ILLINOIS POLLUTION CONTROL BOARD

August

31,

1989

IN THE MATTER OF:

)

PROCEDURAL RULES REVISION

)

35 ILL. ADM. CODE 102 AND

)

 R88-5(B)

106 (Subparts D,

 E, and F)

)

PROPOSED RULE.

 SECOND FIRST NOTICE.

PROPOSED OPINION AND ORDER OF THE BOARD

(by

 J. Theodore Meyer):

On September

8,

 1988, the Board proposed for first notice

revisions to Parts 101,

 102,

 106, and 107

 of its procedural

rules,

 found at Title 35 of the Illinois Administrative Code.

Two public hearings were held,

 and written public comments were

received.

 On January

19,

 1989,

 the Board issued an order

splitting the docket.

 R88—5(A) contained new rules

 in Part 101

(general provisions)

 and Subpart G of Part 106

 (adjusted standard

proceedings), and the repeal

 of Part 107

 (sanctions, which are

now covered

 in Part 101).

 Docket R88—5(B), which

 is the subject

of this order, contains proposed new rules

 for regulatory

proceedings

 (Part

 102),

 the repeal of existing Part 102 rules,

and revisions to Subparts

D,

 E, and F of Part 106.

 (Please note

that these Subparts are being

 revised only

 to update references

to Part 102).

 This split of the docket was done

 to allow

the

rules in R88—5(A)

 to proceed to second notice while the Board

further considered the diverse comments on Part 102.

 The Board

subsequently adopted the rules

 in R88—5(A), and those rules

 (Part

101 and Subpart G of Part 106) became effective on July 10,

1989.

 The Board will now proceed with the rules

 in R88—5(B).

Because it

 is impossible

 to complete the rulemaking process and

adopt the R88—5(B)

 rules within one year after the date on which

first notice began

 (September

23,

 1988),

 the Board today proposes

the revised rules

 for second first notice.

 See Ill.

 Rev.

 Stat.

1987,

ch.

 127, par 1005.01(d).

BACKGROUND

Many

 of the rules

 in this docket are proposed in response

to

SB 1834

 (P.A.

 85—1048), effective January

1,

 1989, which made

some fundamental changes

 to the Illinois environmental rulemaking

system.

 Among other things,

 SB 1834 authorizes the Board to

determine whether an economic

 impact study

 (EcIS)

 of any proposed

regulation should

 be prepared by

 the Department

 of Energy and

Natural Resources

 (ENR).

The legislation also allows for

 a pre—

hearing conference

in

 rulemakings,

 to the extent consistent with

deadlines for adoption of regulations mandated by state or

federal

 law.

 Finally, SB 1834 establishes some different

procedures

 for rulemakings involving federally required rules.

The Board believes that these proposed rules,

 in conjunction with

102-289

—2—

the rules adopted in R88—5(A), will fully implement the

provisions of SB 1834.

 The Board has also reorganized and

tightened its existing rules.

The Board notes that several comments urged

 that the Board

make only those changes statutorily required by SB 1834.

 These

comments suggest that any problems with past Board procedure were

cured by that legislation,

 and thus contend that the Board should

only revise

 its rules

 to reflect legislative changes.

 However,

as stated

 in the September 22,

 1988 first notice opinion, and

again in the March

2,

 1989 second notice opinion

 in R88—5(A),

the

Board finds

 that its existing procedural rules need to be

reorganized,

 tightened, and updated to reflect

 current; Board

practice.

 The Board continues to believe that the rules proposed

today will streamline regulatory procedures without undermining

 the quality and integrity of those procedures or

 infringing upon

public participation

 in the

 rulemaking process.

The Board received fifteen written comments during the 1988

first notice comment period.

 (Public Comments

 (P.C.)

 #11—25;

please note that P.C.

 #1-10 pertain to an earlier proposal which

was not adopted.)

 The Board also received eight comments after

the close of the comment period.

 (P.C.

 #26—33.)

 These late

comments were filed between one and five weeks

 later.

As

previously stated

 (see

 the March

 2 and June

8,

 1989 opinions

in

R88—5(A)),

 the Board will not accept these comments and has not

considered them in proposing these

 rules

 for second first

notice.

 Except

 for those eight

 late comments,

 the Board has

considered all comments when revising the proposed rules.

This proposed opinion will touch upon each Subpart

 in the

proposed rules, but will only discuss those

 rules which were the

subject of comments, and those

 rules which have been revised.

The Board wishes to initiate an era of brevity and succinctness

in its opinions, which

 it hopes will be followed by

 those filing

briefs,

 comments, and other pleadings with the Board.

 For more

general information on these proposed rules,

 see the Board~s

September 22,

 1988 first notice opinion

 in R88—5.

PART 102--REGULATORY AND INFORMATIONAL HEARINGS

AND PROCEEDINGS

Subpart

A:

 General Provisions

Several definitions

 in Section 102.101 “Definitions” have

been reworded

 for clarity, and new definitions of “material”,

“particiDant”, “persor~,“proponent”, and “undue delay”

 have been

added.

 The Board has deleted

 the section containing

incorporations by

 reference, originally proposed

 as Section

102.102, because the rules

 as revised do not

 include any

incorporations by reference.

 Therefore,

the

 three remaining

sections

 in this subpart have been renumbered.

 A new subsection

(C)

 has been added

 to Section 102.102 “Types of Regulatory

Proposals”, which clarifies that the provisions of Subpart B

102—290

—3—

apply to all types

 of regulatory proposals, except identical

in

substance proposals.

 Finally, Section 102.103 “Waiver Of

Requirements” has been reworded to specify that the Board can

waive only non—statutory requirements upon a showing that a

particular requirement would create an undue burden upon a

person.

Subpart

B:

 Regulations of General Applicability

This Subpart

 is a guide

 to the filing of a sufficient

proposal of regulations of general applicability.

 Section

102.121 “Contents”, which specifies what a proponent must provide

with his or her proposal, has been slightly modified.

In

response to comments from several groups, subsection

 (d) now

requires only a synopsis

 of the testimony which the proponent

expects

 to present

 at hearing

 in support of his proposal.

The

proponent need not identify specific witnesses, but must provide

a summary of the information which will be presented at

hearing.

 The Board believes that this change, from the proposed

requirement of actual copies

 of all testimony, will satisfy

commenters’

 concerns that testimony submitted at the time of

filing of the proposal might

 be incomplete or out of date by

hearing.

 Since the proponent controls when the proposal

is

filed,

it

 is reasonable

 to expect that he provide a synopsis of

the supporting testimony at the beginning of the proceeding.

This will enable the Board and interested persons to more fully

understand the scope of the proposal, while allowing the

proponent to identify specific witnesses and update testimony

just before hearing.

 (See Section 102.280(a).)

 Additionally,

the Board has deleted the requirement that the proponent include

copies of all exhibits and references

 at the time of filing.

The Board has added three new subsections to Section

102.121.

 New subsection

(e)

 requires the Illinois Environmental

Protection Agency

 (Agency), when it

 is the proponent of a rule

which it believes

 is federally required as defined

 in Section

28.2 of the Act,

 to provide a citation to the specific section of

the specific federal act which requires the proposed rule.

 This

will allow the Board and interested persons

 to easily see the

basis of

 the proposed rule.

 Subsection

(h)

 simply states that

Section

 28 of the Act

 requires all proponents other

 than the

Agency,

 ENR,

 and the Department of Nuclear Safety

 (DNS)

to

provide a petition in support of the proposal signed by at least

200 persons.

 New subsection

(i)

 requires that

 a proponent

provide justification for the inapplicability of any information

required by Subpart

B.

 This will simplify the Board’s

 review of

a new proposal,

 and may reduce

 the necessity of a “more

information order”

 if any missing

 information

 is explained.

As stated

 in the Board’s September 22,

 1988 Opinion

 in R88—

5,

 the Board believes

 that these content requirements are

reasonable expectations of the vast majority of proponents,

and

that the requirements are necessary to focus and expedite the

regulatory process.

 The requirements simply mandate that a

1D2—291

—4—

proponent provide basic information “up front”.

 Since the

proponent controls when a proposal is filed,

 the support for a

particular proposal should be in place before the proposal is

filed.

 The Board recognizes that proposals are subject

 to change

during the course of a proceeding, however, and believes that

these rules as revised allow for such change.

Section 102.122 “Dismissal”

 states that failure of

a

proponent

 to satisfy the content requirements of

 Section 102.121

or failure to respond to Board requests for more information will

render a proposal subject to dismissal for inadequacy.

 The Board

may also dismiss a proposal where

 it finds that the proponent

has

failed to pursue disposition of the proposal

 in a timely

manner.

 A new subsection

(c)

 has been added

 to cross—reference

35

 Ill. Adm.

 Code 101.243, which governs motions challenging the

sufficiency of a proposal.

Subpart

C:

 Site—Specific Regulations

This Subpart

 is the counterpart

 to Subpart

 B for site-

specific regulations.

 Section 102.141 sets out the required

contents of

 a proposal

 for site—specific regulations.

 Among

other things,

 a proponent must identify the general regulations

which the proposed amendment addresses.

 Please note that

where

a

proponent seeks exemption from or modification of a rule of

general applicability,

 the proposed site—specific rule may not be

proposed as an amendment

 to that general rule.

 Instead,

the

site—specific rule should be proposed as its own section.

The new text of subsection

(e)

 requires that the proponent

describe the person or site for which regulatory change

is

sought,

 and the area affected by the proposed change.

The

proponent must also provide a detailed assessment of

the

environmental impact of the proposed change,

 and include

a

description of all available treatment or control options.

 This

description should address all options which could control th~

pollutant

 regulated by the general

 rule,

not

 just those

opL~cnr;

which the proponent feels are applicable

 to his facility or

process.

 These

 requirements of subsection

 (e) are a

summary

ot~

the rules previously proposed as Subpart

 D, addressing

 site-

specific water

 rules.

 The Board has decided not to proceed ~i~h

 these

 rules,

 or with the specific requirements for air,

lan~ ~nd

groundwater

 rules proposed as Subparts

E,

F,

 and G by

ENR.

 Th1~

decision

 is based on

 the Board’s belief that Section 102.141

~‘;i11

address

 the most common information problems

 in site—specific

proposals,

 and that some of

 the requirements previously

pr~’n::,~ed

were overly detailed ~or many proposals.

If

 a proposal

d~ns

contain sufficient information

for

 proper evaluation of t’~

proposal,

 that missing information can be required by a m~~

information order,

 just like any proposal of rules

 of gen’

applicability.

 If that

 information

 is not provided,

 the ~

is subject

 to dismissar pursuant to Section 102.142.

 The ~

expresses its appreciation

 to ENR for its work on specific

requirements for air,

 land, and groundwater proposals, however.

