpoena shall

subject

 the witness

 to sanctions

 under

 this Part,

or

to

judicial enforcement

of

 the subpoena.

 The Board

 may,

upon proper motion by the participant

 or party

requesting

 the subpoena,

 request the Attorney General

to pursue such

 judicial enforcement of the subpoena on

behalf

the

Board.

Section

101.261

Production

Information

The hearing officer may

 at any time on his or her own motion,

or

on motion of any participant,

or

 at the direction

 of the Board,

order the production of

 information which

 is relevant

 to the

matter

 under consideration.

 The hearing officer will deny,

limit,

condition

the

production

information

when

necessary

to prevent undue delay,

 undue expense,

 harassment,

 or oppression

protect

materials

 from disclosure consistent

 with the

orovisions

 of Sections

 7 and 7.1

 of the Act and

35

 Ill. Adm.

 Code

1~0l.l6l

and

120.

SUBPART

SANCTIONS

Sections

101.280

Sanctions

For

Refusal

Comply

With

Procedural

 Rules, Board Orders,

 Or Hearing

Officer Orders

party

any

person

unreasonably

refuses

compi

 with any provision of

 35 Ill.

 Adm. Code

 101 through

12

fails

comply

with

any

order

entered

the

Board

or the hearing officer,

 including any subpoena

 issued

oy the Board or hearing officer,

 the Board will order

sanctions.

 In addition to remedies elsewhere

Specifically provided,

 the sanctions may include, among

others,

 the following:

1)

 That further proceedings

 be stayed until the order

or

 rules

 are complied with,

 except where the non-

complying party

 is the petitioner

in

 a petition for

variance or

 permit appeal,

 such proceeding may be

dismissed prior

 to the date on which decision

is

due;

2)

 That the offending person be barred from filing any

other pleading relating

 to any issue

 to which

the

100—139

—46—

refusal

 or failure relates;

3)

 That the offending person be barred from

maintaining any particular claim,

 counter claim,

third—party complaint,

 or defense relating

 to that

issue;

4)

 That

 a witness

 be barred

 from testifying concerning

that issue;

5)

 That,

as

 to claims or

 defenses asserted

 in any

pleading

 to which that issue

 is material, a

judgment

default

entered

against

the

offending person or

 that the proceeding be

dismissed

with

without

prejudice;

6)

 That any portion of

 the offending person’s

pleadings

relating

that

issue

stricken

and,

appropriate,

judgment

entered

that

issue;

7)

 That the offending person pay the amount

of

reasonable expenses

 incurred

 in obtaining

 an order

pursuant

 to this Section.

b)

 In deciding what sanction

 to impose the Board will

consider factors including,

 but not limited

to,

the

relative severity of the

 refusal or failure

 to comply,

the past history of the proceeding,

 and the degree

to

which

 the proceeding has been delayed or prejudiced.

Section 101.281

 Sanctions For Abuse Of

 Discovery Procedures

The

Board

the

hearing

officer

will

order

that

information

obtained

through

abuse

 discovery procedures

 be suppressed.

If

a person wilfully obtains or attempts

 to obtain

information

by

an

improper discovery

 method, wilfully obtains or

 attempts

 to obtain

information to which

 that person

 is not entitled,

 or otherwise

abuses discovery rules,

 the Board will

 enter any order provided

for

 in this Subpart.

SUBPART K:

 RELIEF FROM AND REVIEW OF FINAL ORDERS

Section 101.300

 Motions for Reconsideration

Motions

for

reconsideration

modification

final

Board

order

shall

filed

within

days

the

order,

pursuant

Section 101.246.

 Responses

 to such motions are also governed by

Section 101.246.

Section 101.301

 Relief From Final Orders

Clerical

mistakes

 in orders

 or other parts of the

100- 140

—47—

record and errors therein arising from oversight

or

omission may be corrected by the Board

 at anytime on

its own initiative

or

 on the motion of any party and

after

 such

 notice,

 if any,

 as the

Board

 orders.

 Such

mistakes may

be

 so corrected

 by the Board before any

appeal

 is docketed

 in the appellate court.

 Thereafter,

while

the

appeal

 is pending,

 such mistakes may

be

corrected only with leave

 of the appellate court.

Any

corrected order will be mailed

 to all parties

and

participants

 in that proceeding.

b)

 On written motion,

 the Board may relieve

 a party from a

final

 order entered

in

 a contested

 case,

 for the

following:

Newly

 discovered evidence which existed

 at the time

of hearing

 and which

 by due diligence could

not

have been timely discovered;

or

2)

 Fraud

 (whether intrinsic or extrinsic),

misrepresentation, or other misconduct

 of an

adverse

party;

3)

 Void order,

 such as an order

 based

 upon

jurisdictional

defects.

c)

 A motion under

 this

 Section does not affect the

finality

Board

order

suspend

 the operation

of

a

~oard

 order.

 The motion must be filed

 in the same

proceeding

which

 the order was entered

but

 is not a

continuation

the

proceeding.

The

motion

must

supported

affidavit

other

appropriate

showing

matters

not

record.

All

parties

participants

in the proceeding shall

 be notified by the movant

as

Provided by Section 101.141(a).

ci)

motion

under

subsection

(b)

shall

filed

with

tne

Board within one year after entry of the order except

that

 a motion pursuant

to

subsection

(b)(3)

shall

filed within

 a reasonable time after entry of the

order.

e)

 Any response to

 a motion under

 this Section shall be

filed within

 14 days

 of the filing

 of the motion.

Section 101.302

 Judicial Review Of Final Board Orders

Judicial

review

final

 Board orders

 shall

 be pursuanb

to Sections

 29 and

41

 of the Act

 (Ill.

 Rev.

 Stat.

 1987,

ch.

ill

1/2,

pars.

1029

and

1041),

Rule

335

the

Rules of

the

Supreme

Court

Illinois

(Ill.

Rev.

Stat.

