999sec5.PDF

ILLINOIS POLLUTION CONTROL BOARD

December 17, 1998

IN THE MATTER OF:

HEARINGS PURSUANT TO SPECIFIC

RULES, PROPOSED NEW SUBPART K,

INVOLUNTARY TERMINATION OF

ENVIRONMENTAL MANAGEMENT

SYSTEM AGREEMENTS, 35 ILL. ADM.

CODE 106, SUBPART K

)

R99-9

(Rulemaking - Procedural)

Proposed Rule. Second Notice.

OPINION AND ORDER OF THE BOARD (by K.M. Hennessey, C.A. Manning, and M.

McFawn):

This opinion and order of the Board concerns an Illinois Environmental Protection

Agency (Agency) proposal regarding Environmental Management System Agreements

(EMSAs). An EMSA is an agreement between the Agency and a regulated entity that allows

the entity to implement alternatives to ordinarily applicable environmental laws or regulations.

These alternatives should yield greater environmental benefits than would the entity’s

compliance with ordinarily applicable environmental laws or regulations.

The Agency’s proposal sets forth procedures under which the Board will determine

whether to terminate an EMSA without a regulated entity’s consent (

i.e.

, “involuntarily”).

Today, the Board adopts for second notice a modified version of the Agency’s proposal.

BACKGROUND

In 1996, the General Assembly amended the Environmental Protection Act (Act), 415

ILCS 5/1

et seq

. (1996), to create an EMSA pilot program. See 415 ILCS 5/52.3 (1996),

added by Pub. Act 89-465, eff. June 13, 1996. The purpose of the legislation was to allow

these persons to:

implement innovative environmental measures not otherwise recognized or

allowed under existing laws and regulations of this State if those measures:

achieve emissions reductions or reductions in discharges of wastes

beyond the otherwise applicable statutory and regulatory requirements

through pollution prevention or other suitable means; or

achieve real environmental risk reduction or foster environmental

compliance by other persons regulated under this Act in a manner that is

clearly superior to the existing regulatory system. 415 ILCS 5/52.3-1(b)

(1996).

An EMSA “shall operate in lieu of all applicable requirements under Illinois and federal

environmental statutes, regulations, and existing permits that are identified in the [EMSA].”

415 ILCS 5/52.3-3(a) (1996). Participation in the program is voluntary and at the discretion

of the Agency. See 415 ILCS 5/52.3-1(c) (1996).

The EMSA program was inspired by the United States Environmental Protection

Agency’s pilot program entitled the “Regulatory Reinvention (XL) Pilot Project,” 60 Fed.

Reg. 27282 (May 23, 1995) (Federal XL Program). Statement of Reasons at 2. That program

allowed regulated entities to develop alternatives to regulatory requirements if the alternatives

produced greater environmental benefits, reduced administrative burdens, and enhanced public

participation. See 415 ILCS 5/52.3-1(a)(6) (1996). In Section 52.3 of the Act, the General

Assembly stated that the pilot program was intended to allow “a proposal accepted under the

Federal XL Program to be implemented at the State level if the proposal achieves one or more

of the purposes of this Section and is acceptable to the Agency.” 415 ICLS 5/52.3-1(a)(6)

(1996). However, a proposal need not be in the Federal XL Program to be accepted into the

EMSA pilot program. Statement of Reasons at 3, citing 415 ILCS 5/52.3-1(a)(5), 52.3-1(b)

(1996).

Section 52.3 allowed the Agency to develop Agency rules to establish (1) the criteria an

applicant must meet to participate in the pilot program, (2) the minimum contents of a

proposed EMSA, (3) the procedures for the Agency to review an EMSA, (4) the procedures

for the public to participate in EMSAs and for stakeholders to be involved in designing and

implementing specific projects, (5) the procedures to voluntarily terminate an EMSA, and (6)

the type of performance guarantee that an applicant must provide. See 415 ILCS 5/52.3-2(b)

(1996). The Agency adopted these rules, which were published in the

Illinois Register

April 3, 1998, with an effective date of March 20, 1998. See 22 Ill. Reg. 6217 (April 3,

1998).

