ILLINOIS POLLUTION CONTROL BOARD

March

 2, 1989

IN THE MATTER OF:

)

PROCEDURAL RULES REVISION

)

35

 ILL.

 ADM.

 CODE

)

 R88-5

(A)

101,

 106 (Subpart G),

 and 107

PROPOSED RULE.

 SECOND SECOND NOTICE.

PROPOSED OPINION AND ORDER OF THE BOARD (by

3.

 Theodore Meyer):

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.

 1~dm.Code 101), new

rules covering regulatory proceedings

(35

 Ill.

 Adm.

 Code 102),

and new rules

 for adjusted standards proceedings

(35

 Ill. Mm.

Code 106).

 The Board

 also proposed repeal of existing Parts 101,

102, and 107.

 (Part 107 currently contains rules pertaining

to

sanctions.

 Rules

on

 sanctions have been proposed

 as part of the

new Part

 101 general

 rules.)

 An opinion supporting

 the proposed

rules was adopted

 on September 22,

 1988.

 Merit hearings were

held on October

13,

 1988 in Springfield,

 and on October 21,

1988

in Chicago.

 The first notice comment period closed on Monday,

November

7,

 1988.

On January 19,

1989

 the Board took two actions on this

procedural

 rules revision.

 First,

 the docket was split

 into two

dockets.

 Docket R88—5(A) includes

 the proposed rules

 in Part 101

(general provisions),

 the proposed rules

 in Subpart G of Part 106

(adjusted standard proceedings), and

 the proposed repeal of Part

107.

 Docket R88—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

 o second

 notice while

 the Board further considers the

comments on Part

 102 received at hearing and during the first

notice comment period.

 The Board

 anticipates taking further

action on Part

102

in

 the near future.

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

 tI~efirst 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

97—09

—2—

filed between one week and five weeks

 late.

 The Board will not

accept

 these comments and has not considered them

 in proposing

these rules

 for second notice.

 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.

 The Board again notes that this

opinion and order includes only revisions to Part 101 and Subpart

G of Part 106,

 and the repeal of Part 107.

 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).

As

 a preliminary matter, the Board notes that several

comments urged

 that the Board make only those changes statutorily

required by SB 1834

 (P.A.

 85—1048)

 and HB 4039

 (P.A.

 85—1331),

effective January

1,

 1989.

 That legislation makes

 four changes

to Board procedure:

 (1) the establishment of filing fees

for

some types of proceedings;

 (2) Board authority to determine

whether an economic impact study

 (EcIS)

 of proposed regulations

should be prepared by the Department of Energy and Natural

Resources (ENR);

 (3) authorization of

 a pre—hearing conference

in

regulatory proceedings;

and

(4)

 expansion of the adjusted

standard provision of Section 28.1 of the Environmental

Protection Act

 (Act).

 (Ill.

 Rev.

 Stat.

 1987,

ch.

ill

 l,A~, par.

1028.1.)

 These comments suggest that any problems with past

Board procedure were cured by the recent legislation, and thus

contend that the Board should only revise

 its procedural

 rules to

reflect the legislative changes.

 However,

 as stated

 in the

September 22,

 1988 first notice opinion,

 the Board

 believes that

its existing procedural

 rules need

 to be

 reorganized,

 tightened,

and updated

 to reflect current Board practice.

 Thus,

 the Board

will proceed today with revisions to Part 101 (general

provisions)

 and Part

106

 (Subpart G— adjusted standard

proceedings).

This proposed opinion will touch upon each Subpart

in

the

proposed rules, but will discuss only those rules which were the

subject of comments.

PART 101

 GENERAL RULES

Subpart

A:

 General Provisions

The Board

 received several comments on subsection

(b)

of

Section 101.100 “Applicability”.

 In the first notice proposal,

that subsection stated that the Code of Civil Procedure (Code)

(Ill.

 Rev.

 Stat.

 1987,

ch.

 110,

 par.

 1—101

et

 seq.)

 does not

apply to Board proceedings unless expressly stated.

 Several

comments suggested that the Code should apply where

the

procedural

 rules are silent.

 The Board agrees that the Code

provides guidance where

 the procedural

 rules are silent, but will

not provide for automatic application of the Code.

 Instead,

the

subsection has been rewritten to state

 that in the absence of

a

97—19

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specific provision

 in the procedural

 rules,

 the parties or

participants may argue that

 a provision of the Code or

the

IllInois Supreme Court Rules

 (Ill.

 Rev. Stat.

 1987, ch.

 llOA,

par.

 1 et seq.)

 provide guidance for the Board or hearing

officer.

 This revision codifies current practice, with the goal

of achieving consistency throughout all types of Board

proceedings.

 The Board has added

 a new subsection

Cc)

 to Section

101.100, which states that

 the procedural

 rules 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.

 Again, this merely codifies

current practice and statutory requirement.

 The provision was

unintentionally omitted from

 the first

 notice proposal.

Several definitions

 in Section 101.101 “Definitions” have

been reworded for clarity.

 Additionally, new definitions of

“evidence”,

 “initial filing”,

 “material”,

 “participant”, “party”,

and “procedural

 rules” have been added

 to this Section.

The Board received

 a number of comments on Section 101.102

“Filing of Documents”.

 Two comments objected

 to the provision of

subsection

(b)

 that filings

 received after

 4:30 p.m. will be

date—stamped the following day.

 (P.C.

 #24,

 25.)

 This objection

was premised upon the contention that the rule would create

serious problems for those appearing before

 the Board,

is

inconsistent with the procedures of most courts and agencies,

and

may result

 in a loss of rights,

as

 in the case of permit

appeals.

 The remedy

 for late filings suggested by the comments

is that documents be date—stamped when filed, but that the

Clerk’s Office not open until

 9:00

 or 9:30 a.m.

 the next day to

allow for handling of those

 late documents.

 These comments were

reiterated during the second notice comment period.

 (P.C.

 #38,

39.)

The Board

 is not persuaded.

 As stated

 in the

 first notice

opinion,

 this policy will allow staff

 to complete the duties

associated with filing before

 the Board’s offices close at 5:00

p.m.

 Other agencies,

 such as the Illinois Racing Board,

 also

provide that documents filed after 4:30 p.m.

 will

 be date—stamped

the next business day.

 Given the fact that Section 40

of

 the Act

allows

 a permit applicant 35 days to file

 a permit appeal,

the

Board finds

 it difficult

 to believe that a half hour difference

in

 time for filing will

 be dispositive of an applicant’s ability

to timely—file

 its appeal.

 Finally,

 the suggestion

 that the

Clerk’s office open later

in

 the morning would

 create more

problems than would closing the office earlier

 in the afternoon.

The

Board

 also received several suggestions

 that

Section

101.102 specify when

 a document

 is considered “filed.”

 The Board

agrees,

 and has added subsections

(d)

and

(e)

 to address

 this

issue.

 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

9

7—11

—4—

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, 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.

 #19.)

 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 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

1,

and

 it is mailed on M,arch

1,

 it will be considered timely

filed.

 However,

 the 120—day

decision Lime will

 not begin until

the appeal

 is actually date—stamped by the Clerk.

Citizens for

 a Better Environment

 (CBE)

 (P.C.

 #20) commented

that subsection

(b)

 of Section 101.103 “Form of Documents”, which

requires the original and nine copies of most documents filed

with the Clerk,

 imposes prohibitive costs on citizens and

9 7—12

—5—

nonprofit groups.

 CBE believes that this requirement

is

burdensome and excessive,

 and suggests that the Board request

only one copy.

 The Board is sympathetic

 to the budget

constraints

 faced by CBE and others, since

 the Board also faces

these problems.

 However, the Board believes that the requirement

of the original and nine copies

 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.

Several comments were received on Section 101.103(g), which

requires that all filings include the business address and

telephone number

 of the person appearing before

 the Board,

and

that all copies be made

 from the signed original.

 These comments

questioned why failure to comply with these requirements should

be grounds for rejection of

 a document.

 The basis

 for this

provision is

 to allow the person accepting documents for filing

(usually the Board’s receptionist)

 to quickly check whether this

basic information

 is included on the document.

 This ensures that

Board

 staff

 is able to reach the attorney or other person,

if

necessary.

 However, the Board has deleted

 the requirement that

all copies be made from the signed original.

Quite

 a few comments expressed concern over

 the new

limitations

 on the length of briefs,

 set forth

 in Section

101.104.

 The commenters feel

 that reliance upon Rule 28 of the

Federal Rules of Appellate Procedure to support the limits is

misplaced,

 since the Board

 is often

 the original trier

of

 fact.

The commenters also contend that the limitations are too narrow

for complex

 regulatory proceedings.

 However, the Board continues

to believe 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 hearing officer before

 the brief

is filed,

 not concurrently.

 Subsection

(C)

 has been added

to

articulate

 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 considere~d.

Several comments urged

 the Board

 to revise Section 101.105

“Waivers”

 to allow for types of decision deadline waivers other

than open waivers or

 those

to

 a calendar date certain.

For

example, several comments suggested that the Board might allow

waivers to be contigent upon

 the outcome of a motion:

 i.e.

a

waiver which would become effective upon the grant of

 a motion

to

97—13

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continue the hearing.

 After consideration of these comments,

the

Board continues to believe that requiring waivers

 to be open or

until

 a date certain 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 Board has added

 a sentence allowing

it

 to accept waivers

 in some other

 form (such as an emergency

oral waiver)

 in rare cases.

Section 101.105 “Incorporation Of Prior Proceedings” also

 produced

 a number of comments.

 In response to these comments,

the rule now specifies 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),

and that the person seeking incorporation shall

 file four copies

of the material

 to be incorporated.

 The required number

of

copies was reduced from ten

 to four

 in response

 to comments that

filing

 ten copies was unduly burdensome.

 The four copies now

required

 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 Board feels

that this change will relieve the person seeking incorporation

from any undue burden while allowing sufficient copies for

necessary Board use.

Notwithstanding

 the change from ten copies of incorporated

material to four copies,

 one second notice comment

 still

contended that the requirement that the person requesting

incorporation provide copies

 is burdensome.

 (P.C.

 #35.)

 This

comment argued that because

 the Board

 is already in possession of

the

 records and those records are available to Board members,

and

because the Board can refuse incorporation of the

 record

if

it

deems the material

 irrelevant, Section 101.106 should,

 at the

very least,

 be qualified

 to require copies of the record

 to be

incorporated only where

 the Board does not have the requested

documents in its files.

 However,

 this comment misinterprets

the

reason for

 the requirement.

 The Board’s storage space

is

severely limited; many of

 its records are placed

 on microfiche.

The process of having records microfiched

 is lengthy; records may

be out of the Board’s office

 for months.

 Additionally, parties

or participants often request incorporation of portions of

records of on—going proceedings.

 The Board cannot remove

documents from the file of

 a pending proceeding, and

it

is

inefficient and burdensome

 to Board members and staff to “track

down” particular portions of another record when working

on

a

proceeding.

 By requiring copies of portions of records

 to be

incorporated, the Board will have complete records of each

Individual proceeding.

The Board has also added

 a requirement

 to Section 101.106(a)

that the person seeking

 incorporation give notice of the request

97—14

—7—

to all identified participants or parties.

 This addition

is

in

response

 to suggestions that the requirements for incorporation

include notice to all participants, an opportunity to comment,

and automatic incorporation of any corresponding cross—

questioning.

 The revised Section 101.106(a) does not establish a

comment period or provide for automatic incorporation of cross—

questioning.

 The Board believes that it

 is not necessary to add

such formality and delay to

 a request for incorporation.

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 “Appearances and Withdrawals” has been

modified

 in two ways.

 First,

 subsection

 (a)(2)

 has been revised

to allow corporations

 to appear without an attorney

 in all but

enforcement cases.

 The Board continues to believe that

corporations should be represented by attorneys when

 a respondent

in enforcement cases where findings of violations of the Act can

be made and substantial

 fines assessed.

 However, the Board

agrees with numerous comments which argued that

 a corporation

should be allowed

 to appear through any officer, employee, or

representative,

 or through an attorney,

 in all other types of

Board proceedings.

 Second, subsection

 (a)(3)

 of Section 101.107

has been rewritten

 to specifically state that

 a unit of local

government

 is considered

 “any other person.”

 This revision

is

made in response

 to questions asked at hearing,

 and merely

clarifies

 the Board’s original intent.

The Board received one second notice comment which

questioned why only attorneys must file appearances, whether an

attorney may not appear by means of a pleading without filing

a

separate appearance

 form,

 and why an appearance

 is required in

regulatory proceedings.

 (P.C.

 #38.)

