ILLINOIS POLLUTION CONTROL BOARD

January

19,

1989

In the Matter

of:

Procedural Rules Revision

35

111. Adm. Code

)

R88—5

(A)

101,

106

(Subpart G), and 107

In the Matter

of:

Procedural Rules

Revision

35

Ill. ~dm. Code 102 and 106

)

RS8—5

(B)

(Subparts

D,

E,

&

F)

PROPOSED RULE.

SECOND NOTICE.

ORDER

OF

THE BOARD

(by

3.

Theodore Meyer):

This matter

is before

the Board

on

its own motion.

On

September

8,

1988,

the Board proposed for

first notice revisions

of some of

its procedural

rules.

This docket includes proposed

new general rules

(35

Ill.

Adm. Code

101), new rules covering

regulatory proceedings

(35 Ill. Adm. Code 102),

and new rules

for

adjusted standards proceedings

(35

Ill.

Adm.

Code

106).

The

Board has proposed repeal

of existing Parts

101,

102,

and

1.07.

Part

107 currently contains rules pertaining

to sanctions.

Rules

on s~n-ictionshave been proposed

as part of the new Part

101

general

rules.

An opinion supporting the proposed rules was

adopted

on September

22,

1988.

Merit hearings were held

on

October

13,

1988

in Springfield, and on October

21,

1988

in

Chicago.

The

first notice comment period closed on Monday,

November

7,

1988.

Today’s order

takes

two actions.

First,

this docket will

be

split into two dockets:

R88—5(A)

and R88—5(B).

R88—5(A) will

include

the proposed rules

in Part

101

(genera? provisions)

,

the

proposed rules

in Subpart G of Part 106

(adjusted standards

proceedings),

and Part

107.

Docket R88—5(B) will

include

the

proposed rules

for regulatory proceedings

(Part

102),

and

revisions

to Subparts

D,

E,

and

F of Part

106.

(Please note

that

these

Subparts will be changed only

to

update references

to other

Parts.)

This split of

the docket

is done

to allow Parts

101,

106

(Subpart G), and 107

to proceed

to second notice while

the Board

further considers

the comments on Part

102 received

at hearing

and during

the first notice comment period.

The Board

anticipates taking

further action on Part

102

in

the near future.

Second,

the Board

today proposes

for second notice the rules

in

R88—5(A).

Pursuant to

the Board’s October

20,

1988 order,

95—395

---

—2—

this second notice order will be withheld from submission

to the

Joint Committee on Administrative Rules

(JCAR)

to allow

interested

persons

to comment on the rules.

All comments must be

received at the Board’s Chicago office by 5:00 p.m. on Wednesday,

February

8,

1989.

If the Board deems

it necessary after

consideration of any comments received during this period, the

Board will

adopt

a second second notice order.

An opinion

supporting

the second notice order will

be adopted

at that time.

TITLE

35:

ENVIRONMENTAL PROTECTION

SUBTITLE

A:

GENERAL PROVISIONS

CHAPTER

1:

POLLUTION

CONTROL

BOARD

GENERAL

RULES

SUBPART

A:

GENERAL

PROVISIONS

Section

101.100

101. 101

101.102

101. 103

101.104

101.105

101. 106

101. 107

101. 108

101.109

Section

101.120

101.121

101.122

Section

101. 160

101. 161

101. 162

Applicability

Defini tions

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

Filing

Fees

Photocopying

Fees

Forms

Of

Payment

SUBPART C:

SERVICE

SUBPART

D:

PUBLIC

INFORMATION

Public Information

Non—Disclosable

Information

Pub? icat

ions

SUBPART

E:

BOARD

MEETINGS

Sect ion

101.140

101.

141

101. 142

101.143

101.144

Applicability

Service

Of

Initial

Filings

Service

Of

Subsequent

Filings

Proof

Of

Service

Effective

Date

Of

Service

95—396

---

—3—

Section

101. 180

101. 181

Board Meetings

Agenda

For Board Meetings

SUBPART F:

EX PARTE CONTACTS

Section

101.200

Ex Parte Contacts

SUBPART

G:

HEARINGS

Section

101. 220

101. 221

Authority

Of

Hearing

Officer

Hearing

Decorum

SUBPART

H:

MOTION

PRACTICE

Sanctions

For

Refusal

To

Comply

With

Procedural

Rules,

Board

Orders,

Or

Hearing

Officer

Orders

Sanctions

For

Abuse

Of

Discovery

Procedures

SUBPART

K:

RELIEF

FROM

AND

REVIEW

OF

FINAL

ORDERS

Motions

For

Reconsideration

Relief

From

Final

Orders

Judicial

Review

Of

Final

Board

Orders

Stay

Procedures

Interlocutory Appeals

Appendix A

Captions

Illustration

A

Illustration B

Illustration

C

Applicability

Filing

Of

Motions

And

Responses

Contents

Of

Motions

And

Responses

Motions

Attacking

Jurisdiction

Motions

For

Summary

Judgment

Motions

Preliminary

To

Hearing

Motions

For

Reconsideration

Disposition

Of

Motion

SUBPART

I:

DISCOVERY

Subpoenas

Production

Of

Information

SUBPART

3:

SANCTIONS

Section

101.240

101. 241

101.242

101.243

101.244

101.245

10?. 246

101.247

Section

101. 260

101.

261

Section

101.

280

101.281

Section

101.300

101. 301

101.302

101.303

101.304

General

Rulemaking

Site—specific Rulemaking

Adjusted

Standard

Petition

95—39 7

---

—4—

Illustration D

Permit Appeal Or

Variance

Illustration

E

Enforcement Case

Illustration

F

Administrative Citation

Appendix B

Appearance Form

Appendix

C

Withdrawal Of Appearance

Form

Appendix D

Notice Of Filing

Appendix

E

Certificates

Of Service

Illustration A

Service

By Non—Attorney

Illustration B

Service By Attorney

AUTHORITY:

Authorized

by

Section

26

of

the

Environmental

Protection

Act

(Ill.

Rev.

Stat.

1987,

ch.

llli,/2,

par.

1026);

and

implementing

Sections

5,

7.1,

7.2,

27,

28,

29,

31,

32,

33,

35,

36,

37,

38,

40

and

41

of

the

Environmental

Protection

Act

(Ill.

Rev.

Stat.

1985,

ch.

l1l~/2, pars,

1005,

1007.1,

1007.2,

1027,

1028,

1029,

1031,

1032,

1033,

1035,

1036,

1037,

1038,

1040

and

1041);

and

Section

4

of

“An

Act

in

relation

to

natural

resources,

research,

data

collection

and

environmental

studies,”

approved

arid

effective

July

14,

1978,

as

amended

(ill.

Rev.

Stat.

1987,

ch.

961/2,

par.

7404).

SOURCE:

Filed

with

Secretary

of

State

January

1,

1979;

codified

6

Ill.

Reg.

8357;

Part

repealed

,

new

Part

adopted

in

RSS—5

at

___

Ill.

Reg.

__________

effective

_______________________

NOTE:

Capitalization

denotes

statutory

language.

SUBPART

A:

GENERAL

PROVISIONS

Section

101.100

Applicability

a)

This

Part

governs

the

practices

and procedures of

the

Pollution

Control

Board,

and

contains

rules

which

are

applicable

to

all

proceedings

conducted

by

the

Board.

This

Part

should

be

read

in

coniunction

with

35

Ill.

Mm.

Code

102

through

120,

which

contain

rules

applicable

to

specific

proceedings

conducted

by

the

Board.

The

provisions

of

this

Part

apply

to

35

Ill.

Mm.

Code

102

through

120;

however,

in

the

event

of

a

conflict

between

the

rules

of

this

Part

and

subsequent

Parts,

the

more

specific

requirement

of

the

subsequent

Part

applies.

b)

The

provisions

of

the

Code

of

Civil

Procedure

(Ill.

