ILLINOIS POLLUTION CONTROL BOARD
September
8,
1988
IN THE ~4ATTEROF:
PROCEDURAL RULES REVISION,
)
R88—5
35
ILL. ADM.
CODE
101,
)
102,
AND 106
)
Proposed Rule.
First Notice.
ORDER OF THE BOARD
(by J. Theodore Meyer):
In accordance with
the Board’s on—going review
of its
procedural
rules, and
in response to recent legislation,
the
Board
today proposes revisions to certain of
its procedural
rules.
Today’s proposal includes new general rules
(35
Ill.
Adm.
Code 101),
rules covering regulatory proceedings
(35 Ill. ~dm.
Code 102),
and rules
for adjusted standards proceedings
(35 Ill.
Adm. Code 106).
Many of these new rules are proposed
in response
to SB 1834
(P.A. 85—1048), signed
by the Governor on July 14,
1988 and effective January
1,
1989.
This legislation changes
several
aspects of
the regulatory
and adjusted standards
processes, such as:
1) authorizing
the Board
to determine
whether
an economic impact study should be prepared by the
Department of Energy and Natural Resources
(ENR);
2)
establishing
a pre—hearing conference procedure for rulemakings;
and
3)
expanding the adjusted standards procedures.
The Board believes
that the rules proposed today will fully implement the provisions
of SB 1834.
Additionally, the Board has tightened and
reorganized
its existing
rules.
In preparing
this draft the Board has considered
the
comments filed by participants
in predecessordocke±sR82—~27,
R82—36, and R83—37,
as well as comments filed
in response- to the
Board’s RES 88—1.
(The Board presently anticipates taking action
concerning RES 88—1 on or about September
22.)
However,
participants who have commented on predecessor dockets are
encouraged
to reiterate any comments which they feel
have not
been fully addressed.
SUBSTANCE OF THE PROPOSAL
The Board has placed
a high priority on the preparation of
this proposal since
the signing of SB
1834.
This proposal
is the
product of collaborative efforts
of the Board’s professional
staff.
As
a practical matter,
after
consultation with
the
Administrative Code Unit,
the Board has determined
that the most
efficient way
to revise
the existing rules and add new provisions
is
to repeal
the existing Parts
and propose new Parts,
at the
92-263
—2--
same Part number, covering
the same subject matter.
Thus,
the
Board proposes to repeal existing Parts 101
(general rules),
102
(regulatory proceedings), and 107
(sanctions).
At the same time,
the Board proposes new Parts 101
(general rules)
and 102
(regulatory proceedings).
Please note that rules pertaining to
sanctions,
currently in Part 107, have been added
to Part 101.
Part 107 will
be repealed and left open for
two years, as is
required by
1 Ill.
Adm. Code 100.315.
New rules implementing the
general adjusted standards procedures of
SB 1834 have been
proposed as new Subpart G
in Part 106.
The existing Part 106 has
been .changed only to update references
to other Parts.
This docket (R88—5)
will be used only for revisions to Parts
101,
102, and 106.
The Board
is in the process of drafting
proposals to amend the balance of the procedural
rules and
intends to open new dockets for revisions to other portions of
the procedural
rules shortly.
The Board realizes that the proposed requirements
for the
filing of
a complete regulatory proposal may appear
to impose a
higher
initial burden on
a proponent than was the case
in the
past.
The Board
feels that the new proposed requirements are
reasonable expectations of the vast majority of regulatory
proponents, and that these requirements are necessary to focus
the regulatory process.
The Board specifically points out that
Section 102.104 provides for
a waiver of any requirement of Part
102 upon a showing that a particular requirement imposes an undue
burden on a person.
THE NEED TO EXPEDITE THIS PROCEEDING
SB
1834 has made some fundamental changes to the rulemaking
system which has evolved over the past 18 years.
The Board
accordingly believes
it is imperative
to have regulations
implementing these changes
in effect on or about January
1,
1989,
the effective date of SB
1834.
In order
to ach1eve~this result,
the Board believes it necessary to conduct this proceeding
in
adherence to the following presently projected schedule:
September 8:
Board adoption of proposed
first notice rules
September 22:
Board adoption of proposed
first notice Opinion
September 13:
Board submission of
proposed rules
to
Illinois
Register and of request to
Joint Committee On
Administrative Rules
(JCAR)
for its preliminary
review
92—264
—3—
September 23:
Illinois Register
publication of first
notice
October 10—21:
Two hearings, one
in
Chicago and one
in
Springfield
November 7:
Close of written comment
period
November 17:
Board adoption of second
notice proposal
November 18:
Board submission of second
notice to JCAR
January 4:
Expiration of 45 day
second notice period
January
5:
Board adoption of final
rules (unless earlier
adoption possible as a
result of early JCAR
action)
As this schedule
for Board action
is already quite tight, the
Board will not kindly view requests for continuance.
The Board had considered delaying the distribution of this
Proposed Order
until adoption of the supporting Proposed
Opinion.
However,
in light of the tight time frames here
projected,
the Board will not do so to facilitate early review by
all participants.
The Board anticipates that, as well
as
explaining
the rationale for various rules here proposed, the
Opinion will request comments on specific provisions which.have
(or have not) been included
in this proposal.
The Board would
accordingly request that participants defer
filing comments until
after they have reviewed the Board’s Opinion.
Finally additional
information concerning this proceeding will be outlined
in
a
Hearing Officer Order
to be issued shortly.
The following rules are proposed for
first notice.
The
Clerk of the Board
is directed
to file these proposed rules with
the Secretary of State.
TITLE
35:
ENVIRONMENTAL PROTECTION
SUBTITLE A:
GENERAL PROVISIONS
CHAPTER
I:
POLLUTION CONTROL BOARD
PART 101
GENERAL RULES
92—265
—4—
Section
101.100
101.101
101.102
101.103
101.104
101.105
101.106
101.107
101.108
101.109
Applicability
Definitions
Filing Of Documents
Form Of Documents
Length Of Briefs
Waivers
Incorporation Of Prior Proceedings
Appearances And Withdrawals
Substitution Of Attorneys
Computation Of Time
SUBPART B:
FILING AND PHOTOCOPYING FEES
Section
101.120
101.121
101.122
Filing Fees
Photocopying Fees
Forms Of Payment
Section
101.140
101.141
101.142
101.143
101.144
Section
101.160
101.161
101.162
Section
101.180
101.181
Applicability
Service Of Initial Filings
Service Of Subsequent Filings
Proof Of Service
Effective Date Of Service
SUBPART
D:
PUBLIC INFORMATION
Public Information
Non—Disclosable Information
Publications
SUBPART
E:
BOARD MEETINGS
Board Meetings
Agenda For Board Meeting
SUBPART F:
EX PARTE CONTACTS
Section
101.200
Ex Parte Contacts
Authority Of Hearing Officer
Hearing Decorum
SUBPART H:
MOTION PRACTICE
SUBPART
C:
SERVICE
Section
101.220
101.221
SUBPART G:
HEARINGS
92—266
—5—
Section
101. 240
101.241
101.242
101.243
101.244
101.245
101.246
101.247
Section
101.280
101.281
Applicability
Filing Of Motions And Responses
Contents Of Motions And Responses
Motions Attacking Jurisdiction
Motion For Summary Judgment
Motion Preliminary To Hearing
Motions For Reconsideration
Disposition Of Motion
SUBPART
I:
DISCOVERY
Subpoenas
Production
Of
Information
Sanctions
For
Refusal
To
Comply
With
Procedural
Rules, Board Orders,
Or Hearing Officer Order
Sanctions
For
Abuse
Of
Discovery
Procedures
SUBPART
K:
RELIEF
FROM
AND
REVIEW
OF
FINAL
ORDERS
Section
101.300
101.301
101.302
101.303
Appendix A
Appendix B
Appendix C
Appendix D
Appendix E
Section 101.100
Relief From Final Orders
Judicial Review Of Final Board Orders
Stay Procedures
Interlocutory
Appeals
Captions
Appearance Form
Withdrawal Of Appearance Form
Notice Of Filing
Certificate Of Service
Applicability
a)
This Part •governs the practices and procedures of
the
Pollution
Control
Board,
and
contains
rules
which
are
applicable
to
all
proceedings
conducted
by
the
Board.
This Part should be read in conjunction with 35 Ill.
Adm. Code 102
through 120, which contain rules
applicable
to specific proceedings conducted by the
Board.
b)
The provisions of
the Code of Civil Procedure
(Ill.
Rev.
Stat.
1987,
ch.
110,
pars.
1—101
et
seq.)
do not apply
to proceedings before
the Board unless otherwise
expressly stated.
Section
101.101
Definitions
Section
101.260
101.261
SUBPART
J:
SANCTIONS
92—267
—6—
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 Administrative Procedure Act
(Ill.
Rev.
Stat.
1987,
ch.
127,
par. 1001
et seq.)
“Attorney General” means
the Office
of the Attorney
General
of the State of Illinois
“Board” means
the Illinois Pollution Control Board.
“Chairman” means
the Chairman of
the Board.
“Clean Air Act” means the federal Clean Air Act
(42
U.S.C.
7401 et
seq.
(1986)).
“Clean Water Act” means
the federal Clean Water Act
(35
U.S.C. 1251 etseq.
(1986)).
“Clerk” means
the Clerk
of the Board.
“Contested case” means
an adjudicatory proceeding,
not
including regulatory,
quasi—legislative,
informational,
or similar proceedings.
“Document” means pleading, notice,
rnotion,
affidavit,
memorandum,
brief, petition, or other
paper or
-
combination of papers required or permitted
to be filed.
“DNS” means
the Illinois Department of Nuclear Safety.
“ENR” means
the Illinois Department of
Energy and
Natural Resources.
“JCAR” means
the Joint Committee on Administrative
Rules.
“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.
“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
92—268
—7—
authorized
in writing as an agency for that entity.
“Relevant” means
that having any tendency
to make the
existence
of any fact that
is of consequence to the
determination of the proceeding more probable or
less
probable that
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.).
“SDIIA” means
the federal Safe Drinking Water Act
(42
U.S.C.
300f et seq.).
“Site—specific”
means
a proposed or adopted
regulation,
not of general applicability,
which applies only to
a
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
a.m.
to 4:30 p.m. Monday through Friday, except
for
national and state
legal holidays.
The Board offices
are open from 8:30
a.m.
to 5:00 p.m. Monday through
Friday, except
for national
and state legal holidays.
b)
Filings received after
4:30 p.m.
will
be date—stamped
the following business day.
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.
Section 101.103
Form of Documents
a)
Documents shall clearly show the title of the proceeding
in which they are filed.
Appendix A of this Part sets
forth examples of proper captions.
Documents shall bear
a heading which clearly describes the nature
of the
relief sought, such
as,
but not limited
to “Petition for
Amendment
to Regulation,” “Complaint,” “Petition for
Variance,”
“Petition for
Review,” “Motion,”
or “Public
Comment.”
9 2—269
—8—
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, or subpoena need be filed with
the Clerk.
C)
After
the filing of the initial document in
a
proceeding,
all
filings,
including
exhibits,
shall
include the Board docket number for
the proceeding
in
which
the item
is
to be filed.
If the filing
is
a
document,
the docket number
shall appear on the first
page of the filing.
For
filings which are not
documents,
the docket number shall appear
on
a readily
visible portion of
the filing.
d)
Documents,
excluding exhibits,
shall he 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 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
with
the
filing
requirements would impose an undue
burden,
the Board
will grant the motion.
f)
Exhibits, where possible, shall be reduces
to cGnform to
the size requirements of subsection
(ci).
However, one
non—conforming copy may be filed with the Clerk’s
office.
g)
The original
of each document filed shall be signed by
the party or by its authorized representative or
attorney.
All copies submitted for
filing shall be made
from the signed original.
All documents shall bear the
business address and telephone number of
the attorney
filing the document, or
of the party who appears on his
Or her own behalf.
The Clerk
will refuse
to accept
for
filing any document which does not comply with this
subsection.
h)
Except
as
otherwise
provided
by
Ill.
Rev.
Stat.
1987,
ch.
116,
pars.
35—38,
or
by
leave
of
the
Board,
documents
on
microfiche
are
not
acceptable
for
filing.
92—270
—9—
1)
The
Clerk
may
refer
all
filings
which
do
not
conform
with
the requirements of this Section
to the Board
for
review.
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.
b)
No
post—hearing
brief,
brief
submitted
in
response
to
a
Board
order,
or
public
comment
submitted
in
lieu
of
a
brief
shall
exceed
50
pages
without
prior
approval
of
the
Board
or
hearing
officer.
No
reply
brief
shall
exceed
25
pages.
Section 101.105
Waivers
A
waiver
of
a
deadline
for
Board
action,
as
specified
in
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.
A
contingent
waiver
is
not
acceptable.
Section
101.106
Incorporation of Prior Proceedings
a)
Upon
the
request
of any person or on its own initiative,
the
Board
or
hearing
officer
may
incorporate materials
from
the
record
of
another
Board
docket
into
any
Proceeding.
The
person
seeking
incorporation
shall
file
with
the
Board
ten
copies
of
the
material
to
be
incorporated.
The
person
seeking
incorporation
shall
demonstrate
to
the
Board
or
the
hearing
officer
that
the
material
to
be
incorporated
is
relevant
to
the
proceeding.
b)
The Board will give the incorporated matter
the
appropriate
weight
in
light
of
the
following
factors:
the
standard
of evidence under which the material was
oreviously
presented
to
the
Board;
the
present
purpose
~or
incorporating
and
material;
and
the
past
and
current
opportunity
for
cross—examination
of
the
matters
asserted
within
the
incorporated
material.
Section
101.107
Appearances
And
Withdrawals
a)
Any
person
entitled
to participate
in Board proceedings
shall
appear
as
follows:
1)
A
natural
person
on
his
or
her
own
behalf
or
by
an
attorney
at
law
licensed
and
registered
to
practice
in
the
State
of
Illinois,
or
both.