 The requirement that an

attorney appearing in

 a representative capacity file

 a written

appearance

 is intended to allow Board members and staff to easily

ascertain exactly who

 is representing

 a person so that necessary

communications may be addressed to the appropriate person.

 This

reason holds true

 in regulatory as well

 as contested case

proceedings,

 and the Board sees no reason to distinguish between

the two.

 Only attorneys are required

 to file an appearance,

because attorneys are usually the only representative whose

 status may not be clear.

 (As appearance by an officer of

a

corporation on behalf, of that corporation or

 a citizen bringing

an enforcement action is almost always apparent

from

 filings.)

Finally,

 an attorney may not appear by means of

 a pleading

without

 filing

 a separate appearance

 form.

Subpart

B:

 Filing

 and Photocopying Fees

The only substantive change made

 to Subpart B is

 a revised

97—iS

—8—

Section 101.122 “Forms Of Payment”.

 This Section now specifies

that both filing fees and photocopying fees may be paid by money

order or check.

 Cash payments will be accepted, but are strongly

discouraged.

 This revision was made partially in response to

comments suggesting that the Board allow payment of fees by

corporate check.

 Subsection

(c)

 has been added to provide

for

issuance of

 a sanction order

 in cases where

 a check written for

a

filing

fee

is

 riot honored by petitioner’s bank.

Subpart

C:

 Service

Section 101.141 “Service Of Initial

 Filings” has been

revised

 to allow 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.

 This change was made

 in response

 to comments by

the Illinois Environmental Regulatory Group

 (IERG).

 (P.C.

#16.)

 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. Mm. 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

four enumerated methods which do provide proof of receipt.

Section 101.143 “Proof of Service” has been revised

 to reflect

the changes

 in Section 101.141.

Subsection

 (c) of Section 101.144

 “Effective Date Of

Service” has been rewritten to state that there

is

 a rebuttable

presumption that service by First Class mail

 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.

 The Board made this change

 in response to the

suggestion of the Environmental Law Committee of the Chicago Bar

Association

 (CBA)

 that where evidence indicates that actual

service was made sooner or later

 than the presumed four days from

mailing,

 that evidence should be admissible

 to prove

 the actual

date of service.

 (P.C.

 #17.)

Subpart

D:

 Public Information

The Board received several comments on Section

 101.161 “Non—

Disclosable InformatLon.”

 This Section implements Section

 7 of

the Act,

and

 is separate

 from

the

trade

secret

provisions of

Section 7.1 of the Act.

 (As Section 101.161 states, procedures

governing

 the identification of trade secrets are found

 in 35

Ill. Mm.

 Code 120.)

 Subsection

(c)

 has been rewritten at the

suggestion of the

 Illinois Environmental Protection Agency

(Agency)

 (P.C.

 #19)

 to allow for

 notice

 to governmental

participants, as required by Section 7(e)

 of the Act.

The

97—16

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subsection now requires the person requesting non—disclosure to

serve notice of the application upon any state or federal agency

participating

 in that proceeding.

 However, the notice need not

include a copy of the application.

 The Board believes that this

provision strikes the balance contemplated by the statute.

Additionally, subsection

(d)

 has been added to Section

101.161.

 This new subsection makes Subpart C of 35

 Ill. Mm.

Code 120 applicable to all material

 found

 not subject

to

disclosure.

 The addition was made in response

 to a second notice

comment which contended that the Section did not adequately

ensure protection of material after

it

 is determined

 to be non—

disciosable.

 Subpart C of Part 120 “Procedures

 for Protecting

Articles Which Represent Trade Secrets” provides for such things

as the owners and the agency’s (Board,

 the Agency, and the

Department of Energy and Natural Resources)

 responsibility to

mark material, transmission of material between agencies,

segregation of material,

 and prohibitions against unauthorized

disclosure or use of protected material.

 The Board believes that

applying Partr 120,

 Subpart C to non—disclosable material

provides sufficient protection of that material both at the Board

and when transmitted

 to other agencies pursuant

 to Section 7(e)

 of the Act.

Several

 comments touched upon the Board’s continuing

 lack of

an

 index of its opinions.

 The Stepan Company also suggested that

a

 table of Board opinions and orders be published semi—annually

or annually in the Environmental Register

 (P.C.

 #24).

 The Board

emphatically agrees that an up—to—date

 index

 is badly

 needed, and

hopes

 to explore possibilities

for

 indexing

 in the near future.

The Board also would like to implement Stepan’s suggested annual

table of opinions for the Environmental Register.

 Unfortunately,

because of the Board’s current staffing

 arid

 funding levels,

action on these two

 items may have

 to be delayed.

Subpart

B:

 Board Meetings

In response to several comments, subsection

(d)

 of Section

101.180 “Board Meetings” has been revised

 to state that no oral

argument will

 be heard

 at any Board meeting, except by leave of

the Board.

 The subsection formerly stated that no oral argument

will

 be heard unless specifically requested by the Board.

 This

change allows

 a party to request oral argument.

 The Board

 notes,

however,

 that it does not intend

 to change

 its current policy of

almost never allowing oral argument at Board meetings.

The Board

 also received several comments on Section 101.181

“Agenda For

Board Mee’tinqs”.

 Initially,

 the Board

wishes

to

clarify that “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.

 One comment stated

that

 if the agenda can be changed two days prior

 to the meeting,

an affected party could miss

 a critical ruling.

 The comment

suggested that agenda changes be limited to non—regulatory

97—17

—10—

items.

 (P.C.

 #24.)

 The Board points out that it has long been

the Board’s practice

 to issue the final agenda the afternoon

before

 a meeting.

 Thus, the proposed change

 to limiting agenda

items to those

 filed two days before the meeting, while not fully

adopting this suggestion, does address the concern that an

affected person might miss a ruling.

 (The Board also notes that

if that affected party

 is on the proceeding’s notice

 list, that

party will receive the written order soon after

 the Board

meeting.)

 Another comment contended that this Section will pose

more of a burden to the Board

 than a benefit,

 and suggested that

the Section be rewritten to provide that all filings will be

placed on the agenda, but that the Board might hold the filing

to

the subsequent meeting unless delay or prejudice will result.

The Board continues to believe that placing

 a cut—off on agenda

items

 is necessary,

and

 is fairer than deciding at the meeting

to

hold

 a document because

 it was only recently filed.

 By setting

the cut—off, persons will know when

 a document must be filed

in

order

 for the Board

 to consider

 it at the next meeting.

The

Board believes that it

 is able to make the

 “undue delay or

material prejudice” determination upon motion by a Board member

at the meeting, without hearing or briefing by the parties or

participants.

Subpart

Parte

Contacts

its

January

19,

1989

order

issuing

these

rules

for

“second

notice

comment”,

the

Board

made

only

one

change

Section 101.200

 “Ex Parte Contacts.”

 In that order,

 the Board

deleted the requirement

 in subsection

(b)

 that Board members and

staff

make

 cx parte contacts

 a matter

 of public record.

The

Board received two second notice comments asking that the

provision be retained.

 (P.C.

 #36,

 40.)

 In response, the Board

has added subsection

 (d), which requires that any ex parte

contact be made part of the public record.

 By adding

the

provision as

 a new subsection,

 it now applies

 to both contested

cases proceedings

 (governed by subsection

 (a))

 and regulatory

proceedings

 (governed by subsection (b)).

 The Board

 notes that

the deletion was made only because

 it felt that the

 requirement

to make ex parte contacts a part of the record was unnecessary

in

light

 of the Section’s prohibition of such contacts.

Subpart

G:

 Hearings

Section 101.220 “Authority of Hearing Officer” was the

subject of several

 comments.

 The Board has made several

revisions to this Section.

 Subsection

 (e) has been clarified

to

state that

 a hearing ,officer has the authority to regulate

the

course

hearing,

including

but

not

limited

to,

controll

ing

the

 order of proceedings.

 Subsection (g)

 has been reworded to

give

 the hearing officer the authority

 to compel

 the answering of

interrogatories

other

discovery

requests.

This

revision

makes

clearer that parties should conduct discovery among themselves,

with intervention by the hearing officer necessary only if a

problem arises.

 Subsection

(k)

 has been reworded

 to clarify that

97—15

—11—

the hearing officer may exclude only late—filed briefs and

comments from inclusion in the record.

 At first notice that

subsection spoke of exclusion of late—filed “documents”.

The

Board

 never intended to give the hearing officer power to exclude

anything other

 than briefs and comments.

 One comment suggested

that subsection

(k)

 should be revised to allow exclusion of late

briefs

 arid

 comments only

 if the brief or comment

 is not

accompanied by

 a motion to the Board to file

 instanter.

 (P.C.

#22.)

 However,

 the Board believes that

 a hearing officer has

authority to rule upon motions

 to file instanter

 (see proposed

Section

101.247),

and

 that his or her authority

 to exclude late—

filed

briefs

and

 comments

 is not dependent upon the filing of a

motion

file

instanter.

The

hearing

officer

may

grant

 deny

motion

file

 instanter after considering the circumstances

of

that proceeding.

 Subsection

(m)

 has been added

 to specify that a

hearing officer has the authority to rule upon objections and

evidentiary questions.

 Finally, subsection

(n)

 has been added

to

clarify that a hearing officer may establish

 a discovery

schedule.

The Board also received comments on subsection

(a)

of

Section

101.220

“Authority

 Hearing Officer.”

 Those comments

suggested that subsection

(a)

 should also specifically provide

for

modification

and

supplementation

pre—filed

testimony,

and

that

the

authority

require

pre—filed

testimony

limited

“to

the

extent

 that the substance of the testimony can be reasonably

anticipated.”

 (P.C.

 #13,

 22.)

 The Board declines

 to make the

suggested changes.

 The Board believes that subsection

(a)

as

proposed does allow the hearing officer

 to provide for

modification and supplementation of testimony.

 This section,

including subsection

 (a), is intended only to articulate

the

types of authority a hearing officer may use in fulfilling his or

her duty to avoid delay,

 to maintain order,

and

 to ensure

development of a clear,

 complete,

 and concise record.

The

section

 is not a limit on

 the powers available

 to the hearing

officer.

 Thus,

 the Board will not limit

 the hearing officer’s

authority to provide for pre—filing of testimony.

It

 is also not

clear whether the suggested language would pass review by JCAP.

(The Board did delete

 the reference

 to rebuttal testimony from

subsection

 (a), because

 it believes the reference is redundant

and possibly confusing.)

Additionally, several comments suggested changes

in

subsection

 (h).

 The Board believes that

 it has addressed the

CBA’s concern over the use of the word “evidence” by adding

a

definition of evidence

 to Section 101.101.

 (P.C.

 #17.)

Two

comments suggested that this subsection be deleted, based upon

a

claim

that

broad

interpretation

the

subsection

(such

allowing

 a hearing officer

 to order

 the production of

confidential data without protecting

it,

 or ordering the

production of data not already

 in existence) would

 be beyond

the

authority of the Board.

 (P.C.

 #24,

 25.)

 The Board

 feels that

a

hearing officer must have authority to order production of

evidence,

 so that discovery and hearings may run smoothly and

97—19

—12—

proceed without unnecessary delay.

 If a party believes that a

hearing officer exceeds his or her authority,

 that order

is

appealable

 to the Board.

 The Board does wish to clarify,

however, that

 it does not believe that it has the authority to

order the production of evidence which does not already exist or

cannot be compiled without imposition of an undue burden.

The Board received one second notice comment which argued

that subsections

(g)

 and (h), which allow

 the hearing officer

to

compel

 the answering of discovery requests and order

the

production of evidence, constitute

 a major shift

 in Board policy

(as applied

 to regulatory hearings) because they delegate Board

authority to the hearing officer.

 The comment notes that

 a Board

member

 is present at every regulatory hearing, and contends that

that Board member should have the obligation and responsibility

to determine whether the answering of discovery requests and the

production of evidence

 is proper.

 Thus,

 the comment suggests

that the subsections

 be modified

 to allow only the attending

Board member

 or the Board

as

 a whole

 to issue such orders

in

regulatory proceedings.

 (P.C.

 #35.)

 The Board declines to make

this modification.

 The Board

 first notes that although a hearing

officer

in

 a regulatory proceeding does not currently have

explicit authority to

 issue such orders,

it

 is always the hearing

officer, not the attending Board member, who makes rulings and

issue orders

 in rulemaking.

 Thus,

 the Board does not believe

that

these

provisions

constitute

any

shift

Board

policy,

and

certainly

not

show

any

 “impersonalization” of the Board.