Rev.

Stat.

1987,

ch.

110,

par.

1—101

et

seq.)

and

the

Illinois

Supreme

Court

Rules

(Ill.

Rev.

Stat.

1987,

ch.

llOA,

par.

1

et

seq.)

do

not

expressly

apply

to

proceedings

before

the

Board.

However,

in

any

absence

of

a

specific

provision

in

these

procedural

rules

to

govern

a

particular

situation,

the

parties

or

participants

may

argue

that

a

particular

provision

of

the

Code

of

Civil

Procedure

or

the

Illinois

Supreme

95—398

---

—5—

Court Rules provides guidance

for

the Board

or hearing

officer.

C)

The provisions contained

in this Part and

in

35

Ill.

Mm.

Code 102 through 120 are

in addition

to the

provisions of the Illinois Administrative Procedure Act

(Ill.

Rev.

Stat.

1987,

ch.

127,

par.

1001 et seq.),

unless otherwise provided by the Act.

Section 101.101

Definitions

The definitions of the Environmental Protection Act (Ill.

Rev.

Stat.

1987,

ch.

111 1/2,

par.

1001

et

seq.)

apply

to this Part

unless otherwise provided.

The following definitions also apply

to this Part:

~Act” means

the Environmental Protection Act (Ill.

Rev.

Stat.

1987,

ch.

111

1/2,

par.

1001 et

seq.)

“Agency” means

the Illinois Environmental Protection

Agency.

“APA” means

the Illinois Administrative Procedure Act

(Ill.

Rev.

Stat.

1987,

ch.

127,

par.

1001

et

seq.)

“Attorney

General”

means

the

Office

of

the

Attorney

General

of

the

State

of

Illinois.

“Board”

means

the

Illinois Pollution Control Board.

“Chairman”

means

the

Chairman

of

the

Board.

“Clean

Air

ct”

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

et

seq.

(1986)).

“Clerk”

means

the

Clerk

of

the

Board.

“Contested

case”

means

an

adjudicatory

proceeding,

including

but

not

limited

to

enforcement,

variance,

permit appeal, adjusted standard,

and administrative

citation

proceedings,

but

not

including

regulatory,

quasi—legislative,

informational,

or

similar

proceedings.

“Document”

means

pleading,

notice,

motion,

affidavit,

memorandum,

brief,

petition,

or

other

paper

or

combination

of

papers

required

or

permitted

to

be

filed.

“DNS”

means

the

Illinois

Department

of

Nuclear

Safety.

95—399

---

-6-

“ENR”

means

the

Illinois

Department

of

Energy

and

Natural

Resources.

“Evidence”

means

a

paper,

drawing,

map,

chart,

report,

study,

or

other

tangible

thing

produced

and

submitted

at hearing.

“JCAR” means

the Joint Committee on Administrative

Rules.

“Material”

means

relating

to

any

substantive

issue

that

is

of

consequence

to

the

determination

of

a

proceeding.

“Participant”

means

any

person,

not

including

the

Board

or

its

staff,

who

takes

part

in

a

regulatory

or

other

quasi—legislative

proceeding

before

the

Board.

A

person

becomes

a

participant

in

any

of

several

ways,

including,

but

not

limited

to,

filing

a

comment,

being

added

to

the

notice

list

of

a

particular

proceeding,

or

testifying

at hearing.

“Party” means

a person authorized

by the Act

to bring,

defend,

or intervene

in

a contested case before the

Board.

“Person”

means

any

entity

defined

in

Section

3.26

of

the

Act,

including

but

not

limited

to

any

individual,

partnership,

company,

corporation,

political

subdivision,

or

state

agency.

“Procedural

rules”

means

the

Board’s

procedural

rules,

contained

in

35

Ill.

Mm.

Code

101

through

120.

“Registered

agent”

means

a

person

registered

with

the

Secretary

of

State

for

the

purpose

of

accepting

service

of notices

for any entity,

or

a person otherwise

authorized

in writing

as an agent

for

the purpose of

accepting

service

of

notices

for

that

entity.

“Relevant”

means

having

any

tendency

to

make

the

existence of any fact that

is of consequence

to

the

determination

of

the

proceeding

more

probable

or

less

probable

than

it

would

be

without

that

information.

“RCRA”

means

the

Solid

Waste

Disposal

Act,

as

amended

by

the

Resource

Conservation

and

Recovery

Act

of

1976

(42

U.S.C.

6901

et

seq.).

“SDWA”

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.

95-400

---

—7—

“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 Fitst Class mail,

by messenger service,

or personally at

the Board’s Chicago office.

Filing by

electronic transmission, such

as telefax machine or

computer modem, will not be accepted, except when

specifically requested by the Board.

d)

Initiation of any proceeding before the Board may only

be made by filing the necessary document(s) with

the

Clerk.

Such

initial

document(s)

shall

be

deemed

filed

only

when

date—stamped

by

the

Clerk.

After

initiation

of

a

proceeding,

the

time

of

filing

of documents will

be

the

date

on

which

they

are

date—stamped

by

the

Clerk,

unless

date—stamped

after

any

due

date.

If

received

after

any

due

date,

the

time

of

mailing

shall

be

deemed

the

time

of

filing.

Proof of mailing

shall

be

made

pursuant

to

Section

101.143.

e)

Notwithstanding

subsection

(d)

,

the Board

or

the

hearing officer may accelerate

a filing schedule

to

prevent undue delay, upon written notice

to the

participants

or

parties.

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.”

95—4(11

---

—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

be typewritten

or

reproduced

from typewritten copy and double—spaced on

unglazed white paper

of greater

than

12 pound weight

and measuring

8”

x

10

1/2”

or

8

1/2”

x

11”.

Reproductions may be made by any process that produces

legible black—on—white copies.

All documents

shall

be

fastened on

the

left side or

in the upper

left hand

corner.

The left margin of each page shall be at least

1

1/2 inches and the right margin

at least one inch.

e)

The requirements of subsections

(b),

(c),

and

(d) may

be waived by the

Board

upon written request.

A request

for

a filing waiver

shall

be presented

to the Board

in

the form of

a motion accompanied

by affidavits

necessary

to verify any factual assertions contained

in

the motion.

If

the Board

finds

that compliance with

the filing requirements would

impose

an undue burden,

the

Board will grant the motion.

f)

Exhibits,

where pO3Sibi~,shall

be reduced

to conform

to

the size requirements of subsection

(d).

However,

one non—conforming copy

may

be filed with the Clerk’s

office.

g)

The original of each document

filed shall

be signed by

the party or by its authorized representative or

attorney.

All 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 Sections

1 through

4 of

“AN

ACT

in relation

to the reproduction of public

records on film and

the destruction of records

so

95—402

---

—9—

reproduced”

(Ill.

Rev.

Stat.

1987,

ch.

116, oars.

35—

38),

or by leave of

the Board, documents on microfiche

are not acceptable

for filing.

i)

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.

This

limit

does

not

include

appendices

containing

relevant

material.

b)

No

post—hearing

brief

or

response

brief,

brief

submitted

in

response

to

a

Board

order,

or

public

comment submitted

in lieu of

a brief

shall exceed

50

pages without prior approval of

the Board

or hearing

officer.

No

reply brief shall

exceed

25 pages.

These

limits do not include appendices containing relevant

material.

C)

In

considering

any

motion

to exceed these

limits,

the

Board

or the hearing officer

will

take into account

factors such as,

but not limited

to,

the complexity of

the proceeding,

the number of issues involved, and the

length of

the

record.

Section

101.105

Waivers

~ waiver

of

a deadline

for

final

Board

action,

as specified

in

Sections

38,

40, 40.1 and

41

of the

Act, shall be filed as

a

separate document.