—10—
2)
A
corporation,
in
contested
cases,
by
an
attorney
at
law
licensed
and
registered
to
practice
in the
State
of
Illinois.
3)
Any
other
person
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
written
notice
of
appearance with
the
Clerk,
together
with
proof
of
service on all participants or
their
representative.
A
sample
appearance
form
appears
in Appendix B of this Part.
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
on
all
participants
or
their
representative.
A
sample
notice
of
withdrawal
appears
in
Appendix
C
of
this
Part.
Section
101.108
Substitution
of
Attorneys
Any
attorney
who
substitutes
for
an
attorney
of
record
shall
file
a
written
appearance
pursuant
to
Section
101.107(c).
That
appearance
shall
identify
the
attorney
for
whom
the
substitution
is
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
da
on
which
the
act,
event
or
development
occurs
and
shall
run
unti
the
end
of
the
last
day,
or
the
next
business
day
if
the
last
day
is
a
Saturday,
Sunday
or
national
or
state
legal
holiday.
SUBPART
B:
FILING
AND
PHOTOCOPYING
FEES
Section 101.120
Filing Fees
a)
A person filing an action for which
a filing
fee
is
prescribed
by
the
Act
shall
pay
that
fee
at
the
time
the
petition
is
presented
to
the
Clerk
for
filing.
b)
The
types
of
petitions
for
which
fees
are
required
and
the
amount
of
those
fees
are
as
follows:
9 2—272
—11—
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;
Ill.
Rev.
Stat.
1987,
ch.
ill
1/2,
par.
1007.2.)
c)
The
Clerk will refuse to accept any petition which
is
not
accompanied
by
the
required
fee.
The
fee
must
be
paid
in
the
form
specified
in Section 101.122.
Section 101.121
Photocopying Fees
a)
All
files,
records,
and data may be copied
at Board
offices
in Chicago UPON PAYMENT OF REASONABLE
REPRODUCTION FEES TO BE DETERMINED BY THE BOARD.
(Section
7 of the Act, Ill. Rev.
Stat. 1987,
ch.
111
1/2,
par.
1007.)
b)
The
Board
will
contract
for
any
copying
that
would
impose
a
substantial
administrative
burden on the
Board.
The
person
requesting
such
copies
will
be
charged
the
reproduction charges
incurred
by
the
Board.
c)
Requests
for
copies
will
be
honored
in
as
timely
a
manner
as
possible.
Requests for copies
~y
mail
will
be
honored.
However,
the
Board
reserves
the
right
to
charge
the
requesting party
for
the mailing costs
incurred
by
the
Board.
Section
101.122
Forms
of
Payment
a)
The
filing fees specified
in Section
101.120
shall
be
paid by cashier’s check, money order, certified check,
or check drawn on an attorney’s account.
b)
Photocopying fees shall be paid by personal check,
cashier’s check, money order,
certified check,
or check
drawn on an attorney’s account.
c)
All checks
and money orders shall be made payable
to the
Illinois Pollution Control Board.
SUBPART C:
SERVICE
92—273
—12—
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 Of Initial Filings
A copy
of all initial
filings in any Board proceeding shall be
served upon all persons, required
by this Subtitle to be served,
or their registered agent.
35 Ill.
Adm. Code 102—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 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
First
Class
mail,
or by messenger service.
Section 101.143
Proof Of Service
a)
Service of all initial
filings pursuant
to Section
101.141
is proved by:
1)
In case of service by personal delivery, by
certificate
of the attorney, or affidavit of the
person other
than than an attorney, who made
delivery; or
2)
In case of service by mail,
by registered or
certified mail receipt, or by messenger service
receipt.
b)
Service of subsequent filings pursuant to Section
101.142
is proved
by:
1)
In case of service by personal delivery, by
certificate of the attorney, or affidavit of the of
the person other
than an attorney who made
delivery;
2)
In case of service by mail,
by certificate of
attorney, or affidavit of person other
than
attorney, which states
the date,
time, and place of
mailing,
the complete address which appeared on the
envelope, and the fact that proper postage was
prepaid.
Service may also be proved by messenger
Service receipt.
c)
A sample certificate
of service appears
in Appendix
E
of
92—2 74
—13—
this
Part.
Section 101.144
Effective Date Of Service
a)
In the case of service by personal delivery, service
is
complete on the date of
that personal delivery.
b)
In the case of service by registered or
certified mail,
or by messenger service, service
is complete on the date
specified on the registered
or certified mail receipt or
the messenger service receipt.
c)
Service by First Class mail
is presumed complete four
days after mailing.
SUBPART D:
PUBLIC INFORMATION
Section 101.160
Public Information
a)
The
Clerk
will
maintain
files
containing
all
information
submitted
to
or
produced
by
the
Board
or
any
of
its
members
relating
to
matters
within
the
Board’s
jurisdiction.
Without
limiting
the
foregoing,
the
files
will
include:
pleadings,
motions,
notices,
minutes,
transcripts,
exhibits,
orders
and opinions,
proposed
and
adopted regulations,
communications to or from the Board
or any Board member,
the Environmental Register and
other Board releases,
business records,
informal
complaints,
and internal communications filed at the
request of any Board member.
b)
All
files
will
be
open
to
reasonable
public
inspection
and
copying,
except
the
following
material:
1)
Internal
communications
between
and
among
Board
members
and
staff;
2)
Material
protected
from
public
disclosure
under
the
trade
secret
provisions
of
35
Ill.
Adm.
Code
120;
and
3)
Material
which
is
stamped
“Not
Subject
to
Disclosure”
by
Board
order,
pursuant
to
Section
101.141.
c)
The
Clerk
shall
maintain
a
list
of
all
files
open
to
public
inspection.
Section
101.161
Non—Disclosable
Information
a)
Only
the
following
materials
may
be
stamped
“Not
Subject
to
Disclosure”
by
the
Board:
1)
Information
privileged
against
introduction
in
92—275
—14—
judicial
proceedings;
2)
Information
concerning
secret
manufacturing
processes
or confidential data submitted by any
person
under
the
Act;
and
3)
Income
and
earnings
data
when
not
an
issue
in
the
proceeding.
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:
1)
Identification
of
the
precise
material,
or
parts
of
material,
for
which
non—disclosure
is
sought;
2)
Indication
of
the
particular
non—disclosure
category
into
which
the
material
falls;
and
3)
A
concise
statement
of
the
reasons
for
requesting
non—disclosure.
The application shall
be verified
and contain such data and information as 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.
The Board will promptly rule on every application and
inform
the applicant of
its decision.
Public inspection
of the material for non—disclosure shall be barred until
the application has been disposed
of by the Board
and
the time for appeal has run.
The Board may enter
conditional non—disclosure orders allowing withdrawal
by
the applicant of the material covered by such order, at
which time the Board’s ruling on the application shall
be based on the record excluding the material so
withdrawn.
Section 101.162
Publications
a)
At least once each month,
the Board will publish an
Environmental Register containing reports of Board
92— 276
—15—
activities
and
notices
of
meetings
and
hearings.
One
copy
will
be
sent
to
any
persons
without
charge,
upon
request.
b)
Copies
of
the
Act
and
regulations
in
effect
will
be
provided
in reasonable quantities without charge,
by
mail and at the Board’s Chicago office.
c)
The Board will regularly publish its decisions and
orders,
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 constitutes
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
(Ill.
Rev.
Stat.
1987,
ch.
ill
1/2,
par.
1034(d)).
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
WRITTEN
NOTICE
TO
THE
OFFICE
OF
EACH
MEMBER.
PUBLIC
NOTICE
OF
ALL
MEETINGS
WILL
BE
GIVEN
AT
LEAST
24
HOURS
IN
ADVANCE
OF
EACH
MEETING
BY
POSTING
AT
THE
BOARD’S
OFFICES.
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
MEMBERS
WILL
RECEIVE
SUCH
NOTICE
AS
IS
REASONABLE
UNDER
THE
CIRCUMSTANCES.
(Section
5
of
the
Act,
Ill.
Rev.
Stat.
1987,
ch.
111
1/2,
par.
1005.)
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,
unless
specifically
requested by the Board.
Section
101.181
Agenda
For
Board
Meetings
Unless
the
Board
determines
that
undue
delay
or
material
~re~udice
will
result,
rio
document
received
by
the
Clerk
for
tiling
after
4:30
p.m.
two
days
before
a
scheduled
Board
meeting
~li
be
placed
on
the
agenda
for
that
Board
meeting.
Any
such
tiling
will
appear
on
the
agenda
for
the
next
regularly
scheduled
92— 277
—16—
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 rulemaking proceedings,
but caution shall
be
exercised by Board members and employees
to avoid
prejudging
the merits of any potential case.
b)
Non—contested Case 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.
In the event such an ex parte contact does
occur, Board members and employees shall make every
communications become
a matter
of public record,
in
order
that information on which the Board bases
its
decisions can be ‘subject
to scrutiny and
to rebuttal.
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.
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
arid
ritten exhibits and rebuttal testimony and exhibits;
b)
Require
all participants
to state their position with
respect to the proposal;
92—278
—17—
c)
Administer
oaths
and affirmations;
d)
Examine witnesses and direct witnesses to testify;
e)
Regulate the course of the hearing;
f)
Establish
reasonable limits on the frequency and
duration of the testimony and questioning of any witness
and limit repetitious or cumulative testimony and
questioning;
g)
Issue,
in the name
of the Board,
an order requiring the
answering of interrogatories;
h)
Order
the production of evidence;
i)
Initiate, schedule and conduct
a pre—hearing conference;
j)
Issue subpoenas;
k)
Exclude late—filed documents from inclusion in the
record
for decision; and
1)
Rule upon motions
as specified in Section 101.247.
Section
101.221
Hearing Decorum
a)
Hearings should be conducted with fitting dignity and
decorum.
Any persons may record the proceedings by
tape,
film or other means,
provided however
that the
hearing officer may prescribe reasonable rules
to govern
the right to make such recordings.
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 taken of the witness while the witness
is testifying,
the hearing officer will prohibit such
recording during the testimony of
the
witness.
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.
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—120 conflict
with
or supplement this Subpart, that more specific Part governs.
Section 101.241
Filing Of Motions And Resoonses
a)
All motions shall
be
in writing,
unless made orally on
92—279
—18—
the record during a hearing,
and shall state whether
directed to
the Board
or
to the hearing officer.
If
the
motion
is directed
to the Board,
ten copies
shall be
filed with
the Clerk.
If the motion
is directed
to the
hearing officer,
two 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
may file
a response
to the motion.
If
no response
is
filed,
the participants 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.
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 when
appropriate.
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 when appropriate.
Section 101.243
Motions Attacking Jurisdiction
a)
All motions challenging the jurisdiction of the Board
shall
be filed within
14 days after service of the
initial filing
in that proceeding,
unless
the Board
determines
that material prejudice would result.
b)
A person may participate in a proceeding without waiving
any jurisdictional objection
if such objection
is timely
raised pursuant
to subsection
(a).
Section 101.244
Motion 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
K of
the Act.
Specific
rules
for
such motions for summary judgment are found
in 35
Ill.
Adm.
Code 103
(enforcement proceedings) and
35 Ill.
Adm. Code 105
(permit appeals).
92—280
—19—
Section
101.245
Motions Preliminary To Hearing
a)
All motions preliminary to hearing shall
be presented
to
the Board or
the hearing officer
at least
21 days prior
to the date of hearing,
unless allowed by the Board
or
the hearing officer
to 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 take all motions directed
to
it
with 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
order.
b)
Any response
to
a motion for reconsideration or
modification shall
be filed within 14 days from the
filing of
the motion.
c)
A timely—filed’motion for reconsideration or
modification stays
the effect of
the final order
until
final disposition
of the motion.
The time
for appeal of
the Board order runs anew after the Board rules upon the
motion unless otherwise provided.
Section 101.247
Disposition Of Motion
a)
The hearing officer may rule upon all motions except any
motion to dismiss,
motion
to decide
a proceeding
on the
merits, motion
to strike any claim or defense for
insufficiency or want of proof, motion for summary
judgment,
or motion for reconsideration.
The hearing
officer will
refer all such motions
to the Board.
b)
No interlocutory appeal
of a motion may be taken
to the
Board
from a ruling of
the hearing officer,
except by
allowance of the Board after 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 participants.
A continuing
objection
to
a hearing officer ruling may be raised at
the close of hearing and
in post—hearing submissions.
92—28 1
—20—
c)
Unless
otherwise
ordered
by
the
Board,
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 written motion by any participant,
the hearing
officer
or the Board may issue subpoenas
for attendance
of witnesses at
a hearing or deposition.
Subpoenas may
include
a command
to produce books,
papers,
documents,
or tangible things designated therein and relevant to
the matter
under consideration.
b)
If the witness
is
a non—resident of
the state,
the
hearing officer or Board
order may provide specific
terms
and conditions
in connection with his or her
appearance,
including payment
of the witness’ reasonable
expenses by the moving participant.
c)
A subpoena shall state
the
title of the action and shall
command each person
to whom it
is directed
to attend and
give testimony at the time and place therein
specified.
A copy of the subpoena shall be filed with
the Clerk and served upon the hearing officer.
ci)
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 or oppressive.
e)
Failure of any witness
to comply with
a Board subpoena
shall
subject the witness
to
sanctions
under
this
Part.
Section 101.261
Production Of 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 delay,
expense, harassment,
or oppression or
to protect materials from disclosure consistent with the
provisions
of Section
7 and 7.1 of the Act and
35
111.
Adm. Code
120.