1987,

ch.

 llo.A,

 par.

 335)

 and the Administrative Review

Law

 (Ill.

 Rev.

 Stat.

 1087,

ch.

 110,

 pars.

 3—101

et

seq.)

100—141

—48—

b)

 For purposes of judicial

 review,

 Board action becomes

final upon adoption of

 the Board’s final order

in

a

proceeding,

 or upon subsequent Board action

if

any

motion

 for reconsideration

is

 filed pursuant to Section

101.246.

Section 101.303

 Stay Procedures

The procedure

 for stay of any Board order during appeal

 shall

be

as provided

 in Rule 335 of the Rules

 of the Supreme Court of

Illinois.

Section 101.304

 Interlocutory Appeals

a)

 When

the

Board,

making

interlocutory

order

not

otherwise appealable,

 finds pursuant

 to Rule 308

 of the

Illinois

Supreme

Court

Rules

 (Ill.

 Rev.

 Stat.

 1987,

ch.

1IOA,

par.

308)

that

the

order

involves

question

law

which

there

is

 substantial ground for

difference

 of opinion and that an immediate appeal from

the

order

may

materially

advance

the

ultimate

termination of the litigation,

 the Board may so state

in writing,

 identifying the question

 of law involved,

on its own motion or on motion of any party.

Appeal

such

interlocutory

order

the

Board

shall

be

 in accordance with Rule

308

of

the

Supreme

Court

Illinois.

Appendix

A

 Captions

Illustration

General

Rulemaking

BEFORE

THE

ILLINOIS

POLLUTION

CONTROL

BOARD

In the matter

of:

)

Revision of the Fluoride

)

Drinking Uater Standard:

)

 (Rulemaking)

Amendments

Ill.

Adm.

)

Code

xxx.xx~

)

100—142

—49—

Illustration

B

 Site—specific Rulemaking

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

In the matter

of:

Petition

 of ABC Company

for

)

R

Site—Specific

Air

Regulation:

)

 (Site—Specific

Ill.

Adm.

Code

XXX.XXX

)

 Rulemaking)

Illustration

Adjusted

Standard

Petition

BEFORE

THE

ILLINOIS

POLLUTION

CONTROL

BOARD

In the matter

of:

Petition

 of ABC Company

 (and

)

AS

the

Illinoia

Environmental

)

(Adjusted

standard)

Protection Agency)

 for Adjusted

Standard from 35

 Ill.

 Acm.

 Code

xxx. xxx

Illustration D

 Permit Appeal

 Or Variance

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

AS:

Company,

Petitioner,

v.

PCB

Illinois Environmental

)

(Permit

Appeal

Protection Agency,

)

 Variance)

Respondent.

100—143

—50—

Illustration E

 Enforcement Case

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

Illinois Environmental

)

Protection Agency,

 (or other

)

person’s name),

Complainant,

v.

)

pCB

(Enforcement)

ABC Company,

Respondent.

Illustration

F

 Administrative Citation

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

Illinois Environmental

)

Protection Agency

 (or unit

of

)

local

 government),

Complainant,

A”-

ABC Company,

)

 (Administrative

Citation)

IEPA Number

Respondent.

)

100—144

—51—

Appendix

B

 Appearance Form

BEFORE

THE

ILLINOIS

POLLUTION

CONTROL

BOARD

Applicable Caption

(see Appendix A)

)

docket

number

APPEARANCE

I hereby file my appearance

 in this proceeding,

 on behalf

of

ABC Company.

Attorney’s Name

Name

Attorney

and

Firm

Address

Telephone

Number

100—145

—52--

Appendix C

 Withdrawal Of Appearance Form

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

Applicable Caption

)

(see Appendix A)

docket number

NOTICE OF WITHDRAv~ALOF APPEARANCE

I hereby give notice

 of withdrawal

 of my appearance

as

representative

 of ABC Company in this proceeding.

Attorney’s Name

Name

Attorney

and

Firm

Address

Telephone Number

100—146

—53—

Appendix

D

 Notice of Filing

BEFORE

THE

ILLINOIS

POLLUTION

CONTROL

BOARD

Applicable Caption

(see Appendix A)

docket

number

NOTICE OF FILING

TO:

(List

all

persons

served.)

PLEASE TAKE NOTICE that

I

 have today filed with the Office

of

 the Clerk

 of the Pollution Control Board

 the specify

 what

document was filed~ of

 name

 of persons

 filing the document

a

copy

which

herewith

served

upon

you.

Name

Attorney

Other

Date

Representative

Name

Address

Telephone Number

100—147

—54—

Appendix

E

 Certificates

 Of Service

Illustration A

 Service by Non—Attorney

PROOF OF SERVICE

I,

 the undersigned, on oath state that

 I have served the

attached

 describe

 document served,

by

 describe

 method

of

service,

 upon the following persons:

(list persons

 served)

signature

Notary Seal

SUBSCRIBED AND SWORN

 TO BEFORE

this

____

day

___________,

19.

Notary Public

Illustration B

Service

 Attorney

CERTIFICATE OF SERVICE

I,

 the undersigned, certify

 that

 I have served the attached

describe

 document servedi,

by

 describe

 method

 of service),

 upon

the

following

persons:

(list

 of persons served)

100— 148

—55—

TITLE

35:

ENVIRONMENTAL

PROTECTION

SUBTITLE

A:

 GENERAL PROVISIONS

CHAPTER

I:

 POLLUTION CONTROL BOARD

PART 106

HEARINGS

PURSUANT

SPECIFIC

RULES

SUBPART

ADJUSTED

STANDARDS

Section

106.701

106 .702

106.703

106.704

106.705

106.706

106.707

106.708

106.709

106.710

106.711

106.712

106.713

106.714

106.715

106.801

106.802

106.803

106.804

106.805

106.806

106.807

 106.808

106.901

106.902

106.903

106.904

106.905

106.906

106.907

Appendix

A

Applicability

Definitions

Joint

 or Single Petition

Request

Agency

Join

Co—Petitioner

Petition Contents

Petition Verification

Federal

Procedural

Requirements

Incorporated ~4aterial

Motions

Service of Filings

Petition Notice

Proof

 of Petition Notice

Request

for

Public

Hearij~g~

Agency Response

Amended Petition and Amended Response

Hearing Scheduled

Hearing

Notice

Pre—Hearing Submission

 of Testimony

 and Exhibits

Discovery

Admissible

Evidence

Order

Hearing

Post—hearing

Comments

Burden

Proof

Board Deliberations

Dismissal

Petition

Board

Decision

Opinion

 and Order

Appeal

Board

Decisions

Publication

Adjusted

Standards

Effect

 of Filing

 a Petition

Old

 Rule Numbers Referenced

AUTHORITY:

Implementing

 Sections

5,

 14.2(c),

 22.4,

27,

 28 and

28.1

and

authorized

Section

the

Environmental

Protection

Act

 (Ill.

 Rev.

 Stat.

 1987,

ch.

 1111/2,

 pars.

 1005, 1014.2(c),

1022.4,

 1027,

 1028,

 1028.1 and

 1026).

SOURCE:

 Filed with Secretary

 of State January

1,

 1978; amended

Ill.

Reg.

page

186,

effective

December

27,

1979;

 codified

at

 6 Ill.

 Reg.

 8357;

 amended

 in R85—22

at

10

 Ill.

 Reg.

 992,

effective

February

1986;

amended

R86—46

Ill.

Reg.

13457, effective August

4,

 1987;

 amended

 in R82—l

 at 12

 Ill.

 Reg.

12434,

effective

July

13,

1988;

amended

R88—10

Ill.

Reg.

100—149

—56—

12817, effective July 21,

 1988;

 amended

 in R88—5(A)

at

 Ill.

Reg.

____

 effective

________________

NOTE:

 Capitalization denotes statutory language.

SUBPART

 G: ADJUSTED STANDARDS

Section 106.701

 Applicability

The procedures set forth

 in this Subpart

 apply to any person

seeking an adjusted standard pursuant

 to Section

 28.1

 of the

Illinois Environmental Protection

 Act,

 (Ill.

 Rev.

 Stat.

 1987,

ch.

1111/2,

 par.

1001

 et seq.),

 except as otherwise provided

in

Subparts A,

B,

C,

D,

E,

and

F.

 This Subpart

 shall

be

 read

in

conjunction with

35

 Ill.

 Adm. Code

 101 which contains procedures

generally

applicable

Board

proceedings.

In

 a proceeding held

pursuant

 to this Subpart,

 the requirements

 of this Subpart shall

apply

 in the event

 of conflict between

 the requirements of

35

Ill.

 Adm.

 Code

101

 and those

 of this Subpart.

(Source:

 Added

at

 Ill.

 Reg.

effective

)

Section 106.702

 Definitions

For the purpose

 of this Subpart, words and

 terms shall

 have

the

meanings

 as defined

in

35

 Ill. Adm.

 Code 101.101, unless

otherwise provided.

(Source:

Added

Ill.

Reg.

effective

Section

 106.703

 Joint

 or Single Petition

A person begins

 an adjusted standard proceeding by filing

a

petition for

 an Adjusted Standard

 (petition)

 either

 jointly with

the Illinois Environmental Protection Agency

 (Agency)

or

singly.

 One original

 and nine copies

of

the

 signed petition

shall

 be filed with the Clerk

 of the Board.

 A filing fee shall

be paid

 at the time

 of the filing

 of the petition

 in accordance

with

 the requirements

of

 35 Ill.

 Adm.

 Code 101.120

 and 101.122.

One copy

 of the petition shall also be served on

 the Agency and

the

Department

Energy

and

Natural

Resources

(ENR).

Such

service

the

Agency

and

ENR

shall

initiated

before

the

date the petition

is

 filed with the Board

 and shall

 be conducted

in accordance with

35

 Ill.

 Adm.

 Code 101.141.

(Source:

 Added at

 Ill.

 Reg.

effective

Section

 106.704

 Request

 to Agency

 to Join As Co-Pot:itioner

The

Agency

may

act

co—petitioner

any

adjusted

standard proceeding.

100-,lsn

—57—

Any

person

may

request

Agency

assistance

initiating

petition

for

adjusted

standard.

 response

to

 a request

to act

 as co—petitioner,

 the Agency may require

the

person

submit

the

Agency

any

background

information

the

person’s

possession

relevant

the

adjusted standard which

 is sought.

 The Agency shall

 notify the person

 in writing

 of its determination either

join

co—petitioner,

decline

join

co—petitioner.

the

Agency

declines

join

co—

petitioner,

 the Agency shall state the basis

 for this

decision.

c)

 Decisions made

 by the Agency pursuant

 to this Section

are

not

appealable

the

Board.

Subsequent

the

filing

the

petition

and

prior

hearing,

 the Board will grant

 the Agency co—petitioner

status upon joint motion of

 the Agency and

the

petitioner who originally

 filed

 the petition.

(Source:

 Added

at

 Ill.

 Reg.

effective

Section 106.705

 Petition Contents

The petition shall

 be captioned

 in accordance with

35

 Ill.

 Adm.

Code

 101.

 Appendix

A.

 If the Agency

is

 a co—petitioner,

the

petition shall

 so state.

 The petition shall

 contain headings

 corresponding to the informational requirements

 of each

subsection

 of this Section.

 The following

 information shall be

Contained

 in the petition:

a)

 A statement describing

 the standard from which an

adjusted

standard

sought.

This

shall

include

the

Administrative Code citation

 to the regulation

of

general

 applicability imposing the standard

 as well

as

the

effective

date

that

regulation.

b)

 A statement which indicates whether

 the regulation

of

general

 applicability was promulgated

to

 implement,

in

whole

or

 in part,

 the requirements

of

 the Clean Water

Act

 (33 U.S.C.