Section 52.3 also directed the Agency to propose to the Board procedures and criteria

for the involuntary termination of EMSAs. See 415 ILCS 5/52.3-2(c) (1996). The Agency’s

proposal, filed on August 17, 1998, is the subject of this rulemaking. Generally, the Agency

states that its proposal is “closely modeled on the Board’s enforcement procedures found at 35

Ill. Adm. Code 103 (Part 103), Subparts A through H, but with shorter and more specific time

frames for various events within the process.” Public Comment of the Agency (PC 1) at 2.

PROCEDURAL MATTERS

Section 52.3-2(c) of the Act requires the Agency to propose to the Board “criteria and

procedures for involuntary termination of [EMSAs].” 415 ILCS 5/52.3-2(c) (1996). That

section required the Agency to propose these rules to the Board by December 31, 1996. In its

filing of August 17, 1998, the Agency “acknowledges that it is late in filing these rules before

the Board.” Statement of Reasons at 2.

Section 52.3-2(c) requires the Board to complete this rulemaking no later than 180 days

after it receives the Agency’s proposal. To meet that deadline, the Board sent the Agency’s

proposal to first notice on August 20, 1998, without commenting on the merits of the

proposal. The proposed rules were published in the

Illinois Register

on September 4, 1998.

See 22 Ill. Reg. 15926 (Sept. 4, 1998).

The Board held two public hearings in this matter: the first, in Chicago, on September

29, 1998; and the second, in Springfield, on October 6, 1998.

The purpose of the hearings

was to allow the Board to receive testimony from the Agency and other interested persons on

the merits and economic impact of the proposal. Two witnesses, each of whom is an Agency

employee, testified at each hearing: Laurel Kroack, Assistant Counsel; and Roger Kanerva,

Environmental Policy Advisor.

The first hearing also provided the public an opportunity to testify on the decision of the

Department of Commerce and Community Affairs (DCCA) not to perform an economic impact

study on the Agency’s proposed rules. Public Act 90-849, effective January 1, 1998, requires the

Board to ask DCCA to conduct an economic impact study on certain proposed rules before the

Board adopts the rules. The Board must make the economic impact study, or DCCA’s explanation

for not conducting the study, available to the public at least 20 days before a public hearing on the

economic impact of the proposed rules. The Board fulfilled these requirements. No one testified

on this issue at the hearing.

At the hearings, the hearing officer accepted into the record the following exhibits:

Exhibit 1: Testimony of Roger Kanerva of the Agency (Exh. 1);

Exhibit 2: June 1998 Comments of the Chemical Industry Council of Illinois on Draft

Rules of the Agency Regarding Involuntary Termination Procedures for EMSAs (Exh.

2);

Exhibit 3: Agency’s Proposed Revisions to its Proposal Regarding Involuntary

Termination Procedures for EMSAs (Exh. 3); and

Exhibit 4: Response of the Agency to Questions of the Board Raised at Hearing on

9/29/98 (Exh. 4).

At the end of the second hearing, the hearing officer established a deadline of

November 4, 1998, for interested persons to file public comments. The Board received one

public comment: Public Comment of the Agency (PC 1).

The transcript of the September 29, 1998 hearing is cited as “Tr.1 at __;” the transcript of

the October 6, 1998 hearing is cited as “Tr.2 at __.”

The Board now sends the Agency’s proposal, as modified in this order, to the Joint

Committee on Administrative Rules (JCAR). Following JCAR’s review, the Board will

consider the rules for final adoption.

DISCUSSION

First, the Board provides an overview of the Agency’s proposal and the significant

changes to that proposal that the Board makes at second notice. Second, the Board addresses

the specific issues raised during the first-notice period and explains the reasons for the Board’s

changes.