It

the

duty

the

hearing

officer,

not

the

attending

Board

member,

develop

clean

record

and

conduct

the

proceeding

orderly

and

efficient

manner.

Indeed,

the

Board

questions

whether

Board

member

who

not

attorney

has

authority

issue

such

orders.

The

Board

believes

that

the

delegation

its

authority

single

Board

member

might

well

 improper.

The

Board

received

conflicting

comments

subsection

(a)

Section

101.221

“Hearing

Decorum.”

This

subsection

governs

the

recording,

either

audio

visual,

Board

hearings.

first

notice,

the

subsection

gave

any

person

the

right

record

the

proceedings subject to reasonable rules prescribed by the hearing

officer.

 The proposal

 also included language from the Open

Meetings Act

 (Ill.

 Rev.

 Stat.

 1987,

ch.

 102, par.

 42.05) which

requires the hearing officer

 to prohibit recording of any witness

who refuses

to

 testify if that testimony

 is to be recorded.

The

Board subsequently received

 a comment from the Illinois News

Broadcasters Association

 (P.C.

 #15), which contended that

the

banning of electronic coverage of Board hearings was not

in

compliance with the Open Meetings Act, and supported

 the Board’s

first

 notice proposal.

On

the other hand,

 two comments

specifically opposed

 the recording of Board hearings on the

grounds that

it

 is disruptive and

 riot required by the Open

Meetings

Act.

(P.C.

 #24,

 25.)

After

 consideration of these comments, and further

examination of the Open Meetings Act, the Board has revised

97—20

—13—

subsection

 (a).

 The subsection now gives any person

 a right

to

record

 a hearing, subject

 to rules prescribed by 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

prohibition against recording any witness who refuses to testify

if that testimony is to be recorded remains

 in the revised

subsection,

and

 a requirement that hearing officers make

witnesses aware of this provision has been added.

 The Board

finds that its hearings are not subject

 to the Open Meetings

Act.

 That statute requires all meetings of public bodies to be

public meetings, with a corresponding

 right to record those

public meetings.

 However,

 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

hearings are only very rarely attended by a “majority of a

quorum”

 of Board members.

 Additionally, hearings are not held

for 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 hearings.

 However, the

subsection governing recording of hearings has been written

to

give 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,

thus

striking

balance

between

the

differing

interest.s

expressed

comments.

Subpart

Motion

Practice

This

Subpart

inspired

quite

few

comments.

Two

 comments

suggested

that

subsection

(a)

 Section

101.241

“Filing

of

Motions And Responses” should specify which motions must be

directed

 to the Board and which motions should generally be

directed

 to the hearing officer.

 This

 issue

 is addressed

in

Section 101.247(a)

 “Disposition Of Motion”, which allows

a

hearing officer

to

rule

upon

all

motions

except

motions

specifically set forth in that subsection.

 Subsection

(a)

has

been revised

 to require that three copies of any motion directed

to the hearing officer be filed with

 the Clerk,

 instead of two

copies.

 This allows for

 a copy for each of the Board’s two

downstate offices,

 as well

as

 a copy for

 the Clerk’s file

in

Chicago.

Subsection

(b)

 has been revised

 to clarify that the

 right

to

file

a

 response to

 a motion belongs only to a participant

(if

a

regulatory proceeding)

or

 a party (if a contested case).

The

phrase “participant or party”

 is used because this Part applies

to all Board proceedings, not to extend any right

 to respond

to

a

non—party

in

 a contested case.

 (The Board again points out that

97—21

—14—

although this Part applies to all Board proceedings,

 to the

extent that any of the more specific Parts of the procedural

rules conflict with or supplement Part

 101,

 that more specific

Part applies.

 See proposed Sections 101.100, 101.140, and

101.240.)

 Additionally, a sentence has been added

 to subsection

(b)

 to provide 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 act before expiration of the response period.

Section 101.243 “Motions Attacking Jurisdiction Or

Sufficiency Of The Pleadings” has been completely rewritten.

Subsection

(a)

 requires all motions to strike or dismiss

challenging the sufficiency of any pleading

 to be filed 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, RES 89—1,

pp.

 5—6 (January

5,

 1989).)

 This distinction

 is designed

to

address the problem raised by the Illinois Steel Group:

 that

because

 a proponent is required

 to file

 a regulatory proposal

only with the

 the Board and other

 state agencies,

 it often takes

longer

for

 a person

 to even learn that

 a proposal has been

filed.

 (P.C.

 #22.)

 These provisions are entirely new, and are

based largely on comments by the Agency.

 (P.C.

 #19.)

Section 101.243(b)

 has also been revised.

 Instead of

requiring all motions challenging

 the jurisdiction of the Board

to be filed within 14 days after service of the initial filing,

as was proposed at first notice,

 the subsection now requires all

jurisdictional motions

 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.

 Finally,

a

sentence has been added

 to Section 101.247(a)

 “Disposition Of

Motion” which specifies that if

 a hearing officer refuses

 to act

 upon any motion which he

 or she has the authority to rule upon,

he or she will refer that motion

to

 the Board within

five

days

of

the filing of any response.

Subpart

I:

 Discovery

This Subpart produced more comments,

 both at hearing and

in

writing, than any other single Subpart.

 The controversy seemed

97—22

—15—

to be centered on three issues:

1)

 does the Board have any

discretion,

 pursuant to Section 5(e)

 of the Act,

 to refuse to

issue a subpoena;

 2) does the Board have authority to use

its

subpoena and production of information authority to order the

production of data or information which does not already exist

in

the required

 form;

 and 3) can the Board’s discovery authority be

used to order production of information

 in any forum other than

in connection with

 a hearing on

 a currently pending Board

proceeding.

After

review

Section

5(e)

the

Act,

the

Board

concludes

that

must

issue

subpoena

upon

the

request

any

party

 variance, enforcement or permit review proceeding,

a

proceeding

remove

seal,

and

any

proceeding

review

final

determination

made

pursuant

the

Act

Board

regulation.

the

other

hand,

the

issuance

subpoena

 regulatory

proceeding

discretionary.

The

Board

believes

that

although

must

issue

subpoena

adjudicatory

cases

does

have

the

necessary

authority

review

that

subpoena

and

rule

upon

any

motion

quash

the

 subpoena.

 The Board or hearing officer may

quash

modify

subpoena

finds

that

the

subpoena

unreasonable,

oppressive,

irrelevant.*

its

January

order,

the

Board

chose

riot

reflect

the

statutory

difference

between

the

 required

 issuance of subpoenas

adjudicatory

cases

and

the

discretionary

issuance

regulatory

proceedings

 Section

101.260

“Subpoenas”.

Instead,

the proposed Section required

 the Clerk

 to issue subpoenas at the

request of any party or participant.

 The Board proposed the rule

in that manner

 in an attempt

 to provide quick and efficient

issuance of subpoenas, with

 the safeguard of a motion to quash or

modify the subpoenas.

 After consideration of the second notice

comments, however, the Board

 has decided

 to retain the

distinction between automatic issuance of subpoenas

in

adjudicatory cases and discretionary issuance of subpoenas

in

rulemakings.

 Section 101.260 has been revised

 to reflect this

distinction.

As to the remaining two issues,

 as previously stated, the

Board does not believe that it or

 its hearing officers currently

have authority to order

 the production of evidence which does not

*The Board

 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 r~egulations.

 This change has been made

for

purposes of

JCAP

 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.

97—23

—16—

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.

 The Board

is

sympathetic

 to the concerns on this issue raised by the Agency

(P.C.

 #19)

 and the United States

 Environmental Agency (USEPA)

(P.C.

 #21).

 However, 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

Subsection

(a)

 of Section 101.280

 “Sanctions

 For Refusal To

Comply With Procedural Rules,

 Board Orders, or Hearing Officer

Orders”

 has been reworded

 to clarify that

 a due date proceeding

will be dismissed

 (as opposed

 to stayed)

 only when the non-

complying party

 is the petitioner

 in such

 a proceeding.

 Several

comments pointed out that the wording of this subsection at first

notice erroneously implied that dismissal

 of a due date

proceeding could be used as

 a sanction even where the non-

complying person was not the petitioner.

 (P.C.

 #17,

 22.)

The

Board did

 not intend such a result,

 and believes that the

revision has removed

 that implication.

Two comments state that

 the Board has

 no authority

 to order

the payment of expenses incurred

 in obtaining an order

for

sanctions,

as

 is provided by Section 101.280(g).

 (P.C.

 #24,

25.)

 Those comments do not articulate

 the basis

 for that

statement,

 however.

 The Board believes that it does indeed have

the authority to order

 the payment of expenses.

 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 Ill.

 Dec.

 686.

 The Celotex court

explicitly upheld

 the Board’s promulgation of procedural

 rules on

sanctions identical to Supreme Court Rule 219,

 including

dismissal of an action.

 The Board’s current rules on sanctions

do not discuss the imposition of costs except as

 a sanction for

failure or

 refusal

 to answer

 a discovery question, although

Supreme Court Rule

21.9

does.

See

 35 Ill. Mm.

 Code 107.101.

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.

97—24

—17—

The Board received several comments objecting

 to Section

101.281 “Sanctions For Abuse of Discovery Procedures.”

 This

Section is taken almost word for word from Supreme Court Rule

219(d).

 The Board believes that this provision provides an

important remedy for possible abuses of discovery procedures, and

will not delete

it.

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, with exceptions 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

Section 101.300 “Motions

For

Reconsideration”

has

been

added

to this Subpart for clarity.

 Subpart H already discusses motions

for reconsideration (Section 101.246), and Section 101.300 merely

cross—references

 to that provision.

 The other section numbers

in

this Subpart have been moved

 up to accommodate the addition.

Additionally, a new subsection

(e)

 has been added

 to Section

101.301 “Relief From Final Orders”

 to state that responses to any

such motion shall

 be filed within

 14 days of

 the filing of

the

motion.

The Agency has expressed concern with Section 101.301(b),

which provides that the Board may relieve

 a party

 from a final

order

 under certain circumstances.

 The Agency apparently fears

that this provision may be used to relieve a facility from

 compliance with

 a regulation, leaving

 that facility

unregulated.

 Thus,

 the Agency contends that the subsection

should require

 that the Board open

 a new proceeding

 to regulate

the facility in

 a “timely manner”,

 and states that such action is

particularly necessary for

 a facility located

 in an area subject

to

 a state implementation plan (SIP).

Section 101.301(b)

 is intended to apply only to contested

cases,

 not regulatory proceedings.

 This intent

 is indicated by

the use of the word

 “party”:

as

 is shown

 in the definitions

section,

there

are

no, parties

rulemakings,

only

participants.

 Thus,

the

Board

 believes that

 the Agency’s

concerns

with

this

Section

are

misplaced.

Nevertheless,

the

language of subsection (b) has been revised

 to clarify that this

provision applies only

 to contested cases.

97—25

—18—

Appendixes to Part 101

Two comments asked

 if the various forms contained

 in the

appendixes

are

mandatory.

The

comments

reflected

concern

that

persons

appearing

before

the

Board,

especially

those

unrepresented

counsel,

still

 allowed

 to file variances,

permit

appeals,

public

comments,

and

other

filings

other

means

such

letter.

The

Board

has

included

these

forms

merely

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 caption “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

—

 ADJUSTED STANDARDS

The Board received numerous questions and comments at

hearing concerning

the

 proposed rules

 for adjusted standards

at.

 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

 (see p.

2),

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

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.

 Additionally, 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—l048 adjusted standards could only

be obtained

 from regulations which expressly provided

 an adjusted

standard option.

 Given this new, sweeping applicability of

97—26

—19—

adjusted standards,

 it is necessary to promulgate general

procedures which apply to adjusted standard proceedings.

Also,

 there apparently is some confusion over whether

the

proposed rules

 for Subpart C of Part 106 will 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

the

 Act”.

 Section 28.1(a)

of

the Act.

 Consequently,

 the proposed rules

 for Part 106, Subpart

C,

 will only apply to those persons seeking an adjusted standard

pursuant

 to Section 28.1.

The following is an analysis of Sections which have been

changed from the Board’s First Notice Order of September

22,

1988.

Section 106.703

 Joint or Single Petition

In response

to

 a request by ENR

 the Board will require

 that

petitions for adjusted standards which are filed with the Board

must be served upon ENR in addition to the Agency.

Section 106.704

 Request

 to Agency to Join as Co—Petitioner

Subsection

(b)

 was changed

 to clarify that

 in the context of

a request

 to join as co—petitioner,

 the Agency may require the

person making the request to submit background information

in

that person’s possession.

Subsection

 (d) was added

 to expressly provide

 a mechanism

which would allow the Agency to join as

 a co—petitioner

subsequent

 to the filing

of

 a petition.