1251

et

 seq.

 (1988)),

 Safe Drinking Water

Act

 (42 U.S.C.

 300f

 et seq

 (1988)), Comprehensive

Environmental

Response,

Compensation

and

Liability

Act

(42 U.S.C.

9601

 et seq

 (1988)), Clean Air Act

 (42 U.S.C.

7401

 et seq.

 (1988)),

 or the State programs concerning

Resource

Conservation

and

Recovery

Act

(RCRA),

Underground

Injection

Control

(UIC),

National

Pollutant Discharge Elimination System

 (NPDES).

 The level

 of justification

 as well

 as other

 information

or requirements necessary for

 an adjusted standard

as

Specified

the

regulation

general

applicability,

a statement that the regulation of general

 applicability

100—151

—58—

does

not

specify

level

justification

other

requirements (Section 28.1 of the Act);

ci)

 A description of

 the nature of the petitioner’s activity

which

is

 the subject of the proposed adjusted

standard.

 The description shall

 include the location

of

and area affected

 by the petitioner’s

 activity.

 This

description

 shall

 also include the number

 of persons

employed

 by the petitioner’s facility at

 issue, age

of

that facility,

 relevant pollution control equipment

already

 in use,

 and the qualitative and quantitative

nature of emissions,

 discharges

 or releases currently

generated by the petitioner’s

 activity;

e)

 A description

 of the efforts which would

 be necessary

if

the petitioner

 were

 to comply with the regulation of

general

 applicability.

 All compliance alternatives,

with

 the corresponding costs

 for each alternative,

 shall

be discussed.

 The discussion

 of costs shall

 include the

overall

capital

costs

 as well

 as the annualized capital

and operating costs.

f)

 A narrative description of

 the proposed adjusted

standard as well

 as proposed language

for

 a Board order

which

would

impose

the

standard.

Efforts

necessary

achieve this proposed standard and the corresponding

costs

shall

also

 be presented.

 Such cost

 information

shall

include

the

overall

capital

cost

well

the

annualized

capital

and

operating

costs;

g)

 The quantitative

 and qualitative impact of

the

petitioner’s activity

on

 the environment

 if the

petitioner were

 to comply with

 the regulation

 of general

applicability

 as compared

to

 the quantitative

and

qualitative

 impact on the environment

if

 the petitioner

were

to

 comply only

 with the proposed adjusted

standard.

 To the extent applicable,

 cross—media

 impacts

shall

 be discussed.

For

 the purposes of this

 Section,

cross—media

 impacts shall

 mean impacts which concern

environmental subject

 areas

 other than those addressed

by the regulation

 of general applicability and

the

proposed adjusted standard.

 Also,

 the petitioner

 shall

compare

 the qualitative and quantitative nature of

emissions,

discharges

releases

which

would

expected from compliance with

 the regulation

 of general

applicability

opposed

that

which

would

expected

from

compliance

with

the

proposed

adjusted

standard.

For

the

pur~poses

off

this

subsection,

the

term

 qualitative means

 a narrative description

of

 c1~i.~ri~cter,

and

 the term quantitative

 means

 a numerically based

description;

h)

 A statement which explains how the petitioner seeks

to

justify, pursuant

 to the applicable level

of

100—152

—59—

justification,

 the proposed adjusted standard;

i)

 P. statement with supporting reasons that the Board may

grant

 the proposed adjusted standard consistent with

federal

 law.

 The petitioner

 shall also inform the Board

of

 all procedural

 requirements applicable

to

 the Board’s

decision on the petition which

 are imposed

 by federal

law and

 not required

 by this Subpart.

 Relevant

regulatory

and

statutory

authorities

shall

cited;

 A statement requesting

 or waiving

 a hearing on the

petition;

and

k)

 The petition shall cite

to

 supporting documents

 or legal

authorities whenever such are used

as

 a basis

for

the

petitioner’s proof.

 Relevant portions of

 such documents

 and legal authorities other than Board decisions,

 State

regulations,

 statutes, and reportad cases

 shall

he

appended

 to the petition.

1)

 If any informational

 requirement prescribed

by

subsections

(a)

 through

(k)

 is determined by

the

petitioner

to

 be either not applicable

 or unduly

burdensome,

the

petitioner

need

 not fulfill

 that

informational

 requirement

 in the petition which

is

initially filed, provided that

 an explanation detailing

the rationale for such

 a determination and

the

determination itself

 is set forth

 in the appropriate

portion of the petition.

 If the Board

 is not convinced

that the unfulfilled informational requirement

 is either

not applicable or unduly burdensome,

 then the Board will

require the petitioner

to

 fully comply with the

informational requirements

set

 forth

 by this

 Section.

Notwithstanding

 this provision,

 the Board may require

the petitioner

 to provide the Board

 with

 additional

material which will aid

 the Board in

 its resolution

of

tne adjusted standard proceeding.

(Source:

 dded at

 Ill.

 Reg.

effective

Section 106.706

 Petition Verification

All material

 facts asserted within the petition shall

 be verified

by affidavits.

 Such affidavits

 shall be filed with the

Petition.

(Source:

 Added

at

 Ill.

 Reg.

•effective

Section 106.707

 Federal Procedural

 Requirements

It shall

be

 the duty of

 the petitioner

 to ensure compliance with

any procedural

 requirements

 identified pursuant

 to Section

100—153

—60—

106.705(i)

 to the extent that such requirements do not require

Board

 action.

(Source:

 Added

at

 Ill.

 Reg.

effective

)

Section 106.708

 Incorporated Material

Incorporation

 of material

 from the record

 of another Board docket

shall

 be accomplished

 in accordance with

35

 Ill. Adm.

 Code

101.106.

(Source:

 Added

at

 Ill.