SUBPART J:
SANCTIONS
Sections 101.280
Sanctions For Refusal To Comply With
92—282
—21—
Procedural
Rules,
Board
Orders,
Or
Hearing
Officer Orders
If
a party or any person unreasonably refuses
to comply with any
provision
of 35
Ill. Adm. Code 101—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:
a)
That further proceedings be stayed until
the order or
rules
are complied with,
except that
if the proceeding
is on a petition for variance or permit denial appeal,
such proceeding shall 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;
ci)
That
a witness be barred from testifying concerning that
issue;
e)
That,
as
to claims or defense asserted
in any pleading
to which
that issue
is material,
a judgment by default
be entered against the offending person or
that the
proceeding be 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
c~freas~nab1e
expenses incurred
in obtaining
an order pursuant
to this
Section.
Section 101.281
Sanctions For Abuse Of Discovery Procedures
The Board
or the hearing officer may order
that information
obtained through abuse of discovery procedures be suppressed.
If
a person wilfully obtains
or attempts
to obtain
information by an
improper discovery method, wilfully obtains or attempts
to obtain
information
to which he
is not entitled,
or otherwise abuses
discovery rules,
the Board may enter any order provided for
in
this Subpart.
SUBPART
K:
RELIEF FROM AND REVIEW OF FINAL ORDERS
Section 101.300
Relief From Final Orders
92—283
—22—
SUBPART
K:
RELIEF
FROM
AND
REVIEW
OF
FINAL
ORDERS
Section 101.300
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.
During the
pendency of an appeal, such mistakes may be so corrected
before the appeal
is docketed
in the appellate court,
and thereafter while the appeal
is pending may be so
corrected with leave of appellate court.
b)
On motion,
the Board may relieve
a party from a final
order,
for the following:
1)
Newly discovered evidence which existed
at
the time
of hearing and which by due diligence could
not
have been timely discovered;
or
2)
Fraud
(whether intrinsic or extrinsic),
misrepresentation,
or other misconduct of
an
adverse party;
or
3)
Void order, such as an order based upon
jurisdictional defects.
c)
A motion under this Section does not affect the finality
of a Board order or suspend the operation of a 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 by
affidavit or other appropriate showing as to matters not
of record.
All parties
to the motion shall
be notified
as provided by Section 101.141(a).
ci)
A motion under subsection
(b)
shall be tiled with the
Board within one year after entry of the order except
that a motion pursuant
to subsection (b)(3)
shall
be
filed within a reasonable time after entry of the order.
Section 101.301
Judicial Review Of 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,
ch.
111 1/2,
pars. 1029 and 1041), Rule 335 of the Rules
of the Supreme Court of Illinois
(Ill. Rev. Stat.
1987,
ch.
llOA,
par.
335)
and the Administrative Review Law
(Ill.
Rev.
Stat.
1087,
ch.
110,
pars.
3—101
———
3—112).
b)
For purposes of judicial
review, Board action becomes
final upon enactment,
or
upon subsequent Board action on
any motion
for reconsideration under Section 101.246.
9 2—284
—23—
Section
101.302
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 101.303
Interlocutory
Appeals
a)
When the Board,
in making an interlocutory order not
otherwise appealable,
finds pursuant to Rule
308
of the
Rules of the Supreme Court of Illinois
(Ill. Rev. Stat.
1987,
ch.
llOA,
par.
308)
that the order
involves a
question of law as to which there
is substantial ground
for difference
of opinion and that an immediate appeal
from the order may materially advance the ultimate
termination of the litigation,
the Board may
so state
in
writing,
identifying
the question of law involved, on
its own motion or on motion of
any party.
b)
Appeal
of such interlocutory order by the Board shall
be
in accordance with Rule 308
of the Supreme Court
of
Illinois.
Appendix
A
Captions
Illustration A
General Rulemaking
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
REVISION OF THE FLUORIDE
)
R
DRINKING WATER STANDARD:
)
(Rulem&cing)
AMENDMENTS TO 35
ILL. ADM.
CODE XXX.XXX
)
Illustration B
Site—specific Rulemaking
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
PETITION OF ABC COMPANY FOR
)
R
SITE—SPECIFIC AIR REGULATION:
)
(Site—Specific Rulemaking)
35
ILL.
ADM. XXX.XXX
92—285
—24—
Illustration C
Adjusted Standards Petitions
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN 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 Appeals And Variances
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
ABC COMPANY,
Petitioner,
)
v.
)
PCB
)
(Permit appeal or variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
Illustration E
Enforcement Cases
BEFORE THE ILLINOIS
POLLUTION
CONTROL
BOARD
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
(or OTHER
)
PERSON’S NAME),
Complainant,
v.
)
PCB
)
(Enforcement)
ABC COMPANY,
Respondent.
92—286
—25—
Illustration
F
Administrative Citation
BEFORE THE
ILLINOIS
POLLUTION CONTROL BOARD
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY
(or UNIT OF
)
LOCAL GOVERNMENT),
)
)
Complainant,
v.
)
AC—
ABC COMPANY,
)
(Administrative Citation)
IEPA
Number
Respondent.
Appendix
B
APPEARANCE
FORM
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
APPLICABLE
CAPTION
(see Appendix A)
)
)
docket number
)
)
)
APPEARANCE
I hereby file my appearance
in this proceeding,
on behalf of
ABC Company.
Attorney’s Name
Name of Attorney and Firm
Address
Telephone Number
92—287
—26—
Appendix C
WITHDRAWAL OF APPEARANCE FORM
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
APPLICABLE CAPTION
)
(see Appendix A)
)
)
)
docket number
NOTICE
OF
WITHDRAWAL
OF
APPEARANCE
I
hereby
give
notice
of
withdrawal,
of
my
appearance
as
representative of ABC Company in
this proceeding.
Attorney’s Name
Name of Attorney and Firm
Address
Telephone Number
Appendix D
Notice
of Filing
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
APPLICABLE CAPTION
)
(see Appendix A)
)
)
)
docket number
NOTICE OF FILING
TO:
(List
all persons served.
PLEASE TAKE NOTICE that
I have today filed with
the Office
of the Clerk of the Pollution Control Board
the
specify
what
document was filed
of
name
of persons filing the document,
a
copy of which is herewith served upon you.
92—288
—27—
Name of Attorney or Other
Date
Representative
Name
Address
Telephone Number
Appendix E
Certificates Of Service
Illustration A
Service by Non—Attorney
PROOF OF SERVICE
I,
the undersigned,
on oath state
that I have serviced the
attached
describe
document served,
by
describe
method of
service,
upon the following persons:
(list persons served)
signature
Notary Seal
SUBSCRIBED AND SWORN TO BEFORE
ME
this
____
day of
___________,
l9_.
Notary Public
Illustration B
Service By Attorney
CERTIFICATE
OF
SERVICE
I, the undersigned,
certify that
I
have
served
the attached
describe
document served,
by
describe
method of service), upon
the following persons:
(list of persons served)
Date
signature
92—289
—28--
TITLE
35:
ENVIRONMENTAL
PROTECTION
SUBTITLE A:
GENERAL PROVISIONS
CHAPTER
I:
POLLUTION CONTROL BOARD
PART 102
REGULATORY AND INFORMATIONAL
HEARINGS AND PROCEEDINGS
SUBPART A:
GENERAL PROVISIONS
Section
102.100
102.101
102.102
102. 103
102.104
102.105
Section
102.140
102.141
102.142
Section
102.160
102.161
102. 162
102. 163
102.164
102.165
Section
102.240
102. 241
102.242
Applicability
Definitions
Incorporations By Reference
Types Of Regulatory Proposals
Waiver Of Requirements
Other Proceedings
SUBPART B:
PROPOSAL OF
REGULATIONS OF GENERAL APPLICABILITY
Proposal
Of
Regulations
Contents
Of
Proposal
Dismissal Of Proposal
Proposal
Of
RCRA
Amendments
SUBPART
C:
PROPOSAL OF REGULATIONS NOT OF
GENERAL APPLICABILITY
Proposal Of Regulations Not Of General
Applicability
Contents Of Proposal
Dismissal Of Proposal
SUBPART D:
CONTENTS OF SITE—SPECIFIC
PROPOSALS PERTAINING TO WATER
Relationship With Other Rules
Description Of Facility
Description Of Affected Area
Assessment Of Environmental Impact
Consistency
With
Federal
Law
Evaluation Of Control Options
SUBPART
H:
AUTHORIZATION
AND
NOTICE
OF
HEARINGS
Authorization
Of
Hearing
Notice Of Hearing
Notice Of Site—Specific RCRA Proposals
Section
102.120
102.121
102.122
102.121
92—290
—29—
Board
Determinations
Request For Determination
Basis For Board Determination
Notice Of Board Determination
SUBPART 3:
AUTHORITY OF HEARING OFFICER
Sect ion
102.280
102.281
102. 282
Section
102.300
102.301
102.302
Section
102.340
102. 341
102.342
102. 343
102. 344
102.345
Authority
Of
Hearing
Officer
Notice And Service Lists
Effect Of Hearing Officer Ruling
SUBPART
K:
PRE-HEARING CONFERENCES
Initiation and Scheduling
Pu rpose
Pre—hearing Order
SUBPART
L:
MOTIONS AND DISCOVERY
Filing Of Motions And Responses
Production Of Information
Subpoenas
SUBPART M:
REGULATORY HEARINGS
Pre—submitted Testimony
Transcript
Admissible
Information
Presentation
Of
Testimony
Questioning
Of
Witnesses
Record For Decision
SUBPART
N:
ECONOMIC IMPACT HEARINGS
Hearings On The Economic Impact Study Of New
Proposals
Hearings On The Economic Impact Study Of Existing
Regulations
SUBPART 0:
PUBLIC COMMENTS
Section
102.380
Public
Comments
SUBPART
0:
BOARD
ACTION
Section
102.260
102.261
102.262
102. 263
SUBPART
I:
ECONOMIC
IMPACT STUDY DETERMINATIONS
Section
102.320
102.321
102.322
Section
102.360
102.361
92—291
—30—
Revision Of Proposed Regulations
Adoption Of Regulations
First Notice Of Proposed Regulations
Second Notice Of Proposed Regulations
Notice Of Board Final Action
Adoption Of
RCRPA Rules
Adoption Of Identical In Substance Regulation
Adoption Of Emergency Regulations
Adoption Of Peremptory Regulations
Adoption
Of
Temporary
Regulations
SUBPART
Q:
MOTION FOR RECONSIDERATION AND APPEAL
Filing Of Motion
For Reconsideration
Disposition Of Motions For Reconsideration
Appeal
Section 102.100
Applicability
This Part applies to all regulatory and informational hearings
and proceedings, and shall be read in conjunction with 35
Ill.
Adm. Code 101.
Hearings conducted pursuant
to this Part shall be
quasi—legislative
in nature,
except that all testimony shall be
sworn.
All persons taking part
in these hearings are
participants, rather than parties as
in contested cases.
Section 102.101
Definitions
The following definitions
shall apply
to this Part:
“Act” means
the Environmental Protection Act
(Ill.
Rev.
Stat.
1987, ch.
111
1/2,
par.
1001 et seq.).
“Agency” means the Illinois Environmental Protection
Agency.
“APA” means
the Administrative Procedure Act
(Ill.
Rev.
Stat.
1987,
ch.
127,
par.
1001 et seq.).
“Attorney General” means
the Office of the Attorney
General of the State of Illinois.
“Board” means
the Illinois Pollution Control Board.
“Chairman” means the Chairman of the Board.
“Clerk” means
the Clerk of the
Board.
“Document” means pleading,
notice,
motion,
affidavit,
memorandum,
brief,
petition,
or other paper required
or
permitted to be
filed.
Section
102.400
102.401
102.402
102.403
102.404
102.405
102.406
102.407
102.408
102. 409
Section
102.420
102.421
102 .422
92—292
—31—
“DNS”
means
the
Illinois
Department
of
Nuclear
Safety.
“Economic impact study” means
the economic impact study
performed by ENR.
“ENR”
means
the
Illinois Department of
Energy and
Natural Resources.
“Fire
Marshall”
means
the Office of the State Fire
Marshall.
“Identical
in
substance
regulations”
means
STATE
REGULATIONS
WHICH
REQUIRE
THE
SAME
ACTIONS
WITH
RESPECT
TO
PROTECTION
OF
THE
ENVIRONMENT,
BY
THE
SAME
GROUP
OF
AFFECTED
PERSONS,
AS
WOULD
FEDERAL
REGULATIONS
IF
THE
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
ADMINISTERED THE SUBJECT PROGRAM IN ILLINOIS.
(Section
7.2 of
the Act.)
“Identical
in substance rulemakings” are those
proceedings conducted pursuant
to Sections 13(c),
13.3,
17.5,
22.4(a),
22.4(d)
and
22.7(d)
of the Act.
“JCAR” means the Joint Committee on Administrative
Rules.
“Peremptory
rulemaking”
means
ANY
RULEMAKING
WHICH
IS
REQUIRED AS A RESULT OF
FEDERAL
LAW,
FEDERAL RULES AND
REGULATIONS,
OR
AN ORDER OF A COURT,
UNDER
CONDITIONS
WHICH PRECLUDE COMPLIANCE WITH THE GENERAL RULEMAKING
REQUIREMENTS OF SECTION 5.01 OF THE APA AND WHICH
PRECLUDE THE EXERCISE BY THE BOARD AS TO THE CONTENT OF
THE RULE.
(Section 5.03 of
the APA.)
“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.).
“RCRA
rules”
means
35
Ill. Adm. Code 703,
720,
721,
722,
723,
724,
and
725.
“Relevant” means that having any tendency
to make the
existence of any fact that is of consequence
to the
determination of the proceeding more probable or less
probable
that
it would be without the information.
“Required
rule”
means
a
rule
that
is
NEEDED
TO
FULFILL
THE REQUIREMENTS OF THE FEDERAL CLEAN WATER ACT
(35
U.S.C.
1251
ET
SEQ.),
SAFE
DRINKING
WATER
ACT,
(42
U.S.C.
300f ET SEQ.), CLEAN AIR ACT
(42 U.S.C.