102—292

—5—

Subpart

D:

 Authorization, Scheduling,

 and Notice of Hearings

Subsection (b)

 of Section 102.160 “Authorization Of Hearing”

has been added to provide for Board issuance of an order

accepting a proposal for hearing.

 Such an order will be issued

only after the Board determines that the requirements of the Act

and Sections 102.121 and 102.141 have been met, as expressed in

subsection (a).

 A filing fee must also be paid for all site—

specific proposals.

 (Please note, however, that the Clerk will

refuse to accept

 for filing any proposal which is not accompanied

by any required filing

 fee.

 See 35

 Ill.

 Adm. Code 101.120.)

This order accepting

 a proposal for hearing starts the timeclock

for purposes of any applicable EcIS study determination and first

notice publication deadlines pursuant to Sections

 27 and 28.2 of

the Act.

Section 102.161 “Scheduling of Hearings”

 is new, although it

contains some information previously

 found

 in other sections.

Subsections

 (c),

 (d), and

 (e) establish a new procedure where

the

Board, after considering the number and complexity of issues

involved in a regulatory proposal, will issue an order

preliminarily specifying the number of hearings

 to be held on

that proposal.

 This order may be combined with the order

accepting a proposal for hearing,

 or may be a separate order.

The Board may also choose to issue this order

 as part of its

order determining whether an EcIS will be performed on that

proposal.

 (See Subpart E.)

 If the proponent or any participant

wishes to request a hearing beyond the number of hearings

 specified by the Board,

 that person must demonstrate,

in

a

written motion to the Board,

 that failing to hold an additional

hearing would result

 in material prejudice to the movant.

The

movant must show why an additional hearing, as opposed

the

opportunity to submit written comments,

 is necessary.

 The Board

will also consider whether

 the movant’s request

 for an additional

hearing

 is the result of a lack of diligence by the movant.

Additionally,

 the Board will schedule an additional hearing

or

hearings on its own motion,

if

 it finds

 that additional hearing

would aid the Board

 in its decision on the proposal.

The Board believes that this new procedure,

 preliminarily

specifying the number of hearings, will enable the Board and all

participants

 to efficiently plan their participation

 in the

proceeding.

 By establishing a standard for the grant of

 a motion

for additional hearing,

 all participants will know what they must

demonstrate to obtain additional hearing.

 The Board stresses

that this procedure is not intended to exclude participation by

interested persons or

 to unnecessarily

 limit hearings.

Subpart

E:

 Economic Impact Study Determinations

This subpart

 is largely unchanged from the September 1988

 proposal.

 Subsection

 (b) of Section 102.180 “Board

Determinations” has been revised to specify that although in most

proceedings the Board may determine that an EcIS should be

102—293

—6—

prepared at any time prior to the close of the record,

 this

provision is not applicable to proceedings involving federally

required rules.

 In other words,

 in required rule proceedings,

the Board’s EcIS determination made 60 days after the proposal

is

accepted for hearing

 is a final determination.

 A new subsection

(d) has been added to Section 102.181 “Request For Determination”

to clarify that no hearing will be held on any request for

determination.

 Finally,

 Section 102.183 “Notice of Board

Determination” has been revised to state that the Board’s

determination order

 is an interlocutory order, and can be

appealed only pursuant to 35

 Ill. Adm. Code 101.304.

 That

section requires that the Board certify that the interlocutory

order involves a question of law as

 to which there

 is substantial

ground for difference of opinion and that an immediate appeal

from that order may materially advance the ultimate termination

of the proceeding.

 The Board does not expect

 to certify

its

determination orders for appeal very often.

Subpart

F:

 Certification Of Required Rules

This Subpart, proposed in response to several comments,

establishes a new procedure for challenging an Agency

certification that

 a proposed

 rule is a federally required

rule.

 Section 102.200 requires the Agency, when it proposes a

rule which it believes

 to be federally required,

 to so certify

in

its proposal.

 The certification must include citation

 to the

specific section of the specific federal law to which

the

proposed rule will respond.

 Section 102.201

 “Challenge To Agency

Certification” allows any person to file an objection to an

Agency certification within

 21 days of the Board’s order

accepting the proposal for hearing.

 The objection shall state

the reasons for the objection,

 and shall include all arguments

which the objector wishes

 the Board to consider.

 A copy of

the

objection must be served on the Agency and ENR.

 The Agency may

file

 a response

 to any objection within 10 days of

 the service of

the objection.

 No reply by the objector will be allowed, unless

the Board orders otherwise to avoid material prejudice.

No

hearing will

 be held on any objection to an Agency certification.

Pursuant

 to Section 102.202,

 the Board will

 rule on any

objection within 60 days of its order accepting the proposal for

hearing.

 The Board’s ruling will be made in its order

determining whether an EcIS will be prepared.

 In ruling upon the

objection,

 the Board will consider all information

 in the record

of

 that proceeding,

 including but not limited

 to the proposal,

the objection, and the Agency response

 to the objection.

The

burden of proof

 is on the objector.

 The Board will give notice

of its

 ruling to the objector,

 the Agency,

 ENR,

 and all ~ersons

on the notice

 list.

Please note that the timeframes

 in this proposed procedure

track the timeframes for EcIS determinations.

 This

 is necessary

because Section 28.2(e)

 of the Act requires the Board

 to publish

first notice of all required rules

 in the Illinois Register no

102—294

—7—

later than six months from the date the Board determines whether

an EcIS should be prepared.

 Additionally, Section 28.2(d)

 allows

the Board to adopt a required rule without an EcIS if any EcIS

ordered by the Board is not submitted within

 6 months of the

Board’s decision that an EcIS should be prepared.

 Therefore,

it

is important to resolve any questions as to whether a proposed

rule is a required rule at the beginning of the proceeding.

The

Board will not look kindly upon any request for extension of

these time periods.

The Board requests comment on its authority to rule upon

objections to an Agency certification, and on the proposed

process itself.

 The Board notes that

 it must refer

 to any Agency

certification

 in the

 first notice publication of

 the proposal.

(Section 28.2(e)

 of the Act.)

 In the event that the Board were

to find, upon objection,

 that a proposed rule

 is not a required

rule, at

 first notice

 it would simply state that the Agency had

certified the

 rule, but that the Board had found that the rule

was not federally required.

Subpart G:

 Authority of Hearing Officer

Section 102.220 “Authority Of Hearing Officer” has been

revised

 to be identical to

 35 Ill.

 Adm. Code 101.220,

 except

for

the addition of subsection

 (o).

 The new subsection allows a

hearing officer

 to admit testimony or exhibits which were not

pre—submitted,

 if necessary to prevent undue delay or material

prejudice.

 Subsection

(b)

 of Section 102.221 “Notice And Service

Lists” has been revised to state that

 in deciding whether

to

establish a separate service list for

 a regulatory proceeding,

the hearing officer will consider factors including,

 but not

 limited to,

 the complexity of the proceeding and the number of

participants.

 The Board again stresses that every regulatory

proceeding has

 a notice list, and that any person may be

 included

on that

 list simply by giving his or her name and address

 to the

hearing officer.

 The option of establishing a service list

in

addition to the notice list allows the hearing officer

 to draw a

distinction between those who simply wish to be notified of Board

action on

 a specific proposal and those who wish to participate

more fully

 in the proceeding.

 This option

 is especially helpful

in proceedings which have a large notice list but

 a relatively

small number of actual participants.

 The Board requests comment

on whether the provision that the hearing officer may direct

participants

 to serve all documents on all persons or

 the notice

list might impose a burden on not—for-profit groups.

Subpart

H:

 Pre—Hearing Conferences

This Subpart, which establishes procedures

 for pre—hearing

conferences,

 is essentially unchanged from the 1988 first

 notice

proposal.

 Subsection

(c)

 of Section 102.242 “Pre—Hearing Order”

has been reworded to clarify that

 if the participants

 in a pre—

hearing conference agree

 to having a pre—hearing order entered,

the hearing officer may require that the participants furnish the

102—2 95

—8—

text of

 a proposed order

 setting forth the substance of the

agreements reached at the pre—hearing conference.

 The order

shall identify which participants have agreed to the order.

 This

provision

 is intended to address the possibility that all

participants

 in a pre—hearing conference agree

 to have an order

entered, but that not all participants agree to all aspects of

the order.

 Please note that as stated

 in Section 27(e)

 of the

Act and subsection

 (d) of Section 102.242,

 a pre—hearing order

is

not binding on nonparticipants

 in the pre—hearing conference.

Subpart

I:

 Motions and Discovery

A sentence has been added to Section 102.260 “Motion

Practice”

 to state

 that all motions and responses shall

be

 served

upon the proponent,

 the Agency,

 ENR,

 the Attorney General, and

all persons on any service list established for that

proceeding.

 Sections 102.261 and 102.262, concerning production

of information and subpoenas,

 simply refer

to

35

 Ill.

 Adm. Code

101.261 and 101.260(b)

 through

 (1).

 These sections of Part 101

of the Board’s procedural

 rules govern production of information

 and subpoenas

 in regulatory proceedings.

Subpart J:

 Regulatory Hearings

This Subpart deals with the conduct of hearings on

regulatory proposals.

 Section 102.280

 “Pre—Hearing Submissions

Of Testimony And Exhibits” has been revised

 in response to

comments received during

 the 1988 first

 notice comment period.

Subsection

 (a) now requires the proponent

 to submit all written

testimony and any related exhibits

 21 days prior

 to the hearing

at which the witness

 testifies, unless

 the hearing officer

directs otherwise

 to prevent material prejudice or undue delay.

(Please note that the provision allowing the hearing officer to

“direct otherwise”

 is intended

 to allow the hearing officer

to

modify the timing of pre—submitted testimony,

not

 to dispense

with the requirement that

 the proponent pre—submit his supporting

testimony.)

 Subsection

(b)

 states that the hearing officer may

require participants other than the proponent to pre-submit

testimony and exhibits

 if the hearing officer determines

 that

pre—submission will provide for

 a more efficient hearing.

 This

is a change from the prior proposal, which

 required all

participants and the proponent

 to pre—submit

 their

 testimony.

The Board believes that in combination with the requirement that

 the proponent provide a synopsis of supporting testimony when the

proposal is filed

 (see Section 102.121),

 requiring the proponent

to pre—submit

 testimony and exhibits

 21 days before hearing will

give the Board and participants sufficient

 time to prepare

for

hearing, while allowing the proponent

 to update his supporting

testimony

 in response

 to events after

 the filing

 of the

proposal.

 Again, because the proponent controls when

 a proposal

is filed,

 the Board believes that

 the proponent should be able to

satisfy the synopsis and pre—submission of testimony

requirements.

 The Board continues

 to feel that pre—submission

of

testimony and exhibits

 by all participants

 is important.

102—296

—9—

However, by giving the hearing officer the power

 to decide when

to require pre—submission, proceedings will be conducted in

response to the circumstances of the individual proceeding

Subsection

 (f) addresses the problem of modifications

to

pre—submitted testimony.