 Reg.

effective

Section 106.709

 Motions

The filing of motions

 and responses

to

 motions

 shall

 be conducted

in accordance with

35

 Ill.

 Adm.

 Code l01.Subpart

H.

(Source:

 Added

at

 Ill.

 Reg.

effective

)

Section 106.710

 Service

 of Filings

All filings

 in an adjusted standard proceeding

 shall

 be served

upon the petitioner,

 the Agency,

 and the ENR

 as well

 as other

persons

 as required by the Board

 or Hearing Officer,

 Proof

of

such service

 shall

 accompany each filing and shall

 be of the form

as prescribed

 by 35

 Ill.

 Adm. Code 101.143.

(Source:

 Added

at

 Ill.

 Reg.

effective

)

Section 106.711

 Petition Notice

a)

 WITHIN FOURTEEN DAYS AFTER THE FILING OF

 A PETITION, THE

PETITIONER

 SHALL CAUSE,

 at its own expense, THE

PUBLICATION OF

 A NOTICE

 BY ADVERTISEMENT IN A NEWSPAPER

OF GENERAL CIRCULATION

 IN THE

AREA

LIKELY

 AFFECTED

by the petitioner’s activity which

is

 the subject

of

the

adjusted standard

 proceeding,.

 (Section 28.1

 of the Act,

Ill.

 Rev.

 Stat.

 1987,

ch.lll’/2,

par.

1028.1).

The

title

the

notice

shall

the

form

follows:

“Notice

of Petition by

 petitioner’s

 name

for

 an Adjusted

Standard

 before the Illinois Pollution Control Board.”

b)

 The notice shall contain

 the name and address

 of the

petitioner

and

 the statement

 t:hat

the

 peti

 ~ner has

tiled

 with the Illinois Pollution Control Board

a

petition

 for an adjusted standard.

 The notice shall

also provide

 che date upon which

 the petition was filed,

the Board docket

 number,

 the regulatory standard

 (with

appropriate Administrative Code citation)

 from which

an

lOfl—154

—61—

adjusted standard

 is sought,

 the proposed adjusted

standard,

and

 a general description

 of the petitioner’s

activity

which

the

subject

the

adjusted

standard

proceeding,

 and the location of that activity.

 This

 information shall

 be presented

 so as

to

 be understood

in

accordance with

 the context of this Section’s

requirements.

The

concluding

portion

the

notice

shall

 read

 as follows:

“Any

 person

may

 cause

a

 public

 hearing

to

be

 held

in

the

 above—described

adjusted standard proceeding

 by filing

a

hearing

 request

 with

the

 Illinois

Pollution

 Control

 Board

 within

21

 days

after

the

 date

of

the

 publication

of

this notice.

 The hearing request should

clearly

 indicate

the

 docket

 number

for

the

adjusted

standard

proceeding,

found

in

 this

 notice,

and

 shall

be

mailed

to

the

 Clerk

of

the

 Board,

Illinois Pollution Control Board,

 100 W.

Randolph,

 Suite

 11—500,

 Chicago,

Illinois 60601.”

c)

 Subsequent

 to the filing

of

 a petition,

 the Board

 will

publish

notice

in

 tne Environmental Register

 that it has

received

 a petition for

 an adjusted standard.

The

notice will include

 the petitioner’s name,

 filing date,

and

 a brief narrative description of the proposed

adjusted standard

 as well

 as the standard imposed by the

regulation

general

applicability

 (accompanied

 by the

appropriate

Administrative

 Code Citation)

 from which

the

adopted standard

is

 sought.

(Source:

 Added at

 Ill.

 Reg.

effective

Section 106.712

 Proof

 of Petition Notice

?Jithin

 30 days after the filing of the petition,

 the petitioner

shall

 file

 a certificate of publication,

 issued by the publisher

of the petition notice certifying

 the publication of

 that

notice.

 The certificate shall

 be issued

 in accordance with

Section

1

 of “AN ACT to revise the law in relation

 to notices”

(Ill.

 Rev. Stat.

 1987,

 ch.lOO,

 par.

1).

(Source:

 Added

at

 Ill.

 Reg.

effective

)

Section 106.713

 Request

 for Public Hearing

Ar~yperson may request that

 a public hearing

 be held

 in an

aci~ustedstandard proceeding.

 Such requests shall

 be filed not

later

 than 21 days after

 the date

of

 the publication

 of the

100—155

—62—

petition notice

 in accordance subsections

(a)

and

(b)

 of Section

106.711.

 Requests for hearing should make reference to the Board

docket number

 assigned to the proceeding.

 A copy of each timely

hearing request will be mailed

to

 the petitioner,

 Agency,

 and ENR

by the Clerk.

(Source:

 Added

at

 Ill.

 Reg.

effective

Section 106.714

 Agency Response

a)

 The Agency

 shall

 file a response

 not later

 than

 30 days

after

 the filing

of

 a petition,

 if the Agency

 is not a

co—petitioner

 to the petition.

 The response shall

recommend either

 a grant

 or denial

 of the proposed

adjusted standard,

and

 it shall

 set forth

 rationale

which supports the Agency’s conclusion.

 In its

 response,

 the Agency may present

 any information which

the Agency believes

is

 relevant

 to the Board’s

consideration of the proposed adjusted standard.

 If the

Agency recommends

 a denial

 of the petition due

to

informational deficiencies within the petition,

the

response shall

 identify the types

 of information needed

to correct the deficiencies.

b)

At

 a minimum,

 the Agency shall address and respond

to

the petition with respect

 to each issue raised by the

requirements

 of subsections

(a)

 through

(j)

 of Section

106.705.

The

recommendation

shall

cite

supporting

documents

legal

authorities

whenever

such

are

used

basis

for

the Agency’s conclusion.

 Relevant portions

 of such

documents

 and legal

 authorities other

 than Board

decisions,

 State regulations,

 statutes and

 reported

cases shall

 be appended

 to the recommendation

 if not

already

in

 the record

of

 the proceeding.