 However, this mechanism

does not preclude the Agency from declining

 to join as

 a co—

petitioner

 and filing

 a response, pursuant to Section 106.714,

which

 is favorable

 to the adjusted standard request.

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.

Section 106.705

 Petition Contents

Subsection

 (1) was added

 in response

 to comments that the

petition content requirements may be too burdensome

 in some

instances.

The

Agency

requests

that

subsection

(1)

deleted.

Other commenters support the provision.

 Subsection (1) does not

automatically relieve

 a petitioner from ever being required

to

submit certain

 information

 to the Board.

 Subsection

(1)

 states:

97—27

—20—

Notwithstanding this provision,

 the Board may

require

 the petitioner

 to amend

 its petition

to

 fully

 comply

 with

 informational

requirements set forth by this Section or

to

provide

the

 Board

 with

 additional

 material

 which will aid the Board

 in its resolution of

the adjusted standards proceeding.

That

is,

 the Board can still

 require the petitioner

 to meet the

petition requirements of Section 106.705.

 In addition,

 the Board

may find the petition deficient and order

 the petitioner

to

provide further information

 to more fully address the petition

requirements or to aid the Board

 in its decision—making

process.

 If the petitioner

 fails

 to comply with such

 a Board

Order, the Board may dismiss such a petition pursuant

 to Section

106. 902.

The Agency and the U.S.

 EPA request

 that the Board re—write

Section 106.705

 to provide for detailed, media—specific petition

requirements.

 The Agency has referred the Board

to

 its November

7, 1988 comments

 for suggested requirements.

 The Agency appended

to those comments proposed requirements

 for adjusted

 standard

petitions concerning air, water and public water

 supply.

The

Agency’s proposed language for those particular areas consist of

11 pages of detailed informational requirements.

 No other Board

procedures prescribing petition requirements even come close

to

the level of detail suggested by the Agency.

 It is not the

intent of the Board

 to promulgate media—specific procedural

 rules

for adjusted standards.

 The adjusted standard provision of the

Act applies to all regulations governing every environmental

regulatory medium,

 from hazardous waste

 to noise.

 The proposed

rules are written generally

 in order

 to accomodate

 all types of

activities which may be the subject of an adjusted standard

provision.

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

 to enable the

Board

 to make

 a decision on the petition,

 the petitioner does

so

at its own risk.

 As stated

 in the discussion concerning

subsection

(1)

 of Section 106.705,

the

 Board may require the

petitioner

 to provide additional information

in

 its petition.

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

could

 not be 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)

 and proposed

 Section 106.903(a)

 require the

petitioner

 to prove that the proposed adjusted standard

is

97—28

—21—

consistent with applicable federal law.

 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

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.

The Board

 is adding Section 106.715

 (see

 following)

to

expressly allow 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

way

 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.

A number of commenters stated that

 the language of

(g)

is

redundant.

 In part, subsection

(g)

 provides:

The

 quantitative

 arid

 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...

 Also,

the

 petitioner

shall

 compare

the

 qualitative

and

quantitative

 nature

of

 emissions,

 discharges

or

 releases

 which

 would

be

 expected

 from

compliance

 with

the

 regulation

of

 general

applicability

 as opposed

to

 that which would

be expected from compliance with the proposed

adjusted standard.

 (empahasis added)

The first sentence requires an evaluation of environmental

impact, whereas the last sentence requires an evaluation of the

emissions,

 discharges or releases.

 The environmental impact

resulting

 from emissions is not equivalent to

 a description of

the emissions.

 The Board

 fails

 to see how subsection

(g)

is

redundant

 in its requirements.

The Board has also received comments that subsection

(e)

be

changed

so

 that the petitioner need only provide costs

for

the

97—29

—22—

least costly alternative for compliance with the regulation of

general applicability.

 (P.C.

 #38,39.)

 The proposed subsection

(e)

 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.

The Board

 is not looking

 for detailed

 itemized cost data for

the compliance alternatives

 in an initial petition, although such

information

may

required

later

the

Board;

broad

estimates

of costs may be acceptable.

 The Board’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

provide

cost

information

regarding

the

least

costly

compliance

alternative,

would

not

much

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.

 To conclude,

 the Board

 is not convinced that this

subsection should be altered.

The Board has made some other minor changes

 to proposed

Section 106.705.

 The Agency requested to add the words

“discharges and releases” when describing

 the effect of the

activity at issue

in

 the adjusted standard petition.

 The Board

has modified subsection

(c)

 to require the petitioner

 to identify

all requirements and present information necessary

for

an

adjusted standard

 as prescribed by the regulation of general

applicability.

 Also,

 the Agency suggested that subsection (d) be

clarified

 so that

 the number

 of employees

 relate

 to the facility

in question rather than the petitioner.

 The Board accepts both

of those changes.

 The Board has also added

 a sentence

to

subsection

(g)

define

the

term

“cross—media”

impacts.

Finally,

it

 is the Board’s

 intent that subsection

(k)

 require

a

petitioner

 to append

to

 its petition relevant portions of cited

federal authorities.

Section 106.706

 Peti~tionVerification

It was suggested by one commenter that a petition need only

be verified by affidavit when the petitioner has waived

 a hearing

and that

 a waiver of a previously scheduled hearing will only be

effective when accompanied by an affidavit verifying the

petition.

 (P.C.

 #22.)

 The Board

 finds that

 it makes more sense

for an affidavit verifying

 a document

 to he filed with that

‘)7—30

—23—

document and not sometime,

 perhaps even months,

 after

the

document

 is filed.

 This would

 in turn also allow the quick

waiver and cancellation of

 a hearing without delay for

preparation of

 an affidavit verifying the petition.

 The Board

cannot see how requiring that an affidavit be filed with each

petition would

 impose

 an unreasonable burden upon the

petitioner.

 As a result, the Board has not changed this Section.

Section

106.707

Federal

Procedural

Requirements

This Section has been modified,

 in response to some comments

(P.C.

 #24,

 25.),

so

as

 to clarify that

 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

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.

Section 106.708

 Incorporated Material

This Section has been altered to state that the

incorporation procedure set forth by 35

 Ill. Adm.

 Code 101.106

is

applicable

 to adjusted standard proceedings.

Section 106.710

 Service of Filings

At the request of ENR,

 the Board has changed this Section

to

provide that ENR be

 served with all filings.

 In addition, the

Board

or

 a hearing offic~rmay require that persons other

 than

the petitioner,

 Agency

 or ENP be served with filings.

Section 106.711

 Petition Notice

The Board received comments that the time allotted for

publication

petition

notice

too

short.

(P.C.

#24,

25,

39.~ The requirement

 that the petitioner publish

 a petition

notice within

 14 days after

the

 filing of

 a petition

 is mandated

by Section 28.1(d)

 of the Act.

 That relevant provision states:

(d)

The

Board

shall

adopt

procedures

applicable

such

adjusted

standards

determinations

 which,

at

a

 minimum,

 shall

provide:

(1)

 that the petitioner shall

 submit

to the Board proof that,

 within 14 days after

the

 filing

of

the

 petition,

 it has published

notice

of

the

 filing

of

the

 petition

by

advertisement

in

a

 newspaper

of

 general

circulation

in

the

 area

 likely

to

be

affected.

As a result,

 the Board

 is unable to change Section 106.711 as

it

relates

 to the timing of the publication of the petition

notice.

97—31

—24—

Also, one commenter requested

 that members of the public who

file a request for hearing serve such a request upon the

petitioner.

 According

 to the commenter this would provide a

 needed mechanism to inform the petitioner as

 to whether

 a member

of the public has requested

 a hearing.

 The Board does not

believe that such

 a requirement is necessary.

 The petitioner

will know when

 its petition notice will be published.

 Since

a

member of the public must file

 a hearing

 request within

 21 days

after

 the date of the publication of the petition notice,

the

petitioner knows when to contact the Clerk

 in order

 to determine

whether the Board has

 received

 a hearing request.

Current variance procedures provide that a member

 of the

public may trigger

 a hearing by filing an objection.

 That

procedure does not require that the member

 of the public serve a

copy of the objection on the variance petitioner.

 The Clerk,

though, sends

 the petitioner

 a copy of the objection received.

To the extent of the Board’s knowledge,

 such

 a procedure has not

caused problems.

In addition, requiring

 that

 a member of the public directly

send

 to the petitioner his or her hearing request may have a

chilling effect upon the public’s participation

in

a

proceeding.

 A person objecting to the petitioner’s request might

be reluctant

 to contact the petitioner directly.

 Moreover, the

 Act does not provide for such a procedure.

However the Board will modify Section 106.713

 to provide

that the Clerk will send copies of timely hearing requests

 to the

petitioner,

 Agency, and

 ENR.

Subsection

(c)

 of Section 106.711 has been added

 to provide

that the Board will notice

 the filing of an adjusted standard

petition in the Environmental Register.

 Such

 a procedure

 is an

additional notice mechanism and

 is not intended to supplant the

statutorily required newspaper notice of subsections

(a)

and

 (b).

The last sentence of subsection

 (e) which was proposed on

January 19,

 1989 has been deleted

 to avoid confusion concerning

the necessary timing of hearing requests.

Section 106.712

 Proof

 of Petition Notice

The Board received comments requesting

 that this Section be

changed

 in order

 to provide more time for

 the filing of the

certificate of publication.

 The concern

 is that the

 infrequent

publication of smaller newspapers

may

not allow the

timely filing

of such proof of petition notice.

 Cornmenters request that

the

certificate of publication should be due

 21 or

 28 days after

the

date of the publication.

 As the Section

 is drafted currently,

even

 if publication is made on the 14th day after

 a petition is

filed,

 the petitioner

 still has an additional

 16 days

 to file

proof of publication with the Board.

9 7—32

—25—

The petitioner controls the filing date of its own

petition.

 Correspondingly,

 the petitioner can prepare to have

the petition notice published soon after that filing date.

It

does not seem unreasonable

 to require that proof of the

publication be filed

 30 days after

 the petition is filed,

particularly when the publication must occur within 14 days after

the petition is filed.

Section 106.713

 Request for Public Hearing

This Section was modified

 to make

 it clear

 that a request

for public hearing must be filed within

 21 days after the

newspaper publication

 of the petition notice

 in accordance with

subsection (a)

and

(b)

 of Section 106.711.

 That

is,

 the 21 day

period

 is not triggered by any notice published

 in the

Environmental Register.

Section 106.715

 Amended

 Petition and Amended Response

This Section 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 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.

Section 106.801

 Hearing Scheduled

Comments stated that the Board

 should provide notice

 to the

petitioner when the Board determines,

 in its discretion,

 that

a

hearing should

be

 held.

 When the Board determines

 that

a

hearing

should be held,

 it will assign a hearing officer

 to the

proceeding.

 That hearing officer may consult with the petitioner

on

 a hearing date,

 and once the hearing date

 is set,

the

petitioner will be notified by the hearing officer of the

hearing.

 The Board believes that this mechanism is adequate

to

inform the petitioner that

 a hearing will be held.

97—33

—26—

Additionally, this Section will require that the hearing

officer must make an attempt to consult with the petitioner and

the Agency prior

 to the scheduling of a hearing.

Section 106.803

 Pre—hearing Submission of Testimony and Exhibits

Some comments were filed suggesting that pre—hearing

submission of testimony may not benefit all proceedings.

 Other

comments filed by the Agency and U.S.

 EPA, request that the Board

require the pre—hearing submission of testimony

 in all adjusted

standard proceedings.

 The Board will retain

 the provision which

leaves the decision up to the hearing officer

 to determine

whether pre—hearing submissions shall

 be required.

 The Board has

added language

 to give some guidance as to when the pre—hearing

submissions may be required.

 Specifically, the hearing officer

may require pre—hearing submissions

if

the “hearing officer

determines that such a procedure would provide for

 a more

efficient hearing”.

Subsection

(a)

 has also been altered

 to expressly allow the

hearing officer

 to stagger the pre—hearing submission of

testimony and exhibits to reflect that the petitioner has the

burden of proof.

 For example,

 the petitioner’s testimony would

be submitted first.

 Then, sometime later

 the Agency and other

persons may file their

 testimony in response

 to that submitted by

the petitioner.

 Also,

 the hearing officer may allow the

petitioner

 to file its rebuttal testimony,

 if any, prior

to

hearing.

The subsection has also been changed

 to require that service

of pre—hearing submissions upon other persons be

 initiated on or

before the date the submissions are filed with the Board.

 This

was done in response

 to comments that the previous

 requirement

concerning service was

 too burdensome.