Overview of the Agency Proposal and the Board’s Significant Changes at Second Notice

The Agency’s proposal sets forth procedures to involuntarily terminate an EMSA, but

does not apply to all involuntary terminations of EMSAs. Under the Agency’s proposal, the

Agency may terminate an EMSA under Section 52.3-4(b) of the Act, without going through

the proposed involuntary termination procedures, when deficient performance under the EMSA

prevents achievement of the purposes set forth in Section 52.3-1(b) of the Act (see above at

pages 1-2). This type of termination is referred to as “summary termination” and is further

discussed below at pages 7-10. With this exception, the Agency’s proposed rules apply to all

proceedings to involuntarily terminate an EMSA.

The Board agrees that the Agency, in certain circumstances, may summarily terminate

an EMSA without first going through the proposed involuntary termination procedures before

the Board. However, the Board specifies in the proposed rules at second notice (1) the criteria

that the Agency must apply to summarily terminate an EMSA and (2) that summary

terminations may be appealed to the Board in the manner provided for review of permit

decisions in Section 40 of the Act. See Section 106.940 and 106.945. If the Agency wishes

to have the Board involuntarily terminate an EMSA, the Agency must follow the involuntary

termination procedures set forth in the proposed rules.

The proposed rules govern the involuntary termination proceedings from the initial

filing with the Board through the Board’s decision and after the Board enters its final order

(

e.g.

, motion to rehear or modify the order). The Agency’s proposal is modeled on the

Board’s existing Part 103 procedural rules for enforcement proceedings (35 Ill. Adm. Code

103, Subparts A-H). However, the proposed rules have shorter and more specific timeframes,

and fewer, or more limited, procedural mechanisms than Part 103. Tr.1 at 11; Tr.2 at 44.

Only the Agency can initiate a proceeding to involuntarily terminate. The Agency is

designated the “complainant.” The Agency must file a “statement of deficiency” with the

Board to initiate the proceedings. The statement of deficiency must set forth the alleged

deficient performance under the EMSA. The person who enters into the EMSA, also known

as a “sponsor,”

is designated the “respondent” in the involuntary termination proceeding.

“Sponsor” is defined in Section 106.942, which sets forth definitions for use in Subpart K.

Defined terms include “Environmental Management System Agreement” or “EMSA,”

Under the Agency’s proposal, the respondent has to file an answer within 15 days after receipt

of the statement of deficiency. At second notice, the Board amends the Agency’s proposal so

that the Board or the hearing officer may extend the 15-day period for good cause. All

material allegations of the statement of deficiency are taken as admitted if not specifically

denied in the answer or if the respondent fails to file an answer. See Section 106.946 and

106.948.

Under the Agency’s proposal, if the respondent timely files an answer, a hearing must

be held within 60 days after the Agency files the statement of deficiency. This time period can

be extended for up to 30 days in narrow circumstances. At second notice, the Board amends

the Agency proposal to clarify that the 30-day limit applies to each extension. In addition, the

60-day time period runs not from when the Agency files the statement of deficiency, but from

when the respondent files the answer. See Section 106.952.

Under the Agency’s proposal, the hearing officer must provide the parties with notice

of the hearing at least 20 days before hearing. The Board amends this requirement so that the

hearing officer or the Clerk must provide 30 days notice and the notice also must be provided

to the public by newspaper publication. See Section 106.952.

Under the Agency’s proposal, discovery, except requests to produce documents, admit

facts, and state the identity and location of persons having knowledge of facts, is not permitted

unless all parties agree and the hearing officer orders it. At second notice, the Board

eliminates the requirement that all parties agree, so that broader discovery, including

depositions and interrogatories, will be permitted if the hearing officer allows it. See Section

106.966.

The Agency has the burden to prove, by a preponderance of the evidence, that the

sponsor’s performance under the EMSA is deficient. See Section 106.958. Under the

Agency’s proposal, there are six grounds on which the Board may find that the performance of

a sponsor is deficient: (1) the sponsor misrepresented the factual basis for entering into the

EMSA; (2) the sponsor failed to provide the Agency access to the pilot project; (3) the sponsor

falsified monitoring data, recordkeeping information, or reports; (4) the sponsor or the owner

or operator of the pilot project failed to comply with any federal or local environmental law or

regulation that applies to the pilot project and that the EMSA does not address, and for which

the appropriate authority has sent a notice of violation, complaint, or other notice of failure to

comply; (5) the sponsor or the owner or operator of the pilot project failed to comply with any

State environmental law or regulation that applies to the pilot project and that the EMSA does

not address, and for which the Agency has mailed a notice of violation under Section 31(a) or

(b) of the Act; and (6) the sponsor or the owner or operator of the pilot project failed to

comply with its EMSA, subject to any grace or cure periods or rights contained in the EMSA.