7401 ET
SEQ.), OR RESOURCE CONSERVATION AND RECOVERY ACT
(42
U.S.C.
6901 ET SEQ.) OTHER THAN A RULE TO BE ADOPTED
UNDER
SECTION
13(c),
13.3,
17.5,
22.4(a),
22.4(d),
OR
22.7 OF THE ACT.
(Section
28.2
of
the
Act.)
92—293
—32—
“Site—specific”
means
a
proposed
or
adopted
regulation,
not of general applicability, which applies only
to
a
specific
facility
or
geographic
site.
“USEPA” means
the United States Environmental Protection
Agency.
Section 102.102
Incorporation By Reference
40
CFR
131
(1987)
is
incorporated
by
reference.
This
incorporation by reference contains no
later amendments or
editions.
Section 102.103
Types Of Regulatory Proposals
a)
The Act provides for three
types of regulatory
proposals:
1)
Identical
in
substance
proposals,
as
defined
in
Section
102.101;
2)
Federally required rules,
as defined in Section
102.101; and
3)
Other regulatory proposals,
both of general
applicabilitiy and not
of general applicability.
b)
Regulations arising from these
types of proposals may be
adopted
through
four
types
of
rulemaking:
1)
General rulemaking pursuant to Section 5.01 of the
APA
(Ill. Rev. Stat.
1987,
ch.
127,
par. 1005.01),
and Sections 26 and
27 of the Act
(Ill.
Rev.
Stat.
1987,
ch.
111 1/2, pars.
1026—1027);
2)
Emergency rulemaking pursuant tO~Section 5.02 of
the
APA
(Ill.
Rev.
Stat.
1987,
ch.
127,
par.
1005.02) and Section
27 of the Act;
3)
Peremptory rulemaking pursuant
to Section 5.03 of
the
APA
(Ill.
Rev.
Stat.
1987,
ch.
127,
par.
1005.03); and
4)
Temporary
rulemaking
pursuant
to
Section
27(b)
of
the Act.
Section 102.104
Waiver Of Requirements
The Board may waive
any of
the requirements
of this Part upon a
showing
by
a person that
a particular requirement would create an
undue burden on that person.
Section 102.105
Other Proceedings
9 2—294
—33—
The Board may conduct such other noncontested
or informational
hearings
as may be necessary to accomplish the purposes of
the
Act.
Such other hearings shall be conducted according
to this
Part
to the extent applicable.
SUBPART B:
PROPOSAL OF
REGULATIONS OF GENERAL APPLICABILITY
Section 102.120
Proposal of Regulations
Any person may submit
a regulatory proposal for the adoption,
amendment,
or repeal
of a regulation.
Ten
(10)
copies
of each
proposal
shall be filed with the Clerk and one copy each with the
Attorney General,
the Agency and ENR.
Section 102.121
Contents
of Proposal
Each regulatory proposal shall
include:
a)
The language of the proposed regulation or amendment,
including an identification of
the existing regulatory
language proposed
to be amended
or deleted.
Language
being added
shall
be indicated by underscoring and
language being deleted shall be indicated by strike-
outs;
b)
A statement of the reasons supporting
the proposal,
including a statement of the facts which support
the
proposal,
and a statement of the purpose and effect of
the proposal.
The statement shall discuss the
applicable factors listed
in Section 27 of
the Act.
Where
the proposal covers more than one substantive
point,
the statement of reasons
shall
include statements
in support
of each point.
The statement
of reasons
shall
include a
technical and economic justification for
proposed controls;
c)
Pursuant to Section 27 of the Act, A RECOMMENDATION OF
WHETHER AN ECONOMIC IMPACT STUDY
IS ADVISABLE.
The
recommendation shall describe, TO THE EXTENT REASONABLY
PRACTICABLE, THE UNIVERSE OF AFFECTED SOURCES AND
FACILITIES AND THE ECONOMIC IMPACT OF THE PROPOSED
RULE.
The recommendation shall also address
the
questions contained
in the Analysis of Economic and
Budgetary Effects
of Proposed Rulemaking, set forth at
1
Ill.
Adm.
Code 220, Exhibit
B,
and identify
issues
to be
addressed by any economic impact study;
ci)
Copies of all testimony
to
be presented by the proponent
at hearing;
e)
Copies
of all exhibits and references;
92—295
—34—
f)
Copies
of
all
material
to
be
incorporated
by
reference;
and
g)
Proof
of service upon all persons required
to be served
pursuant
to Section 102.120.
Section 102.122
Dismissal of Proposal
a)
Failure of
the proponent
to satisfy the content
requirements of
Section 102.121
or failure
to respond
to
Board requests for additional information will render
a
proposal subject to dismissal for inadequacy.
b)
Failure
of the proponent to pursue disposition of
the
proposal
in
a
timely
manner
will
render
a
proposal
subject
to dismissal.
Section 102.123
Proposal
of RCRA Amendments
Any proposal
to amend
the RCRA regulations shall:
a)
Indicate whether
it
is made pursuant to the provisions
of Section 22.4(a), 22.4(b)
or
22.4(c)
of the Act;
b)
Include
a listing of all amendments
to the corresponding
federal regulations since
the last amendment
of the
Board’s RCRA rules;
c)
Include a certificate of service indicating that
a copy
of the proposal has been served on the United States
Environmental Protection Agency
(USEPA).
Service shall
be made at the following address:
Director, Waste Management Division
USEPA,
Region V
230
South Dearborn Street
Chicago,
Illinois 60604
SUBPART C:
PROPOSAL OF REGULATIONS
NOT OF GENERAL APPLICABILITY
Section 102.140
Proposal of
Regulations Not of General
Applicability
Any person or group of persons may submit
a written proposal for
the adoption, amendment
or repeal
of
a substantive regulation not
of
general
applicability,
as
it applies
to a specific site or
sites,
geographical
location,
or
activity.
Ten
(10)
copies
of
each
proposal
shall
be
filed
with
the
Clerk
and
one
copy
each
served
upon
the
Agency,
ENR,
and
the
Attorney
General.
Section
102.141
Contents
of
Proposal
92—296
—35—
a)
The
proposal
shall
identify
the
regulations
which
are
to
be
addressed
by
the
proposed
amendment
and
the
language
to be added,
deleted, or repealed.
Language being
added
shall be indicated by underscoring and language being
deleted shall be
indicated
by strike—outs.
b)
Except as otherwise provided
in the Act,
the proposal
shall
include a statement of
reasons and facts
supporting
the proposal,
and a statement of the purpose
and effect of
the proposal.
c)
The proposal shall also comply with all requirements set
forth in Section 102.121.
d)
In the event that the proposed rule would replace the
applicability of
a general rule
to the pollution source,
the proposal shall specify, with supporting
documentation,
the
reasons
why
the
general
rule
is
not
technically
feasible
or
economically
reasonable
for
the
particular
pollution
source.
Such
documentation
shall
include
relevant
information
on
other
similar
pollution
sources’
ability
to
comply
with
the
general
rule.
e)
Where
circumstances
may
render
any
information
requested
in
this
Subpart
inapplicable,
the
proposal
shall
include
a
justification
for
such
inapplicability.
f)
The
proposal shall
demonstrate that the Board may grant
the requested relief consistent with federal
law.
Section 102.142
Dismissal of Proposal
a)
Failure of the proponent
to satisfy the content
requirements for proposals under
this Subpart or failure
to respond
to Board requests for additional
information
will render
a proposal subject
to dismissal for
inadequacy.
b)
Failure of the proponent to pursue disposition of
the
proposal
in
a timely manner will render
a
proposal
subject to dismissal.
SUBPART
D:
CONTENTS
OF
SITE—SPECIFIC
PROPOSALS
PERTAINING
TO
WATER
Section 102.160
Relationship With Other Rules
This Subpart contains specific provisions
for the contents
of
site—specific proposals pertaining
to water.
The rules
in this
Subpart should
be read in conjunction with,
and are cumulative
to, Subpart
C.
Section 102.161
Description of Facility
9 2—297
—36—
All
proposals
shall
describe
the
facility
for
which
the
regulatory
change
is
sought,
including:
a)
The location,
either by street
or county
road,
or by
legal description and
a map adequate
to identify the
facility’s
location and other nearby
relevant physical
features;
b)
The
activity performed at the facility, processes
employed,
and materials used;
c)
The waste material produced or discharged including
quantity,
in terms of volume or
flow rate,
and
the
content,
in terms of concentration or mass load,
of
pertinent physical,
thermal, chemical, biological,
bacterial,
and
radioactive properties;
d)
The
type
of
treatment
or
control
and
the
components
of
the
treatment
system
or
control
equipment
currently
employed
or
proposed;
and
e)
A list of all prior
Board proceedings concerning the
facility and the specific parameters
for which
regulatory
change
is
sought,
arranged
by
Board
docket
number.
Section 102.162
Description of Affected Area
All proposals shall describe:
a)
The identity of and effect upon the receiving waters;
b)
The present and anticipated future public and private
uses of and access
to the affected waters;
c)
The
nature
of
the
surrounding
land
uses,
zoning
and
population characteristics;
and
ci)
The other facilities within the affected area that might
benefit from or be adversely affected by the proposal.
Section 102.163
Assessment of Environmental Impact
a)
All proposals shall describe:
1)
The current aquatic uses of the affected waters;
2)
The causes of
any impairment
in the aquatic uses;
and
3)
The aquatic uses which might be attained
based on
the physical, chemical and biological
characteristics
of
the affected waters.
9 2—298
—37—
b)
All proposals
shall describe
the condition of and the
environmental impact upon the affected waters under
current operations with respect
to:
1)
The attainment
of and compliance with presently
applicable water quality standards;
2)
The ability
to support currently designated uses
as
contained
in
35
Ill.
Adm. Code 303.
c)
All proposals shall describe the condition of
arid
the
environmental
impact upon the affected waters
if the
proposal were adopted with respect
to:
1)
The attainment of and compliance with presently
applicable water quality standards;
2)
The ability to support currently designated uses as
contained
in
35 Ill. Adm. Code 303; and
3)
The ability to support any higher level uses other
than currently designated
in
35
Iii.
Acim.
Code 303.
Section 102.164
Consistency with Federal Law
a)
All proposals shall demonstrate that relief
can be
granted consistent with the Clean Water Act
(33 U.S.C.
1251 et seq.), USEPA water quality guidelines and
standards,
any other federal
regulation,
and any
wastewater treatment management plan certified and
approved pursuant to Section 208 of the Clean Water
Act.
b)
Any proposal requesting relief from
a specific water
quality standard contained in
35
Ill.
Adm.
Code 302,
use
designation contained
in 35 Ill.
Adm. Code 303 or
304.105, or necessitating relief or
relaxation of
any
such rule in order
to realize the benefit intended by
the proposal shall include
a statement~of
the proposal’s
consistency with USEPA water quality standards and use
designation criteria as contained
in
40 CFR 131.
Section 102.165
Evaluation of Control Options
a)
All proposals
shall describe
the treatment or control
options available,
including costs
and efficiencies,
as
to:
1)
Present levels of control;
2)
Past efforts
to obtain compliance with applicable
regulations;
and
3)
Any available or proposed control options including
the elimination of the source.
92—299
—38—
b)
The description of costs
shall
include,
at
a minimum,
estimates of:
1)
Capital costs;
2)
Operating costs;
3)
Total annualized costs;
and
4)
Any economic benefit
to the proponent, such as
material recovery.
c)
The description of efficiencies shall include
information on design efficiency and operating
efficiency.
SUBPART H:
AUTHORIZATION AND NOTICE OF HEARINGS
Section 102.240
Authorization of Hearing
a)
The Clerk
shall assign
a docket number
to any proposal
arid distribute copies
to each Board member.
All
regulatory proposals will
be placed on the Board agenda
for determination of adequacy under the Act and Sections
102.121 and 102.141.
IF THE BOARD FINDS THAT ANY SUCH
PROPOSAL
IS
NOT PLAINLY DEVOID OF MERIT, DOES NOT DEAL
WITH A SUBJECT ON WHICH A HEARING HAS BEEN HELD WITHIN
THE PRECEDING
6 MONTHS,
IS ACCOMPANIED BY AN ADEQUATE
STATEMENT OF SUPPORTING REASONS AND A PETITION SIGNED BY
AT LEAST 200 PERSONS, and meets the requirements
of this
Part, THE BOARD WILL SCHEDULE A PUBLIC HEARING FOR
CONSIDERATION OF THE PROPOSAL.
IF A PROPOSAL
IS MADE BY
THE AGENCY,
ENR, OR DNS, THE BOARD SHALL SCHEDULE A
PUBLIC HEARING WITHOUT REGARD TO THE ABOVE CONDITIONS.
Pursuant
to Section
28 of the Act,
THE BOARD MAY ALSO
IN
ITS DISCRETION SCHEDULE A PUBLIC HEARING UPON ANY
PROPOSAL WITHOUT REGARD TO THE ABOVE CONDITIONS.-
(Ill.
Rev. Stat.
1987,
ch. 111
1/2,
par.
1028.)
If the Board
denies
a hearing,
it will enter
an order setting forth
its reasons for the denial, and will notify the
proponent of
its decision.
Notwithstanding
the above,
a
proposal will proceed
to hearing only after
the
Proponent cures any inadequacy identified
by Board
order.
b)
When the Board authorizes
a hearing,
the Chairman will
designate an attending Board member.
A member
of the
Board may serve as hearing officer
if
otherwise
qualified,
and such hearing need not be attended by
another Board member.
c)
In the case of
a proposed
regulatory change under
the
provisions
of
35
Ill.
Adm. Code 302.211(j)
or
92—300
—39—
304.141(c),
the requirement of subsection
(a)
relating
to
a requirement
of 200 signatures shall not apply.
tn
such case only
a single hearing
shall
be required,
to be
held in the affected county.
ci)
The Board may consolidate
two or more proposals
for
hearing or decision.