The Board received comments that the pre—hearing submissions

should be subject

 to modification at hearing.

 Subsection

(b)

provides a 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

have

any

value,

they

must

reliable.

Hence,

changes

hearing

pre—hearing

submissions

must

limited

least

scrutinized.

Obviously,

situation

 develops where

pre—hearing

submissions

 are wholely unreliable the hearing

officer

may

 vacate th~order which required the pre—hearing

filing

testimony

and

exhibits.

Then,

person’s

hearing

presentation

would

 not be bound

 in any way by any pre—hearing

submission.

Section

106.804

Discovery

This Section was revised

 to make clear

 that issuance of

97—34

—27—

subpoenas, as well as the production of information,

 in adjusted

standard proceedings must be accomplished pursuant to Subpart

I

of 35

 Ill. Adm. Code 101.

Section 106.805

 Admissible Evidence

Subsection

 (c) was altered to make

 it clear that the hearing

officer can order any part of

 a record

 to be incorporated into an

adjusted standard proceeding.

The Board has changed subsection

(e)

 to expressly state that

a hearing officer may limit testimony and questioning pursuant to

35 Ill.

 Adm. Code 101.220.

Section 106.806

 Order

 of Hearing

Language

was

added

subsection

(f),

the

request

the

Agency,

ensure

that

 the testimony and exhibits presented by

the petitioner on rebuttal are limited

 to the rebutting of

evidence presented by the Agency and other persons.

Section

106.807

Post—hearing

Comments

The

Board

will

 retain

 the requirement that no new

information

may

entered

into

the

record

way

post—hearing

comments.

 The post—hearing comments are intended

 to address,

comment upon,

or

 argue

 from the record which has been built by

the

hearing

 process.

 The post—hearing comment procedure

 is not

additional

mechanism

which

build

 the evidentiary portion

the

record.

Although

some

commenters

 not wish

 to be bound

 by such a

requirement,

the

Board

must,

some

time

during

proceeding,

draw

the

line

when

closes

the

evidentiary

 portion of the

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

hearing

officer

order

reflect

the

petitioner’s

burden

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 has received comments that

 14 days

too

short

time

period

which

file

post—hearing

comments.

This

misch,aracterizes

the

requirement

 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.

97—35

—28—

Section 106.808

 Burden of Proof

Commenters have stated that this Section is unnecessary

since the burden of proof

 issue

 is addressed by the Act.

 Other

proposed Sections present issues which are addressed by the Act;

however,

 it is the Board’s intent that these rules fully explain

the adjusted standard process.

 The Board

 finds nothing wrong

with re—stating provisions of

 the Act in order

 to effectuate that

intent.

Section 106.903

 Board Decision

The Board has added

 the introductory language of this

Section to make it clear that the Act requires that the

petitioner

 justify an adjusted standard consistent with Section

27(a) of the Act.

The Board

 received some comments that

it

 is not appropriate

to include a standard of proof within procedural

 rules.

The

Board has deleted the phrase

 “by

 a preponderance of the

evidence”.

 No other

 Board procedural

rule

 includes such

a

standard of proof.

 Neither does the Act expressly prescribe

a

standard of proof for Board deliberations.

Section

106.906

Publication

Adjusted

Standards

The

Board

has

added

subsection

(a)

provide

that

adjusted

standards

adopted

the

Board

will

published

the

Environmental

This

will

help

notify

the

public

concerning

adopted

ad~usted

standards.

TITLE

35:

 ENVIRONMENTAL PROTECTION

SUBTITLE A:

 GENERAL PROVISIONS

CHAPTER

POLLUTION

CONTROL

BOARD

GENERAL

RULES

SUBPART

GENERAL

PROVISIONS

Section

101.100

Applicability

101.101

Definitions

101.102

Filing

Documents

101.103

Form

Documents

101.104

Length

 Briefs

101.105

Waivers

101.106

 Incorporation Of Prior Proceedings

101.107

Appearances

And

Withdrawals

101.108

 Substitution Of

Attorneys

101.109

 Computation Of Time

97—36

—29—

SUBPART B:

 FILING AND PHOTOCOPYING FEES

Section

101.120

101. 121

101. 122

Section

101. 160

101.161

101.162

Filing Fees

Photocopying Fees

Forms Of Payment

SUBPART

SERVICE

SUBPART D:

 PUBLIC INFORMATION

Public Information

Non—Disclosable Information

Publications

SUBPART

E:

 BOARD MEETINGS

Board Meetings

Agenda For Board Meetings

Section

101.200

 Ex Parte Contacts

SUBPART G:

 HEARINGS

Authority Of Hearing Officer

Hearing Decorum

Section

101.240

 101. 241

101. 242

101.243

101.244

101.245

101. 246

101.247

Applicability

Filing Of Motions And Responses

Contents

 Of Motions And Responses

Motions

Attacking

Jurisdiction

Motions

For

Summary

Judgment

Motions

Preliminary

Hearing

Motions

For

Reconsideration

Disposition

Motion

Section

101.140

101. 141

101.142

101.143

101. 144

Applicability

Service Of Initial Filings

Service Of Subsequent Filings

Proof Of Service

Effective Date Of Service

Section

101.180

101. 181

SUBPART

PARTE

CONTACTS

Section

101.220

101. 221

SUBPART

MOTION

PRACTICE

97—37

—30—

SUBPART

I:

 DISCOVERY

Section

101.260

 Subpoenas

101.261

 Production Of

 Information

SUBPART J:

 SANCTIONS

Section

101.280

 Sanctions For Refusal To Comply With Procedural

Rules, Board Orders,

 Or Hearing

 Officer Orders

 101.281

 Sanctions For Abuse Of Discovery Procedures

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

Appendix 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

E

 Certificates

 Of Service

Illustration A

 Service By Non—Attorney

Illustration B

 Service By Attorney

AUTHORITY:

 Authorized by Section 26 of the Environmental

Protection Act

 (Ill.

 Rev.

 Stat.

 1987,

ch.

 l1i1/2,

 par.

 1026);

and

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

 (Ill.

Rev.

 Stat.

 1985,

ch.

 1111/2, pars,

 1005,

 1007.1,

 1007.2,

 1027,

1028,

 1029,

 1031,

 1032,

 1033,

 1035,

 1036,

 1037,

 1038,

 1040 and

1041);

 and Section

 4 of “An Act in relation to

 natural resources,

research, data collection and environmental studies,” approved

and effective July 14,

 1978, as amended

 (Ill.

 Rev. Stat.

 1987,

ch.

9&/2,

 par.

 7404).

SOURCE:

 Filed

 with Secretary of State January

1,

 1978; codified

Ill.

Reg.

8357;

Part

repealed

 new Part adopted

 in R88—5(A)

_____

 Ill. Reg.

__________

 effective ______________________

NOTE:

Capitalization

denotes

 statutory language.

97—38

—31—

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

specific

 proceedings conducted by the

Board.

 The provisions of this Part apply to

35

 Ill.

Adm.

Code

102

through

120;

however,

the

event

conflict

between

the

rules

this

Part

and

subsequent

Parts,

 the more specific requirement of the subsequent

Part applies.

The

provisions

the

Code

Civil

Procedure

(Ill.

Rev.

Stat.

1987,

ch.

110,

par.

1—101

seq.)

 and the

Illinois

Supreme

Court

Rules

 (Ill.

 Rev.

 Stat.

 1987,

ch.

11OA,

par.

seq.)

not

expressly

apply

proceedings

before

the

 Board.

 However,

 in any absence

specific

provision

these

procedural

rules

govern

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

addition

the

provisions

the

Illinois

Administrative

Procedure

Act

(Ill.

Rev.

Stat.

1987,

ch.

127,

par.

1001

seq.),

unless

otherwise

provided

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

seq.)

“Attorney General” means the Office of the Attorney

General

 of the State of Illinois.

“Board” means the

 Illinois Pollution Control

 Board.

97—39

—32—

“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 (35

U.S.C.

1251

 et seq.

 (1988)).

“Clerk” means the Clerk of the Board.

“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

Energy

and

Natural Resources.

“Evidence”

means

paper,

drawing,

map,

chart,

report,

study,

other

tangible

thing

produced

and

submitted

hearing,

testimony

 received at hearing.

“Initial filing” means the filing which initiates a

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

is of consequence

 to the determination of a proceeding.

“Participant” means any person,

 not including the Board

or its staf~f,who takes part

in

 a regulatory or other

quasi—legislative

proceeding

before

the

Board.

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.

97—40

—33—

“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.

“Registered agent” means a person registered with the

Secretary of State

 for the purpose of accepting service

of notices for any entity,

or

 a person otherwise

authorized

 in writing as an agent

 for the purpose of

accepting

service

 of notices for that entity in Board

proceedings.

“Relevant”

means

having

 any tendency to make

the

existence

any

fact

that

consequence

the

determination

the

proceeding

probable

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

general

applicability,

which

applies

only

 specific facility or geographic site.

“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 be done

 in the Clerk’s office

from

8:30

~..m.

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.

b)

 Filings received after 4:30 p.m. will be date—stamped

the following business day.

97—41

—34—

c)

 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 as 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

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

which

they

are

filed.

Appendix

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

to

interrogatory,

subpoena

need

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

filed.

the

filing

document, the docket number

 shall appear on the first

page of the filing.

 For filings which are not

documents,

 the docket number shall appear on

 a readily

visible portion of the filing.

97—42

—35—

d)

 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 measuring 8”

x

 10 1/2” or

 8 1/2”

 x 11”.

Reproductions may be made by 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.

e)

 The requirements of subsections

 (b),

 (c), and

 (d) 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.

 If 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

the

size

requirements

 of subsection

 Cd).

 However,

one

non—conforming

copy

may

filed

with

the

Clerk’s

office.

 The original of each document filed shall be signed by

the

party

its

authorized

representative

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.

Except

otherwise

provided

Sections

through

“AN

ACT

relation

 the reproduction of public

records

film

and

the

destruction

records

reproduced”

(Ill.

Rev.

Stat.

1987,

ch.

116,

pars.

35—

38),

 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 15 pages without prior approval of the

Board

 or hearing officer.

 This limit does not include

appendices

containing

relevant

material.

post—hea~ring brief

response

brief,

brief

submitted

in

response

to

 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.

97—43

—36—

 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 Board action,

 as specified in

Sections

38,

40,

 40.1 and 41 of the Act, shall be

 filed as

a

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

material

prejudice.

 contingent waiver

 is not

acceptable.

Section

101.106

Incorporation

Prior

Proceedings

Upon

the

separate

written

request

any

person

its own initiative,

 the Board or hearing officer may

incorporate

materials

from

the

record

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

the

Board

the

hearing

officer

that

the

material

incorporated

relevant

the

proceeding.

Notice

the

request

shall

 be given

 to all

 identified participants or

parties by the person seeking incorporation.

The

Board

will

give

the

incorporated

matter

the

appropriate

weight

 light of the following factors:

the

standard

evidence

under

which

the

material

was

previously

presented

the

Board;

the

present

purpose

for

incorporating

the

material;

 and the past and

current

opportunity

for

cross—examination

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 practice

the

State

Illinois,

both.

2)

 A corporation, when

 a respondent

 in an enforcement

case

pursuant

35

 Ill.

 Adm.

 Code 103, by an

attorney at law licensed and registered

 to practice

in the State of Illinois.

 In all other

9 7—44

—37—

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.

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

all

parties

and

participants

their

representatives.

sample

appearance

form

appears

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 of service and notice of

filing on all participants or their

 representative.

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

written

appearance

pursuant

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

the Act shall begin with the first calendar day following the day

on which the act,

 event or development occurs

 and shall

 run until

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

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.

97-.45

—38—

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

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

 DETERMINED BY THE BOARD.

(Section

 7 of the Act.)

b)

 The Board will contract for any copying that would

imoose

 a substantial

 administrative burden on the

Board.

 The person requesting such copies will

be

charged

the

reproduction

charges

incurred

the

Board.

Requests

for

copies

will

honored

 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

Payment

a)

 Filing fees and photocopying fees may be paid by money

order

check.

Cash

payments

will

accepted,

but

are

strongly

discouraged.

b)

 All checks and money orders

 shall be made payable

to

the I1linoi~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

97—46

—39—

exclude the time in which the filing

 fee remains

uncollected.

SUBPART C:

 SERVICE

Section 101.140

 Applicability

This Subpart applies

 to 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

101.141

Service

Initial

Filings

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 of all initial filings shall be 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 to Section 101.141,

all

subsequent filings shall be served personally,

 or by United

States

mail,

messenger

service.