“innovative environmental measures,” and “pilot project.” At second notice, the Board has

deleted “Director,” “environmental management system,” and “pilot program” from Section

106.942 because those terms are not used in Subpart K.

At second notice, the Board modifies these grounds. The Board modifies the third

ground to clarify that the falsified information must be about the pilot project; the fourth and

fifth grounds so that citizen complaints may trigger a finding of deficient performance; and the

sixth ground so that it refers only to sponsor and not to owner or operator of the pilot project.

See Section 106.954(a).

Under the Agency’s proposal, the Board must render a final decision within 30 days

after the hearing. If the respondent fails to timely file an answer, no hearing is held and the

Board must, within 30 days after the Agency filed the statement of deficiency, order the

EMSA terminated. At second notice, the Board eliminates these decision deadlines and

provides that the Board will render its decisions as expeditiously as practicable. See Section

106.956(b).

Under the Agency’s proposal, the Board’s order must terminate the EMSA, reject

termination of the EMSA, or defer termination for a specified time, not to exceed 90 days, to

allow the respondent to come into compliance. At second notice, the Board allows the 90 day

period to be extended for good cause. See Section 106.956(c).

Under the Agency’s proposal, the Board’s order may (1) direct the respondent to cease

and desist from violations of the Act, Board regulations, or the EMSA, (2) require the

respondent to provide “performance assurance compensation” in appropriate amounts, (3)

require the respondent to post a sufficient performance bond or other security if the Board

allows a respondent an opportunity to come into compliance, and (4) order other relief that

may be appropriate. At second notice, the Board also specifies that the Board’s order may

enforce the remedy provisions of the EMSA. See Section 106.956(d)(4).

Under the Agency’s proposal, within 15 days after the Board adopts a final order, any

party may file a motion to rehear, modify, or vacate the order or for other relief. Responses

must be filed within ten days after the motion is filed. At second notice, the Board changes

these time periods to 35 days and 14 days, respectively. In addition, under the Agency’s

proposal, a person has 30 days after the Board enters its final order to file a motion for relief

from that order. The Board extends that period to 60 days at second notice. See Sections

106.980 and 106.982.

Issues Raised During the First-Notice Period

In response to questions of Board personnel at hearing, the Agency addressed six

issues: (1) the applicability of the proposed rules; (2) the grounds for deficient performance

under the EMSA; (3) the scope and effect of Board orders; (4) the adequacy of various time

periods; (5) the authority of the hearing officer; and (6) the notice of hearings.

Applicability of the Proposed Rules

At hearing, Board personnel asked why termination under Section 52.3-4(b) of the Act

(referred to in this rulemaking as “summary termination”) was not subject to the Agency’s

proposed proceedings to involuntarily terminate. Board personnel also asked whether a

summary termination could be appealed to the Board. In addition, Board personnel asked

whether only the Agency may initiate proceedings under the proposed rules and who may

intervene in these proceedings. The Agency’s responses and the Board’s findings are set forth

below.

Whether Summary Termination is Subject to the Proposed Rules. The Agency’s

proposed Section 106.940(c) provides that these involuntary termination procedures do not

apply when the Agency summarily terminates an EMSA under Section 52.3-4(b). The Agency

maintains that summary termination is not subject to these rules and thus the Agency may

terminate an EMSA under Section 52.3-4(b) without going through the procedures in the

proposed rules.

Section 52.3-4(b) of the Act provides:

In the case of deficient performance of any term or condition in an

Environmental Management System Agreement that prevents achievement of the

stated purposes in subsection (b) of Section 52.3-1, the Agency may terminate

the Agreement and the participant may be subject to enforcement in accordance

with the provisions of Section 31 and 42 of this Act. 415 ILCS 5/52.3-4(b)

(1996).