The waiver shall

be clearly titled

as such,

identify the proceeding by name and docket number,

and be signed

by

the party or by his authorized representative

or

attorney.

The waiver shall be

an open waiver or

a waiver until

a calendar

date

certain.

A

contingent

waiver

is

not

acceptable.

Section

101.106

Incorporation

Of

Prior

Proceedings

a)

Upon the separate written request of any person or on

its own initiative,

the Board or hearing officer may

incorporate

materials

from

the

record

of

another

Board

docket into any proceeding.

The person seeking

incorporation shall

file with

the Board

four copies of

the material

to be incorporated.

The person seeking

incorporation

shall

demonstrate

to

the Board or

the

hearing officer that the material

to be incorporated

is

relevant

to

the

proceeding.

Notice

of

the

request

shall

be given to all identified participants or

parties

by

the

person

seeking

incorporation.

95—403

---

—10—

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.

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.

2)

A corporation,

in

an enforcement case pursuant

to

35 Ill.

Mm.

Code

103,

by an attorney

at

law

licensed and registered

to practice

in the State of

Illinois.

In all other proceedings,

a corporation

may appear

through any officer, employee,

or

representative,

or by an attorney at law licensed

and registered

to practice

in the State of Illinois

or both.

3)

Any other person,

including

a municipality, 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 and notice of

filing 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 and notice of

filing 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

95—404

---

—11—

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 day

on which the act, event or

development occurs and shall run until

the end of

the last day,

or

the next business day

if the

last day

is

a

Saturday,

Sunday

or

national

or state legal holiday.

SUBPART

B:

FILING

AND

PHOTOCOPYING

FEES

Section 101.120

Filing Fees

a)

A person filing

an action

for which

a filing

fee

is

prescribed by the Act shall pay that

fee at the time

the petition

is presented

to

the Clerk

for filing.

b)

The types of petitions

for which

fees are required and

the amount of those

fees are as

follows:

1)

PETITION FOR SITE-SPECIFIC REGULATION,

$75;

2)

PETITION FOR VARIANCE,

$75;

3)

PETITION FOR REVIEW OF

PERMIT or any petition

for

review pursuant

to Section 40

of

the Act,

$75;

4)

PETITION TO CONTEST

LOCAL GOVERNMENT DECISION

PURSUANT TO SECTION 40.? OF THE ACT,

$75;

and

5)

PETITION FOR ADJUSTED STANDARD PURSUANT TO SECTION

28.1 OF THE ACT,

$75.

(Section 7.2 of the Act.)

c)

The Clerk

will refuse

to accept any petition which

is

not accompanied by the required

fee.

The fee must be

paid

in

the form specified

in Section 101.122.

Section 101.121

Photocopying

Fees

a)

All files, records,

and data may be copied

at Board

offices

in Chicago UPON PAYMENT OF REASONABLE

REPRODUCTION FEES TO BE DETERMINED BY THE BOARD.

(Section

7 of the Act.)

b)

The Board

will contract

for any copying

that would

impose

a substantial administrative burden on the

Board.

The person requesting

such copies will

be

charged

the reproduction charges incurred by the Board.

95—405

---

—12—

c)

Requests for copies will

be honored

in as timely

a

manner

as possible.

Requests

for copies by mail will

be honored.

However,

the Board reserves the right

to

charge the requesting party for the mailing costs

incurred by the Board.

Section 101.122

Forms Of Payment

a)

Filing fees and photocopying

fees may be paid by

cashier’s check,

money order, certified check,

or

personal

check.

Cash

payments

will

be

accepted,

but

are strongly discouraged.

b)

All checks and money orders shall be made payable

to

the Illinois Pollution Control

Board.

c)

In

the event that

a check

is not honored

by

petitioner’s bank,

the Board will

enter

a sanction

order

in that proceeding.

Sanctions may include,

but

are not limited

to, dismissal of the action

for non-

payment,

or re—computation of any decision deadline

to

exclude

the

time

in

which

the

filing

fee

remains

uncol 1ccted.

SUBPART C:

SERVICE

Section 101.140

Applicability

This Subpart applies

to all Board proceedings generally.

However,

to the extent that 35

Ill. Mm.

Code

102 through

120

conflict

with

or

supplement

this

Subpart,

that

more

specific

Part

governs.

Section

101.141

Service

Of

Initial

Filings

A cooy of all initial

filings

in any Board proceeding shall

be

served upon all persons,

required by this Subtitle

to he served,

or

their registered agent.

35

III. Mm.

Code 102 through

120

set

forth more specifically who must be served

in any given

type of

Board

proceeding.

Service

of

all

initial

filings shall

be made

personally,

or by registered, certified,

or

First Class

Mail, or

by messenger

service.

However,

initial complaints

in enforcement

proceedings pursuant

to

35

Ill. Mm.

Code

103 must be served

personally, by registered

or certified mail,

or by messenger

service.

Section 101.142

Service

Of

Subsequent

Filings

After

initial

filings

are

served

pursuant

to

Section

101.141,

all

subsequent

filings shall

be served personally,

or by United

States mail,

or by messenger

service.

95—406

---

—13—

Section 101.143

Proof Of Service

a)

Service of

filings

is proved by:

1.

In case of service by personal delivery,

by

certificate of the attorney,

or affidavit of the

person other

than an attorney, who made delivery;

or

2.

In case of service by messenger

service, by

messenger

service

receipt;

or

3.

In

case

of

service

by

registered

or

certified

mail,

by registered

or certified mail receipt; or

4.

In case of service by First Class 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.

b)

A sample certificate

of service appears

in

Appendix

E

of this Part.

Section 101.144

Effective Date Of

Service

a)

In the case of service by personal delivery, service

is

complete on the date of that personal delivery.

b)

In the case of service by registered or certified mail,

or by messenger service, service

is complete on the

date specified on the registered

or certified mail

receipt or

the messenger service receipt.

c)

There

is

a rebuttable presumption that service by First

Class mail

is complete

four days after mailing.

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

95—407

---

—14—

at the request of any Board member with consent of

the

author of that communication.

b)

All files maintained by the Clerk

will be open to

reasonable public inspection and copying,

except the

following material:

1)

Internal communications between and among Board

members

and

staff

(except as

provided

in

subsectiori(a));

2)

Material protected

from public disclosure

under

the

trade secret provisions

of

35

Ill.

Adm.

Code

120;

and

3)

Materia

which

is stamped

“Not

Subject

to

Disclosure”

by

Board

order,

pursuant

to

Section

101.

161.

c)

The Clerk shall maintain

a list of all

files open

to

public inspection.

Section 101.161

Non—Disclosabie

Information

a)

Only the following materials may be stamped “Not

Subject to Disclosure”

by the Board:

1)

INFORMATION WHICH CONSTITUTES A TRADE SECRET;

2)

INFORMATION PRIVILEGED AGAINST INTRODUCTION

IN

JUDICIAL PROCEEDINGS;

3)

INFORMATION

CONCERNING

SECRET

MANUFACTURING

PROCESSES

OR

CONFIDENTIAL

DATA

SUBMITTED

BY

ANY

PERSON UNDER THE ACT; AND

4)

INCOME AND

EARNINGS

DATA

WHEN NOT AN ISSUE

IN THE

PROCEEDING.

(Section

7(a)

of

the

Act.)

b)

Material

will

be

stamped

“Not

Subject

to

Disclosure’1

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. Mm.

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

25-408

---

—15—

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.

This material may also be made

available

to officers,

employees,

or authorized

representatives of this

State

or

the United States as

provided

in Section

7(e)

of

the

Act.

If any agency of

this State or

the United States

is

a participant

in

the proceeding

in which

the

application for non—disclosure

is made,

said agency

participants

shall be

served with

a copy of

the

material and

the application

for non—disclosure and

allowed

seven

(7) days

from

the date of

such service

to

respond

to

the aoplication.