Section 101.143

 Proof Of Service

a)

 Service of filings

 is proved by:

1.

 In case of

service

personal

delivery,

certificate of the attorney,

 or affidavit of the

person other

 than an attorney, who made delivery;

or

2.

case

of

service

messenger

service,

messenger service receipt; or

3.

 In case of service by registered

 or certified mail,

by registered or certified mail

 receipt; or

4.

 In cas~of service by First Class mail, by

certificate

attorney,

affidavit

person

other

than

 attorney, which states

 the date,

 time,

and place of mailing,

 the complete address which

appeared

the

envelope,

and

the

fact

that

proper

postage was prepaid.

9747

—40—

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.

the

case

service

registered

certified

mail,

messenger

service,

service

complete

the

date specified on the registered or certified mail

receipt

the

messenger

service

receipt.

There

rebuttable

presumption

that

service

First

Class

mail

complete

four

days

after

mailing.

SUBPART

PUBLIC

INFORMATION

Section 101.160

 Public

 Information

The

Clerk

will

maintain

 files containing

all

information

submitted

produced

the

Board

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

any

Board

member,

the

Environmental

Register and other Board

 releases, business records,

informal complaints, and internal communications

 filed

the

request

any

Board

member

with

consent

the

author

that

communication.

b)

 All files maintained by the Clerk will be open

to

reasonable public

 inspection and copying, except the

following

material:

Internal

communications

between

and

among

Board

members and staff (except as provided

in

subsection(a));

Material

protected

from

public

disclosure

under

the

trade

secret

provisions

Ill.

Adm.

Code

120;

and

3)

 Material which

 is stamped “Not Subject

to

Disclos~ure”by Board order, pursuant

 to Section

101.161.

 The Clerk

shall

maintain

list

all

files

open

public inspection.

Section 101.161

 Non—Disclosable Information

97—48

—41—

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 SUBMITTED BY ANY

PERSON UNDER THE ACT; AND

4)

 Income and earnings data when not an issue

 in the

proceeding.

 (Section 7(a)

 of the Act.)

b)

 Material will be stamped

 “Not Subject

 to Disclosure”

only upon request of

 a Board member or

 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

to trade secrets shall contain the following:

Identification

the

precise

material,

parts

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

and

contain

such

data

and

information

will

inform

 the Board

 of the nature of material

for

which non—disclosure is sought,

 the reasons why

non—disclosure

 is necessary,

 and the number

and

title of 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

 be filed with the Clerk with the application and shall

be available for examination only by 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,

 pr authorized representatives of this State

or the United States as provided

 in Section 7(e)

of

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 is made,

 the applicant

shall serve

 those agency participants with notice of

the application

 for non—disclosure.

 The Board will

rule on the application and

 inform the applicant of its

97..4C)

—42—

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 on the application shall

 be based

on

 the record excluding the material

 so withdrawn.

d)

 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

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.

h)

 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 OF EACH CALENDAR OR FISCAL

YEAR A SCHEDULE OF MEETINGS WHICH SHALL APPEAR AT

LEAST

ONCE IN ITS MINUTES AND

 IN THE ENVIRONMENTAL

REGISTER.

 SPECIAL MEETINGS MAY BE CALLED BY THE

CHAIRMAN OR BY ANY TWO BOARD MEMBERS UPON DELIVERY OF

24 HOURS W3ITTEN

 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.

IN

EMERGENCIES

 IN WHICH A MAJORITY OF

THE BOARD CERTIFIES THAT EXIGENCIES OF TIME REQUIRE,

THE REQUIREMENTS OF PUBLIC NOTICE AND 24 HOUR WRITTEN

NOTICE TO MEMBERS

MAY BE DISPENSED WITH, AND

BOARD

97—51)

—43—

MEMBERS WILL RECEIVE SUCH NOTICE

AS

 IS REASONABLE UNDER

THE CIRCUMSTANCES.

 (Section

5 of the Act.)

c)

 The Board will keep a complete and accurate record of

all meetings including the votes of individual members

on all adjudications and proposed regulations.

d)

 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

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 ex

parte with any person not employed by 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.

d)

 In the event that an ex parte contact does occur, Board

members and employees shall make that contact

 a matter

of public record,

 in order

 that the information on

97—51

—44—

which the Board bases its decision can be subject to

scrutiny and

 to rebuttal.

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 of a clear, complete, and

concise record.

 He or she shall 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 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;

d)

 Examine witnesses and direct witnesses to testify;

e)

 Regulate the course of the hearing,

 including but not

limited

 to controlling the order of proceedings;

f)

 Establish reasonable limits on the duration of the

testimony and questioning

 of any witness and limit

repetitious

cumulative

testimony

and

questioning;

g)

 Issue,

 in the name of the Board,

 an order compelling

the answering of interrogatories or other discovery

requests;

h)

 Order

 the production of evidence pursuant to Section

101. 261;

i)

 Initiate, schedule and conduct a pre—hearing

conference;

 Issue

 subpoenas pursuant

 to Section 101.260;

Exclude

late—filed

briefs

and

comments

from

inclusion

in the record

 for decision;

1)

 Rule upon motions as specified

 in Section 101.247;

m)

 Rule upon objections and evidentiary questions;

and

n)

 Establish

 a schedule for discovery,

 including a date by

which discovery must be completed.

97-~52

—45—

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 to govern such recordings.

 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.

If

 a witness

refuses to testify on the grounds that he or she may

not be compelled

 to testify if any portion of the

witness’

 testimony is to be broadcast or

 televised or

if motion pictures are

 to be taken of

 the witness while

the witness

 is testifying,

 the hearing officer will

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

 a court.

 Board hearings are not “meetings” within the provisions

of the Open Meetings Act.

 (Ill.

 Rev.

 Stat.

 1987,

ch.

102, par.

 41 et seq.)

SUBPART

H:

 MOTION PRACTICE

Section 101. 240

 Applicability

This Subpart applies to 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

Motions

And

Responses

a)

 All motions shall be

 in writing,

 unless made orally on

the

record

during

hearing,

and

shall

state

whether

directed to the Board or

 to the hearing officer.

If

the

motion

directed

the

Board,

ten

copies

shall

be filed with the Clerk.

 If 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 be served

pursuant

 to Section 101.142.

b)

 Within

 7 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 of objection does not bind the

Board or

 the hearing officer

 in the decision of the

motion.

 Unless undue delay or material prejudice would

97—53

—46—

result, neither the Board

 nor the hearing officer will

grant any motion before expiration of the 7—day

response period.

c)

 The moving person shall not have the right to reply,

except as permitted by the Board or the hearing officer

to prevent material prejudice.

Section 101.242

 Contents Of Motions And Responses

a)

 All motions shall clearly state the

 reasons for and

grounds upon which the motion is made and shall contain

a concise statement of the relief sought.

 Facts

asserted which are not of record in the proceeding

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.

c)

 A person may participate

in

 a proceeding without

waiving any jurisdictional objection

 if such objection

is timely r~isedpursuant

 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

Act or

 a permit appeal pursuant

 to Title X of the Act.

 Specific

 rules

 for such motions

 for summary judgment are found

 in 35

 Ill.

97—54

—47—

Mm.

Code

103

(enforcement

proceedings)

and

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

the

date

hearing,

unless

allowed

the

Board

the

hearing

officer

prevent

material

prejudice.

 The Board or the hearing officer may direct

that the scheduled hearing proceed during the pendancy

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.

b)

 No motion

 to continue

 a hearing

 in 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

the

final

order

until

final

disposition

the

motion.

The

time

for

appeal

the

Board

order

runs

anew

after

the

Board

rules

upon

the motion unless otherwise provided.

Section 101.247

 Disposition Of Motion

The

hearing

officer

may

rule

upon

all

motions

except

any

motion

dismiss,

motion

decide

proceeding

the

merits,

motion

strike

any

claim

defense

for

insufficiency

want

proof,

motion

claiming

lack

jurisdiction,

motion

for

consolidation,

motion

for

summary

jud~gment, or

motion

for

reconsideration.

The

hearing

officer

will

refer

all

such

motions

the

Board.

the

hearing

officer

refuses

act

upon

any

motion,

she

will

refer

such

motion

the

Board

within

days

the

filing

any

response.

interlocutory

appeal

motion

may

taken

the

Board

from

ruling

the

hearing

officer,

except

97—55

—48—

allowance of the Board

 after written motion.

Notwithstanding,

 when

 in the judgment of the hearing

officer immediate appeal of any order

 is necessary to

prevent harm to the public interest or

 to avoid unusual

delay or expense,

 the hearing officer may refer

the

ruling promptly to the Board and notify the parties and

participants.

 A continuing objection

to

 a hearing

officer ruling must be restated at the close of hearing

or

 in post—hearing submissions.

c)

 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

 is responsible

for

completing

 the subpoena and

 serving it upon the

 witness.

h)

 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.

d)

 Subpoenas may include

 a command

 to produce books,

papers, documents,

 or other

 tangible things designated

therein and relevant to 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

 if it is 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

97—56

—49—

accordance with the standards articulated

 in Section

101. 261.

f)

 If the witness

 is a non—resident of the state, the

hearing officer or Board may order specific terms and

conditions in connection with his or her appearance,

including 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

that party or participant as provided

 in Section 47 of

“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.)

h)

 Any witness subpoenaed for

 a deposition may be required

to attend

 only in

 the county in which he or she resides

or

 in any other other place ordered by the Board

maintains and office address.

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 or regulate the production of information when

necessary to prevent undue delay, undue expense,

 harassment, or

oppression or

 to protect materials from disclosure consistent

with the provisions of Sections

 7 and 7.1 of the Act and

35

 Ill.

Mm.

 Code 101.161 and 120.

SUBPART

3:

 SANCTIONS

Sections 101.280

 Sanctions For Refusal To Comply With

Procedural Rules, Board Orders,

 Or Hearing

Officer Orders

If

 a party or any person unreasonably refuses to comply with any

provision of

35

 Ill. Mm.

 Code 101 through 120 or

 fails to comply

with any order entered by the Board

 or the hearing officer,

including any subpoena issued by the Board

 or hearing officer,

the Board may order sanctions.

 In addition

 to remedies elsewhere

specifically provided,

 the sanctions may include,

 among others,

the

 following:

97—57

—50—

a)

 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;

b)

 That the offending person be barred

 from filing any

other pleading relating to any issue

 to which the

refusal

 or failure relates;

c)

 That the offending person be barred from maintaining

any particular

 claim, counter claim,

 third—party

complaint,

 or defense relating

 to that issue;

d)

 That a witness be barred

 from testifying concerning

that issue;

e)

 That, as to claims or defenses asserted

 in any pleading

to which that issue is material, a judgment by default

be entered against the offending person or that the

proceedingbe dismissed with or without prejudice;

f)

 That any portion of the offending person’s pleadings

relating to that issue be stricken and, if appropriate,

judgment be entered

 as to that issue;

g)

 That the offending person pay the amount of

 reasonable

expenstificate 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.

Section 101.281

 Sanctions For Abuse

 Of Discovery Procedures

The Board or

 the hearing officer may order that information

obtained

through

abuse

discovery

procedures

suppressed.

a person wilfully obtains or attempts

 to obtain information by an

improper

discovery

method,

wilfully

obtains

attempts

obtain

information

which

that

person

not

entitled,

otherwise

abuses

discovery

rules,

the

Board

may

enter

any

order

provided

for

this

Subpart.

SUBPART K:

 RELIEF FROM

AND

REVIEW

FINAL

ORDERS

Section 101.300

 Mo,tions

 for Reconsideration

Motions

for

reconsideration

modification

final

Board

order

 shall be filed within

 35 days of the order, pursuant

to

Section

101.246.

Responses

such

motions

are

also

governed

Section 101.246.

97—58

—51—

Section 101.301

 Relief From Final Orders

a)

 Clerical mistakes

 in orders or other parts of the

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

pending,

such

mistakes

may

corrected with leave of the appellate court.

Any

corrected order will

 be mailed to all parties and

participants

that

proceeding.

b)

 On written motion, the Board may relieve

 a party from a

final

order

entered

contested

case,

for

the

following:

Newly

discovered

evidence

which

existed

the

time

hearing

and

which

due

diligence

could

not

have

been

timely

discovered;

2)

 Fraud (whether intrinsic or extrinsic),

misrepresentation,

other

misconduct

adverse party;

or

3)

 Void order, such

 as an order based upon

jurisdictional defects.

motion

under

this

Section

does

not

affect

the

finality

Board

order

suspend

the

operation

Board

 order.

 The motion must be filed

 in the same

proceeding

 in which the order was entered but

 is not a

continuation of the proceeding.