The purposes set forth in Section 52.3-1(b) are to:

implement innovative environmental measures not otherwise recognized or

allowed under existing laws and regulations of this State if those measures:

achieve emissions reductions or reductions in discharges of wastes

beyond the otherwise applicable statutory and regulatory requirements

through pollution prevention or other suitable means; or

achieve real environmental risk reduction or foster environmental

compliance by other persons regulated under this Act in a manner that is

clearly superior to the existing regulatory system. 415 ILCS 5/52.3-1(b)

(1996).

Board personnel asked the Agency to identify the basis for its claim that it could

summarily terminate EMSAs without going through the procedures in the proposed rules. The

Agency provided two reasons for maintaining the distinction: (1) the intent of the EMSA

legislation; and (2) the need to subject a sponsor to immediate enforcement when the sponsor’s

performance is so deficient that the project cannot achieve the basic purposes of the EMSA

program.

The Agency explained that it was the primary author of the EMSA legislation and that

it intended to create “two avenues for involuntary termination of an EMSA: through a

proceeding before the Board under Section 52.3-2(c) [the subject of this rulemaking] and under

Section 52.3-4(b).” PC 1 at 6; Tr.1 at 13, 37; Tr.2 at 37-38. Section 52.3-4(b) is the

summary termination provision. Another subsection of Section 52.3-4 allows, but does not

require, the Agency to adopt rules to carry out its duties under Section 52.3-4. See 415 ILCS

5/52.3-4(d). The Agency concluded that it need not apply to the Board when the Agency

summarily terminates an EMSA. PC 1 at 7; Tr.1 at 37-38.

The Agency noted that while an EMSA is in effect, it operates in lieu of otherwise

applicable environmental laws and regulations identified in the EMSA. The Agency argued

that if a sponsor’s performance is so deficient that the project cannot achieve Section 52.3-

1(b)’s purposes, the Agency must be able to immediately terminate the EMSA and require the

sponsor to comply with existing environmental laws and regulations without going through a

Board proceeding. The Agency argued that this ability is critical both to protect the

environment and to maintain public confidence in the EMSA program. The Agency

maintained that the procedural safeguards of the proposed rules are appropriate only for the

types of deficient performance that Section 106.954(a) describes, which are less egregious.

Tr.1 at 15-16, 39-43, 50-55, 59; Tr.2 at 34-35, 37-39.

The Board agrees that the Agency may summarily terminate an EMSA under Section

52.3-4(b) of the Act without going through a Board proceeding. However, unlike the Agency,

the Board does find that the proposed rules apply to summary terminations, as explained

below.

Whether Summary Terminations May Be Appealed to the Board. The Agency argued

that Section 5(d) of the Act does not support appeals of its summary terminations to the Board.

Section 5(d) states:

The Board shall have authority to conduct hearings upon complaints charging

violations of the Act or of regulations thereunder; upon petitions for variances;

upon petitions for review of the Agency’s denial of a permit in accordance with

Title X of this Act; upon petition to remove a seal under Section 34 of this Act;

upon other petitions for review of final determinations which are made pursuant

to the Act or Board rule and which involve a subject which the Board is

authorized to regulate; and such other hearings as may be provided by rule.

415 ILCS 5/5(d) (1996).

The Agency argued that Section 5(d) provides that the Board has the authority to

conduct hearings (1) upon complaints charging violations of the Act or regulations thereunder

and (2) upon petitions for review of final determinations made under the Act or Board rule and

which involve a subject matter the Board is authorized to regulate. The Agency concluded that

a summary termination:

does not involve a complaint, nor is the Board authorized to regulate EMSAs.

The Board’s sole role in the EMSA process is to act as the adjudicator of certain

involuntary termination proceedings under Section 52.3-2(c). PC 1 at 9.