(Source:

 Added at

 Ill.

 Reg.

effective

Section 106.715

 Amended Petition and Amended Response

The petitioner may amend

 its petition prior

 to the close

 of the

hearing

if

 a hearing

 is held

 or prior

to

 the Board’s decision

if

a hearing

is

 not held.

 Such an amendment

 shall be

 in writing and

filed with the Board unless made orally at hearing.

If

the

petitioner amends

 th’e petition,

 the Agency shall

 respond

 to the

amcndaent

in

writing

orally

at.

hearing.

any

 event

 such

an

amend~d

response

shall

filed

given

not

later

than

days

subsequent

 to the amending

of

 a petition.

 The Agency may amend

its

response

 even

 if the petitioner

 has not amended

its

petition.

 such an instance,

a

 response may only be amended

Prior

 to close

 of the hearing

if

 a hearing

 is held

 or prior

to

100—156

—63—

the

Board’s

decision

hearing

not

held.

Written

amendments

 to the petition or

 response need not repeat the entire

unchanged portion of the original filing provided that

a

sufficient portion of

 the original filing

 is repeated

 so that the

context of the amendment is made clear.

(Source:

 Added

at

 Ill.

 Req.

effective

Section 106.801

 Hearing Scheduled

a)

 The Board

 will

 assign

 a hearing officer

to

 an adjusted

standard proceeding

 when:

1)

 The Board

 receives

 a hearing

 request, pursuant

to

Section 106.713,

 not later

 than

 21 days

 after the

date of the publication of the petition notice

in

accordance with Section 106.711;

or

2)

 The Board IN ITS DISCRETION DETER4INES THAT A

HEARING WOULD BE

 ADVISABLE.

 (Section 28.1

of

the

Act).

 Such

 a determination need not be evidenced

by

 a Board opinion

 or order.

b)

 The hearing officer will

 set a time and place

 for the

hearing.

 The hearing officer will make an attempt

to

consult

 with the petitioner

 and the Agency prior

 to the

scheduling

of

 a hearing.

 Hearings are

 to be held in

the

County LIKELY TO BE

 AFFECTED by the petitioner’s

activity which

is

 the subject

 of the proposed adjusted

Standard.

 (Section 28.1

 of the Act).

c)

 After

 the hearing

 has been scheduled,

 the hearing

Officer

 will notify the Clerk, petitioner, Agency,

ENR

and any person who has filed

 a timely hearing

 request

of

the time and place

 of the hearing.

(Source:

 Added

at

 Ill.

 Reg.

effective

Section 106.802

 Hearing Notice

After

 receiving notification from the hearing officer pursuant

to

Section 106.801(c),

 the Clerk will

 cause

 the publication of

a

hearing

notice

NEWSPAPER

GENERAL

CIRCULATION

the

county

which

the

 hearing

is

 held.

HUCH

NOTICE

SHALL

PUBLISHED

LEAST

DAYS

BEFORE

THE

DATE

THE

HEARING.

(Section

28.1

the

Act).

(Source:

Added

Ill.

Reg.

effective

100—15 7

—64—

Section 106.803

 Pre—hearing Submission

 of Testimony and

Exhibits

a)

 The hearing officer may require the pre—hearing

submission of testimony and exhibits which are

 to be

presented

 at hearing

 if the hearing officer determines

that such

 a procedure will provide for

 a more efficient

hearing.

 Consistent with the petitioner’s burden of

proof,

 the hearing

 officer may provide differing filing

deadlines with respect

 to submiscions of different

persons.

 Pursuant

 to hearing officer order,

 rebuttal

testimony

 and exhibits may be submitted prior

to

hearing.

 When such pre—hearing submission

is

 required,

an original

 and four

 (4) copies

of

 each testimony and

each exhibit

 shall

 be filed with the Board.

 The Agency,

petitioner,

 ENR and any other

 person as required by the

hearing

officer

shall

 each

 be served with.one copy

off

each testimony

 and exhibit.

 Such service

 shall

be

initiated

before

the

date

that

copies

are

filed

with the Board.

 All testimony and exhibits shall

be

bound

 and labeled with the docket number

 of the

proceeding,

the

name

the

witness

submitting

the

material

 or exhibit, and the title

of

 the material

or

exhibit.

b)

 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

 arid 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.

c)

 If pre—hearing submission

of

 testimony

is

 required,

any

testimony

which

not

filed

prior

hearing

 pursuant

to subsection

 (a) will be allowed only as time

permits.

(Source:

Added

Ill.

Reg.

effective

Section 106.804

 Discovery

Thc

 is~u~iceof

subpoenas

and

the

puoJ.lcL.ton

of

~

 ..:L

 ‘:111

be accomplished pursuant

to

 the procedures set

 forth

by

 Ill.

Adm.

Code

101.

Subpart

(Source:

 Added at

 Ill.

 Req.

effective

100—150

—65—

Section 106.805

 Admissible Evidence

a)

 The hearing officer

 shall receive evidence which

is

admissible

 under

 the rules

 of evidence and privilege

as

applied

 in the courts of Illinois pertaining

 to civil

actions except as this Section otherwise provides.

The

hearing officer may admit

 evidence which

is

not

admissible under

 such

 rules

if

 it is relevant and would

be RELIED UPON BY REASONABLY PRUDENT PERSONS

 IN THE

CONDUCT OF THEIR AFFAIRS.

 (Ill.

 Rev.

 Stat.

 1987,

ch.

127,

 par.

 1012).

b)

 When the admissibility of evidence depends upon an

arguable interpretation of substantive

 law,

 the hearing

officer

 shall

 admit

 such evidence.

c)

 The hearing officer may order

 the record or any portion

thereof of

 any relevant pending

 or prior proceeding

before

 the Board

 or part

thereof

incorporated

into

the

record

 of the present proceeding,

 in accordance

 with

Section 106.708.

d)

 Relevant scientific

 or technical articles,

 treatises

or

materials may

 be introduced

 into evidence subject

to

refutation or disputation through any introduction

of

comparable documentary evidence or expert testimony.

e)

 Any person may testify at hearing provided that the

person

is

 sworn

 and subject

 to cross—examination.