 The subsection, which

 is based on 35

Ill. Adm. Code 106.803, permits the hearing officer to allow

modifications

 if the changes are either non—substantive or would

not materially prejudice another person’s participation at

 hearing.

 This provision will allow unavoidable modifications to

pre-submitted testimony to be made at hearing, while providing a

level of scrutiny

 to protect the reliability of pre—submitted

testimony.

 Subsection

 (f) also provides that pre—submitted

testimony 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.

 The Board received several comments

questioning this provision,

 based on the claim that Board

hearings might become essentially “paper” hearings.

 The Board

continues to believe that

it

 is important to provide

for

testimony

 to be entered as

if

 read,

 in situations where

participants have been provided with the testimony in advance of

hearing.

 This will result

 in more efficient hearings and provide

incentive for

 those receiving pre—submitted testimony to prepare

for hearing.

 However,

 the Board stresses that the hearing

officer will have testimony read at hearing when he or she

determines that it will aid public understanding to do so.

Participants at hearing should not overlook this provision.

The

Board will not allow its hearing

 to become “paper”

 hearings,

but

neither will

 it allow hearings

 to become a waste of time and

resources.

Section 102.282 “Admissible Information” has been modified

to state

 that all information which

 is relevant and not

repetitious or privileged shall be admitted by the hearing

officer.

 The prohibition against privileged information was

added

 in response to comments.

 Additionally,

 the section now

provides that the hearing officer will rule on objections,

without limiting the type of objections which may be made.

The

Board reiterates,

 however,

 that because of

 the broad standard of

admissible information, some objections which may be appropriate

in an adjudicatory hearing are not appropriate in regulatory

proceedings.

Subpart

K:

 Economic Hearings

This Subpart, which governs hearings on any EcIS prepared by

ENR,

 is virtually unchanged from the 1988 proposal.

 The only

changes are those necessary to conform the proposed rules with

the Act.

Subpart

L:

 Public Comments

Section 102.320 “Public Comments” has been revised

in

response to comments.

 The section now requires written comments

~02—297

—10—

to be submitted within 14 days after

 the receipt of the hearing

transcript in Board offices,

 instead of within 14 days after the

close of hearing.

 This will allow participants the opportunity

 to review the hearing transcript before filing comments, and is

in accord with the Board’s current practice.

 Note, however,

 that

the hearing officer or the Board may specify a different comment

period to prevent material prejudice or undue delay.

 This

provision allows the hearing officer or the Board to extend or

limit the comment period,

or

 to delay a comment period until

after

 the close of all hearings on that proposal.

 The section

has also been been changed to require that written comments be

served only upon participants on any service list,

 instead of all

participants

 in the proceeding.

Subpart M:

 Board Action

This Subpart, which explains

 the various ways that the Board

may adopt regulations,

 has been only slightly revised.

Subsection

 (a) of Section

 102.340 “Revision of

 Proposed

Regulations” has been rewritten to specify that the Board may

revise regulatory proposals before adoption based upon the record

of the proceeding,

or

 in response to suggestions and comments.

The prior proposed language could have been interpreted as

allowing revision only upon suggestion or comment.

The

requirement

 that the Board hold at least one public hearing on

all proposals,

 except

 for procedural regulations,

 has been moved

from Section 102.341

 “Adoption Of Regulations”

 to Section

102.161.

 The previous requirement

 in Section 102.344 “Notice of

Board Final Action” that

 the Board publish notice of

 its final

action

 in the Illinois Register has been deleted.

 The Board

is,

of course,

 required by Section 5.01(c)

 of the Illinois

Administrative Procedure Act

 (Ill.

 Rev.

 Stat.

 1987,

ch.

 127,

 par.

1005.01(c))

 to publish notice of its adopted rules

 in the

Illinois Register.

 The change in the proposed rule was made to

cover

 the situation where the Board decides not to propose or

adopt

 a proposed

 rule.

 Those final actions are not published in

the Illinois Register.

 Finally,

 the section previously proposed

on adoption of RCRA rules has been deleted,

 since

 the substance

of

 that section

 is contained

 in Section 102.345 “Adoption of

Identical

 In Substance Regulations”.

Subpart

N:

 Motions For Reconsideration And Appeal

Subpart

 N, dealing with motions for reconsideration and

appeal,

 is basically unchanged from the previous proposal.

One

new section has been added on correction of publication errors.

Section 102.362 states that the Board may make technical

corrections

 to proposed or adopted rules,

 as published

 in the

Illinois Register

 or filed with the Secretary of State,

 only in

accordance with

1

 Ill.

 Adm.

 Code 100.240.

 The rules set out

in

that section are very narrow and allow for correction only

in

certain instances.

 No hearing need be held on corrections which

may be pursuant

 to that section.

102—298

—Il—

PART 106

 HEARINGS PURSUANT TO SPECIFIC RULES

The Board has made non—substantive changes to Sections

106.415,

 106.506, 106.602, and 106.604.

 These changes merely

update references

 to the existing Part 102 rules so that the Part

106 rules will contain references to the proposed new Part 102.

Additionally, a reference

 in Section 106.602 to Part 103

(enforcement proceedings) has been updated to refer

 to the

Board’s new general procedural rules

 in Part 101.

ORDER

The Board hereby directs the Clerk

 of the Board to cause

publication in the Illinois Register of the First Notice of

the

following amendments.

TITLE

35:

 ENVIRONMENTAL PROTECTION

SUBTITLE A:

 GENERAL PROVISIONS

CHAPTER

I:

 POLLUTION CONTROL BOARD

PART 102

REGULATORY AND INFORMATIONAL

HEARINGS AND PROCEEDINGS

SUBPART A:

 GENERAL PROVISIONS

Section

102.100

 Applicability

102.101

 Definitions

102.102

 Types of Regulatory Proposals

102.103

 Waiver Of Requirements

102.104

 Other Proceedings

SUBPART

B:

 REGULATIONS OF GENERAL APPLICABILITY

Section

102.120

 Proposal

102.121

 Contents

102.122

 Dismissal

102.123

 Proposal Of RCRA Amendments

SUBPART

C:

 SITE-SPECIFIC REGULATIONS

Section

102.140

 Proposal

102.141

 Contents

102.142

 Dismissal

SUBPART D:

 AUTHORIZATION, SCHEDULING, AND NOTICE OF HEARINGS

Section

102.160

 Authorization Of Hearing

102.161

 Scheduling of Hearings

102.162

 Notice Of Hearing

102—299

—12—

102.163

 Notice Of Site—Specific

RCRA

Proposals

SUBPART

E:

 ECONOMIC IMPACT STUDY DETERMINATIONS

Section

102.180

102.181

102.182

102.183

Board Determinations

Request For Determination

Basis For Board Determination

Notice Of Board Determination

SUBPART

F:

 CERTIFICATION OF REQUIRED RULES

Agency Certification

Challenge To Agency Certification

102.202

 Board Determination

SUBPART G:

 AUTHORITY OF HEARING OFFICER

Authority Of Hearing Officer

Notice And Service Lists

Effect Of Hearing Officer Ruling

SUBPART H:

 PRE-HEARING CONFERENCES

Initiation And Scheduling

Purpose

Pre—hearing Order

SUBPART

I:

 MOTIONS AND DISCOVERY

Motion Practice

Production Of Information

Subpoenas

SUBPART

J:

 REGULATORY HEARINGS

Section

102.280

102.281

102.282

102.283

102 .284

102.285

Pre—hearing Submission Of Testimony and Exhibits

Transcript

Admissible Information

Presentation Of Testimony

Questio~iingOf Witnesses

Record For Decision

SUBPART

K:

 ECONOMIC IMPACT HEARINGS

Hearings On The Economic Impact Study Of New

Proposals

Section

102.200

102.201

Section

102.220

102.221

102.222

Section

102.240

102.241

102.242

Section

102.260

102.261

102.262

Section

102.300

102—300

—13—

102.301

Section

102.320

Hearings On The Economic Impact Study Of Existing

Regulations

SUBPART

L:

 PUBLIC COMMENTS

Public Comments

SUBPART

M:

 BOARD ACTION

Section

102.340

102.341

102.342

102.343

102.344

102.345

102.346

102.347

102.348

Revision Of

 Proposed Regulations

Adoption Of Regulations

First Notice Of Proposed Regulations

Second Notice Of Proposed Regulations

Notice Of Board Final Action

Adoption Of

 Identical

 In Substance Regulation

Adoption Of Emergency Regulations

Adoption Of Peremptory Regulations

Adoption Of Temporary Regulations

SUBPART N:

 MOTIONS FOR RECONSIDERATION AND APPEAL

Filing Of Motion For Reconsideration

Disposition Of Motions For Reconsideration

Correction of Publication Errors

Appeal

AUTHORITY:

 Implementing Sections

 5, 7.2, 13(c),

 13.3, 17.5,

22.4(a),

 22.4(d),

 22.7(d),

27,

28,

 28.2,

 29, and 41 of the

Environmental Protection Act

 (Ill. Rev.

 Stat.

 1987,

 ch. lll~,

pars.

 1005,

 1007.2,

 1013(c),

 1013.3, 1017.5,

 1022.4(a),

1022.4(d), 1022.7(d),

 1027,

 1028, 1028.2,

 1029, and 1041,

as

amended by Public Act 85—1048, effective January

1,

 1989) and

Section

 4 of “AN ACT

 in relation to natural resources,

 research,

data collection and environmental studies”

 (Ill. Rev.

 Stat.

 1987,

ch.

 96k,

 par.

 7404,

 as amended by P.A. 85—1048, effective January

1,

 1989) and authorized by Section 26 of the Environmental

Protection Act

 (Ill.

 Rev.

 Stat.

 1987,

 ch. lll~,par.

 1026).

SOURCE:

 Originally adopted as Chapter

1:

 Procedural Rules,

 Part

II:

 Regulatory and Other Nonadjudicative Hearings and

Proceedings,

 in R70—4,

 1 PCB 43, October

8,

 1970;

 codified at

6

Ill. Reg.

 8357; amended

 in R84—lO at

9

 Ill.

 Reg.

 1398, effective

January 16,

 1985;

 Part repealed, new Part adopted

 in R88—5(B)

at

______

 Ill.

 Re9.

_______________

effective ______________________

NOTE:

 Capitalization denotes statutory language.

SUBPART A:

 GENERAL PROVISIONS

Section 102.100

 Applicability

Section

102.360

102.361

102.362

103.363

102—301

—14—

This Part applies

 to all regulatory and informational hearings

and proceedings, and shall be read in conjunction with

35

 Ill.

Adm. Code 101.

 Hearings conducted pursuant to this Part shall be

quasi—legislative in nature.

 All testimony shall

 be sworn.

All

persons taking part

 in these hearings are participants,

 rather

than parties as in contested cases.