Section 102.241
Notice of Hearing
a)
The hearing officer will set
a time and place
for
hearing.
The Clerk
shall give notice
of the date of the
hearing
as follows:
1)
By notice
in the Board’s Environmental Register;
a rid
2)
At least
20 days prior
to the hearing date, by
public advertisement in
a newspaper of
general
circulation
in the county
in which the hearing
is
to be
held.
In the case of regulatory proposals
concerning air pollution and RCRA,
newspaper notice
shall
be published at least
30 days prior
to the
hearing date.
b)
The hearing officer will give notice
by mail
to the
proponent and
to all persons who have submitted their
flames and addresses to the Clerk concerning the
proposal.
c)
Hearings which are continued on the hearing record for
a
period
of less than
45 days do not require notice that
complies with subsections
(a)
and
(bY.
Section 102.242
Notice of Site—Specific RCRA Proposals
a)
Public notice of hearings on site—specific. RCRA
proposals shall be given at least 30
days before- the
date of the hearing.
b)
In addition
to the requirements of Section
28 of the Act
and Section 102.211,
the Board,
at
a minimum, will give
notice of hearings on a site specific RCRA proposal
to
the following persons:
1)
Federal agencies as designated
by USEPA;
2)
Illinois Department
of Transportation;
3)
Illinois Department
of Conservation;
4)
Illinois Department
of Energy and Natural
Resources;
92—301
—40—
5)
Illinois Department of Public Health;
6)
The governor
of any other state adjacent
to the
county
in which the facility is located; and
7)
Elected officials of any counties,
in other states,
adjacent
to the county
in which
the facility is
located, and elected officials
in any municipality,
in another state,
if
it
is the closest population
center
to the facility.
c)
In addition to the methods of
notice by publication of
Section
28 of the Act and Section 102.241,
the Board
will give notice by radio broadcast in the area of the
facility.
That notice will include
the information
required by subsections (d)(2)
and
(d)(4)
through
(d)(8)
below.
ci)
A hearing notice on
a site—specific RCRA proposal will
include
the following information:
1)
The address
of the Board
office;
2)
Name and address
of the proponent and,
if
different,
of
the facility for which
the site—
specific
rule
is sought;
3)
A brief description of the business conducted at
the facility
and the activity described
in the
Petition;
4)
A description of
the relief requested
in the
petition and the Board’s docket number
of the
Proceeding;
5)
Name,
address and telephone number of the Clerk of
the Board,
from whom interested.persoj-is may obtain
further information,
including copies
of the
proposal;
6)
The name,
address and telephone number of the
Agency’s representative
in the rulemaking;
7)
A description of
any written comment period or
a
statement that
a comment period will be established
in the future;
8)
A statement that the record
in the rulemaking
is
available
at the Board office for inspection,
except those portions which are claimed or
determined to be trade secrets,
and that procedures
are available whereby disclosure may be sought by
the public pursuant
to 35 Ill.
Adm. Code 120.
92—302
—41—
9)
A statement that site specific
rules may be adopted
pursuant
to
Title VII
of
the Act and
35
Ill. Adm.
Code 102,
and
a reference to the Board regulations
sought
to be modified;
and
10)
Any additional information considered necessary or
proper.
SUBPART
I:
ECONOMIC IMPACT STUDY DETERMINATIONS
Section 102.260
Board Determinations
a)
Within
60 days of the date that the Board accepts
a
proposal
for hearing pursuant to Section
28
of the Act
and Section 102.210,
the Board shall determine whether
an economic impact study should
be prepared.
b)
Notwithstanding
subsection
(a), AT ANY TIME PRIOR TO THE
CLOSE OF THE RECORD DURING THE RULEMAKING PROCEEDING,
THE BOARD MAY DETERMINE THAT AN ECONOMIC IMPACT STUDY
SHOULD
BE PREPARED.
Such
a determination may be made IF
THE PROPOSAL HAS BEEN SUBSTANTIALLY MODIFIED OR
IF
INFORMATION
IN THE RECORD INDICATES THAT AN ECONOMIC
IMPACT STUDY WOULD BE ADVISABLE.
(Section 27 of the
Act.)
c)
IF THE BOARD DETERMINES THAT AN ECONOMIC IMPACT STUDY
SHOULD BE CONDUCTED,
ENR SHALL CONDUCT SUCH A STUDY IN
ACCORDANCE WITH “AN ACT
IN RELATION TO NATURAL
RESOURCES,
RESEARCH, DATA COLLECTION AND ENVIRONMENTAL
STUDIES”
(Ill.
Rev.
Stat.
1987,
ch.
96
1/2,
par.
7401 et
seq.).
THE BOARD MAY IDENTIFY SPECIFIC ISSUES TO BE
ADDRESSED IN THE STUDY.
(Section 27 of the Act.)
Section 102.261
Request For Determination
a)
WITHIN
21 DAYS OF THE DATE THAT THE BOARD .ACCEPT& A
PROPOSAL FOR HEARING PURSUANT TO SECTION 28
OF THE ACT
AND SECTION 102.210, ANY PERSON MAY REQUEST THAT THE
BOARD DETERMINE THAT AN ECONOMIC IMPACT STUDY SHOULD OR
SHOULD NOT BE PREPARED.
(Section 27 of the Act.)
b)
Such request shall be made
in writing,
and shall detail
the reasons for the request.
The request SHALL
DESCRIBE, TO THE EXTENT REASONABLY PRACTICABLE, THE
ECONOMIC IMPACT OF THE PROPOSED RULE.
(Section 27 of
the Act.)
All material facts asserted
in the request
shall be verified by affidavit.
C)
The person filing the request shall file 10 copies with
the Clerk, and one copy each with the Agency,
ENR,
the
Attorney General,
and the proponent.
Section 102.262
Basis
for Board Determination
92—303
—42—
In determining whether
an economic impact study should be
performed,
the Board will consider:
a)
Information
in the record furnished by the proponent
pursuant to Section 102.121 and by any person filing
a
request for determination pursuant to Section 102.231;
b)
ITS ASSESSMENT OF THE POTENTIAL ECONOMIC IMPACT OF THE
RULE;
c)
THE POTENTIAL FOR CONSIDERATION OF THE ECONOMIC
IMPACT
ABSENT SUCH A STUDY;
ci)
THE EXTENT,
IF ANY, TO WHICH THE BOARD
IS FREE UNDER THE
STATUTE AUTHORIZING THE RULE TO MODIFY THE SUBSTANCE OF
THE RULE BASED UPON THE CONCLUSIONS OF AN ECONOMIC
IMPACT STUDY;
and
e)
ANY OTHER CONSIDERATIONS THE BOARD DEEMS APPROPRIATE.
(Section 27
of the Act.)
Section 102.263
Notice
of Board Determination
The Board will issue
a written order giving the reasons
for its
determination.
The proponent
and any person who has asked
to be
placed on the notice list for
the proposal will be given notice
of
the Board’s determination.
SUBPART 3:
AUTHORITY OF HEARING OFFICER
Section
102.280
Authority of Hearing Officer
The hearing officer will 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 will have all powers necessary
to these ends,
including
(but
not limited
to)
the authority
to:
a)
Require and establish a schedule
for, and notice and
distribution of,
any prior submission of
testimony and
written exhibits and rebuttal testimony and exhibits;
b)
Require all participants
to state their position with
respect to the proposal;
c)
Administer oaths and affirmations;
ci)
Examine witnesses and direct witnesses to testify;
e)
Regulate the course of
the hearing;
f)
Establish reasonable
limits on
the frequency and
duration of
the testimony
and questioning of any witness
92—304
—43—
and limit repetitious
or cumulative testimony and
questioning;
g)
Issue,
in the name of the Board,
an order requiring the
answering of interrogatories;
h)
Order
the production of evidence as specified
in Section
102. 322;
i)
Initiate, schedule and conduct
a pre—hearing conference
as specified
in Subpart K;
j)
Issue subpoenas pursuant to Section 102.323; and
k)
Exclude late—filed documents
from inclusion
in the
record for decision.
Section 102.281
Notice and Service Lists
a)
The hearing officer
shall maintain
a notice list
for
each regulatory proceeding.
The notice list will
consist
of
those persons who have furnished their names
and addresses for
inclusion on the notice list
for
a
specific proceeding.
Notice of
all Board action and
hearing officer
orders will be given to all persons
included on the notice
list.
b)
The hearing officer may establish
a service
list for any
regulatory proceeding,
in addition to the notice list.
The hearing officer may direct participants
to serve
copies of all documents upon the persons listed on the
service
list.
Section 102.282
Effect of Hearing Officer Ruling
All decisions,
orders,
and rulings made by the hearing officer
shall remain
in effect during
the pendancy of~anyappeal
t~o the
Board
of that decision, order or ruling.
SUBPART K:
PRE—HEARING CONFERENCES
Section 102.300
‘Initiation and Scheduling
a)
TO THE EXTENT CONSISTENT WITH ANY DEADLINE FOR ADOPTION
OF ANY REGULATIONS MANDATED BY STATE
OR FEDERAL LAW,
PRIOR TO INITIATING ANY HEARING ON A REGULATORY
PROPOSAL,
THE BOARD MAY ASSIGN A QUALIFIED HEARING
OFFICER WHO MAY SCHEDULE A PRE—HEARING CONFERENCE
BETWEEN THE PROPONENT AND ANY OR ALL OF THE POTENTIALLY
AFFECTED PERSONS.
(Section 27(e)
of the Act.)
Such
a
pre—hearing conference may be
scheduled by the hearing
officer on his or her own motion,
or
on the motion of
the proponent or any potentially affected person.
A
motiQn
to schedule such
a pre—hearing conference shall
be directed
to the hearing officer.
92—305
—44—
b)
THE NOTICE REQUIREMENTS OF SECTION 28 of the Act and
Section 102.241 SHALL NOT APPLY TO SUCH PRE-HEARING
CONFERENCES.
(Section 27(e)
of the Act).
However,
the
hearing officer will give notice
to any person who has
requested
inclusion on the notice list of that proposal.
Section 102.301
Purpose
The purpose
of a pre—hearing conference shall
be:
a)
TO MAXIMIZE UNDERSTANDING OF THE INTENT AND APPLICATION
OF THE PROPOSAL;
b)
TO REACH AGREEMENT ON ASPECTS OF THE PROPOSAL,
IF
POSSIBLE;
AND
c)
TO ATTEMPT TO IDENTIFY AND LIMIT THE ISSUES OF
DISAGREEMENT AMONG THE PARTICIPANTS TO PROMOTE EFFICIENT
USE OF THE TIME AT HEARING.
(Section 27(e)
of the Act.)
Section 102.302
Pre—hearing Order
a)
NO RECORD OF THE PRE—HEARING CONFERENCE NEED BE KEPT,
NOR SHALL ANY PARTICIPANT OR THE BOARD BE BOUND BY ANY
DISCUSSIONS CONDUCTED AT THE PRE-HEARING CONFERENCE.
b)
Notwithstanding subsection
(a), WITH THE CONSENT OF ALL
PARTICIPANTS
IN THE PRE—HEARING CONFERENCE, THE
HEARING
OFFICER MAY ENTER
A PRE-HEARING ORDER DELINEATING ISSUES
TO BE HEARD, AGREED FACTS,
AND OTHER MATTERS.
c)
The hearing officer may require that the participants
furnish an agreed order setting forth
the substance of
the agreements reached at the pre—hearing conference.
The hearing officer will enter that order
if he or she
agrees that
it fairly sets forth
the ‘substance
of the
agreement.
ci)
A PRE-HEARING ORDER SHALL NOT BE BINDING ON
NONPARTICIPANTS
IN THE PRE—HEARING CONFERENCE.
(Section
27(e)
of the Act.)
SUBPART
L:
MOTIONS AND DISCOVERY
Section 102.320
Motion Practice
Motion practice
in regulatory proceedings
is governed by 35
Ill.
Adm.
code 101:
Subpart H.
Section 102.321
Production of
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,
92—306
—45—
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 delay,
expense, harassment,
or oppression or
to protect materials
from disclosure consistent with the
provisions of Section
7 and 7.1
of the Act and 35 Ill.
Adm. Code
120.
Section 102.322
Subpoenas
a)
Upon written motion by any participant,
the hearing
officer
or the Board may issue subpoenas
for attendance
of witnesses
at
a hearing under this Part.
Subpoenas
may include
a command
to produce books, papers,
documents,
or
tangible things designated therein and
relevant
to the matter under consideration.
b)
Subpoenas shall conform to the requirements of
35
Ill.
Adm. Code 101.260.
SUBPART
L:
REGULATORY HEARINGS
Section 102.340
Pre—submitted Testimony
a)
All participants other
than the proponent shall submit
written testimony and any related exhibits 14 days prior
to the hearing at which
the witness
testifies,
unless
the hearing officer directs otherwise.
1)
The original and four
(4)
copies of
testimony and
exhibits shall
be filed with the Clerk,
and one
copy each with the Agency
and,
if participants,
the
Attorney General and ENR.
One copy shall also be
filed with each previously
identified participant
unless otherwise specified or
limited by the
hearing officer
or the Board.
2)
All testimony and exhibits shall
be bound pursuant
to
35 Ill.
Adxn.
Code 101.103
and labelled with the
docket number of the proceeding,
the name of the
witness submitting
the material or exhibit,
and the
title of the material or exhibit.
b)
If the proponent wishes
to supplement testimony
previously submitted pursuant
to Section 102.121,
written testimony and exhibits
shall be pre—submitted in
accordance with subsection
(a).
c)
The proponent and each participant who has pre—submitted
testimony shall bring extra copies
of that testimony and
any accompanying exhibits
to the hearing.
d)
Pre—submitted testimony will be entered into the record
as
if read,
unless the hearing officer determines
that
92—307
—46—
it will
aid public understanding to have the testimony
read by the witness.