Cross—examination

 of any person who presents testimony

may

conducted

any

person.

 The hearing officer may

limit

such

testimony

and

cross—examination

 pursuant

to

Ill.

Adm.

Code

101.220.

f)

 Information received at hearing

 will only be considered

as substantive evidence

 in the Board’s deliberations

if

it

 is presented

as

 an exhibit

 or direct testimony,

or

if

it

 is elicited from a

 a person under cross—

examination.

 The Board

 will

 not consider,

as

substantive evidence,

 information which

 is presented

in

the form

of

 a question during cross—examination.

(Source:

 Added

at

 Ill.

 Req.

effective

Section

106.806

Order

Hearing

The

following

shall

the

order

adjusted

standard

 hearing

subject

modification

the

hearing

officer:

Presentation,

argument,

and

disposition

motions

 preliminary

to

a

 hearing

on

the

merits

of

 matters

 raised

 by the petition and

100—159

—66—

Agency response;

b)

 Presentation

of

 opening

 statements

by

petitioner,

 Agency,

and

any

 interested

person;

c)

 Testimony and exhibits by petitioner;

d)

 Testimony and exhibits by Agency;

e)

 Testimony and exhibits by interested

 persons;

f)

 Testimony

and

 exhibits

by

 petitioner

in

rebuttal.

 This

 portion

of

 the petitioner’s

case

is

 limited

 to the rebutting

 of evidence

presented

by

the

 Agency

or

any

 interested

person

 during

 that

 part

of

the

 hearing

described

 by subsections

 (d) and

 (a).

g)

 Presentation

and

 argument

of

all

 motions

to

disposed

the

Board;

h)

 Presentation

of

 closing

 statements

by

the

petitioner,

 Agency,

and

any

 interested

person; and

i)

 f~ schedule

 for the submission

 of post—hearing

comments

 to the Board.

(Source:

 Added

at

 Ill.

 Reg.

effective

Section 106.807

 Post—hearing Comments

The petitioner,

 gency, ENR and any interested person may file

post—hearing

 comments.

 The hearing officer may order

 any person

to file

 such comments.

 Post—hearing comments shall

be

 tiled

within fourteen

 (14) days after

 the close

 of the last hearing

unless the hearing officer specifies

 a different date

for

submission

 of post—hearing comments.

 Consistent with the

petitioner’s burden

 of proof,

 the hearing officer may provide

for

differing filing deadlines with respect

 to post—hearing comments

by different persons.

 Pursuant to hearing officer

 order,

rebuttal post—hearing comments may be submitted.

 All post—

hearing comments shall present arguments or comments based only

on information contained

 in the

 record.

 Such comments may also

present

 legal

 argument citing legal authorities.

 The Board will

not consider any new information presented by post—hearing

co:~ment:s

(Source:

 Added

at

 Ill.

 Reg.

effective

100—161)

—67—

Section 106.808

 Burden of Proof

The burden of proof

in

 an adjusted

 standard proceeding

 is on the

petitioner.

(Source:

 Added

at

 Ill.

 Reg.

effective

Section

106.901

Board

Deliberations

making

its

decision

adjusted

standard

petition,

the

Board

shall

consider

only

the

record

the

adjusted

 standard

proceeding.

(Source:

 Added

at

 Ill.

 Rag.

effective

Section 106.902

 Dismissal

 of Petition

The Board may at any time dismiss

 a petition

 for any

 of the

following reasons:

a)

 The Board DETERMINES THAT THE PETITION

 IS FRIVOLOUS,

DUPLICATIVE,

 or deficient with respect

 to the

requirements

Section

106.705,

106.706,

106.710,

and

106.712

(Section

28.1

the

Act);

The

Board

 DETERMINES

THAT

THE

PETITIONER

NOT

PURSUING

DISPOSITION

 THE PETITION

 IN A TIMELY MANNER.

(Section

28.1

the

Act).

(Source:

 Added

at

 Ill.

 Req.

effective

Section

 106.903

 Board Decision

A PETITIONER MUST JUSTIFY AN ADJUSTED STANDARD CONSISTENT WITH

SUBSECTION

(A)

 OF SECTION 27

 OF THE ACT.

 (Section 28.1

 of the

Act.

a)

 IF THE REGULATION OF GENERAL APPLICABILITY DOES NOT

SPECIFY

 A LEVEL OF JUSTIFICATION FOR AN ADJUSTED

STANDARD,

 THE BOARD MAY ADOPT THE PROPOSED ADJUSTED

STANDARD IF THE PETITIONER PROVES

 (Section 28.1

 of the

Act)

 that:

1)

 FACTORS RELATING TO THAT PETITIONER ARE

SUBSTANTIALLY AND SIGNIFICANTLY DIFFERENT FROM THE

FACTORS RELIED UPON BY THE BOARD IN ADOPTING THE

GENERAL REGULATION APPLICABLE TO THAT PETITIONER

(Section 28.1

 of the Act);

2)

 THE EXISTENCE OF THOSE FACTORS JUSTIFIES

AN

ADJUSTED STANDARD

 (Section 28.1

 of the Act);

100—161

—68—

THE

REQUESTED

STANDARD

WILL

NOT

RESULT

ENVIRONMENTAL OR HEALTH EFFECTS SUBSTANTIALLY AND

SIGNIFICANTLY MORE ADVERSE THAN THE EFFECTS

CONSIDERED BY THE BOARD

 IN ADOPTING THE RULE OF

GENERAL APPLICABILITY (Section 28.1 of the Act);

AND

4)