Section 102.101

 Definitions

The following definitions

 shall apply

 to this Part:

“Act” means the Environmental Protection Act

 (Ill.

 Rev.

Stat.

 1987,

 ch. 111 1/2,

 par.

 1001 et seq.).

“Agency” means the Illinois Environmental Protection

Agency.

“APA” means the Illinois Administrative Procedure Act

(Ill.

 Rev.

 Stat.

 1987,

ch.

 127,

 par. 1001 et seq.).

“Attorney General” means the Office of the Attorney

General of the State of

 Illinois.

“Board” means the Illinois Pollution Control Board.

“Chairman” means the Chairman of

 the Board.

“Clerk” means

 the Clerk of the Board.

“Document” means pleading,

 notice, motion, affidavit,

memorandum, brief, petition, or other paper required or

permitted to be filed.

“DNS” means

 the Illinois Department of Nuclear Safety.

“Economic impact study” means

 the economic impact study

performed by ENR pursuant to Board determination under

Section

 27 of the Act.

“ENR” means

 the Illinois Department of Energy and

 Natural Resources.

“Fire Marshal” means

 the Office of

 the State Fire

Marshal.

“Identical in substance regulations” means STATE

REGULATIONS

~ThIICH

REQUIRE

THE

SAME

 ACTIONS WITH RESPECT

TO PROTECTION OF THE ENVIRONMENT,

 BY THE

SANE GROUP OF

AFFECTED PERSONS, AS WOULD FEDERAL REGULATIONS

 IF THE

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

ADMINISTERED

THE

SUBJECT PROGRAM IN ILLINOIS.

 (Section

7.2

of the Act.)

102—302

—15—

“Identical

 in substance rulemakings” are those

proceedings conducted pursuant to specific authorization

of the Act, including but not limited to Sections 13(c),

13.3,

 17.5,

 22.4(a),

 22.4(d) and 22.7(d).

“JCAR” means the

Joint Committee on Administrative

Rules.

“Material” means relating

 to any substantive issue that

is

 of consequence to the determination of a proceeding.

“Participant” means any person,

 not including the Board

or

 its staff but including the proponent, who takes part

in a regulatory or other quasi—legislative proceeding

before the Board.

 A person becomes a participant

 in any

of several ways,

 including,

 but not limited to, filing a

comment, being added to the notice list of a particular

proceeding or testifying at hearing.

“Peremptory rulemaking” means ANY RULEMAKING WHICH IS

REQUIRED AS A RESULT OF FEDERAL LAW, FEDERAL RULES AND

REGULATIONS, OR AN ORDER OF A COURT, UNDER CONDITIONS

WHICH

PRECLUDE COMPLIANCE WITH THE GENERAL RULEMAKING

REQUIREMENTS OF SECTION 5.01 OF THE APA AND WHICH

PRECLUDE THE EXERCISE BY THE BOARD AS TO THE CONTENT OF

THE RULE.

 (Section 5.03 of the APA.)

“Person” means any entity defined in Section 3.26 of the

Act, including but not limited to any individual,

partnership, company,

 corporation, political

subdivision, or state agency.

“Proponent” means any person,

 not including the Board or

its staff, who submits

 a regulatory proposal to the

Board for the adoption,

 amendment,

 or repeal of

a

regulation.

“RCRA” means the Resource Conservation and Recovery Act

of 1976

 (42 U.S.C.

6901

 et seq.).

“RCRA rules” means 35

 Ill. Adm. Code 702,

 703,

 720,

 721,

722,

 723,

 724,

 725,

 726, and 728.

“Relevant” means having any tendency

 to make the

existence of any act that

 is of consequence to the

determination of the proceeding more probable or

 less

probable that

 it would be without the information.

“Required rule” means

 a rule that is NEEDED TO FULFILL

THE REQUIREMENTS OF THE FEDERAL CLEAN WATER ACT

(33

U.S.C.

 1251 ET SEQ.),

 SAFE DRINKING WATER ACT,

(42

U.S.C.

 300f ET SEQ.),

 CLEAN AIR ACT (42 U.S.C.

 7401 ET

SEQ.), OR RESOURCE CONSERVATION AND RECOVERY ACT

(42

U.S.C.

 6901 ET SEQ.) OTHER THAN A RULE TO BE ADOPTED

102—303

—16—

UNDER SECTION 13(c), 13.3,

 17.5,

 22.4(a),

 22.4(d), OR

22.7

THE

ACT.

(Section

28.2

the

Act.)

“Site—specific regulation” means a proposed or adopted

regulation

SPECIFIC

INDIVIDUAL

PERSONS

SITES.

(Section

27(a)

the

Act.)

“Undue

delay”

means

delay

which

unwarranted,

unjustified, improper,

or

delay

than

necessary.

“USEPA”

means

the

United

States

Environmental

Protection

Agency.

Section

102.102

Types

Regulatory

Proposals

The

Act

provides

 for three types of regulatory

proposals:

1)

 Identical

 in substance rulemakings, as defined

in

Section 102.101;

2)

 Federally required rules,

 as defined

 in Section

102.101;

and

3)

 Other regulatory proposals, both of general

applicability and not of general applicability.

b)

 Regulations arising from these

 types of proposals may be

adopted through four types of rulemaking:

1)

 General rulemaking pursuant

 to Section 5.01 of the

APA

 (Ill.

 Rev.

 Stat.

 1987,

ch.

 127,

 par.

 1005.01),

and Sections

 26 and 27 of the Act

 (Ill.

 Rev.

 Stat.

1987, ch.

 111 1/2, pars.

 1026—1027);

2)

 Emergency rulemaking pursuant

 to Section

 5.02

of

the APA

 (Ill.

 Rev.

 Stat.

 1987,

ch.

 127,

 par.

1005.02)

 and Section

 27 of the Act;

3)

 Peremptory rulemaking pursuant

 to Section 5.03 of

the APA

 (Ill. Rev.

 Stat.

 1987,

ch.

 127,

 par.

1005.03); and

4)

 Temporary rulemaking pursuant to Section 27(b)

of

the Act.

c)

 The provisiolls of Subpart B of this Part apply

 to all

types

 of regulatory proposals except identical

in

substance proposals.

Section 102.103

 Waiver Of Requirements

The Board may waive any of

 the non—statutory requirements of this

Part upon a showing by a person that a particular

 requirement

102—304

—17—

would create an undue burden on that person.

Section 102.104

 Other Proceedings

The Board may conduct such other noncontested or informational

hearings as may be necessary to accomplish the purposes of the

Act.

SUBPART

B:

 REGULATIONS OF GENERAL APPLICABILITY

Section 102.120

 Proposal

Any person may submit a regulatory proposal for the adoption,

amendment,

 or repeal of a regulation.

 The original and nine

(9)

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

copy each with the Attorney General,

 the Agency and ENR.

Section 102.121

 Contents

Each proponent shall provide:

a)

 The language of the proposed regulation or amendment,

including an identification of the existing regulatory

language proposed to be amended or deleted.

 Language

being added shall be

 indicated by underscoring and

language being deleted shall be indicated by strike-

outs.

 The proposed rule shall

 be drafted in accordance

 with

 1 Ill. Adm. Code lOO.Subpart

C;

b)

 A statement of the reasons supporting the proposal,

including a statement

 of the facts which support the

proposal, and a statement of the purpose and effect of

the proposal.

 The statement shall discuss the

applicable factors listed in Section

 27 of the Act.

Where the proposal covers more than one substantive

point,

 the statement of reasons shall include statements

in support of each point.

 The statement

 of reasons

shall include a technical and economic justification for

the proposal;

c)

 Pursuant to Section

 27 of

 the Act, A RECOMNENDATION OF

WHETHER AN ECONOMIC IMPACT STUDY IS ADVISABLE.

The

recommendation shall describe, TO THE EXTENT REASONABLY

PRACTICABLE, THE UNIVERSE OF AFFECTED SOURCES AND

FACILITIES AND THE ECONOMIC IMPACT OF

THE

PROPOSED

RULE.

 The recommendation shall also address the

questions contained

 in the Analysis

 of Economic and

Budgetary Effects of

 Proposed Rulemaking,

 set forth at

1

Ill.

 Adm. Code 220.Exhibit

 B, and identify issues

 to be

addressed by any economic impact study;

d)

 A synopsis of all testimony

 to be presented by the

proponent at hearing;

102—305

—18—

If

the

Agency

the

proponent,

and

the

Agency

believes

that

the

proposed

rule

required

rule

pursuant

Section

28.2

the

Act,

citation

the

specific

section

the

specific

federal

act;

Copies

any

material

incorporated

reference

within

the

proposed

regulation

pursuant

Section

6.02

the

APA;

Proof

service

upon

all

persons

required

served

pursuant

Section

102.120;

Unless

the

proponent

the

Agency,

ENR,

DNS,

petition

signed

least

200

 persons,

 pursuant

to

Section

the

Act

and

Section

102.160(a);

and

i)

 Where circumstances render any information required by

this Subpart inapplicable,

 a justification for such

inapplicability.

Section 102.122

 Dismissal

a)

 Failure of the proponent to satisfy the content

requirements of Section 102.121 or failure

 to respond

to

Board requests for additional information will render

a

proposal subject to dismissal for inadequacy.

b)

 Failure of the proponent

 to pursue disposition of

the

proposal

 in a timely manner will render a proposal

subject

 to dismissal.

Any

person

may

 file

 a motion challenging the sufficiency

of a proposal pursuant

to

 35 Ill. Adm. Code 101.243.

Section 102.123

 Proposal Of RCRA Amendments

In addition to satisfying the requirements of Section

 102.121,

any proposal to amend

 the RCRA regulations

 shall:

a)

 Indicate whether

it

 is made pursuant

 to the provisions

of Section 22.4(a),

 22.4(b)

or

 22.4(c)

 of the Act;

b)

 Include

a

 listing of all amendments

 to the corresponding

federal regulations since the period encompassed by the

last amendment of the Board’s RCRA rules; and

c)

 Include a ceçtificate of service

 indicating

 that

 a copy

of

 the proposal has been served on the United States

Environmental Protection Agency

 (USEPA).

 Service shall

be made at the following address:

102—306

—19—

Director, Waste Management Division

USEPA, Region V

230 South Dearborn Street

Chicago,

 Illinois 60604

SUBPART C:

 SITE SPECIFIC REGULATIONS

Section 102.140

 Proposal

Any person may submit

 a written proposal for

 the adoption,

amendment or

 repeal of

 a substantive site—specific

 regulation.

The original and nine

 (9) copies of each proposal shall be filed

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

 ENR, and

the Attorney General.

Section 102.141

 Contents

a)

 The proponent shall identify the regulations which are

to

be addressed by the proposed amendment and the

language to be added, deleted,

or

 repealed.