All witnesses will be sworn
pursuant
to Section 102.343(b),
and
will be subject
to
questioning.
e)
Any testimony which
is not pre—submitted pursuant
to
subsections
(a)
and
(b) will be allowed only as time
permits.
Section 102.341
Transcript
All testimony shall be recorded stenographically.
When the
transcript
is
filed with the Clerk,
the hearing officer will
receive and rule on typographical corrections from any person who
may examine the transcript
for accuracy.
Failure of any witness
to correct the transcript within
14 days after
its receipt
in
Board offices shall constitute
a waiver
of any right
to correct.
Section 102.342
Admissible Information
All information which
is relevant and not repetitious or
cumulative
shall be admitted by the hearing officer.
Objections
on grounds
of relevancy, repetition,
or harassment will be ruled
upon by the hearing officer.
Section
102.343
Presentation
of Testimony
a)
All witnesses
a.t hearings shall be sworn.
b)
Narrative testimony,
rather than
a question and response
format,
is encouraged.
Section 102.344
Questioning Of Witnesses
All witnesses shall be subject to questioning
by any person.
Repetitious or irrelevant questioning will be prohibited by the
hearing officer.
Section 102.345
Record For Decision
The transcript,
all written testimony,
all exhibits offered
in
connection with the hearing,
and
all public comments timely filed
with the Clerk
shall constitute
the record.
SUBPART
N:
ECONOMIC IMPACT HEARINGS
Section 102.360
Hearings on the Economic Impact Study of New
Proposals
a)
Before the final
adoption of
any proposal,
the Board
shall conduct hearings on any economic impact study
submitted by ENR on any proposed regulation,
or proposed
amendment
to existing regulation,
unless otherwise
provided by the Act.
92—308
—47--
b)
IN THE CASE OF A REQUIRED RULE,
IF THE ECONOMIC IMPACT
STUDY
IS NOT SUBMITTED TO THE BOARD WITHIN SIX
(6)
MONTHS OF THE BOARD’S DECISION THAT AN ECONOMIC IMPACT
STUDY SHOULD BE CONDUCTED,
THE BOARD MAY PROCEED TO
ADOPT A REQUIRED RULE WITHOUT AN ECONOMIC
IMPACT
STUDY.
(Section
28.2
of the Act,
Ill.
Rev.
Stat.
1987,
ch.
111 1/2, par.
28.2.)
c)
The provisions
of this Part govern all hearings held
pursuant
to this Section.
d)
Hearings held pursuant to this Section may
be
consolidated with any other hearings held pursuant to
this Part.
Section
102.361
Hearings
on the Economic Impact Study of
Existing Regulations
a)
WITHIN A REASONABLE TIME,
BUT NOT MORE THAN
120 DAYS,
AFTER EACH ECONOMIC IMPACT STUDY SUBMITTED BY ENR HAS
BEEN FILED,
THE BOARD SHALL CONDUCT AT LEAST ONE PUBLIC
HEARING ON SUCH STUDY.
b)
THE PROVISIONS OF THIS PART GOVERN ALL HEARINGS HELD
PURSUANT TO THIS SECTION.
c)
AFTER CONCLUSION OF THE HEARINGS, THE BOARD SHALL
PUBLISH
ITS FINDINGS AND CONCLUSIONS ON THE AREAS
COVERED BY THE STUDY AND THE TESTIMONY RECEIVED BY THE
BOARD.
d)
THE BOARD SHALL ALSO SPECIFICALLY DETERMINE WHETHER, AS
A RESULT OF ITS FINDINGS AND CONCLUSIONS,
ANY
REGULATIONS OF THE BOARD SHALL BE MODIFIED OR REPEALED.
e)
IF THE BOARD CONCLUDES THAT MODIFICATION OR REPEAL MAY
BE NECESSARY,
IT SHALL PROPOSE SUCH MODIFICATION- AS
REGULATIONS AND CONDUCT FURTHER HEARINGS ON SAID
MODIFICATION.
f)
ANY SUCH PROPOSED MODIFICATIONS SHALL NOT REQUIRE ANY
ADDITIONAL ECONOMIC IMPACT STUDY.
SUBPART
0:
PUBLIC COMMENTS
Section
102.380
Public Comments
Any person may submit written comments on any proposal within 14
days after
the close
of the hearing or within 14 days after
regulation revision under
Section 102.400, unless otherwise
specified by the hearing officer
or the Board.
Comments shall
be
filed with the Clerk
and served upon
the participants, unless
otherwise specified by the hearing officer.
Comments which are
92—309
—48—
not timely filed
will not be considered, except as allowed
by the
hearing officer
or the Board
to prevent material prejudice.
SUBPART
P:
BOARD ACTION
Section 102.400
Revision of Proposed Regulations
a)
After
a regulatory hearing,
the Board may revise the
proposed regulations before adoption
in response
to
suggestions made at hearing and
in written comments made
prior
to second notice.
No additional hearing on the
revisions need be held.
b)
THE BOARD MAY MODIFY AND SUBSEQUENTLY ADOPT
ANY
PROPOSED
REGULATIONS,
OR AMENDMENTS TO EXISTING REGULATIONS
WITHOUT ANY ADDITIONAL ECONOMIC IMPACT STUDY; PROVIDED
THAT SUCH MODIFICATION BY THE BOARD DOES NOT
SIGNIFICANTLY ALTER THE INTENT AND PURPOSE OF THE
PROPOSED REGULATION WHICH WAS THE SUBJECT OF ENR’S
ECONOMIC IMPACT STUDY.
(Section 27(b) of
the Act.)
c)
Unless otherwise provided
in the Act,
THE BOARD MAY
REVISE PROPOSED REGULATIONS AFTER HEARING
IN RESPONSE TO
OBJECTIONS OR SUGGESTIONS MADE
BY JCAR PURSUANT TO
SECTIONS 5.01(b) AND 7.06(a) OF THE APA.
THE BOARD MAY
MAKE SUCH A REVISION WHERE IT FINDS:
1)
THAT SUCHOBJECTIONS OR SUGGESTIONS RELATE TO THE
STATUTORY AUTHORITY UPON WHICH THE REGULATION
IS
BASED, WHETHER THE REGULATIONS
IS IN PROPER FORM,
OR WHETHER ADEQUATE NOTICE WAS GIVEN; and
2)
THAT THE RECORD BEFORE THE BOARD
IS SUFFICIENT TO
SUPPORT SUCH
A CHANGE WITHOUT FURTHER HEARING.
(Section 28 of
the Act.)
Section 102.401
Adoption of Regulations
a)
Except as other wise provided
by the Act,
no substantive
regulation shall be adopted, amended or
repealed by the
Board until after
a public hearing.
In the case of
site—specific rules or
rules
not
of general
applicability,
a public hearing
shall be held
in the
affected county.
In the case
of state—wide regulations,
public hearings shall be held
in at least two counties
of the state.
b)
The Board need not hold
a hearing
on
a procedural
regulation, except as provided by Section
5.01
of the
APA.
c)
IN ADOPTING ANY NEW REGULATIONS,
EXCEPT A REQUIRED RULE
OR AN IDENTICAL
IN SUBSTANCE REGULATION, THE BOARD SHALL
CONSIDER THOSE ELEMENTS DETAILED IN ANY ECONOMIC IMPACT
92—310
—49—
STUDY PERFORMED BY ENR ON THAT REGULATIONS.
THE BOARD
SHALL,
IN ITS WRITTEN OPINION, MAKE A DETERMINATION,
BASED UPON THE ECONOMIC
IMPACT STUDY AND OTHER EVIDENCE
IN THE RECORD,
AS TO WHETHER THE PROPOSED REGULATION HAS
ANY ADVERSE ECONOMIC IMPACT ON THE PEOPLE OF THE STATE
OF ILLINOIS.
(Section 27(b)
of the Act.)
ci)
In the case of
a required rule,
the Board shall follow
the procedures
of subsection
(c),
except as provided in
Section 102.360.
e)
As provided by Sections 13(c),
13.3,
17.5, 22.4(a),
22.4(d),
and 22.7(d)
of the Act,
the provisions of Title
VII of
the Act and Section
5 of the APA shall
not apply
to identical
in substance rulemakings.
Section 102.402
First Notice of Proposed Regulations
Except when otherwise directed by the Act,
the Board shall give
first notice of
its proposed adoption,
amendment,
or repeal
of
regulations pursuant
to Section
5.01
of the APA.
The first
notice period shall
be at least 45 days,
and shall begin on the
day that first notice
is published
in the Illinois Register.
The
Board shall accept written comments from any person concerning
the proposed regulations during the 45—day first notice period.
Section 102.403
Second Notice of Proposed Regulations
a)
Except when otherwise directed by the Act,
the Board
shall give second notice
of
its proposed adoption,
amendment,
or repeal of regulations
to JCAR.
The second
notice period shall begin on the date written notice
is
received by JCAR,
and shall expire
45 days after
that
date,
except as provided by Section 5.01
of the APA.
The Board will accept comments only from JCAR during the
second notice period.
b)
After the beginning of
the second notice period,
irn
changes will
be made to the proposed regulation, except
in response to objections
or suggestions from JCAR.
Such
changes will be made pursuant
to Section
102.400(c).
Section 102.404
Notice of Board Final Action
Any person who has requested notice concerning
the proposal and
who has submitted his or her name
and address
to the Clerk
shall
be given notice of the Board’s
final action.
Notice
of the
Board’s
final action will be published
in the Illinois Register
and
in the Environmental Register.
The Board
will publish
a
written opinion stating
the reasons
in support of
its final
action
Section
102.405
Adoption of
RCRA Rules
92—311
—50—
The Board will
adopt RCRA rules pursuant
to the applicable
requirements of this Part, Title VII of
the Act,
and the APA.
Additionally, prior
to adopting rules, other than emergency
amendments,
the Board will:
a)
Make available to the public a proposed Opinion and
Order containing
the text of the amendments;
b)
Publish the proposed rule in the Illinois Register,
and
notice of the proposed rule in the Environmental
Register;
c)
Serve a copy of
the proposed Opinion and Order
on the
USEPA;
ci)
Receive written comments from the USEPA and other
persons
for at least 45 days after
the date of
publication
in the Illinois Register.
Section 102.406
Adoption of Identical In Substance Regulation
a)
Prior
to adopting
identical
in substance regulations,
the Board will:
1)
Make available to the public
a proposed Opinion and
Order containing
the text of the rules;
2)
Publish
the ‘proposed regulations
in the Illinois
Register;
3)
Serve
a copy
of the proposed Opinion and Order
on
the USEPA;
and
4)
Receive written comments from the USEPA and other
persons for at least 45 days after the date of
publication
in the Illinois Register;
b)
AFTER CONSIDERATION OF COMMENTS FROM THE USEPA, THE
AGENCY, THE ATTORNEY GENERAL AND THE PUBLIC, THE BOARD
SHALL ADOPT THE VERBATIM TEXT OF SUCH USEPA REGULATIONS
AS ARE NECESSARY AND APPROPRIATE FOR AUTHORIZATION OF
THE PROGRAM.
EXCEPT AS PROVIDED IN SECTION 7.2 OF THE
ACT, THE ONLY CHANGES THAT MAY
BE MADE BY THE BOARD TO
THE FEDERAL REGULATIONS ARE THOSE CHANGES THAT ARE
NECESSARY FOR COMPLIANCE WITH THE ILLINOIS
ADMINISTRATIVE
CODE,
AND
TECHNICAL
CHANGES
THAT
IN
NO
WAY
CHANGE
THE
SCOPE
OR
MEANING
OF
ANY
PORTION
OF
THE
REGULATIONS.
(Section
7.2(a)
of the Act.)
Section 102.407
Adoption Of Emergency Regulations
a)
WHEN THE BOARD FINDS THAT A SITUATION EXISTS WHICH
REASONABLY CONSTITUTES A THREAT TO THE PUBLIC INTEREST,
92—312
—51—
SAFETY, OR WELFARE, THE BOARD MAY ADOPT REGULATIONS IN
ACCORDANCE WITH SECTION
5.02 OF THE APA.
(Section 27(c)
of
the Act.)
b)
WHEN THE BOARD FINDS THAT A SEVERE PUBLIC HEALTH
EMERGENCY EXISTS, THE BOARD MAY,
IN RELATION TO ANY
PROPOSED REGULATION, ORDER THAT SUCH REGULATION TAKE
EFFECT WITHOUT DELAY.
THE BOARD SHALL PROCEED WITH ANY
REQUIRED HEARINGS WHILE THE REGULATION CONTINUES
IN
EFFECT.
(Section 27(c)
of the Act.)
Section
102.408
Adoption Of Peremptory Regulations
a)
WHEN THE BOARD FINDS THAT A PEREMPTORY RULEMAKING
IS
NECESSARY AND STATES
IN WRITING ITS REASONS FOR THAT
FINDING, THE BOARD MAY ADOPT PEREMPTORY RULEMAKING UPON
FILING A NOTICE OF RULEMAKING WITH THE SECRETARY OF
STATE PURSUANT TO SECTION
6.01 OF THE APA.
(Section
5.03 of the APA.)
b)
Notice of such peremptory
rulemaking will
be published
in the Illinois Register.
Section 102.409
Adoption Of Temporary Regulations
a)
THE BOARD MAY ADOPT A PROPOSED REGULATION PRIOR TO ITS
CONSIDERATION OF AN ECONOMIC IMPACT STUDY WHEN SUCH
STUDY
IS
FILED.WITH THE BOARD LESS THAN 120 DAYS
IN
ADVANCE OF A DATE ON WHICH A TEMPORARY NON-EMERGENCY
REGULATION OR PROVISION THEREOF WOULD LAPSE PRIOR TO
ADOPTION OF A PERMANENT REGULATION OR PROVISION THEREOF
ON THE SAME SUBJECT, OR LESS THAN 120 DAYS IN ADVANCE OF
A DEADLINE FOR ADOPTION OF THE REGULATION WHICH
IS
ESTABLISHED IN A STATE STATUTE.