 THE ADJUSTED STANDARD

 IS CONSISTENT WITH ANY

APPLICABLE FEDERAL LAW (Section

 28.1

 of the Act).

b)

 If the regulation

 of general

 applicability specifies

a

level

 of justification for

 an adjusted standard,

the

Board may adopt

 the proposed adjusted standard,

 if the

petitioner proves the level

 of justification specified

by the regulation of general applicability.

c)

 IF THE REGULATION OF GENERAL APPLICABILITY IMPLEMENTS

IN

WHOLE OR

 IN PART THE REQUIREMENTS

 OF THE CLEAN AIR ACT,

THE BOARD WILL ADOPT EITHER (Section

 28.1

of

 the Act):

1)

 The proposed adjusted standard

if

 the petitioner

proves the applicable level

 of justification;

or

2)

 A STANDARD THE SAME AS THAT IMPOSED BY THE

REGULATION

 OF GENERAL APPLICABILITY,

 if the

petitioner

 fails

 to prove the applicable level

of

justification.

 (Section 28.1

 of the Act).

d)

 In adopting adjusted standards THE BOARD MAY IMPOSE SUCH

 CONDITIONS AS MAY

 BE NECESSARY TO ACCOMPLISH THE

PURPOSES

THE

ACT

(Section

28.1

the

Act).

(Source:

 Added

at

 Ill.

 Reg.

effective

Section

 106.904

 Opinion

 and Order

The Board

 shall

 issue

 a written opinion and order

 which sets

forth

 the Board’s decision and supporting

 rationale.

 Such

opinions

 and orders SHALL BE MAINTAINED FOR PUBLIC INSPECTION

BY

THE CLERK OF THE BOARD.

 (Section 28.1

 of the Act.)

(Source:

 Added

at

 Ill.

 Rag.

effective

Section 106.905

 Appeal

 of Board Decisions

F

:r~\r~

 ORrFR O~D~TET~4

 IN!\TTOid

 Of’ 1~!EbT)AR1) T~,~JJ

AI)jfJFfE~T)

STAt~DARDPROCEEDING MAY BE APPEALED TO THE APPELLATE COURT

PURSUANT TO SECTION

41

 OF THE ACT.

 (Section

 28.1

 of the Act).

(Source:

 Added

at

 Ill.

 Req.

effective

)

100--162

—69—

Section 106.906

 Publication

 of Adjusted Standards

a)

 Subsequent

to

 the Board’s adoption

 of an adjusted

standard,

 the Board will publish,

 in the Environmental

Register,

 the name of

 the petitioner,

 date of the Order

which adopted the adjusted standard,

 and a brief

narrative description of

 the adopted adjusted

 standard.

b)

 THE BOARD SHALL CAUSE THE PUBLICATION OF A LISTING OF

ALL DETERMINATIONS MADE PURSUANT TO SECTION 28.1 OF THE

ACT

 IN THE ILLINOIS REGISTER AND THE ENVIRONMENTAL

REGISTER AT THE END OF EACH FISCAL YEAR.

 (Section 28.1

of the Act).

(Source:

 Added

at

 Ill.

 Reg.

effective

Section 106.907

 Effect

 of Filing

 a Petition

a)

 IF ANY PERSON FILES A PETITION FOR AN INDIVIDUAL

ADJUSTED STANDARD

 IN LIEU OF COMPLYING WITH THE

APPLICABLE REGULATION WITHIN

 20 DAYS AFTER THE EFFECTIVE

DATE OF THE REGULATION, THE OPERATION OF THE REGULATION

SHALL BE STAYED

 AS TO SUCH PERSON PENDING THE

DISPOSITION OF THE PETITION;

 PROVIDED,

 HOWEVER,

 THAT THE

OPERATION

ANY

REGULATION

SHALL

NOT

STAYED

 THAT

REGULATION

 WAS ADOPTED BY THE BOARD TO IMPLEMENT,

IN

WHOLE

OR

 IN PART,

 THE REQUIREMENTS

 OF THE FEDERAL CLEAN

AIR ACT, SAFE DRINKING WATER ACT OR COMPREHENSIVE

 ENVIRONMENTAL RESPONSE,

 COMPENSATION, AND LIABILITY

 ACT,

OR THE STATE RCRA, UIC OR NPDES PROGRAMS.

 (Section 28.1

of the Act).

b)

 WITHIN 20 DAYS AFTER THE EFFECTIVE DATE OF ANY

REGULATION THAT IMPLEMENTS

 IN WHOLE OR

 IN PART THE

REQUIREMENTS

 OF THE CLEAN AIR ACT,

ANY

PERSON

FILES

PETITION FOR AN INDIVIDUAL ADJUSTED STANDARD IN LIEU OF

COMPLYING WITH THE REGULATION,

 SUCH SOURCE WILL BE

EXEMPT FROM THE REGULATION UNTIL THE BOARD MAKES

 A FINAL

DETERMINATION ON THE PETITION.

 IF THE REGULATION

ADOPTED

THE

BOARD

FROM

WHICH

THE

INDIVIDUAL

ADJUSTED

STANDARD

 SOUGHT

REPLACES

PREVIOUSLY

ADOPTED

 BOARD

REGULATION, THE SOURCE SHALL

 BE SUBJECT TO THE

PREVIOUSLY

 ADOPTED BOARD REGULATION UNTIL FINAL ACTION

IS TAKEN BY THE BOARD ON THE PETITION.

 (Section

 28.1

of

the Act).

(Source:

 Added

at

 Ill.

 Reg.

effective

IT IS

 SO ORDERED.

inn—163

—70—

J.

D.

 Dumelle was not present.

I,

 Dorothy

11.

 Gunn, Clerk

 of the Illinois Pollution Control

Board, hereby certify that the ab

 e Opinion and Order was

adopted on the

~

 day of

_________________,

 1989,

by

 a vote

of

~

Dorothy

 M. ,,~nn, Clerk

Illinois P&4lution Control Board

100—164