 Language

being added shall be indicated by underscoring and

language being deleted shall be indicated by strike-

outs.

b)

 The proponent shall provide

 a statement

of reasons and

facts supporting the proposal, and a statement of the

purpose and effect of the proposal.

c)

 The proposal shall also comply with all requirements Set

forth in Section 102.121.

d)

 In the event that the proposed rule would replace the

applicability of a general

 rule to the pollution source,

the proposal shall specify, with supporting

documentation, the reasons why the general rule

 is not

technically feasible or economically reasonable

 for the

person or site.

 Such documentation shall include

relevant information on other similar persons’

 or sites’

ability to comply with the general

 rule.

e)

 The proposal shall describe the person or site for which

regulatory change

 is sought and the area affected by

the

proposed change.

 The proposal shall also include

a

detailed assessment

 of the environmental

 impact of the

proposed change,

 and include a description of all

available treatment or control options.

f)

 The proposal shall demonstrate that the Board may grant

the requested relief consistent with federal law.

g)

 Where circumstances render any information requested in

this Subpart inapplicable,

 the proposal shall include

a

justification for such inapplicability.

102—307

—20—

Section 102.142

 Dismissal

a)

 Failure of the proponent

 to satisfy the content

 requirements for proposals under this Subpart or failure

to respond to Board requests for additional information

will render a proposal subject

 to dismissal for

inadequacy.

b)

 Failure of

 the proponent

 to pursue disposition of the

proposal

 in a timely manner will render a proposal

subject

 to dismissal.

c)

 Any person may file a motion challenging the sufficiency

of the proposal pursuant

to

35

 Ill. Adm. Code 101.243.

SUBPART

D:

 AUTHORIZATION,

 SCHEDULING, AND

NOTICE OF HEARINGS

Section 102.160

 Authorization Of Hearing

a)

 The Clerk

 shall assign a docket

 number

 to any proposal.

All regulatory proposals will be placed on the Board

agenda for determination of adequacy under the Act and

Sections 102.121 and 102.141.

IF

THE

BOARD FINDS THAT

ANY SUCH PROPOSAL

 IS NOT PLAINLY DEVOID OF MERIT, DOES

NOT DEAL WITH A SUBJECT ON WHICH A HEARING HAS BEEN HELD

WITHIN THE PRECEDING

 6 MONTHS,

 IS ACCOMPANIED BY AN

ADEQUATE STATEMENT OF SUPPORTING REASONS AND A PETITION

SIGNED BY AT LEAST

 200 PERSONS, and meets the

requirements of this Part, THE BOARD WILL SCHEDULE A

PUBLIC HEARING FOR CONSIDERATION OF

THE

PROPOSAL.

 IF A

PROPOSAL

 IS MADE BY THE AGENCY,

 ENR, OR DNS, THE BOARD

 SHALL SCHEDULE A PUBLIC HEARING WITHOUT REGARD TO THE

ABOVE CONDITIONS.

 Pursuant

 to Section

 28 of the Act,

THE BOARD

MAY

ALSO

 IN ITS

DISCRETION SCHEDULE A PUBLIC

HEARING UPON ANY PROPOSAL

WITHOUT REGARD TO THE

ABOVE

CONDITIONS.

 (Section 28 of the Act.)

 The proponent

must cure any inadequacy identified by Board order

before the proposal will proceed to hearing.

b)

 If the Board determines that a proposal meets

the

requirements of

 subsection

 (a), and

 if any filing fee

required by the Act and

35

 Ill. Adm.

 Code 101.120 has

been paid,

 the Board will

 issue an order accepting the

proposal

 for hearing.

 Such an order will be

 construed

as starting the timeclock for purposes

 of any applicable

economic impact study and first

 notice publication

deadlines pursuant

 to Sections

27

 and 28.2

of

 the Act.

c)

 When the Board authorizes

 a hearing,

 the Chairman will

designate an attending Board member.

 A member

 of the

Board may serve ashearing officer

 if otherwise

102—308

—21—

qualified, and such hearing need not be attended by

 another

 Board member.

d)

 In the case of a proposed regulatory change under

the

provisions of

35

 Ill. Adm. Code 302.211(j)

or

304.141(c),

 the requirement of subsection

 (a) relating

to a requirement of 200 signatures shall not apply.

In

such case only a single hearing shall be required,

 to be

held in the affected county.

e)

 The Board may consolidate proposals for hearing or

decision.

Section 102.161

 Scheduling Of Hearings

a)

 Except as otherwise provided by the Act,

 no substantive

regulation shall

 be adopted, amended or

 repealed by the

Board until after

at

 least one public hearing.

 In the

case of site—specific rules,

 a public hearing shall

be

held

 in the affected county.

 In the case

 of state—wide

regulations, public hearings shall

 be held in at least

two counties of the state.

b)

 The Board need not hold a hearing on a procedural

regulation, except

 as provided by Section 5.01 of the

APA.

c)

 After consideration of the number and complexity of

issues involved

 in a regulatory proposal, the Board will

issue an order preliminarily specifying the number of

hearings

 to be held on that proposal.

 This order may be

combined with the order accepting the proposal

for

hearing

 (see Section 102.160)

 or the order making the

economic impact study determination

 (see Subpart E),

or

may be a separate order.

d)

 If the proponent or any participant wishes to request

a

hearing beyond the number of hearings specified by the

Board pursuant

 to subsection

 (c), that person must

demonstrate,

 in a written motion to the Board,

 that

failing

 to hold an additional hearing would result

in

material prejudice to the inovant.

 The movant must show

why an additional hearing,

 as opposed to

the opportunity

to submit written comments pursuant

 to Section 102.320,

is necessary.

e)

 Notwithstanding subsection

 (d), the Board will schedule

an additional

 hearing or hearings on its own motion,

if

it finds

 that additional hearing would aid the Board in

its decision on the proposal.

Section 102.162

 Notice Of Hearing

a)

 The hearing officer will

set

 a time and place

for

102—309

—22—

hearing.

 The Clerk shall give notice of the date of the

hearing as follows:

1)

 By notice

 in the Board’s Environmental Register;

and

2)

 At least 20 days prior

 to the hearing date,

by

public advertisement

 in a newspaper of general

circulation in the county

 in which the hearing

is

to be held.

 Where required by federal

 law,

including but not limited to air pollution and RCRA

proposals,

 newspaper notice shall

 be published at

least 30 days prior

 to the hearing date.

b)

 The hearing officer will give notice by mail

 to the

proponent and

 to all persons who have submitted their

names and addresses

 to the Clerk concerning

the

proposal.

c)

 Hearings which are continued on the hearing record for

a

period of

 45 days or

 less do not require notice that

complies with subsections

(a)

and

 (b).

Section 102.163

 Notice Of Site—Specific

RCRA

Proposals

a)

 Public notice

 of hearings on site—specific RCRA

proposals shall

 be given at least

 30 days before the

date of the hearing.

b)

 In addition to the requirements of Section

 28 of the Act

and Section 102.211,

 the Board,

at

a

minimum, will give

notice of hearings on

 a site—specific RCRA proposal

to

the following persons:

1)

 Federal agencies as designated by USEPA;

2)

 Illinois Department of Transportation;

3)

 Illinois Department

of

 Conservation;

4)

 Illinois Department

 of Energy and Natural

Resources;

5)

 Illinois Department of Public Health;

6)

 The governor

 of any other state adjacent

 to the

county

 in which

 the facility

 is located; and

7)

 Elected officials

 of any counties,

 in other states,

adjacent

 to the county

 in which

 the facility

is

located, and-elected officials

 in any municipality,

in another

 state,

if

it

 is the closest population

center

 to thefacility.

102—3 10

—23—

c)

 In addition to the methods of notice by publication of

Section

 28 of the Act and Section 102.241,

 the Board

will give notice by radio broadcast

 in the area of

the

facility.

 That notice will include the information

required by subsections

 (d)(2) and

 (d)(4) through

 (d)(8)

below.

d)

 A hearing notice on a site—specific RCRA proposal will

include the following information:

1)

 The address of

 the Board office;

2)

 Name and address of the proponent and,

if

different, of the facility for which the site-

specific rule is sought;

3)

 A brief description of the business conducted at

the facility and the activity described in the

petition;

4)

 A description of the relief requested in the

petition and the Board’s docket number of the

proceeding;

5)

 Name,

 address and telephone number of

 the Clerk of

the Board,

 from whom interested persons may obtain

further information,

 including copies of the

proposal;

6)

 The name, address and telephone number

 of the

Agency’s representative in the rulemaking;

7)

 A description of any written comment period or

a

statement that a comment period will be established

in the future;

8)

 A statement that the record in the rulemaking

is

available at the Board office

 for inspection,

except those portions which are claimed or

determined to be trade secrets, and that procedures

are available whereby disclosure may be sought

by

the public pursuant

to

35

 Ill. Adm. Code

 120.

9)

 A statement that site—specific rules may be adopted

pursuant

 to Title VII of the Act and 35

 Ill. Adm.

Code 102,

and

 a reference

 to the Board regulations

sought

 to be modified; and

10)

 Any additional

 information considered necessary or

proper.

SUBPART

E:

 ECONOMIC IMPACT STUDY DETERMINATIONS

Section 102.180

 Board Determinations

102—311

—24—

a)

 Within

 60 days of

 the date that the Board accepts

a

proposal

 for hearing pursuant

 to Section 28 of

 the Act

and Section 102.160,

 the Board shall determine whether

an economic impact study should be prepared.

b)

 Notwithstanding subsection

 (a), AT ANY TIME PRIOR TO THE

CLOSE OF THE RECORD DURING THE

RULEMAKING PROCEEDING,

THE BOARD MAY DETERMINE THAT AN ECONOMIC IMPACT STUD’I

SHOULD BE PREPARED,

 IF THE PROPOSAL HAS BEEN

SUBSTANTIALLY MODIFIED OR IF INFORMATION IN THE RECORD

INDICATES THAT AN ECONOMIC IMPACT STUDY WOULD BE

ADVISABLE.

 (Section

27

 of the Act.)

 However,

 this

subsection

 is not applicable

 to proceedin~s involving

required rules pursuant

 to Section 28.2

or

 the Act.

c)

 IF THE BOARD DETERMINES THAT AN ECONOMIC IMPACT STUDY

SHOULD BE CONDUCTED,

 ENR SHALL CONDUCT SUCH A STUDY

IN

ACCORDANCE WITH “AN ACT

 IN RELATION TO NATURAL

RESOURCES,

 RESEARCH, DATA COLLECTION AND ENVIRONMENTAL

STUDIES”

 (Ill. Rev.

 Stat.

 1987,

ch.

 96 1/2,

 par.

 7401 et

seq.).

 THE BOARD

MAY

 IDENTIFY SPECIFIC ISSUES TO BE

ADDRESSED IN THE STUDY.

 (Section

 27 of the Act.)