(Section 27
of the
Act.)
b)
SUCH ADOPTED REGULATION SHALL BE EFFECTIVE UNTIL -180
DAYS AFTER THE ECONOMIC IMPACT STUDY REQUIRED PURSUANT
TO THIS SECTION IS FILED WITH THE BOARD, AND IN NO EVENT
SHALL A REGULATION ADOPTED PURSUANT TO THIS PROCEDURE
STAY
IN EFFECT FOR MORE THAN ONE YEAR.
(Section 27 of
the Act.)
SUBPART
Q:
MOTIONS FOR RECONSIDERATION
AND APPEAL
Section 102.420
Filing of Motion for Reconsideration
Motion for reconsideration or modification of any Board order
taking substantive action on
a regulatory proposal shall
be filed
in accordance with
35
Ill.
Adm. Code 101.246.
The contents of
such motions
are governed by
35
Ill. Adm. Code
101.242.
Section 102.421
Disposition of
Motions
for Reconsideration
92—313
—52—
a)
AFTER COMMENCEMENT OF THE SECOND NOTICE PERIOD, NO
SUBSTANTIVE CHANGES MAY BE MADE TO A PROPOSED RULEMAKING
UNLESS IT
IS MADE
IN RESPONSE TO AN OBJECTION OR
SUGGESTION OF JCAR.
(Section 5.01(b)
of
the APA.)
Therefore, submission of second notice
of
a proposal
to
JCAR will preclude the Board from revising that proposal
in response to a motion for reconsideration.
However,
the Board may resubmit
a rule for first
notice
if
necessary
to prevent material prejudice.
b)
An adopted
rule becomes effective upon the filing of
that rule with the Secretary of State.
Therefore,
the
Board
is precluded from allowing a motion for
reconsideration of
a final order adopting
a
rule,
if
that rule has been filed with the Secretary of
State.
Section 102.422
Appeal
Appeal
of any final Board order
is
to the appellate court,
pursuant
to Sections
29 and
41
of the Act.
TITLE 35:
ENVIRONMENTAL PROTECTION
SUBTITLE A:
GENERAL PROVISIONS
CHAPTER
I:
POLLUTION CONTROL BOARD
PART 106
HEARINGSPURSUANT TO SPECIFIC RULES
SUBPART A:
HEATED EFFLUENT DEMONSTRATIONS
Section
106.101
Petition
106.102
Requirements for Petition
106.103
Parties
106.104
Recommendation
106.105
Notice and Hearing
106.106
Transcripts
106.107
Opinion and Order
SUBPART B:
ARTIFICIAL COOLING LAKE DEMONSTRATIONS
Section
106.201
Petition
106.202
Notice and Hearing
106.203
Transcripts
106.204
Effective Date
SUBPART
C:
SULFUR DIOXIDE DEMONSTRATIONS
Section
106.301
Petition
106.302
Requirements
for Petition
106.303
Parties
92—314
—53—
SUBPART D:
RCRA ADJUSTED STANDARD PROCEDURES
Section
106.401
106.402
106.403
106.404
106.405
106. 406
106.407
106.408
106.410
106.411
106.412
106.413
106.414
106.415
106.416
Section
106.501
106.502
106.503
106.504
106.505
106. 506
106.507
Petition
(Repealed)
Notice of Petition
(Repealed)
Recommendation
(Repealed)
Response
(Repealed)
Public Comment
(Repealed)
Public Hearings
(Repealed)
Decision (Repealed)
Appeal (Repealed)
Scope and Applicability
Joint or Single Petition
Request
to Agency
to Join
as Co—Petitioner
Contents of Petition
Response and Reply
Notice and Conduct of Hearing
Opinions and Orders
SUBPART
E:
AIR ADJUSTED STANDARD PROCEDURES
Scope and Applicability
Joint or Single Petition
Request
to Agency to Join As Co—Petitioner
Contents of Petition
Response and Reply
Notice and Conduct of Hearing
Opinions and Orders
SUBPART F:
WATER WELL SETBACK EXCEPTION PROCEDURES
SUBPART
G:
ADJUSTED STANDARDS
106.701
106.702
106. 703
106.704
106.705
106.706
106.707
106.708
106.709
Applicability
Definitions
Joint or Single Petition
Request
to Agency
to Join As Co—Petitioner
Petition Contents
Petition Verification
Federal Procedural Requirements
Incorporated Material
Motions
106.304
106. 305
106.306
Recommendation
Notice and Hearing
Transcripts
Section
106.601
106.602
106.603
106.604
106.605
Scope and Applicability
Contents of Petition
Response and Reply
Notice and Conduct of Hearing
Opinions and Orders
92—315
—54—
106.710
106.711
106.712
106.713
106.714
106.801
106.802
106. 803
106.804
106.805
106. 806
106. 807
106.808
106.901
106.902
106.903
106. 904
106.905
106.906
106.907
Appendix A
Proof
of Service
Petition Notice
Proof
of Petition Notice
Request
for Public Hearing
Agency Response
Hearing Scheduled
Hearing Notice
Pre—Hearing Submission of Testimony and Exhibits
Production of Information
Admissible Evidence
Order of Hearing
Post-hearing Comments
Burden of Proof
Board Deliberations
Dismissal of Petition
Board Decision
Opinion and Order
Appeal
of Board Decisions
Publication of Adjusted Standards
Effect of Filing a Petition
Old
Rule Numbers Referenced
SUBPART
D:
RCRA ADJUSTED STANDARD PROCEDURES
Section 106.415
Notice and Conduct
of Hearing
a)
The Board will’hold at least one public hearing prior
to
granting an adjusted standard.
b)
The hearing officer will schedule the hearing.
The
Clerk will give notice of hearing
in accordance with 35
Ill.
Adm. Code
~9~4~4
102.241.
C)
The proceedings will be
in accordance with
35
Ill. Adm.
Code ~9~~6O
thr~t~gh~O~7~64
102.Subpart M.
(Source:
Amended at
Ill.
Reg.
,
effective
SUBPART
E:
AIR ADJUSTED STANDARD PROCEDURES
Section 106.506
Notice and Conduct of Hearing
a)
The Board will hold at least one public hearing ~ior
to
granting an adjusted standard.
b)
The hearing officer will schedule the hearing.
The
Clerk will give notice
of hearing
in accordance with 35
Ill.
Adm.
Code ~9~-~-2~
102.241.
c)
The proceedings will
be
in accordance with
35
Ill. Adm.
Code ~8~~?9
~
~64
102.SUBPPtRT M.
92—316
—55—
(Source:
Amended
at
Ill.
Reg.
,
effective
SUBPART
F:
WATER WELL SETBACK EXCEPTION PROCEDURES
Section 106.602
Contents
of Petition
a)
The petitioner
shall file ten copies
of the petition for
exception with
the Clerk of
the Pollution Control Board
(Board), and shall serve one copy upon the Agency.
b)
The petition shall contain the following information:
1)
A written statement, signed by the petitioner or an
authorized representative, outlining the scope of
the evaluation,
the nature of,
the reasons
for and
the basis
of the exception, consistent with the
level
of
justification contained
in Section 14.2(c)
of
the Act.
2)
The nature of
the petitioner’s operations and
control equipment;
and
3)
Any additional
information which may be required in
Section 14.2(c)
of the Act.
C)
In accordance with 35
Ill.
Adm. Code ~9~2
101.143 the
petition shall contain proof
of service on owners
required
to benotified
and provided with a copy of the
petition as
required by Section 14.2(c)
of the Act,
(Source:
Amended at
Ill.
Reg.
,
effective
)
Section 106.604
Notice and Conduct of Hearing
a)
The Board will hold
at least one public hearing prior
to
granting an exception.
b)
The hearing officer will schedule the hearing.
The
Clerk will give notice
of hearing
in accordance with 35
Ill.
Adm. Code ~
102.241.
C)
The proceedings will be
in accordance with
35 Ill. Adm.
Code ~9~~69
thr~ttgh~O~~64
l02.Subpart M.
(Source:
Amended at
Ill. Reg.
,
effective
)
SUBPART G: ADJUSTED STANDARDS
Section 106.701
Applicability
The procedures
set forth
in this Subpart apply to any person
seeking
an adjusted standard pursuant
to Section
28.1
of the
Illinois Environmental Protection Act,
(Ill.
Rev.
Stat.
1987,
ch.
1111/2,
par. 1001
et seq.),
except
as otherwise provided
in
92—317
—56—
Subparts
A,
B,
C,
D,
E,
and
F.
This Subpart
shall
be read
in
conjunction with
35
Ill.
Adm. Code 101 which contains procedures
generally applicable
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.
Reg.
effective
)
Section 106.702
Definitions
For the purpose of this Subpart, words and terms shall have the
meanings
as defined
in
35 Ill.
Adm.
Code 101.101, unless the
context clearly requires otherwise.
(Source:
Added at
Ill.
Reg.
effective
Section 106.703
Joint or Single Petition
A person begins an adjusted standard proceeding by filing
a
petition for
an Adjusted Standard
(petition)
either
jointly with
the Illinois Environmental Protection Agency
(Agency)
or
singly.
One original and nine copies of
the signed petition
shall be filed with the Clerk of the Board.
A filing fee shall
be paid at the time
of the filing of the petition
in accordance
with the requirements
of
35 Ill.
Adm.
Code 101.120 and 101.122.
One copy of the petition shall also be served on the Agency.
Such service on the Agency shall be initiated on the date the
petition
is filed with
the Board,
or 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
to Agency to Join As
Co—Petititner
a)
The Agency may act as
a co—petitioner
in any adjusted
standard proceeding.
b)
Any person may request Agency assistance
in initiating
a
petition
for adjusted standard.
The Agency may require
the person
to submit
to the Agency any background
information
in the person’s possession relevant
to the
adjusted standard which
is sought.
The Agency shall
promptly notify the person
in writing of
its
determination either
to join as
a co—petitioner,
or
to
decline
to join as
a co—petitioner.
If the Agency
declines
to join
as
a co—petitioner,
the Agency shall
state
the basis
for this decision.
c)
Decisions made by the Agency pursuant
to this Section
are not appealable
to
the Board.
92—3 18
—57—
(Source:
Added at
Ill.
Reg.
effective
Section 106.705
Petition Contents
The petition shall
be captioned
in accordance with the applicable
requirements
of
35 Ill.
Adm.
Code l0l.Appendix A.
If the Agency
is a co—petitioner,
the petition shall
so state.
The petition
shall contain headings corresponding
to the informational
requirements of each subsection
of this Section.
The following
information
shall be contained
in the petition.
a)
A statement describing
the standard
from which
an
adjusted standard
is sought.
This shall
include the
Administrative Code citation
to the regulation of
general applicability imposing
the standard as well as
the effective date of that regulation.
b)
A statement which indicates whether
the regulation of
general applicability was promulgated
to implement,
in
whole or
in part,
the requirements of
the Clean Water
Act,
Safe Drinking Water
Act, Comprehensive
Environmental Response,
Compensation and Liability Act,
Clean Air Act,
or
the State Resource Conservation and
Recovery Act (RCRA),
Underground Injection Control
(UIC),
or National Pollutant Discharge Elimination
System
(NPDES) programs.
c)
The level of
justification for adjusted standards
specified
by the regulation of general applicability or
statement
that the regulation
of general applicability
does not specify
a level of justification
ci)
A description of the nature of the petitioner’s activity
which
is
the subject of the proposed adjusted
-
standard.
The description shall include
the location of
and area affected by the petitioner’s activity.
This
description shall
also
include the number
of persons
employed by the petitioner,
age of the facility in
question,
relevant pollution control equipment already
in use,
and
the qualitative and quantitative nature of
emissions currently generated by the petitioner’s
activity
e)
A description of the efforts which would be necessary if
the petitioner were
to comply with
the regulation of
general applicability.
All compliance alternatives,
with
the corresponding costs
for each alternative,
shall
be discussed.
The discussion
of costs shall
include the
overall
capital costs as well as the annualized capital
and operating costs.
92—319
—58—
f)
A narrative description of the proposed
adjusted
standard
as well as proposed language for
a Board order
which would impose the standard.
Efforts necessary to
achieve this proposed standard
and the corresponding
costs
shall also
be presented.
Such cost information
shall include the overall capital
cost as well as the
annualized capital
and operating costs
gj
The quantitative and qualitative impact of the
petitioner’s activity on the environment
if the
petitioner were
to comply with
the regulation of general
applicability as compared to the quantitative and
qualitative impact on the environment
if
the petitioner
were to comply only with
the proposed adjusted
standard.
To the extent applicable,
cross—media impacts
shall
be discussed.
Also,
the petitioner
shall compare
the qualitative and quantitative nature of emissions
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
h)
A statement which explains how the petitioner seeks
to
justify, pursuant
to the applicable level of
justification,
the proposed adjusted standard
i)
A statement with supporting reasons that the Board may
grant the proposed adjusted standard consistent with
federal law.
The petitioner shall also inform the Board
of all procedural requirements applicable
to the Board’s
decision on the petition which are imposed
by federal
law and not required by this Subpart.
Relevant
regulatory and statutory authorities shall
be cited
jj
A statement requesting or waiving
a hearing on the
petition;
and
k)
The petition shall cite to supporting documents
or legal
authorities_whenever
such
are used
as
a basis
for the
petitioner’s
proof.
Relevant portions of such documents
and legal authorities
other
than Board decisions,
State
regulations,
statutes,
and reported cases
shall be
appended
to the petition.
(Source:
Added at
Ill.
Reg.
effective
)
Section 106.706
Petition Verification
All material
facts asserted within the petition shall be verified
by affidavits.
Such affidavits
shall
be filed with the
petition.
(Source:
Added at
Ill.
Reg.
92—320
—59—
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).