 The motion must be

supported

affidavit

other

appropriate

showing

matters

not

record.

All

parties

participants

in the proceeding shall be notified by the rnovant as

provided

Section

101.141(a).

motion

under

subsection

(b)

shall

filed

with

the

Board

within

one

year

after

entry

the

order

except

that

motion

pursuant

subsection

(b)(3)

shall

filed within a

 reasonable time after entry of the

order.

Any

response

motion

under

this

Section

shall

filed withip 14 days of the filing of the motion.

Section

101.302

Judicial

Review

Final

Board

Orders

a)

 Judicial review of final Board orders shall

 be pursuant

to Sections

 29 and

 41 of the Act (Ill.

 Rev.

 Stat.

 1987,

cl-i.

111

 1/2, pars.

 1029 and 1041),

 Rule 335 of the

Rules

the

Supreme

Court

Illinois

(Ill.

Rev.

Stat.

9

7—59

—52—

1987,

ch.

 llOA,

 par.

 335) and

 the Administrative Review

Law

 (Ill.

 Rev.

 Stat.

 1087,

ch.

 110, pars.

 3—101

et

seq.)

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

When

the

Board,

making

interlocutory

order

not

otherwise

appealable,

finds

pursuant

Rule

308

the

Illinois

Supreme

Court

Rules

(Ill.

Rev.

Stat.

1987,

ch.

llOA,

par.

308)

that

the

order

involves

question

law as

 to which

 there

substantial

ground

for

difference of opinion and that an immediate appeal

 from

the order may materially advance the ultimate

termination

the

litigation,

the

Board

may

state

writing,

identifying

the

question

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 of

Illinois.

Appendix

A

 Captions

Illustration

General

Rulemaking

BEFORE

THE

ILLINOIS

POLLUTION

CONTROL

BOARD

THE

MATTER

OF:

REVISION OF THE FLUORIDE

DRINKING

WATER

STANDARD:

)

 (Rulemaking)

AMENDMENTS TO 35

 ILL.

 ADM.

)

CODE

XXX.XXX

)

97—60

—53—

Illustration B

 Site—specific Rulemaking

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

)

PETITION OF ABC COMPANY FOR

)

SITE-SPECIFIC AIR REGULATION:

)

 (Site—Specific

ILL.

ADM.

CODE

XXX.XXX

)

Rulemaking)

Illustration

Adjusted

Standard

Petition

BEFORE

THE

ILLINOIS

POLLUTION

CONTROL

BOARD

THE

MATTER

OF:

)

PETITION OF ABC COMPANY (AND

)

AS

THE

 ILLINOIS ENVIRONMENTAL

)

 (Adjusted standard)

PROTECTION AGENCY) FOR ADJUSTED

)

STANDARD FROM 35

 ILL. ADM.

 CODE

)

xxx. xxx

Illustration

D

 Permit Appeal

 Or Variance

BEFORE

THE

ILLINOIS

POLLUTION

CONTROL

BOARD

ABC COMPANY,

)

Petitioner,

)

PCB

ILLINOIS

ENVIRONMENTAL

)

(Permit

Appeal

PROTECTION

AGENCY,

)

 Variance)

Respondent.

97—61

—54—

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

Administrative

Citation

BEFORE

THE

ILLINOIS

POLLUTION

CONTROL

BOARD

ILLINOIS

ENVIRONMENTAL

)

PROTECTION

AGENCY

(or

UNIT

)

LOCAL

GOVERNMENT),

)

Complainant,

)

 AC—

ABC

COMPANY,

)

 (Administrative

)

 Citation

)

IEPA

Number

Respondent.

97—62

—55--.

Appendix B

 Appearance Form

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

APPLICABLE CAPTION

)

(see Appendix A)

)

 docket number

)

APPEARANCE

hereby

file

appearance

 this proceeding, on behalf of

ABC Company.

Attorney’s Name

Name of Attorney

and Firm

 Address

Telephone

Number

97—63

—56—

Appendix C

 Withdrawal Of Appearance Form

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

APPLICABLE CAPTION

)

(see Appendix

A)

)

 docket number

)

NOTICE

WITHDRAWAL

APPEARANCE

hereby

give

notice

withdrawal

appearance

representative of ABC Company

 in this proceeding.

Attorney’s Name

Name of Attorney and Firm

Address

Telephone Number

97—64

—57—

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

the

Clerk

the

Pollution

Control

Board

the

specify

what

document was filed

of

 name

 of persons filing the document),

a

copy of which

 is herewith served upon you.

Name of Attorney or Other

Date

Representative

Name

Address

Telephone

Number

97—65

—58—

Appendix E

Illustration A

Certificates Of Service

Service by Non—Attorney

PROOF OF SERVICE

the

undersigned,

oath

state

that

have

served

the

attached

 describe

 document served)

 by describe

 method of

servicel

 upon the following persons:

(list persons served)

signature)

Notary

Seal

SUBSCRIBED

AND

SWORN

BEFORE

this

___

day

__________

Notary Public

19

Illustration B

Service

Attorney

CERTIFICATE

SERVICE

I,

 the undersigned, certify that

 I have served

 the attached

describe

document

served,

(describe

method

service),

upon

the

following

persons:

Date

(list

persons

served)

siqnature

TITLE

35:

ENVIRONMENTAL

PROTECTION

SUBTITLE

GENERAL

PROVISIONS

CHAPTER

POLLUTION

CONTROL

BOARD

PART

106

HEARINGS

PURSUANT

SPECIFIC

RULES

SUBPART

ADJUSTED

STANDARDS

Section

106. 701

106. 702

106.703

Applicability

Definitions

Joint or Single Petition

97—66

—59—

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

Request

 to Agency to Join

 As Co—Petitioner

Petition Contents

Petition Verification

Federal Procedural Requirements

Incorporated Material

Motions

Proof of Service

Petition

Notice

Proof of Petition Notice

Request

for

Public

Hearing

Agency Response

Amended

Petition

and

Amended

Response

Hearing Scheduled

Hearing

Notice

Pre—Hearing

Submission

Testimony

and

Exhibits

Production

Information

Admissible Evidence

Order of Hearing

Post-hearing Comments

Burden

Proof

Board

Deliberations

Dismissal

Petitfon

Board

Decision

Opinion and Order

Appeal

Board

Decisions

Publication of Adjusted Standards

Effect

Filing

Petition

Old

 Rule Numbers Referenced

28.1 and authorized by Section 26 of the Environmental Protection

Act

(Ill.

Rev.

Stat.

1987,

ch.

llll/~, pars.

1005,

1014.2(c),

1022.4,

1027,

1028,

1028.1

and

1026).

SOURCE:

Filed

with

Secretary

State

January

1978;

amended

Ill.

Peg.

page

186,

effective

December

27,

1979;

codified

at

6

 Ill.

 Peg.

 8357;

 amended

 in R85—22 at

 10 Ill.

 Peg.

 992,

effective

February

1986;

amended

R86—46

Ill.

Reg.

13457,

effective

August

1987;

amended

R82—l

Ill.

Reg.

12484,

effective

July

13,

1988;

amended

R88—10

Ill.

Reg.

12817,

effective

July

21,

1988;

amended

P88—5(A)

_____

Ill.

Peg.

effective

_____________

NOTE:

Capitalization

denotes

statutory

language.

SUBPART

ADJUSTED

STANDARDS

Section

 106.70.

 Applicability

The

procedures

set

forth

this

Subpart

 apply to any person

seeking

adjusted

standard

pursuant

Section

28.1

the

Illinois Environmental Protection Act,

 (Ill.

 Rev. Stat.

 1987,

ch.

1lll,~, par.

1001

et.

seq.),

except

 as otherwise provided

in

9 7—67

—60—

Subparts

and

This

Subpart

shall

read

conjunction with 35

 Ill. Adm.

 Code 101 which contains procedures

generally applicable

 to 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.

 Peg.

effective

)

Section

106.702

Definitions

For

the

purpose

this

Subpart,

words

and

terms

shall

have

the

meanings as defined

 in 35

 Ill.

 Adm. Code 101.101,

 unless

otherwise provided.

(Source:

Added

Ill.

Peg.

effective

Section 106.703

 Joint or Single Petition

person

begins

adjusted

standard

proceeding

filing

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 on the Agency and ENR shall

 be initiated

on

 the date

the

petition

filed

with

the

Board,

any

earlier

 date,

 and shall

be conducted in accordance with

 35 Ill.

 Adm.

 Code 101.141.

(Source:

 Added at

 Ill.

 Reg.

effective

)

Section

106.704

Request

Agency

Join

Co—Petitioner

The

Agency

may

act

co—petitioner

any

adjusted

standard

proceeding.

Any

person

may

request

Agency

assistance

initiating

petition

for

adjusted

standard.

response

request

act

co—petitioner,

the

Agency

may

require

the person

 to submit

 to the Agency any background

information,

the

person’s

 possession relevant to the

adjusted standard which

 is sought.

 The Agency shall

notify the person

 in writing

 of its determination

either

 to join as a co—petitioner,

or

 to decline

to

join

co—petitioner.

the

Agency

declines

join as

 a co—petitioner, the Agency shall

 state the

basis

for

this

decision.

97—63

—61—

 Decisions made by the Agency pursuant to

 this Section

are not appealable to the Board.

d)

 Subsequent

 to the filing of the petition and prior

to

hearing, the Board grant

 the Agency co—petitioner

status upon joint motion of the Agency and the

petitioner who originally filed

 the petition.

(Source:

 Added at

 Ill. Peg.

effective

)

Section 106.705

 Petition Contents

The petition shall

 be captioned

 in accordance with 35

 Ill. Adm.

Code 101. Appendix A.

 If the Agency

co—petitioner,

the

petition

shall

state.

The

petition

shall

contain

headings

corresponding

to

 the informational requirements of each

subsection

this

Section.

The

following

information

shall

contained

the

petition:

statement

describing

the

standard

from

which

adjusted

standard

sought.

This

shall

include

the

Administrative

Code

citation

the

regulation

general

applicability

imposing

the

standard

well

the

effective

date

that

regulation.

statement

which

indicates

whether

the

regulation

general applicability was promulgated

 to implement,

in

whole or

 in part,

 the requirements of the Clean Water

Act,

Safe

Drinking

Water

Act,

Comprehensive

Environmental Response, Compensation and Liability Act,

Clean

 Air Act,

or

 the State programs concerning

Resource

Conservation

and

Recovery

Act

(RCRA),

Underground

Injection

Control

(UIC),

National

Pollutant Discharge Elimination System

 (NPDES).

c)

The

 level of justification as well

 as other information

requirements

necessary

for

adjusted

standard

specified by the

 regulation of general applicability,

statement

that

the

regulation

general

applicability

does

not

specify

level

justification

or other requirements;

description

the

nature

the

petitioner’s

activity

which

the

subject

the

proposed

adjusted

standard.

The

description

shall

include

the

location

and

area, affected

the

petitioner’s

activity.

This

description

shall

also

include

the

number

persons employed by the petitioner’s

 facility at issue,

age

that

facility,

relevant

pollution

control

equipment

already

use,

and

the

qualitative

and

quantitative nature of emissions, discharges or

releases

currently

generated

the

petitioner’s

activity;

97—69

—62—

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.

narrative

description

the

proposed

adjusted

standard

well

proposed

language

for

Board

order

which would

 impose the standard.

 Efforts necessary to

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

the

environment

the

petitioner

were

comply

with

the

regulation

general

applicability

compared

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

the

regulation

general

applicability

and

the

proposed

adjusted

standard.

Also,

 the petitioner

 shall compare the qualitative and

quantitative

nature

emissions,

discharges

releases which would be expected from compliance with

the regulation of general applicability as opposed

to

that

which

would

expected

from

compliance

with

the

proposed

adjusted

standard;

statement

which

explains

how

the

petitioner

seeks

justify, pursuant

 to the applicable level of

justification,

the

proposed

adjusted

standard;

statement

with

supporting

reasons

that

the

Board

may

grant

the

proposed

adjusted

standard

consistent

with

federal

law.

The

petitioner

shall

also

inform

the

Board

all

procedural

requirements

applicable

the

Board’s

decision

the

petition

which

are

imposed

federal

law

and

not

required

this

Subpart.

Relevant

regulatory

and

statutory

authorities

shall

cited;

 A statement requesting

 or waiving

 a hearing on

the

petition; and

The

petition

shall

cite

supporting

documents

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

97—70

—63—

decisions, State regulations,

 statutes, and reported

cases shall be appended to the petition.

 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

determination

and

the

determination itself is set forth

 in the appropriate

portion

 the petition.