The

Board will

rule on the

application and

inform the applicant of its decision.

Public inspection

of the material

for non—disclosure

shall

be

barred

until

the

application

has

been

disposed

of by the

Board

and

the time

for appeal

has

run.

The

Board

may enter conditional non—disclosure orders

allowing withdrawal

by

the applicant of

the material

covered by such order,

at

which time the Board’s ruling

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

activities

and notices of meetings and hearings.

One

copy will

be sent

to any person without charge, upon

request.

b)

Copies of

the

Act and regulations

in effect will

be

provided

without charge, by mail

and at

the Board’s

Chicago office.

C)

The Board

will

regularly compile

its decisions and

orders into volumes, which subscribers may buy and

receive by

mail

at

a reasonable cost.

SUBPART

E:

BOARD MEETINGS

95—409

---

—16—

Section

101.180

Board Meetings

a)

All decisions of the Board will be made at meetings

open

to the public.

Four members of

the Board

constitute

a quorum.

Four affirmative votes are

required

for any final determinations of the Board,

except in

a proceeding

to

remove

a seal under

Section

34(d) of the Act.

b)

THE BOARD WILL HOLD AT LEAST ONE MEETING EACH MONTH AND

WILL

ADOPT

AT

THE

BEGINNING

OF

EACH CALENDAR OR FISCAL

YEAR

A

SCHEDULE

OF

MEETINGS

WHICH

SHALL

APPEAR

AT

LEAST

ONCE

IN

ITS

MINUTES

AND

IN

THE

ENVIRONMENTAL

REGISTER.

SPECIAL

MEETINGS

MAY

BE

CALLED BY

THE

CHAIRMAN

OR

BY

ANY

~O

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

PDSTING

A~

THE

BOARD’S

OFFICES.

IN

EMERGENCIES

IN

WHICH

A

MAJOR.1T~

OF

THE BOARD CERTIFIES THAT EXIGENCIES

OF

TIME

REQUIRE,

THE REQUIREMENTS

OF PUBLIC NOTICE AND

24

HOUR

~‘RITTEN

NOTICE

TO

MEMBERS

MAY

BE

DISPENSED

~‘ITH,

AND

BOARD

MEMBERS

tqILL

RECEIVE

SUCH

NOTICE

AS

IS

REASONABLE

UNDER

THE CIRCUMSTANCES.

(Section

5

of

the Act.)

C)

The Board will

keep

a complete and accurate record of

all meetings

including

the votes

of

individual members

on all adjudications and proposed regulations.

d)

No oral argument will be heard at any Board meeting,

except

by

leave

of

the

Board.

Section 101.181

Agenda For Board

Meetings

Unless the Board determines that undue

delay or material

prejudice will

result,

no document received by the Clerk

for

filing

after

4:30

p.m.

two

days

before

a

scheduled

Board

meeting

will

be

placed

on

the

agenda

for

that

Board

meeting.

Any

such

filing

will

appear

on

the

agenda

for

the

next

regularly

scheduled

Board meeting.

SUBPART

F:

EX

PARTE

CONTACTS

Section

101.200

Ex

Parte

Contacts

a)

Contested

Case

Proceedings.

No Board member, hearing

officer,

or

employee

of

the Board

shall communicate cx

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

95—410

---

—17—

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.

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 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;

d)

Examine witnesses and direct witnesses to testify;

e)

Regulate the course

of

the hearing,

including but

not

limited

to

controlling

the

order

of

proceedings;

f)

Establish

reasonable

limits

on the duration of the

testimony and questioning

of

any witness and

limit

repetitious or cumulative

testimony and questioning;

g)

Issue,

in

the name of the Board, an order compelling

the

answering

of

interrogatories

or

other

discovery

requests;

h)

Order

the production of evidence;

i)

Initiate,

schedule

and

conduct

a

pre—hearing

conference;

95—411

---

—18—

j)

Issue subpoenas;

k)

Exclude late—filed briefs and comments from inclusion

in the record for decision;

1)

Rule upon motions as specified

in Section 101.247; abd

n)

Rule upon objections and evidentiary questions.

Section 101.221

Hearing Decorum

a)

Hearings should be conducted with fitting dignity and

decorum.

Any person may record the proceedings by

tape, film, or other means.

The hearing officer may

prescribe rules to govern such recordings.

If the

hearing officer determines that recording

is disruptive

or detrimental to proper development of the record, he

or she nay lin~tor prohibit recorling.

IF A

fIT?4ESS

REFUSES TO TESTIFY ON THE GROUSDS THAT HE OR SHE MAY

NOT BE COMPELLED TO TESTIFY IF ANY PORTION OF THE

WITNESS’ TESTIMONY IS TO BE BROADCAST OR TELEVISED OR

IF

MOTION

PICTURES ARE TO BE TAKEN OF THE WITNESS WHILE

THE WITNESS IS TESTIFYING, THE HEARING OFFICER WILL

PROHIBIT SUCH RECORDING DURING THE TESTIMONY OF THE

WITNESS.

(Ill.

Rev.

Stat.

1987, ch.

102, par.

42.05.)

The hearing officer shall make witnesses aware

of this provision before the hearing begins.

b)

Participants

in proceedings before the Board shall at

all times conduct themselves with

SUBPAR2

:4:

Section 101.240

Applicability

This Subpart applies to all Boar3 proceedings generally.

However,

to the extent that 35

Ill. Adm. Code 102 through 120

conflict with or supplement this Subpart, that more specific Part

governs.

Section 101.241

Filing Of Motions

And

Responses

a)

All motions shall

be

in writing, unless made orally on

the record during a hearing, and shall state whether

directed

to the Board or

to the hearing officer.

If

the motion is directed to the Board, ten copies shall

be filed with the Clerk.

If the motion

is directed to

the hearing officer, three copies shall be filed with

the Clerk and one copy served upon the hearing

officer.

All other participants shall be served

pursuant

95—412

---

—19—

b)

Within

7 days after

service of

a motion,

a participant

or party may file

a response to the motion.

If no

response is filed, such participant or party shall

be

deemed

to have waived objection

to the granting of the

motion,

but such waiver

of objection does not bind the

Board or the hearing officer

in the decision of the

motion.

Unless

undue

delay or material prejudice

would

result,

neither

the

Board

nor the hearing officer

will grant any motion before expiration

of the 7—day

response period.

C)

The moving person shall

not have the right

to reply,

except as permitted by

the Board or

the hearing officer

to prevent material prejudice.

Section

101.242

Contents

Of

Motions

And

Responses

a)

All motions shall clearly state

the reasons

for

and

grounds

upon which

the motion is made and shall

contain

a

concise

statement

of the relief sought.

Facts

asserted

which

are

not

of

record

in the proceeding

shall

be supported

by affidavit.

A brief may be

included.

b)

All responses shall

clearly state

the position of

the

responding person and the reasons

for that

position.

Facts asserted which are not of record

in the

proceeding

shall

be

supported

by affidavit.

A brief

may be included.

Section

101.243

Motions Attacking Jurisdiction

Or

Sufficiency

Of The Pleadings

a)

All motions

to strike or dismiss challenging

the

sufficiency of any document filed with

the Board shall

be

filed

within

21

days

after

the service of the

challenged

document,

unless

the

Board

determines

that

material prejudice would

result.

In the case of

a

regulatory proceeding, pursuant

to 35

Ill.

Adm.

Code

102, however,

such motions

shall

be filed within 30

days of the Board order

formally accepting

the

regulatory proposal

for hearing.

b)

All motions challenging the jurisdiction of

the Board

shall

be filed prior

to

the filing

of

any other

document by the moving participant or

party, unless the

Board determines

that material prejudice will

result.