Section 102.181

 Request

For Determination

a)

 WITHIN

 21 DAYS OF THE DATE THAT THE BOARD ACCEPTS A

PROPOSAL FOR HEARING PURSUANT TO SECTION

 28 OF THE ACT

AND SECTION 102.160, ANY PERSON MAY REQUEST THAT THE

BOARD DETERMINE THAT AN ECONOMIC

 IMPACT

STUDY SHOULD OR

SHOULD NOT BE PREPARED.

 (Section

 27 of the Act.)

b)

 Such request shall

 be made

 in writing, and shall detail

the reasons for

 the request.

 The request SHALL

DESCRIBE, TO THE EXTENT REASONABLY PRACTICABLE, THE

ECONOMIC IMPACT OF THE PROPOSED RULE.

 (Section

27

of

the Act.)

 All material facts asserted

 in the request

shall be verified by affidavit.

c)

 The person filing the request shall file the original

and nine

 (9) copies with the Clerk, and one copy each

with the Agency, ENR,

 the Attorney General, and the

proponent.

d)

 No hearing will be held on any request filed pursuant

to

this Section.

Section 102.182

 Basis

 For Board Determination

In determining whether

 an economic impact study should

be

performed,

 the Board will consider:

a)

 Information

 in the record furnished by the proponent

pursuant

 to Sections

 102.121 and 102.141 and by any

102—312

—25—

person filing a request for determination pursuant to

Section 102.231;

b)

 ITS ASSESSMENT OF THE POTENTIAL ECONOMIC IMPACT OF THE

RULE;

c)

 THE POTENTIAL FOR CONSIDERATION OF THE ECONOMIC IMPACT

ABSENT SUCH A STUDY;

d)

 THE EXTENT,

 IF ANY, TO WHICH THE BOARD IS FREE UNDER THE

STATUTE AUTHORIZING THE RULE TO MODIFY THE SUBSTANCE OF

THE RULE BASED UPON THE CONCLUSIONS OF AN ECONOMIC

IMPACT STUDY;

and

e)

 ANY OTHER CONSIDERATIONS THE BOARD DEEMS APPROPRIATE.

(Sections

 27 and 28.2 of the Act.)

Section

 102.183

 Notice Of Board Determination

The Board will issue

 a written interlocutory order giving the

reasons for

 its determination.

 The proponent,

 the Agency,

 ENR,

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

the notice list for the proposal will be given notice of

the

Board’s determination.

 Orders entered pursuant

 to this Section

may be appealed only pursuant

to

35

 Ill. Adm. Code 101.304.

SUBPART

F:

 CERTIFICATION OF REQUIRED RULES

Section 102.200

 Agency Certification

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

REQUIRED RULE as defined by Section 28.2(a)

 of the Act and

Section 102.101, THE AGENCY SHALL SO CERTIFY

 IN ITS PROPOSAL,

IDENTIFYING THE FEDERAL LAW TO WHICH THE PROPOSED RULE

WILL

RESPOND.

 (Section 28.2(e)

 of the

Act.)

 Such certification shall

include citation

 to the specific section of the specific federal

law to which the proposed rule will respond.

Section 102.201

 Challenge To Agency Certification

a)

 If any person wishes

 to challenge the Agency’s

certification that a proposed rule

 is a required rule,

that person shall

 file an objection to that

certification within

 21 days of

 the date of the Board’s

order accepting

 a proposal for hearing.

 Such objection

shall state the reasons that the objector believes that

the proposed rule

 is not

 a required rule, and shall

include all arguments which the objector wishes the

Board

 to consider.

 A copy of the objection shall be

served upon the Agency and ENR.

b)

 The Agency may file

 a response to any objection within

10 days of the service of that objection.

 No reply by

102—3 13

—26—

the objector will be allowed, unless the Board orders

otherwise to avoid material prejudice.

c)

 No hearing will be held on any objection filed pursuant

to this Section.

Section 102.202

 Board Determination

a)

 The Board will rule upon any objection filed pursuant

to

this Subpart within 60 days of the date that the Board

accepts

 a proposal for hearing.

 The Board’s ruling will

be made

 in its order determining whether an economic

impact study will be prepared,

 issued pursuant

to

Section 102.180.

b)

 In ruling upon an objection to an Agency certification,

the Board will consider all information

 in the record of

that proceeding,

 including but not limited

 to the

proposal,

 the objection, and the Agency response to the

objection.

 The burden of proof

 is on the objector.

c)

 The Board will give notice of

 its determination

 to the

objector, the Agency, ENR, and any person who has asked

to be placed on the notice list for that proposal.

SUBPART G:

 AUTHORITY OF HEARING OFFICER

Section 102.220

 Authority Of Hearing Officer

The hearing officer

 t’as the duty to conduct a fair hearing,

to

take all necessary action to avoid delay,

 to maintain order,

and

to ensure development of

 a clear, complete,

 and concise

 record.

He or she will have all powers necessary

 to these

 ends,

 including

(but not limited

to)

 the authority

to:

a)

 Require and establish a schedule

 for,

 and notice and

distribution of, any pre-hearing submission of

 testimony

and written exhibits;

b)

 Require all participants

 to state their position with

respect

 to the proposal;

c)

 Administer oaths and affirmations;

d)

 Examine witnesses and direct witnesses

 to testify;

e)

 Regulate the course of

 the hearing,

 including but not

limited

 to c~ntrolling the order

 of proceedings;

f)

 Establish reasonable limits on the duration of the

testimony and questioning

 of am; witness and limit

repetitious or~cumulative

 testimony and questioning;

102—3 14

—27—

g)

 Issue,

 in the name of the Board, an order compelling

the

answering of interrogatories or other discovery

requests;

h)

 Order the production of evidence as specified

 in Section

102.261 and 35 Ill. Adm. Code 101.261;

i)

 Initiate, schedule and conduct a pre—hearing conference

as

 specified in Subpart H;

 Issue subpoenas pursuant to Section 102.262 and 35

 Ill.

Adm. Code 101.260;

k)

 Exclude late—filed briefs and comments from inclusion in

the record for decision;

1)

 Rule upon motions as specified in

35

 Ill. Adm. Code

101.247;

m)

 Rule upon objections and evidentiary questions;

n)

 Establish a schedule for discovery,

 including a date by

which discovery must be completed;

and

o)

 Where pre—hearing submission of hearing testimony or

exhibits has been required, allow the admission of

testimony or exhibits which were not pre—submitted,

if

necessary to prevent undue delay or material prejudice.

Section 102.221

 Notice And Service Lists

a)

 The hearing officer shall maintain a notice list for

each regulatory proceeding.

 The notice list will

consist of those persons who have furnished their names

and addresses for inclusion on the notice list for

a

specific proceeding.

 Notice of all Board action and

hearing officer orders will be given

 to all persons

included on the notice

 list.

b)

 The hearing officer may establish a service list for any

regulatory proceeding,

 in addition to the notice

 list.

The hearing officer may direct participants

 to serve

copies

 of all documents upon the persons

 listed on the

 service list.

 In deciding whether

 to establish a

service

 list,

 the hearing officer will consider factors

including but not limited to,

 the complexity of the

proceeding and the number of participants.

Section 102.222

 Effect Of Hearing Officer Ruling

All decisions,

 orders, and rulings made by the hearing officer

remain

 in effect during the pendancy of any appeal to the Board

of that decision,

 order,

or

 ruling.

102—315

—28—

SUBPART H:

 PRE-HEARING CONFERENCES

Section 102.240

 Initiation And Scheduling

a)

 TO THE EXTENT CONSISTENT WITH ANY DEADLINE FOR ADOPTION

OF ANY REGULATIONS MANDATED BY STATE OR FEDERAL LAW,

PRIOR TO INITIATING ANY HEARING ON A REGULATORY

PROPOSAL, THE BOARD MAY ASSIGN A QUALIFIED HEARING

OFFICER WHO MAY SCHEDULE A PRE-HEARING CONFERENCE

BETWEEN THE PROPONENT AND ANY OR ALL OF THE POTENTIALLY

AFFECTED PERSONS.

 (Section

 27(e) of the Act.)

The

hearing officer may schedule a pre—hearing conference on

his or her own motion,

 or on the motion of the proponent

or any potentially affected person.

 A motion

to

schedule

 a pre—hearing conference shall

 be directed

to

the hearing officer.

b)

 THE NOTICE REQUIREMENTS OF SECTION 28 of the Act and

 Section

102.161 SHALL NOT APPLY TO SUCH PRE—HEARING

CONFERENCES.

 (Section 27(e)

of

 the Act).

 However,

the

hearing officer will give notice to any person who has

requested inclusion on the notice list of that proposal.

Section 102.241

 Purpose

The purpose of a pre—hearing conference shall

be:

a)

 TO MAXIMIZE UNDERSTANDING OF THE INTENT AND APPLICATION

OF THE PROPOSAL;

b)

 TO REACH AGREEMENT ON ASPECTS OF THE PROPOSAL,

IF

POSSIBLE; AND

c)

 TO ATTEMPT TO IDENTIFY AND LIMIT THE ISSUES OF

DISAGREEMENT AMONG THE PARTICIPANTS TO PROMOTE EFFICIENT

USE OF THE TIME AT HEARING.

 (Section 27(e)

of

 the Act.)

Section 102.242

 Pre—hearing Order

a)

 NO RECORD OF THE PRE-HEARING CONFERENCE NEED BE KEPT,

NOR SHALL ANY PARTICIPANT OR THE BOARD BE BOUND BY ANY

DISCUSSIONS CONDUCTED AT THE PRE-HEARING CONFERENCE.

b)

 Notwithstanding subsection

 (a), WITH THE CONSENT OF ALL

PARTICIPANTS

 IN THE ?RE-HEARING CONFERENCE,

 THE HEARING

OFFICER

MAY

ENTER A PRE-HEARING ORDER DELINEATING ISSUES

TO BE HEARD, ,AGREED FACTS, AND OTHER MATTERS.

 If the participants agree

 to having

 a pre—hearing order

entered pursuant

 to subsection(b),

 the hearing officer

may require that the participants furnish

the

 text of a

proposed order

setting

 forth the substance of the

agreements reachedat

the pre-hearing conference.

The

hearing officer will enter

 that order

if

 he or

she

102—316

—29—

agrees that it sets forth the substance of the

agreement.

 The order

 shall identify which participants

have agreed to the substance of the order.

d)

 A PRE-HEARING ORDER SHALL NOT BE BINDING ON

NONPARTICIPANTS IN THE PRE-HEARING CONFERENCE.

 (Section

27(e) of the Act.)

SUBPART

I:

 MOTIONS AND DISCOVERY

Section 102.260

 Motion Practice

Motion practice in regulatory proceedings is governed by

35

Ill.

Adm. Code 101.Subpart H.