(Source:
Added at
Ill.
Reg.
effective
)
Section 106.708
Incorporated Material
a)
Upon the request of
any person or on
its own initiative,
the Board or hearing officer may incorporate materials
into an adjusted standard proceeding from the record of
another Board docket.
The person seeking
incorporation
must file with the Board
ten copies of
the material
to
be incorporated.
Such incorporation shall be allowed
if
the person seeking
the incorporation demonstrates that
the material
is relevant
to the matter under
consideration.
b)
The Board will give the incorporated matter
the
appropriate weight
in light of the following factors:
the standard of evidence under which the material was
previously presented
to the Board;
the present purpose
for incorporating the material;
and the past and current
opportunity for cross—examination
of the matters
asserted within the incorporated material.
(Source:
Added
at
Ill.
Reg.
effective
)
Section 106.709
Motions
The filing of motions and responses
to motions
shall
be conducted
in accordance with
35
Ill.
Adm.
Code l0l.Subpart H.
(Source:
Added
at
Ill.
Reg.
effective
)
Section 106.710
Service of Filings
All filings
in an adjusted standard proceeding shall
be served
upon the petitioner and the Agency as well
as other persons as
required by the Board or Hearing Officer.
Proof
of such service
shall accompany each filing and shall be of the form as
prescribed by 35
Ill.
Adm.
Code 101.143.
(Source:
Added
at
Ill.
Reg.
effective
)
Section 106.711
Petition Notice
92—32 1
—60—
a)
Within fourteen days after
the filing of
a petition,
the
petitioner shall cause,
at
its own expense, the
publication of
a notice BY ADVERTISEMENT
IN A NEWSPAPER
OF GENERAL CIRCULATION
IN THE AREA LIKELY TO BE AFFECTED
by the petitioner’s activity which
is the subject of the
adjusted standard proceedin~.
(Section 28.1
of
the Act,
Ill.
Rev.
Stat.
1987,
ch.lll1/2, par.l028.l).
The title
of the notice shall
be in the form as follows: “Notice
of Petition by
petitioner’s
name
for
an Adjusted
Standard before the Illinois Pollution Control Board.”
b)
The notice shall contain the name and address of
the
petitioner and the statement that the petitioner has
filed with the Illinois Pollution Control Board
a
petition for an 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
an
adjusted standard
is sought,
the proposed adjusted
standard, and
a general description of
the petitioner’s
activity which
is
the subject of
the adjusted standard
proceeding,
and the location of
that activity.
This
information shall be presented so as
to be understood
in
accordance with the context of this
Section’s
requirements.
The concluding portion of
the notice
shall read as follows:
“Any
person
may
cause
a
public hearing
to
be
held
in
the
above—described
adjusted standard proceeding by filing
a
hearing
request
with
the
Illinois
Pollution
Control
Board
within
21
days
after
the
date
of
the
publication
of
this notice.
The hearing request should
clearly
indicate
the
docket
number
for
the
adjusted
standard
proceeding,
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.”
(Source:
Added at
Ill.
Reg.
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.lOO,
par.l).
92—322
—61—
(Source:
Added at
Ill.
Reg.
effective
Section 106.713
Request
for Public Hearing
An~person can request that
a public hearing be held
in an
adjusted standard proceeding.
Such
requests shall
be filed not
later than 21 days after
the date of the publication of the
p~ition notice
in accordance
with Section 106.711.
Requests for
hearing should make reference
to the Board docket number assigned
to
the proceeding.
(Source:
Added at
Ill.
Reg.
effective
Section 106.714
Agency Response
a)
The Agency shall file
a response not later than 30 days
after the filing of
a petition,
if the Agency
is not a
co—petitioner
to the petition.
The response shall
recommend either
a grant or denial
of
the proposed
adjusted standard,
and
it shall set forth
rationale
which supports the Agency’s conclusion.
In its
response,
the Agency may present any information which
the Agency believes
is relevant
to the Board’s
consideration of the proposed adjusted standard.If the
Agency recommends
a denial of
the petition due
to
informational deficiencies within the petition,
the
response shall identify the types of
information needed
to correct the deficiencies.
b)
At
a minimum, the Agency shall address and respond to
the petition with respect to each issue raised
by the
requirements of subsections
(a) through
(j)
of
Section
106.705.
c)
The recommendation shall cite
to supporting documents or
legal authorities whenever such are used
as
a basis for
the Agency’s conclusion.
Relevant portions of such
documents and legal authorities other than Board
decisions,
State regulations,
statutes and reported
cases shall be appended
to the recommendation
if not
already
in the record of the proceeding.
(Source:
Added at
Ill.
Reg.
effective
)
Section 106.801
Hearing Scheduled
a)
The Board
shall
assign
a hearing officer
to an adjusted
standard proceeding when:
92—323
—62—
1)
The Board receives
a hearing request, pursuant
to
Section 106.713,
not later
than
21 days after the
date of
the publication of the petition notice in
accordance with Section 106.111;
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.
b)
The hearing officer
shall set
a time and place for the
hearing.
The hearing officer may consult with
the
petitioner
and the Agency prior to the scheduling of
a
hearing.
Hearings are
to be held
in the county LIKELY
TO BE AFFECTED by the petitioner’s activity which
is the
subject of
the proposed
adjusted standard.
(Section
28.1
of the Act).
c)
After
the hearing has been scheduled,
the hearing
officer
shall notify the Clerk
of time and place of
the
hearing.
(Source:
Added at
Ill.
Reg.
effective
Section 106.802
Hearing Notice
After receiving notification from the hearing officer pursuant to
Section 106.201(c),
the Clerk
shall 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
OF THE HEARING.
(Section 2B.l of the Act).
(Source:
Added at
Ill.
Reg.
effective
)
Section 106.803
Pre—hearing Submission
of Testimony and
Exhibits
a)
The hearing officer may require
the pre—hearing
submission of testimony and exhibits which are
to be
presented
at hearing.
When such pre—hearing submission
is required,
an original and four
(4) copies of each
testimony
and each exhibit shall be filed with the
Board.
The Agency, petitioner
and any other person as
required by the hearing officer shall each be served
with
one copy of each testimony and exhibit.
Such
service
shall
be initiated at such
a time so
as
to
reasonably ensure that service will be completed 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 or
trie material or
exhibit.
92—324
—63—
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—substantitive
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.
Reg.
effective
)
Section 106.804
Production of
Information
The production of
information will be accomplished pursuant to
the procedures set forth by 35
Ill. Adm.
Code 101.261.
(Source:
Added
at
Ill.
Reg.
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
i~snot
-
admissible under such rules
if
it
is relevant and would
be
relied upon
by reasonably prudent persons
in the
conduct of
their 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 of any relevant
pending or prior proceeding before the Board
or part
thereof
incorporated into the record of the present
proceeding,
in accordance with Section 106.708.
d)
Relevant scientific or technical articles,
treatises
or
materials may be introduced
into evidence subject
to
refutation or disputation through any introduction of
comparable documentary evidence or expert testimony.
92—325
—64—
e)
Any person may testify at hearing provided that she or
he
is sworn and subject
to cross—examination.
Cross—
examination of any person who presents testimony may be
conducted by any person.
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
effective
Section 106.806
Ill.
Reg.
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
petitioner,
person
of
opening
Agency,
and
statements
by
any
interested
c)
Testimony and exhibits by Petitioner
ci)
Testimony and exhibits by Agency
e)
Testimony and exhibits by interested persons
f)
Testimony
and
exhibits
by
petitioner
in
rebuttal
~j
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 to the Board.
(Source:
Added
at
effective
Section
106.807
Ill.
Reg.
I
Post—hearing Comments
92—326
—65—
The petitioner,
the Agency,
and any interested person may file
post—hearing comments.
The hearing officer may order any person
to file such comments.
Post—hearing comments shall
be filed
within fourteen
(14) days after
the close of the last hearing
unless the hearing officer
specifies
a different date for
submission of post—hearing comments.
All post—hearing comments
shall present arguments or comments based only on information
contained
in the record.
Such comments may also present
legal
argument citing legal authorities.
The Board will not consider
any new information presented by post—hearing comments.
(Source:
Added at
Ill.
Reg.
effective
)
Section 106.808
Burden of Proof
The burden
of proof
in an adjusted standard proceeding
is on the
petitioner.
(Source:
Added
at
Ill.
Reg.
effective
)
Section 106.901
Board Deliberations
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.
Reg.
effective
Section 106.902
Dismissal of Petition
The Board may at any time dismiss
a petition for any
of the
following reasons:
a)
The Board DETERMINES THAT THE PETITION IS FRIVOLOUS,
DUPLICATIVE,
or deficient with respect
to the
requirements 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.
Reg.
effective
)
Section 106.903
Board Decision
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)
by a preponderance of the evidence,
that:
92—327
—66—
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 MORE ADVERSE THAN THE EFFECTS
CONSIDERED BY THE BOARD
IN ADOPTING THE RULE OF
GENERAL APPLICABILITY (Section 28.1
of the Act);
AND
4)
THE ADJUSTED STANDARD
IS CONSISTENT WITH ANY
APPLICABLE FEDERAL LAW (Section
28.1
of the Act).
b)
If the regulation
of general
applicability specifies
a
level
of justification for an adjusted standard,
the
Board may adopt
the proposed adjusted standard,
if the
petitioner proves,
by
a preponderance of the evidence,
the level
of justification specified by the regulation
of general applicability.
c)
IF THE REGULATION OF GENERAL APPLICABILITY IMPLEMENTS
IN
WHOLE OR IN PART THE REQUIREMENTS OF THE CLEAN AIR ACT,
THE BOARD WILL ADOPT EITHER (Section 28.1
of the Act):
1)
The proposed adjusted standard
if
the petitioner
proves,
by
a preponderance of
the evidence,
the
applicable level
of justification;
or
A STANDARD THE SAME AS THAT IMPOSED BY THE
2)
REGULATION OF GENERAL APPLICABILITY,
if the
petitioner
fails
to prove,
by a preponderance of
the evidence,
the applicable level of
justification.
(Section 28.1
of the Act).
ci)
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.
Reg.
effective
)
Section 106.904
Opinion and Order
The Board shall
issue
a written opinion
and order which sets
forth the Board’s decision and supporting rationale.
Such
opinions and orders SHALL BE MAINTAINED FOR PUBLIC INSPECTION
BY
THE CLERK OF THE BOARD.
(Section 28.1).
92—328
—67—
(Source:
Added
at
Ill.
Reg.
effective
Section 106.905
Appeal of Board Decisions
ANY FINAL ORDER OR DETERMINATION OF THE BOARD
IN AN ADJUSTED
STANDARD PROCEEDING MAY BE APPEALED TO THE APPELLATE COURT
PURSUANT TO SECTION 41 OF THE ACT.
(Section
28.1
of
the Act).
(Source:
Added
at
Ill.
Reg.
effective
)
Section 106.906
Publication of Adjusted Standards
THE BOARD SHALL CAUSE THE PUBLICATION OF A LISTING OF ALL
DETERMINATIONS MADE PURSUANT TO SECTION
28.1 OF THE ACT
IN THE
ILLINOIS REGISTER AND THE ENVIRONMENTAL REGISTER AT THE END OF
EACH FISCAL YEAR.
(Section 28.1
of the Act).
(Source:
Added
at
Ill.
Reg.
effective
)
Section 106.907
Effect of Filing
a Petition
a)
IF ANY PERSON FILES A PETITION FOR AN INDIVIDUAL
ADJUSTED STANDARD
IN LIEU OF COMPLYING WITH THE
APPLICABLE REGULATION WITHIN
20 DAYS AFTER THE EFFECTIVE
DATE OF THE REGULATION, THE OPERATION OF THE REGULATION
SHALL BE
STAYED AS TO SUCH PERSON PENDING THE
DISPOSITION OF THE PETITION;
PROVIDED, HOWEVER,
THAT THE
OPERATION
OF ANY REGULATION SHALL NOT
BE STAYED IF THAT
REGULATION WAS ADOPTED BY THE BOARD TO IMPLEMENT,
IN
WHOLE OR IN PART,
THE REQUIREMENTS
OF THE FEDERAL CLEAN
AIR ACT, SAFE DRINKING WATER ACT OR COMPREHENSIVE
ENVIRONMENTAL RESPONSE, COMPENSATION, AND~LIABILITYACT,
OR THE STATE
RCRA,
JflC OR NPDES PROGRAMS.
(Section 28.1
of the Act).
b)
WITHIN 20 DAYS AFTER THE EFFECTIVE DATE OF ANY
—
REGULATION THAT IMPLEMENTS
IN WHOLE OR IN PART THE
REQUIREMENTS OF THE CLEAN AIR ACT,
IF ANY PERSON FILES A
PETITION FOR AN INDIVIDUAL ADJUSTED STANDARD IN LIEU OF
COMPLYING WITH THE REGULATION,
SUCH SOURCE WILL BE
EXEMPT FROM THE REGULATION UNTIL THE BOARD MAKES A FINAL
DETERMINATION_ON_THE PETITION.
IF THE REGULATION
ADOPTED BY THE BOARD FROM WHICH THE INDIVIDUAL ADJUSTED
STANDARD
IS SOUGHT REPLACES
A PREVIOUSLY ADOPTED BOARD
REGULATION,
THE SOURCE SHALL
BE SUBJECT TO THE
PREVIOUSLY ADOPTED BOARD REGULATION UNTIL FINAL ACTION
IS TAKEN BY THE BOARD ON THE PETITION.
(Section 28.1
of
the Act).
(Source:
Added
at
Ill.
Reg.
92—329
—68—
IT
IS SO ORDERED.
I,
Dorothy M.
Gunn, Clerk of
the Illinois Pollution Control
Board, herebyr~stify that the
bove Proposed Order was adopted
on the
______________
day
of
~
,
1988 by a vote
of
_________________
Ill
ution Control Board
92—330