Such participant or party will

be

allowed

to appear

specially for the purpose

of making

such motion.

C)

A person may participate

in

a proceeding without

waiving

any

jurisdictional

objection

if such objection

is timely raised pursuant

to subsection

(b).

95—413

---

—20—

Section 101.244

Motions

For Summary Judgment

A motion

for summary judgment prior

to hearing may be made by any

party

to an enforcement proceeding pursuant

to Title VIII of the

Act or

a permit appeal pursuant

to Title X of the Act.

Specific

rules

for such motions

for summary judgment are found

in

35

Ill.

Mm. Code 103 (enforcement proceedings)

and

35

Ill.

Adm.

Code 105

(permit appeals).

Section 101. 245

Motions Preliminary To Hear ing

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 defer ruling upon any

motion

until

its decision on

the merits of

the

case.

b)

No motion

to continue

a hearing

in

a proceeding with

a

deadline for Board action, as specified

in the Act,

will be granted

unless

the motion

to continue

is

accompanied

by a waiver

of that decision deadline.

The

waiver

shall conform with the requirements of

Section

101. 105.

Section

101.246

Motions

For Reconsideration

a)

Any motion

for

reconsideration or modification of

a

final Board

order

shall

be filed

within

35 days of

the

adcption 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

claiming

lack

of

jurisdiction,

motion

for

consolidation,

motion

for

summary judgment,

or motion

for reconsideration.

The

hearing officer

will refer

all such motions

to

the

Board.

If

the

hearing

officer

refuses

to

act upon any

95—414

---

—21—

motion,

he

or she will

refer such motion

to

the Board

within

5 days of the

filing of any response.

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 written motion.

Notwithstanding,

when

in the judgment of the hearing

officer

immediate appeal of any order

is necessary to

prevent

harm to the public interest

or

to avoid unusual

delay or expense,

the hearing officer may refer

the

ruling promptly

to the Board

and notify the

participants.

A continuing objection

to

a hearing

officer

ruling

may

be raised at the close of hearing

and

in post—hearing submissions.

c)

Unless otherwise ordered by the Board

to prevent

material prejudice,

neither

the filing of

a motion,

the

certification of

a question

to the Board,

nor

any

appeal

to

the Board

of

a hearing officer order

shall

stay the proceeding or extend

the time

for the

performance of any act.

All hearing officer orders

shall

remain

in effect during

the pendancy of any

appeal

to

the Board.

SUBPART

I:

DISCOVERY

Section 101.260

Subpoenas

a)

Upon request by any party or participant, the Clerk

shall

issue

subpoenas

for

the

attendance

of

witnesses

at

a hearing

or deposition.

Subpoenas may

include

a

command

to produce books, papers,

documents,

or other

tangible things designated therein

and relevant

to the

matter under consideration.

b)

Subpoena

forms are available

at

the Board’ s Chicago

office.

The person requesting

the subpoena

is

responsible

for

completing

the

subpoena

and

serving

it

upon

the

witness.

c)

If the witness

is

a non—resident of the state,

the

hearing officer

or Board may order specific terms and

conditions

in connection

with

his or her appearance,

including payment

of the witness’

reasonable expenses

by the moving participant.

d)

A subpoena shall

state

the title of the action

and

shall

command such 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

95—415

---

—22—

the Clerk after service upon the witness and served

upon

the hearing officer.

e)

The hearing officer or

the Board, upon motion made

promptly and

in any event at or before the time

specified

in

the subpoena for compliance, may quash

or

modify the subpoena

if it

is unreasonable or

oppressive.

f)

Failure

of

any

witness

to

comply

with

a

Board

subpoena

shall

subject

the

witness

to sanctions

under this

Part,

or

to judicial enforcement

of the subpoena.

The Board

may,

upon proper motion by the participant or party

requesting

the

subpoena,

request

the Attorney General

to pursue such judicial enforcement of the subpoena on

behalf of

the Board.

g)

Each witness

subpoenaed

oy

a party or participant under

this

Section

is

entitled

to

receive

witness

fees

from

that party or participant

as provided

in Section 47

of

“AN ACT concerning

fees and salaries and

to classify

the several counties of this state with reference

thereto.”

(Ill.

Rev.

Stat.

1987,

ch.

53,

par.

65).

h)

Any witness subpoenaed

for a deposition may be required

to attend only

in the county

in which

he or

she resides

or

transacts

business,

or

in

any

other place ordered

by

the Board.

Section

101.261

Production

Of

Information

The

hearing

officer

may

at

any

time

on

his

or

her

own

motion,

or

On motion of any earticipant,

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 material delay, expense,

harassment,

or

oppression or

to protect materials

from disclosure consistent

with

the provisions of Sections

7 and

7..! of the

Act

and

35

Ill.

Mm.

Code 101.161

and 120.

SUBPART

3:

SANCTIONS

Sections 101.280

Sanctions

For Refusal

To Comply

With

Procedural

Rules,

Board

Orders,

Or

Hearing

Officer Orders

If

a party or any person unreasonably refuses

to comply with any

provision of

33

Ill. Mm.

Code 101 through

120 or

fails

to comply

with any order

entered

by the Board

or

the hearing

officer,

including

any

subpoena

issued

by

the

Board

or

hearing

otfficer,

the Board may order sanctions.

In addition to remedies elsewhere

specifically provided,

the sanctions may include,

among others,

the following:

95—416

---

—23—

a)

That further proceedings be stayed until

the order

or

rules are complied with,

except where the non—complying

party is the petitioner

in

a petition

for variance or

permit appeal, such proceeding 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;

d)

That

a witness be barred

from testifying concerning

that

issue;

e)

That,

as

to claims or defenses asserted

in

any

pleading

to which that issue

is material,

a judgment by default

be entered against

the offending

person or

that

the

proceeding

be dismissed with or without prejudice;

f)

That any portion of the offending person’s p1eadin~s

relating

to that issue be stricken and,

if appropriate,

judgment be entered

as

to that

issue;

g)

That the offending person pay the amount of

reasonable

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 A~DREVIEW OF FINAL ORDERS

Section 101.300

Motions

for Reconsideration

Motions

for

reconsideration

or

modification

of

a

final

Board

order

shall

be

filed

within

35

days

of the order, pursuant

to

Section 101.246,

Responses to such motions are also governed by

Section 101.246.

Section 101.301

Relief From Final Orders

a)

Clerical mistakes

in orders or other parts of

the

record and

errors therein arising

from

oversight

or

95-417

---

—24—

omission may be corrected by the Board

at anytime on

its own

initiative or on the motion of any party and

after such notice,

if any,

as the Board orders.

Such

mistakes may be

so corrected by the Board before any

appeal

is docketed in the appellate court.

Thereafter,

while

the appeal

is pending, such mistakes may be

corrected with leave of the appellate court.

b)

On

written

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).

d)

A motion under

subsection

(b)

shall

be

filed

with

the

Board within

one

year

after entry of the order exceot

that

a motion pursuant

to subsection (bH3)

shall

be

filed within

a reasonable

time after entry of the

Order.

~)

Any

response

to

a motion

under

this Section shall

be

filed within

14 days of the filing of the motion.

Section

101.302

Judicial

Review

Of

Final

Board

Orders

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, oars.

3—101

et

seq.)

b)

For purposes of judicial review, Board action becomes

final

upon adoption of

the Board’s

final order

in

a

Proceeding,

or upon subsequent Board action

if any

95—418

---

—25—

motion

for

reconsideration

is

filed

pursuant

to

Section

101. 246.

Section 101.303

Stay Procedures

The

procedure

for

stay

of

any

Board

order

during

appeal

shall

be

as

provided

in

Rule

335

of

the

Rules

of

the

Supreme

Court

of

Illinois.