 All motions and responses shall be

served upon the proponent,

 the Agency,

 ENR, the Attorney General,

and all persons on any service list established pursuant to

Section 102.221(b).

Section 102.261

 Production Of Information

The production of

 information

 in regulatory proceedings

is

governed by 35

 Ill. Adm. Code 101.261.

Section 102.262

 Subpoenas

The issuance and enforcement of

 subpoenas

 in regulatory

proceedings

 is governed by

 35 Ill. Adm.

 Code

101.260(b)

 through

(i)

SUBPART

J:

 REGULATORY HEARINGS

Section 102.280

 Pre—hearing Submission Of Testimony And

Exhibits

a)

 The proponent shall

 submit all written testimony and any

related exhibits

 21 days prior

 to the hearing at which

the witness testifies,

 unless the hearing officer

directs otherwise to prevent material prejudice or undue

delay.

b)

 The hearing officer may require the pre—hearing

submission of testimony and any related exhibits by

participants other than the proponent

 if the hearing

officer determines that such a procedure will provide

for a more efficient hearing.

c)

 The original and four

(4)

copies of pre—submitted

testimony and exhibits shall be filed with the Clerk.

The Agency,

 ENR,

 and,

 if a participant,

 the Attorney

General shall each be served with one copy of each

testimony and exhibit.

 One copy shall also be served

upon the proponent and each participant on any service

list, unless otherwise specified or limited by the

102—31~

—30—

hearing officer.

 Such service shall be initiated on or

before the date that copies are filed with the Clerk.

d)

 All testimony and exhibits shall be submitted in the

form required by

35

 Ill.

 Adrn. Code 101.103 and labelled

with the docket number of the proceeding,

 the name of

the witness submitting the material or exhibit, and the

title of the material or exhibit.

e)

 The proponent and each participant who has pre—submitted

testimony shall bring copies of that testimony and any

exhibits to the hearing.

f)

 Testimony submitted prior

 to hearing will

 be entered

into the record as

 if read,

 unless the hearing officer

determines that

 it will aid public understanding

 to have

the testimony

 read.

 All persons testifying will be

sworn and will

 be subject

 to examination.

 Modifications

to previously submitted testimony and exhibits may be

allowed by the hearing officer

 at hearing provided that

such modifications are either non—substantive

 in nature

or would not materially prejudice another person’s

participation at hearing.

 Objections to such

modifications are waived unless raised at hearing.

g)

 Where pre—hearing submission of testimony is

 required

pursuant to subsection

 (a) and

 (b), any testimony which

is not pre-submitted

 in a timely manner will be allowed

only

 as time permits.

Section 102.281

 Transcript

All testimony shall be

 recorded stenographically.

 When the

transcript

 is filed with the Clerk,

 the hearing officer will

receive and rule on typographical corrections and reporting

errors from any person who may examine

 the transcript

for

accuracy.

 Failure of any witness

 to correct

 the transcript

within 14 days after

 its receipt

 in Board offices constitutes

a

waiver

 of any right

 to correct.

Section

102.282

 Admissible Information

All information which

is

 relevant and not repetitious or

privileged shall be admitted by the hearing officer.

 The hearing

officer will

 rule on objections.

Section 102.283

 Presentation

 of Testimony

a)

 All witnesses

at hearings shall

 be sworn.

b)

 Testimony shall be

 in narrative

 form.

Section 102.284

 Questioning Of Witnesses

102—318

—31—

All witnesses shall be subject

 to questioning by any person.

Repetitious, irrelevant,

 harassing,

 or cumulative questioning

will be prohibited by the hearing officer.

Section 102.285

 Record For Decision

The record includes the transcript, all written testimony,

all

exhibits admitted at hearing,

 and all public comments, briefs and

other

 information timely filed with the Clerk.

SUBPART

K:

 ECONOMIC IMPACT HEARINGS

Section 102.300

 Hearings On The Economic Impact Study Of New

Proposals

a)

 Before the final adoption of any proposal,

 the Board

shall conduct at least one hearing on any economic

impact study submitted by ENR on any proposed

regulation, or proposed amendment

 to existing

regulation, unless otherwise provided by the Act.

b)

 IN THE CASE OF A REQUIRED RULE,

 IF THE ECONOMIC IMPACT

STUDY IS NOT SUBMITTED TO THE BOARD WITHIN SIX

(6)

MONTHS OF THE BOARD’S DECISION THAT AN ECONOMIC IMPACT

STUDY SHOULD BE CONDUCTED,

 THE BOARD

MAY

PROCEED TO

ADOPT A REQUIRED RULE WITHOUT AN ECONOMIC IMPACT

STUDY.

 However, TO THE EXTENT POSSIBLE CONSISTENT WITH

SECTION

28.2(b)

 OF THE ACT, THE BOARD SHALL CONDUCT A

HEARING ON THE ECONOMIC IMPACT OF THE PROPOSED REQUIRED

RULE.

 (Section 28.2 of the Act.)

 This requirement may

be fulfilled by considering economic impact at any merit

hearing on the proposed required rule.

c)

 Hearings held pursuant

 to this Section may be

consolidated with any other hearings held pursuant

to

this Part.

Section 102.301

 Hearings On The Economic Impact Study Of

 Existing Regulations

a)

 WITHIN A REASONABLE TIME,

 BUT NOT MORE THAN 120

 DAYS,

AFTER EACH ECONOMIC

IMPACT STUDY ON EXISTING REGULATIONS

HAS BEEN FILED BY

ENR, THE BOARD SHALL CONDUCT PUBLIC

HEARINGS ON SUCH STUDY.

b)

 AFTER CONCLUSION OF THE HEARINGS,

 THE BOARD SHALL

PUBLISH ITS FINDINGS AND CONCLUSIONS ON THE AREAS

COVERED

BY THE STUDY AND THE TESTIMONY RECEIVED BY THE

BOARD.

 The Board will satisfy

 this requirement

by

entering

 a written order.

 THE BOARD SHALL ALSO SPECIFICALLY DETERMINE WHETHER, AS

A RESULT OF ITS FINDINGS AND CONCLUSIONS, ANY

REGULATIONS OF THE

BOARD SHALL BE MODIFIED OR REPEALED.

102—319

—32—

d)

 IF THE BOARD CONCLUDES THAT MODIFICATION OR REPEAL

MAY

BE NECESSARY, IT SHALL PROPOSE SUCH MODIFICATION AS

REGULATIONS AND CONDUCT FURTHER HEARINGS ON SAID

MODIFICATION.

e)

 ANY SUCH PROPOSED MODIFICATIONS SHALL NOT REQUIRE ANY

ADDITIONAL ECONOMIC IMPACT STUDY.

 (Ill. Rev.

 Stat.

1987,

 ch. 96k, par. 7404(b).)

SUBPART

L:

 PUBLIC

COMMENTS

Section 102.320

 Public Comments

Any person may submit written comments on any proposal within

14

days after

 the receipt of the transcript

 in Board offices or

within

 14 days after regulation revision under Section 102.340,

unless otherwise specified by the hearing officer

 or the Board

to

prevent material prejudice or undue delay.

 Comments shall be

filed with the Clerk and served upon the participants on any

service list established by the hearing officer pursuant to

Section 102.221.

 Comments which are not timely

 filed will not be

considered,

 except

 as allowed by the hearing officer

or

 the Board

to prevent material prejudice.

SUBPART M:

 BOARD ACTION

Section 102.340

 Revision Of Proposed Regulations

a)

 The Board may revise the proposed regulations before

adoption based upon the record or

 in response to

suggestions made

 at hearing and

 in written comments made

prior

 to second notice.

 No additional hearing on the

revisions need be held.

b)

 THE BOARD MAY MOD:FY AND SUBSEQUENTLY ADOPT ANY PROPOSED

REGULATIONS, OR AMENDMENTS TO EXISTING REGULATIONS

WITHOUT ANY ADDITIONAL ECONOMIC

 IMPACT STUDY;

 PROVIDED

THAT SUCH MODIFICATION

 BY THE BOARD DOES NOT

SIGNIFICANTLY ALTER THE INTENT AND PURPOSE OF THE

PROPOSED REGULATION WHICH WAS THE SUBJECT OF ENR’S

ECONOMIC IMPACT STUDY.

 (Section

 27(b)

of

 the Act.)

 Unless otherwise provided

 in the Act,

 THE BOARD MAY

REVISE PROPOSED REGULATIONS AFTER HEARING

 N RESPONSE TO

OBJECTIONS OR SUGGESTIONS

MADE

BY JCAR PURSUANT TO

SECTIONS 5.01(b) AND 7.06(a) OF THE APA.

 THE BOARD

MAY

MAKE SUCH A REVISION WHERE

 IT FINDS:

1)

 THAT SUCH OBJECTIONS OR SUGGESTIONS RELATE TO THE

STATUTORY AUTHORITY UPON WHICH THE REGULATION

IS

BASED, WHETHER THE REGULATION

IS

 N PROPER FORM, OR

WHETHER ADEQUATE NOTICE WAS GIVEN;

and

102—320

—33—

2)

 THAT THE RECORD BEFORE THE BOARD IS SUFFICIENT TO

SUPPORT SUCH A CHANGE WITHOUT FURTHER HEARING.

(Section 28 of the Act.)

Section 102.341

 Adoption Of Regulations

a)

 IN ADOPTING ANY NEW REGULATION,

 EXCEPT A REQUIRED RULE

OR AN IDENTICAL IN SUBSTANCE REGULATION, THE BOARD SHALL

CONSIDER THOSE ELEMENTS DETAILED

 IN ANY ECONOMIC IMPACT

STUDY PERFORMED BY ENR ON THAT REGULATION.

 THE BOARD

SHALL,

 IN ITS WRITTEN OPINION, MAKE A DETERMINATION,

BASED UPON THE

ECONOMIC IMPACT STUDY AND OTHER EVIDENCE

IN THE RECORD,

 AS TO WHETHER THE PROPOSED REGULATION HAS

ANY ADVERSE ECONOMIC IMPACT ON THE PEOPLE OF THE STATE

OF ILLINOIS.

 (Section 27(b)

 of the Act.)

b)

 In the case of a required rule,

 the Board will follow

the procedures

 of subsection

 (a), except as provided

in

Section 102.300(b).

c)

 As provided by Sections 13(c),

 13.3,

 17.5,

 22.4(a),

22.4(d), and 22.7(d) of the Act, the provisions of Title

VII of the Act and Section

 5 of the APA shall not apply

to identical

 in substance rulemakings.

Section 102.342

 First Notice Of Proposed Regulations

Except when otherwise directed by the Act, the Board shall give

first notice of its proposed adoption, amendment,

or

 repeal of

regulations pursuant

 to Section 5.01 of the APA.

The

first

notice period shall be at least

 45 days,

 and shall begin on the

day that first notice is published in the Illinois Register.