 Notwithstanding

 this

provision,

the

Board

may

require

the

petitioner

amend

its

petition

fully

comply

with

informational

requirements set forth by this Section or

 to provide

the Board with additional material which will aid the

Board

its

resolution

the

adjusted

standard

proceeding.

(Source:

 Added at

 Ill.

 Peg.

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

106.705(i)

 to the extent that such requirements do not

require

Board

 action.

(Source:

 Added at

 Ill.

 Peg.

effective

Section 106.708

 Incorporated Material

Incorporation

material

from

the

record

another

Board

docket

shall

accomplished

accordance

with

Ill.

Adm.

Code

101.106.

(Source:

 Added at

 Ill.

 Peg.

effective

)

Section 106.709

 Motions

The filing of motions and responses to motions shall be conducted

in accordance with

 35 Ill.

 Adm.

 Code lOl.Subpart

H.

97—71

—64—

(Source:

 Added at

 Ill.

 Peg.

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

well

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,

its

own

expense,

THE

PUBLICATION

NOTICE

 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 proceeding.

 (Section

28.1 of the Act,

 Ill.

Rev.

Stat.

 1987, ch.lll1/~par.

1028.1).

 The title of the notice shall be in the

 form

follows:

“Notice

Petition

petitioner’s

name)

for

 an Adjusted Standard before the Illinois Pollution

Control

Board.”

The

notice

shall

contain

the

name

and

address

the

petitioner

 and the statement that the petitioner

has

filed

with

the

Illinois

Pollution

Control

Board

petition

for

adjusted

standard.

The

notice

shall

also

provide

the

date

upon

which

the

petition

was

filed,

 the Board docket number,

 the regulatory standard

(with

appropriate

Administrative

Code

citation)

from

which

adjusted

standard

sought,

the

proposed

adjusted

standard,

and

general

description

the

petitioner’s

activity

which

the

subject

the

adjusted

standard

proceeding,

and

the

location

that

activity.

This

information

shall

presented

understood

accordance

with

the

context

this

Section’s

requirements.

The

concluding

portion

the

notice

shall

read

follows:

“Any

person

may

cause

public

hearing

held

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

97—72

—65—

for

the

 adjusted

 standard

proceeding,

as

 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.”

 Subsequent to the filing

petition,

the

Board

 will

publish

notice

the

Environmental

that

has

received

petition

for

adjusted

standard.

The

notice will include the petitioner’s name,

 filing date,

and

 a brief narrative description of the proposed

adjusted

standard

well

the

standard

imposed

the regulation of general applicability (accompanied by

the

appropriate

Administrative

Code

Citation)

from

which

 the adopted standard

 is sought.

(Source:

Added

Ill.

Peg.

effective

)

Section 106.712

 Proof of Petition Notice

Within 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.l00,

 par.

1).

(Source:

Added

Ill.

Peg.

effective

Section 106.713

 Request

 for Public Hearing

Any

person

may

request

that

public

hearing

held

adjusted

standard

proceeding.

Such

requests

shall

filed

not

later

than

days

after

the

date

the

publication

the

petition notice in accordance subsections

(a)

and

 (b) of Section

106.711.

 Requests

 for hearing should make reference to the

Board

docket

number

assigned

the

proceeding.

copy

each

timely

hearing request will

 be mailed

 to the petitioner,

 Agency, and ENR

by the Clerk.

(Source:

 Added

at

 Ill. Peg.

effective

Section 106.714

 Agency Response

a)

 The Agency shall

file

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

97—73

—66—

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.

minimum,

the

Agency

shall

address

and

respond

the

petition

with

respect

each

issue

raised

the

requirements

subsections

(a)

through

(j)

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

appended

the

recommendation

not

already

the

record

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

held

prior

the

Board’s

decision

hearing

not

held.

Such

amendment

shall

writing

and

filed with the Board unless made orally at hearing.

 If the

petitioner

amends

the

petition,

the

Agency

shall

respond

the

amendment

writing

orally

hearing.

any

event

such

amended

response

shall

filed

given

not

later

than

days

subsequent

the

amending

petition.

The

Agency

may

amend

its

response

even

the

petitioner

 has not amended

its

petition.

such

instance,

response

may

only

amended

prior

the

hearing

held

prior

the Board’s decision if

a

hearing

is

 not. held.

 Written

amendments

the

petition

response

need

not

repeat

the

entire

unchanged

portion

the

original

filing

provided

that

sufficient portion of the original filing

 is repeated so

 that the

 context of the amendment is made clear.

(Source:

 Added

at

 Ill. Beg.

effective

)

Section 106.801

 Hearing Scheduled

The

Board

will

assign

hearing

officer

adjusted

standard

proceeding

when:

The

Board

receives

hearing

request,

pursuant

Section

106.713,

not

later

than

days

after

the

97—74

—67—

date of the publication of the petition notice

in

accordance with Section 106.711; or

2)

 The Board

 IN ITS DISCRETION DETERMINES 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.

The

hearing

officer

will

set

time

and

place

for

the

hearing.

 The hearing

officer

will

make

attempt

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

the

subject

the

proposed

adjusted

standard.

 (Section 28.1 of the Act).

After

the

hearing

has

been

scheduled,

the

hearing

officer

 will

 notify the Clerk, petitioner, Agency,

ENR

and any person who has

filed

timely

hearing

request

of the time and place of the hearing.

(Source:

Added

Ill.

Beg.

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 BY ADVERTISEMENT IN A NEWSPAPER OF GENERAL

CIRCULATION

 in the county in which

 the hearing

is

 to be held.

SUCH NOTICE SHALL BE PUBLISHED AT LEAST

 20 DAYS BEFORE THE DATE

THE

HEARING.

(Section

28.1

the

Act).

(Source:

 Added

at

 Ill.

 Peg.

effective

)

Section

106.803

Pre—hearing

Submission

Testimony

and

Exhibits

The

hearing

officer

may

require

the

pre—hearing

submission

testimony

and

exhibits

which

are

presented

hearing

the

hearing

officer

determines

that

such

procedure

will

provide

for

efficient

hearing.

 Consistent with the petitioner’s burden of

proof,

 the hearing officer may provide differing filing

deadlines

with

respect

submissions

different

persons.

 I~ursuantto hearing officer order,

 rebuttal

testimony and exhibits may be submitted prior

to

hearing.

 When such pre—hearing submission

 is required,

original

and

four

(4)

copies

each

testimony

and

each exhibit shall

 be filed with the Board.

The

Agency,

petitioner,

ENR

and

any

other

person

required

the

hearing

officer

shall

each

served

with one copy of each testimony and exhibit.

 Such

97—75

—68—

service shall

 be initiated on or 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 of 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 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.

c)

 If pre—hearing submission of testimony is required, any

testimony which

 is not filed prior

 to hearing pursuant

to subsection

(a)

 will be allowed only as time

permits.

(Source:

 Added

at

 Ill.

 Peg.

effective

)

Section 106.804

 Discovery

The issuance of subpoenas and

 the production of information will

accomplished

pursuant

the

procedures

set

forth

Ill.

Adm. Code 101.

 Subpart

I.

(Source:

 Added

at

 Ill. Peg.

effective

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 ~heir affairs.

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 porti°’~’

 thereof of any relevant pending or prior proceeding

97—76

—69—

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 be conducted by any person.

 The hearing officer

may limit such testimony and cross—examination pursuant

to 35

 Ill.

 Adrn. 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.

 Peg.

effective

Section 106.806

 Order of Hearing

The

 following shall be the order of an adjusted standard hearing

subject

 to modification by the hearing officer

 for good cause:

a)

 Presentation,

 argument,

and

 disposition

of

motions

 preliminary

to

a

 hearing

on

the

merits of matters raised by the petition and

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

97—7 7

—70—

person

 during

 that

 part

of

the

 hearing

described by subsections

(d)

and

 (e).

g)

 Presentation and argument

 of all motions

to

be disposed of by the Board;

h)

 Presentation

of

 closing

 statements

by

the

petitioner,

 Agency,

and

any

 interested

person;

and

i)

A

 schedule

for

the

 submission

of

 post—

hearing

comments

the

 Board.

(Source:

 Added

at

 Ill. Reg.

effective

)

Section 106.807

 Post—hearing Comments

The

petitioner,

Agency,

 ENR and any interested person may file

post-hearing

comments.

The

 hearing officer may order any person

file

such

comments.

Post—hearing

comments

shall

 filed

within

fourteen

(14)

days

after

the

 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

post—hearing

comments.

(Source:

 Added

at

 Ill.

 Beg.

effective

)

Section 106.808

 Burden of Proof

The burden of proof

 in an adjusted standard proceeding

 is on the

petitioner.

(Source:

 Added at

 Ill. Beg.

effective

)

Section 106.901

 Board Deliberations

In making

 its decision on an adjusted standard petition, the

Board

 shall consider only the record of

the

adjusted

standard

proceeding.

(Source:

 Added at

 Ill.

 Peg.

effective

)

97—78

—71—

Section

106.902

Dismissal

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 of Section 106.705, 106.706,

 106.710, and

106.712

 (Section 28.1 of the Act); or

b)

 The Board DETERMINES THAT THE PETITIONER

 IS NOT

PURSUING DISPOSITION OF THE PETITION IN A TIMELY

MANNER.

 (Section 28.1

 of the Act).

(Source:

 Added at

 Ill. Peg.

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);

3)

 THE REQUESTED STANDARD WILL NOT RESULT IN

 ENVIRONMENTAL OR HEALTH EFFECTS SUBSTANTIALLY AND

SIGNIFICANTLY

ADVERSE

THAN

THE

EFFECTS

CONSIDERED

THE

BOARD

ADOPTING

THE

RULE

GENERAL

APPLICABILITY

(Section

28.1

the

Act);

AND

THE

ADJUSTED

STANDARD

CONSISTENT

WITH

ANY

APPLICZ~BLE

FEDERAL

LAW (Section 28.1 of the Act).

b)

 If the regulation of general

 applicability specifies a

level

justification

for

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.

97—79

—72—

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

STANDARD

THE

SAME

THAT

IMPOSED

THE

REGULATION

GENERAL

APPLICABILITY,

the

petitioner

fails

 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 OF THE ACT

 (Section 28.1 of the Act).

(Source:

 Added at

 Ill.

 Beg.

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. Beg.

effective

Section

106.905

Appeal

Board

Decisions

ANY

FINAL

ORDER

DETERMINATION

THE

BOARD

ADJUSTED

STANDARD

PROCEEDING

MAY

APPEALED

THE

APPELLATE

COURT

PURSUANT TO SECTION

 41 OF THE ACT.

 (Section 28.1 of the Act).

(Source:

Added

Ill.

Beg.

effective

)

Section

106.906

Publication

Adjusted

Standards

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.

THE

BOARD

SHALL

CAUSE

THE

PUBLICATION

LISTING

ALL DETERMINATIONS MADE PURSUANT TO SECTION

 28.1

 OF THE

ACT

THE

ILLINOIS

AND

THE

ENVIRONMENTAL

THE

END

EACH

FISCAL

YEAR.

(Section

28.1

of the Act).

97—80

—73—

(Source:

 Added

at

 Ill.

 Peg.

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

STAYED

 AS TO SUCH PERSON PENDING

THE DISPOSITION OF THE PETITION;

 PROVIDED,

 HOWEVER,

THAT THE OPERATION OF

ANY

REGULATION

SHALL

NOT

STAYED

THAT

REGULATION

IIAS

ADOPTED

THE

BOARD

IMPLEMENT,

WHOLE

PART,

THE

REQUIREMENTS

THE

FEDERAL

CLEAN

AIR

ACT,

SAFE

DRINKING

WATER

ACT

COMPREHENSIVE

ENVIRONMENTAL

RESPONSE,

COMPENSATION,

AND

LIABILITY

ACT,

THE

STATE

RCRA,

UIC

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

THE

CLEAN

AIR

ACT,

ANY

PERSON

FILES

A PETITION FOP AN INDIVIDUAL ADJUSTED STANDARD IN LIEU

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 BY 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

TAKEN

THE

BOARD

 THE PETITION.

 (Section 28.1

of the Act).

(Source:

 Added

at

 Ill.

 Reg.

effective

IT

 IS SO ORDERED.

Dorothy

Gunn,

Clerk

the

Illinois

Pollution

Control

Board, hereby certify that the above Proposed Opinion and Order

was adopted on

the

~2’~’~

day of

77~-~.--_~~

 1989, by a

voteof

•

Dorothy

 M. 1Gunn,

Ci

Illinois

Pollution

Control

Board

97—8