Section

101.304

Interlocutory

Appeals

a)

When the Board,

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

guestion 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.

95—419

---

—26—

Appendix A

Captions

Illustration A

General

Rulemaking

BEFORE THE

ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

REVISION OF THE FLUORIDE

DRINKING WATER STANDARD:

)

(Rulemaking)

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 COM?ANY FOR

)

R

SITE—SPECIFIC AIR REGULATION:

)

(Site—Specific

35

ILL.

ADM.

XXX.XXX

)

Rulemaking)

Illustration C

Adjusted Standard Petition

BEFORE THE ILLINOIS

POLLUTION

CONTROL

BOARD

IN THE MATTER OF:

PETITION

OF

ABC

COMPANY

(AND

)

AS

THE ILLINOIS ENVIRONMENTAL

)

(Adjusted standar.d~

PROTECTION AGENCY)

FOR ADJUSTED

STANDARD FROM

35

ILL.

ADM.

CODE

XXX.XXX

95—420

---

—27—

Illustration D

Permit Appeal

Or Variance

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

ABC

COMPANY,

Petitioner,

v.

)

PCB

ILLINOIS ENVIRONMENTAL

)

(Permit appeal

or

Variance)

PROTECTION

AGENCY,

)

Respondent.

Illustration

E

Enforcement

Case

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

(or OTHER

PERSON’S

NAME),

Complainant,

V.

)

PCB

(Enforcement)

ABC COMPANY,

Respondent.

Illustration

F

Administrative

Citation

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

ILLINOIS ENVIRONMENTAL

PROTECTION

AGENCY

(or UNIT

OF

LOCAL GOVERNMENT),

Complainant,

v.

)

AC-

ABC COMPANY,

)

(Administrative Citation)

IEPA Number

Respondent.

95—421

---

—28—

Appendix

B

Appearance

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

95—422

---

—29—

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

.~,

5—423

---

—30—

Appendix

D

Notice of Filing

BEFORE THE

ILLINOIS POLLUTION CONTROL BOARD

APPLICABLE

CAPTION

(see

Appendix

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.

Name of Attorney or Other

Date

Representative

Name

Add ress

Telephone

Number

95—424

---

—31—

Appendix

E

Of

Illustration

A

Service

by

PROOF

OF

SERVICE

I,

the undersigned,

on oath state

that

I have served

the

attached

describe

document

served

,

by

describe

method

of

service,

upon the

following persons:

(list persons

served)

signature)

Notary Seal

SUBSCRIBED AND SWORN TO BEFORE

ME this

—

day of

,

19.

Notary Public

Illustration

B

Service By Attorney

CERTIFICATE CF 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

signaturel

95—425

---

—32—

TITLE

35:

ENVIRONMENTAL

PROTECTION

SUBTITLE

A:

GENERAL PROVISIONS

CHAPTER

I:

POLLUTION

CONTROL

BOARD

PART

106

HEARINGS

PURSUANT

TO

SPECIFIC

RULES

SUBPART

G:

ADJUSTED

STANDARDS

Section

106. 701

106.702

106.703

106.704

106.705

106.706

106.707

106.708

106.709

TOG

.7T~

106.711

106. 712

1’~~

—,

jut). /~)

106.714

106.80!

106.802

106.803

105.804

106.

80 6

106.807

106.808

106. 90 1

106.902

106.903

10 6. 904

106.905

106.906

Appendix

Applicab iii~

Defini tions

Joirttor

Sin~1e

Petition

Request to Agency

to Join

As

Co—Petitioner

Petition Contents

Petition

Verification

Federal

Procedural

Requirements

incorporated_Macer~i*____

MotTons

ProSTof

Service

Petition Notice

P~of

of

Petition

Notice

Request

~orPubUcF1earin~

Ag en ~7Re

apa nsa

Hearinc

Scheduled

Hearinc

Notlce

~—Hearing

Submission of Testimony and Exhibits

Production of

information

Admissible Evidence

Order

of Hearina

Post-hearino Comments

Burden of Proof

Board Detberations

Dismissal

of

Petition

Board

Decision

Opinion and Order

Appeal

of

Board

Decisions

Publication

of

Adjusted

Standards

Effect

of

F~iling

a

Petition

Old

Rule Numbers Referenced

28.1

and authorized

by Section

26 of the Environmental Protection

Act

(Ill.

Rev.

Stat.

i987,

ch.

111~~2,

pars.

1005,

1014.2(c),

1022.4,

1027,

1028,

1028.1

and

1026).

SOURCE:

Filed with Secretary

of

State January

1,

1978; amended

at

4

Ill.

Reg.

2,

page

186, effective

December

27,

1979;

codified

at

6 Ii!.

Reg.

8337;

amended

in

R85—22 at

10 Ill.

Reg.

992,

effective

February

2,

1986; amended

in R86—46

at

11

111.

Reg.

13457,

effective

August

4,

1987;

amended

in

RS2—l

at

Ill.

Reg.

12484,

effective

July

13,

1983;

amended

in

R88—1~~ 12

III.

Reg.

12817, effective July

21,

1988;

amended

in R88—5 at

Ill.

Reg.

,

effective

95—42~~

---

—33—

SUBPART G: ADJUSTED STANDARDS

Section

106.701

Applicability

The procedures set forth

in this Subpart apply to any person

seeking

an

adjusted standard pursuant to Section

28.1 of the

Illinois Environmental Protection Act,

(Ill.

Rev.

Stat.

1987,

ch.

1111/2, par.

1001 et seq.), except as otherwise

provided

in

Subparts

A,

B,

C,

D,

E,

and

F.

This Subpart shall

be read

in

conjunction with

35

Ill.

Adm.

Code 101

which

contains

procedures

generally

applicable

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

ouroose

of

this

Subpart,

words

and

terms

shall

have

the

meanings

as

defined

in

35

111.

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

oetition

for

an

Adjusted

Standard

(petition)

either

jointly

with

~he

Illinois

Environmental

Protection

Agency

(Agency)

or

sin~ly.

One

original

and

nine

copies

of

the

signed

petition

Shawl

be

filed with the Clerk

of the Board.

A filing

fee shall

be

oaid

at

the

time

of

the

filing

of

the

aetition

in

accordance

with the requirements of

35

Ill.

Adm. Code 101.120

and

101.122.

One copy of the petition shall

also be served

on the Agency and

the Department of Energy and Natural Resources

(ENR).

Such

service on

the Agency and ENR 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—Petitioner

a)

The

Agency

may

act

as

a

co—petitioner

in

any

adjusted

standard proceeding.

h)

Any person may request Agency assistance

in

initiating

a

petition

for adjusted

standard.

In response

to

a request

to act as co—petitioner,

the Agency may require

the

95—427

---

—34—

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

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.

d)

Subsequent

to

the

filing

of

the

petition

and

prior

to

hearing,

the

Board

grant

the

Agency

co—petitioner

status

upon

joint

motion

of

the

Agency

and

the

petitioner

who

originally

filed

the

petition.

(Source:

Added

at

Ill.

Req.

effective

Section

106.705

Petition

Contents

The

petition

shall

be

captioned

in

accordance

with

the

applIcable

requirements

of

35

111.

Mm.

Code

101.ppendix

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

qeneral

aoolicabilitv

was

orornulgated

to

imolanient,

in

whole or

in part,

the requirements of the

Clean Water

Act,

Safe Drinking Water

Act,

Comprehensive

Environmental

Resoonse,

Compensation

and

Liability

Act,

Clean

Air

Act,

or

the

State

programs

concerning

Resource

Conservarton

and Recovery Act (RCRA),

Underground

I~~eC~jo~

Control

(UIC)

,

or

National

Pollutant

Discharge

Elimination System (NPDES).

c)

The level

of justification

for adjusted

standards

soecified

by

the

regulation

of

general

applicability

or

statement

that the regulation of general

applicability

does not specify

a level

of justification;

1)

A

description

of

the

nature

of

the

petitioner’s

activity

which

is

the subject of the proposed adjusted

standard.