The

Board will accept written comments from any person concerning the

proposed regulations during the first notice period.

Section 102.343

 Second Notice Of Proposed Regulations

a)

 Except when otherwise directed by the Act,

 the Board

shall give second notice of its proposed adoption,

amendment,

 or repeal of regulations

 to JCAR.

 The second

notice period shall begin on the date written notice

is

received by JCAR,

 and shall expire

 45 days after

 that

date,

 except as provided by Section 5.01 of the APA.

The Board will accept comments only from JCAR during the

second notice period.

b)

 After the beginning

 of the second notice period,

no

changes will

 be made to the proposed regulation,

 except

in response to

objections

 or suggestions from JCAR.

Such changes will be made pursuant

 to Section

102.340(c).

Section 102.344

 Notice Of Board Final Action

102—3~1

—34—

The Board will give notice of

 its final action on a proposal

to

the proponent, the Agency,

 ENR,

 the Attorney General, and all

persons on the notice

 list.

 The Board will publish notice of its

final action

 in the Environmental Register, and will enter a

written opinion stating the reasons

 in support of its final

action.

Section 102.345

 Adoption Of Identical

 In Substance Regulation

a)

 Prior

 to adopting identical

 in substance regulations,

the Board will:

1)

 Make available to the public

 a proposed Opinion and

Order containing the text

 of the rules;

2)

 Publish the proposed regulations

 in the Illinois

Register;

3)

 Serve a copy of the proposed Opinion and Order on

 the USEPA;

and

4)

 Receive written comments from the USEPA and other

persons

 for at

 least

 45 days after

 the date of

publication

 in the Illinois Register.

b)

 AFTER CONSIDERATION OF COMMENTS FROM THE USEPA, THE

AGENCY, THE ATTORNEY GENERAL AND THE PUBLIC,

 THE BOARD

SHALL ADOPT THE VERBATIM TEXT OF SUCH USEPA REGULATIONS

AS ARE NECESSARY AND APPROPRIATE FOR AUTHORIZATION OF

THE PROGRAM.

 EXCEPT AS PROVIDED

 IN SECTION 7.2 OF THE

ACT, THE ONLY CHANGES THAT MAY BE MADE BY THE BOARD TO

THE FEDERAL REGULATIONS ARE THOSE CHANGES THAT ARE

NECESSARY FOR COMPLIANCE WITH THE ILLINOIS

ADMINISTRATIVE CODE,

 AND TECHNICAL CHANGES THAT

 IN NO

WAY CHANGE

THE

SCOPE OR MEANING OF ANY PORTION OF THE

REGULATIONS.

 (Section 7.2(a)

of

 the Act.)

Section

102.346

 Adoption Of Emergency Regulations

a)

 WHEN THE BOARD FINDS THAT A SITUATION EXISTS WHICH

REASONABLY CONSTITUTES A THREAT TO THE PUBLIC INTEREST,

SAFETY, OR WELFARE,

THE

BOARD MAY ADOPT REGULATONS

:N

ACCORDANCE WITH SECTION 5.02 OF THE APA.

 (Section 27(c)

of

 the Act.)

b)

 WHEN THE BOARD FINDS

 THAT A SEVERE PUBLIC HEALTH

EMERGENCY EXISTS,

 THE BOARD

MAY,

 IN RELATION TO ANY

PROPOSED REGULATION,

 ORDER

THAT

SUCH REGULATION TAKE

EFFECT WITHOUT DELAY.

 THE BOARD SHALL PROCEED WITH ANY

REQUIRED HEARINGS WHILE

THE

REGULATION CONTINUES IN

EFFECT.

 (Sectiori-27(c)

of

 the Act.)

102—322

—35—

Section 102.347

 Adoption Of Peremptory Regulations

a)

 WHEN

THE BOARD FINDS THAT A PEREMPTORY RULEMAKING IS

NECESSARY AND STATES IN WRITING ITS REASONS FOR THAT

FINDING, THE BOARD

MAY

ADOPT PEREMPTORY RULEMAKING UPON

FILING A NOTICE OF RULEMAKING WITH THE SECRETARY OF

STATE PURSUANT TO SECTION 6.01 OF THE APA.

b)

 NOTICE OF SUCH PEREMPTORY RULEMAKING WILL BE PUBLISHED

IN THE ILLINOIS REGISTER.

 (Section 5.03 of the APA.)

Section 102.348

 Adoption Of Temporary Regulations

a)

 THE BOARD

MAY

ADOPT A PROPOSED REGULATION PRIOR TO ITS

CONSIDERATION OF AN ECONOMIC IMPACT STUDY WHEN SUCH

STUDY IS FILED WITH THE BOARD LESS THAN 120 DAYS IN

ADVANCE OF A DATE ON WHICH A TEMPORARY NON-EMERGENCY

REGULATION OR PROVISION THEREOF WOULD LAPSE PRIOR TO

ADOPTION OF A PERMANENT REGULATION OR PROVISION THEREOF

ON THE SAME SUBJECT,

 OR LESS THAN 120 DAYS

 IN ADVANCE OF

A DEADLINE FOR ADOPTION OF THE REGULAT:ON WHICH IS

ESTABLISHED IN A STATE STATUTE.

 (Section

 27 of the

Act.)

b)

 SUCH ADOPTED REGULATION SHALL BE EFFECTIVE UNTIL

180

DAYS AFTER THE ECONOMIC IMPACT STUDY REQUIRED PURSUANT

TO THIS SECTION

 IS FILED WITH THE BOARD, AND IN NO EVENT

SHALL A REGULATION ADOPTED PURSUANT TO THIS PROCEDURE

STAY

 IN EFFECT FOR MORE THAN ONE YEAR.

 (Section

27

of

the Act.)

SUBPART

N:

 MOTIONS FOR RECONSIDERATION

AND APPEAL

Section 102.360

 Filing Of Motion For Reconsideration

Motion for reconsideration or modification of any Board order

taking substantive action on

 a regulatory proposal shall

 be filed

in accordance with 35

 111. Mm.

 Code 101.246.

 The contents of

such motions are governed by

35

 Ill.

 Adm. Code 101.242.

Section 102.361

 Disposition Of Motions For Reconsideration

a)

 AFTER COMMENCEMENT

OF THE SECOND NOTICE PERIOD, NO

SUBSTANTIVE CHANGES MAY BE MADE TO A PROPOSED RULEMAKING

UNLESS

IT

IS

MADE

 IN RESPONSE TO AN OBJECTION OR

SUGGESTION OF JCAR.

 (Section 5.01(b)

of

 the APA.)

Therefore,

 submission

 of second notice of

 a proposal to

JCAR will preclude the Board from revising that proposal

in response

 to a motion

 for reconsideration.

 However,

the Board may resubmit

a

 rule for

 first notice

if

necessary

 to prevent material prejudice.

102—323

—36—

b)

 An adopted rule becomes effective upon the filing of

that rule with the Secretary of State.

 Therefore,

the

Board

 is precluded from allowing a motion for

reconsideration of a final order adopting

 a rule,

if

that rule has been filed with the Secretary of State.

Section 102.362

 Correction Of Publication Errors

The Board may make technical corrections to proposed or adopted

rules, published

 in the Illinois Register or filed with the

Secretary of State, only

 in accordance with

1

 Ill. Adm. Code

100.240.

 No hearing need be held on such corrections.

Section 102.363

 Appeal

Any final Board order may be appealed

 to the appellate court

within

 35 days of

 the entry of that order, pursuant

 to Sections

29 and 41 of

 the Act.

TITLE

 35 ENVIRONMENTAL PROTECTION

SUBTITLE A:

 GENERAL PROVISIONS

CHAPTER

I:

 POLLUTION CONTROL BOARD

PART 106

HEARINGS PURSUANT TO SPECIFIC RULES

SUBPART

D:

 RCRA ADJUSTED STANDARD PROCEDURES

Section

106.415

 Notice and Conduct of Hearing

a)

 The Board will hold at least one public hearing prior

to

granting an adjusted standard.

b)

 The hearing officer will schedule the hearing.

The

Clerk will give notice of hearing

 in accordance

with

35

Ill. Adm.

 Code

 ~-~-l24102.162.

c)

 The proceeding will

be

 in accordance with

 35 Ill. Mm.

Code ~8~-~69 throt1~~ø~--~64

l02.Suboart

J.

(Source:

 Amended at

 Ill. Reg.

 effective

SUBPART

E:

 AIR ADJUSTED STANDARD PROCEDURES

Section 106.506

 Notice and Conduct of Hearing

a)

 The Board will hold at

 least one public hearing

prior

to

granting an adjusted standard.

b)

 The hearing officer will schedule

 the hearing.

The

Clerk will give notice of

 hearing

 in accordance with

35

Ill. Adm. Cod& ~O2~-~-~-2

 102.162.

c)

 The proceedings will

be

 in accordance with

35

 Ill. Adm.

102—324

—37—

Code 382-~6O

through

382~-364l02.Subpart J.

(Source:

 Amended at

____

 Ill. Reg.

_______,

 effective

________)

SUBPART F:

 WATER WELL SETBACK EXCEPTION PROCEDURES

Section 106.602

 Contents of Petition

a)

 The petitioner

 shall file ten copies of the petition for

exception with the Clerk of the Pollution Control Board

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

b)

 The petition shall contain the following information:

1.

 A written statement,

 signed by the petitioner or an

authorized representative, outlining the scope of

the evaluation,

 the nature of,

 the reasons for and

the basis of the exception,

 consistent with the

level of justification contained in Section 14.2(c)

of the Act.

2.

 The nature of the petitioner’s operations and

control equipment;

and

3.

 Any additional information which may be required in

Section 14.2(c) of the Act.

c)

 In accordance with 35

 Ill. Adm. Code ~~3~23

 101.143 the

petition shall contain proof of service on owners

required to be notified and provided with a copy of the

petition as required by Section 14.2(c) of the Act.

(Source

:

 Amended at

____

 Ill. Reg.

______,

 effective

_________

Section 106.604

 Notice and Conduct of Hearing

a)

 The Board will hold at least one public hearing prior

to

granting an exception.

b)

 The hearing officer will schedule the hearing.

The

Clerk will give notice of hearing

 in accordance with 35

Ill. Adm. Code ~

 102.162.

c)

 The proceedings will be in accordance with 35 Ill.

 Adm.

Code ~92~6O thr~gh ~ø2~364 102.Subpart

J.

(Source:

 Amended at

 Ill. Reg.

_____,

 effective

__________

IT IS SO ORDERED.

102—325

—38—

B.

 Forcade concurred, and J. Marlin was not present.

I,

 Dorothy M. Gunn, Clerk

 of the Illinois Pollution Control

Board, hereby certify that the above Proposed Opinion and Order

was adopted on the

~‘/W

 day of

__________________,

 1989, by

a vote of

_______

Ill

P~

 Control Board

102—3 26