The description sh~li include

the location of

and

area affected

by the petitioner’s activity.

This

95—42~

---

—35—

description shall

also

include the number of persons

employed

by

the

petitioner’s

facility

at

issue,

age of

that facility,

relevant pollution control equipment

already

in

use,

and

the

qualitative

and quantitative

nature of emissions, discharges or releases currently

generated

by

the

petitioner’s

activity;

e)

A description of

the efforts which

would

be necessary

if

the petitioner were

to comply with the regulation of

general applicability.

All compliance alternatives,

with the corresponding costs

for each alternative,

shall

be discussed.

The discussion of costs

shall

include the

overall capital

costs as

well

as the annualized

capital

and

operating

costs.

f)

A narrative description of

the proposed adjusted

standard

as

well

as proposed language

for a

Board order

which would

impose

the

standard.

Efforts

necessary

to

achieve this proposed standard and the correspundinq

costs

shall

also be presented.

Such cost

information

shall

include

the overall capital cost as well

as the

annualized

capital

and operating costs;

g)

The quantitative

and qualitative impact of

the

petitioner’s activity on

the environment

if

the

petitioner

were

to comoly with

the regulation of general

applicability as compared

to

the quantitative and

qualitative

impact on

the environment

if

the

petitioner

were

to comply only with the proposed adjusted

standard.

To the extent applicable,

cross—media impacts

shall

be discussed.

For

the purposes of this Section,

cross—media

impacts shall mean impacts which concern

environmental subject areas other

than those addressed

by the regulation

of general

applicability and the

proposed adjusted standard.

Also,

the petitioner

shall

compare

the qualitative

and quantitative nature of

emissions, discharoes or

releases which would he

expected

from

comp~.iance

with

the

regulation

of

general

applicability as opposed

to

that

which would

be expected

from compliance with

the prooosed adjusted standard;

h)

A statement which exolains how the cetitioner

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;

95—42fl

---

—36—

j)

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.

1)

If any informational requirement prescribed

by

subsections

(a)

through

(k)

is determined by the

petitioner

to be either

not applicable or

unduly

burdensome,

the petitioner need not fulfill

that

informational requirement

in the petition which

is

initially filed, provided

that an explanation detailing

the rationale for

such

a determination and the

determination itself

is set

forth

in

the appropriate

oortion

oE

the

petition.

Notwithstanding

this

provision,

the Board may

require

the

petitioner

to

amend

its

petition

to

fully comoly with informational

requirements

set

forth by this

Section

or

to provide the

Board with additional material

which will aid

the Board

in its resolution of

the adjusted standard

proceeding.

(Source:

Added at

Ill. Reg.

effective

Section

106.706

Petition

Verification

~.llmaterial

facts asserted within the oetition shall

be verified

~y affidavits

Such atfida~its s~-’all be filed w~tbtoe

pet

t

t ion.

(Source:

Added

at

Ill.

Req.

effective

Section 106.707

Federal Procedural Requirements

It shall

be

the duty of the petitioner

to ensure compliance with

any procedural

requirements

identified pursuant

to Section

106.705(i)

to the extent that such requirements do not require

Board action.

(Source:

Added at

Ill.

Reg.

effective

Section 106.708

Incorporated Material

Incorporation of material

from the record of another

Board docket

shall

be accomplished

in accordance with

35

Ill. Mm.

Code

101.106.

95—430

---

(Source:

Added at

Ill. Reg.

effective

Section 106.709

in accordance with 35 Ill. Mm.

Code lOl.Subpart H.

(Source:

Added at

tll. Reg.

,

effective

Section 106.710

All filings

upon the petitioner, the Agency,

persons as requited by the Board or BearLng Officer.

as prescribed by 35

Ill. Adt. Code 101.143.

(Source:

Added at

Ill. Reg.

,

effective

Section 106.711

a)

by the petitioner’s activity which is the subject of the

Ill.

Rev.

Stat.

1987,

ch.11144_, par.

1028.1).

of the notice shall be

of Petition by petitioner’s

name

b)

petition for an adjusted standard.

also provide the date upon which

the Board docket number, the regulatory standard (with

appropriate Administrative Code citation)

from

wh±ch

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

95—431

—38—

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.”

c)

Subsequent

to

the

filing of

a petition,

the Board

will

publish notice

in the Environmental Register that

it has

received

a petition

for

an

adjusted standard.

The

notice will

include

the petitioner’s name,

filing date,

and

a brief narrative description of

the proposed

adjusted standard

as well

as

the standard imposed

by toe

regulation of general applicability

(accompanied by the

appropriate

administrative Code Citation)

from

which

the

adopted

standard

is

sought.

The notice will

inform the

public that

any person may cause

a public

hearing

to be

held by filing

a request with the Clerk

of

the Board not

later

than

21 days after

the date the

peti.tIoo

is

filed

in accordance with Section 106.713.

(Source:

Added

at

Ill.

Reg.

effective

Section

106.712

Proof of

Petition Notice

;‘lithin

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.100,

par.

1).

(Source:

Added at

Ill. Req.

effective

Section

106. 713

Request

for Public Hearing

Any person may 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

petition notice

in accordance with Section

106. 711.

Requests for

hearing

should

make reference

to the Boacd docket number assigned

to

the proceeding.

(Source:

Added

at

111.

Req.

effective

95—432

---

—39—

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 resoect

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.

Req.

effective

Section

106.801

Hearing

Scheduled

a)

The Board will

assign

a hearing officer

to

an adjusted

standard proceeding

when:

1)

The Board

receives

a hearing

request, pursuant

to

Section 106.713,

not later

than

21 days after

the

date

of

the publication of

the petition notice

in

accordance

with Section 106.111; 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

will set a time and place

for

the

hearing.

The hearing officer may consult with the

petitioner

and

the

\gency 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).

95—433

---

-40-

a)

After the hearing has been scheduled, the hearing

officer will notify the Clerk, petitioner, Agency, ENE

and any person who has filed a timely heating request of

the time and place of the heating.

(Source:

Added at

Ill. R~.

effective

3

Section 106.802

Heating Notice

After receiving notification from the hearing officer pursuant to

Section 106.831(c), the Clerk shalt cause the publication of a

hearing

notice

BY

ADVERTISEMENT

IN

A

NEWSPAPER

OP

GENERAL

CIRCULATION in the county in which the hearing

is

to

be

held.

SUCH

NOTICE

SHALL

BE

PUBLISHED

AT

LEAST

20

DA!S

BEFORE THE DATE

OP

THE

HEARING.

(Section

28.1

of

the

(Source:

Added

at

Ill.

Reg.

effective

Section

106.803

fle—hearing

Submisston

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.

Consistent with the petitioner’s

burden of proof, the hearing officer may provide

differing filing deadlines with respect to submissions

of different persons.

Pursuant to hearing officer

order, rebuttal testimony and exhibits may be submitted

prior to hearing

.

When

such pre—hearing submission is

required, an original

and four

(4) copies cf each

testimony and each exhibtt shall be filed with the

Board.

The Agency, petitioner,

ENR

and any other person

as required by the hearing officer shall each be served

with one copy of each testimony and exhibit.

Such

service shall be initiated on or before the date that

copies are filed with the Board.

All testimony and

exhibits shall be bound and labeled with the docket

number of the proceeding, the name of the witness

submitting the material or exhibit, and the title of the

material

or

exhibit.

b)

Testimony submitted prior to hearing will be entered

into the record as if read,

unless the hearing officer

determines that it will aid public understanding to have

the testimony read.

All persons testifying will be

sworn and will be subject to examination.

Modifications

to previously submitted testimony and exhibits may be

allowed by the hearing offtcer at hearing provided that

such modifications are either non—substantive

in nature

or would not materially prejudice another person’s

9

5-434

---

—41—

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

Iii.

Adrn.

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

is

not

admissible

under

such rules

if

it

is

relevant

and

would

be relied uoon 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

or any portion

thereof of any relevant pending or prior proceeding

before

the Board

or part thereof

incorporated

into the

record of

the present proceeding,

in

accordance

with

Section

106.708.

d)

Relevant

scientific

or

technical

articles,

treatises

or

materials may

be

introduced

into

evidence

subject

to

refutation or disputation through any introduction of

comparable documentary evidence

or

expert testimony.

e)

Any person may testify at

hearing

provided

that

she

or

he

is

sworn

and

subject

to

cross—examination.

Cross—

examination

of

any person who presents

testimony may be

conducted

by

any

person.

The

hearing

officer

may

limit

such

testimony

and

cross—examination

pursuant

to

35

Ill.

Adm.

Code

101.220.

f)

Information

received

at hearing

will only be considered

as

substantive

evidence

in

the Board’s deliberations

if

95—435

---

—42—

it

is

presented

as

an

exhibit

or

direct

testimony,

or

if

it

is elicited from a

a person

under cross—

examination.

The Board will

not consider,

as

substantive evidence,

information which

is presented in

the form of

a

question during cross—examination.

(Source:

Added

at

Ill.

Reg.

effective

)

Section

106.806

Order

of

Hearing

The following

shall

be

the order of

an adjusted standard hearing

subject

to

modification by the hearing officer

for good cause:

a)

Presentation,

argument,

and

disposition

of

motions

preliminary

to

a

hearing

on

the

merits

of matters

raised

by

the petition and

Aqencv response;

b)

Presentation

of

ocenlng

statements

by

petitioner,

Agency,

and

any

interested

person;

c)

Testimony and exhibits by petitioner;

d)

Testimony and exhibits by Agency;

e)

Testimony

and

exhibits

by interested persons;

f

Testimony

and

exhibits

by

petitioner

in

rebuttal.

This

portion

of

the

petitioner~s

case

is

limited

to

the rebutting

of

evidence

presented

by

the

Agency

or

any

interest~d

person

during

that

part

of

the

hearing

described

by

subsections

(d)

and

(e).

g)

Presentation

and

argument

of

all motions

to

be

disposed

of

by the Board;

h)

Presentation

of

closing

statements

by

the

petitioner,

Agency,

and

any

interested

person;

and

i)

A schedule for the submission of post—hearing

comments

to

the Board.

(Source:

Added

at

ill.

Reg.

effective

Section

106.807

Post—hearing Comments

The petitioner,

Anency,

ENR and any interested person may file

post—hearing

comments.

The hearing officer may or3er any person

to file such comments.

Post—hearing comments shall

be

filed

95—436

---

—43—

within fourteen

(14)

days after

the close of the last hearing

unless the hearing officer specifies

a different date

for

submission of post—hearing comments.

Consistent with the

petitioner’s burden of proof,

the hearing officer may provide

for

differing filing deadlines with respect

to post—hearing comments

by different persons.

Pursuant to hearing officer order,

rebuttal post—hearing comments may be submitted.

All post—

hearing comments shall present arguments or comments based only

on

information

contained

in

the

record.

Such

comments

may

also

present legal argument

citing legal authorities.

The Board will

not consider any new information presented by post—hearing

comments.

(Source:

Added

at

Ill.

Reg.

effective

Section

106.808

Burden

of Proof

The burden of proof

in

an ad-~usted standard croceeding

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

proceed

ing.

(Source:

dded

at

Iii.

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 29.1 of

the Act).

(Source:

Added

at

Ill.

Reg.

effective

Section

106.903

Board Decision

95—437

---

—44—

A PETITIONER MUST JUSTIFY AN ADJUSTED STANDARD CONSISTENT WITH

SUBSECTION

(A)

OF

SECTION

27

OF

THE

ACT.

(Section

28.1

of

the

Act.)

a)

IF

THE

REGULATION

OF

GENERAL

APPLICABILITY

DOES

NOT

SPECIFY A LEVEL OF JUSTIFICATION FOR AN ADJUSTED

STANDARD,

THE BOARD MAY ADOPT

THE PROPOSED ADJUSTED

STANDARD

IF THE PETITIONER PROVES

(Section 28.1

of the

Act)

that:

1)

FACTORS RELATING

TO THAT PETITIONER ARE

SUBSTANTIALLY AND SIGNIFICANTLY DIFFERENT FROM THE

FACTORS RELIED UPON BY THE BOARD IN ADOPTINJ THE

GENERAL REGULATION APPLICABLE TO THAT PETI~tONER

(Section 28.1 of the Act);

2)

THE EXISTENCE

OF THOSE FACTORS JUSTIFIES

AN

ADJUSTED STANDARD

(Section 28.)

of

the Act);

3)

THE REQUESTED STANDARD wiLL NOT RESULT IN

ENVIRONMENTAL OR HEALTH EFFECTS SUBSTANTIALLY AND

SIGNIFICANTLY MORE ADVERSE

THAN THE EFEECTS

CONSIDERED BY THE BOARD

IN ADOPTING THE RULE CF

GENERAL APPLICABILIrY (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

adoot

the

proposed

adjusted

standard,

if

the

petitioner proves the level

of justification spe~if~~d

by

the

regulation

of

general

applicability.

c)

IF

THE

REGULATION

OF

GENERAL

APPLICABILITY

IMPLEMENTS

IN

WHOLE OR

IN PART THE REQUIREMENTS OF

THE CLEAN AU~~JT,

THE BOARD WILL ADOPT EITHER

(Section

28.1 of the Act~:

1)

The

proposed

adjusted

standard

if

the

petition~:

proves

the

applicable

level

of

justification;

or

2)

A STANDARD THE SAME AS TH;T IMPOSED BY THE

REGULATION OF

GENERAL

APPLICABILITY,

if

the

petitioner

fails

to prove

the

a~oiicab1e

level

of

justification.

(Section 28.1

of

the Act).

d)

In adopting adlusted standards THE BOARD MAY IMPOSE SUCH

CONDITIONS AS MAY BE NECESSARY TO ACCOMPLISd TdE

PURPOSES OF THE ~CT (Section 23.1 of the Act),

(Source:

Added at

Ill.

Reg.

effective

q.5—43~

---

-45-

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).

(Source:

Added

at

Ill.

Reg.

,

effective

Section

106.905

Appeal

of

Board

ANY

FINAL

ORDER

OR

DETERMINATION

OF

THE

BOARD

IN

AN

STANDARD

PROCEEDING

MAY

BE

APPEALED

TO

THE

APPELLATE

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

a)

Subsequent

to

the

Board’s

adoption

of

an

standard,

the

Boari

will

publish,

in

the

Environmental

Register,

the

name of

the

petitioner, date of the Order

which

adopted

the

adjusted

standard, and

a brief

narrative

description

of

the

adopted

adjusted

standard.

b)

THE

BOARD

SHALL

CAUSE

THE

PUBLICATION

OF

A

LISTING

OF

ALL DETERMINATIONS MADE PURSUANT TO SECTION 28.1 OF THE

ACT IN THE ILLINOIS REGISTER AND THE ENVIRONMENTAL

REGISTER AT THE END OF EACH FISCAL YEAR.

(Se:tion 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 REGULATtON, THE OPERATION OF THE

REGULATION

SHALL BE STAYED AS TO SUCH PERSON PENDIMG 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 LIABILITY ACT,

OR THE SPATE RCRA,

UIC OR NPDES PROGRAMS.

(Section 28.1

of the

Act).

95—439