The Board disagrees. First, summary terminations under Section 52.3-4(b) are “final

determinations which are made pursuant to the Act.” See 415 ILCS 5/5(d) (1996). Second,

those final determinations do “involve a subject which the Board is authorized to regulate.”

Id.

Section 52.3-4(c) plainly states that “the Board shall promulgate[] criteria and procedures

for the involuntary termination of Environmental Management System Agreements.” 415

ILCS 5/52.3-4(c) (1996). Summary terminations are merely one type of involuntary

termination. Because Section 52.3-4(c) authorizes the Board to regulate involuntary

terminations of EMSAs, Section 5(d) authorizes the Board to review Agency final

determinations under Section 52.3-4(b),

i.e.

, summary terminations.

At second notice, the Board specifies (1) the criteria that the Agency must satisfy to

summarily terminate an EMSA and (2) that summary terminations are appealable to the Board.

Specifically, the Board proposes a new Section 106.945:

a) To terminate an EMSA under Section 52.3-4(b) of the Act, the Agency

must determine that the sponsor’s performance under the EMSA has

failed to:

Achieve emissions reductions or reductions in discharges of

wastes beyond the otherwise applicable statutory and regulatory

requirements through pollution prevention or other suitable

means; or

Achieve real environmental risk reduction or foster

environmental compliance by other persons regulated under this

Act in a manner that is clearly superior to the existing regulatory

system.

(Section 52.3-1(b) of the Act)

b) If the Agency terminates an EMSA under Section 52.3-4(b) of the Act,

the sponsor may, within 35 days after receipt of the Agency’s

notification of the termination, file an appeal with the Board. Appeals to

the Board will be in the manner provided for review of permit decisions

in Section 40 of the Act.

Consistent with Section 52.3-4(b) (see above at page 7), the Board quotes the purposes

set forth in Section 52.3-1(b) as the criteria for summary termination. Appeals of summary

terminations to the Board will proceed like permit appeals. Permit appeals are addressed in

Part 105 of the Board’s procedural rules. See 35 Ill. Adm. Code 105. The Board accordingly

changes the applicability section as follows:

The purpose of this Subpart is to set forth the criteria and procedures

under which the Board or the Agency may terminate for involuntary

termination of an EMSA, as defined in Section 106.942 of this Subpart

Part.

This Subpart shall apply to all proceedings to involuntarily terminate an

EMSA entered into pursuant to Section 52.3 of the Act and 35 Ill. Adm.

Code 187, except as set forth in subsection (c) of this Section.

b)c)

When the Agency terminates an EMSA under This Part is not applicable

to any Sponsor that is subject to termination of an EMSA by the Agency

pursuant to Section 52.3-4(b) of the Act, only Sections 106.942 and

106.945 of this Subpart apply.

This Subpart, except for Section 106.945, applies to proceedings in

which the Board will determine whether to terminate an EMSA.

The Board notes that the Agency has indicated that it will develop its own procedural

rules under Section 52.3-4(d) for summary terminations. PC 1 at 7. The Board emphasizes

that the provisions of Section 106.945 compliment, rather than substitute for, the procedures

that the Agency will develop.

Initiating a Proceeding to Involuntarily Terminate. At hearing, Board personnel noted

that the Agency’s proposed Section 106.946(a) provides that a proceeding to involuntarily

terminate an EMSA may “only be commenced by the Agency” and inquired about the role of

the Attorney General Office (AGO) in these proceedings. The Agency explained that since the

AGO is authorized to act on behalf of the Agency, the AGO presumably will either “file a

notice and statement of deficiency at the request of the Illinois EPA and act as lead in these

cases or, as with permit appeals, . . . appoint one or more attorneys at the Illinois EPA to act

as ‘Special Assistant Attorney General’ in these proceedings.” PC 1 at 13-14; Tr.1 at 59-62,

73-74. The Board agrees and does not modify the references to “Agency” in the proposed

rules.

Intervening in a Proceeding to Involuntarily Terminate. In describing who may

intervene, the Agency’s originally proposed Section 106.962(a) refers to “any person who

participated in the public hearing on the sponsor’s EMSA.” At hearing, Board personnel

asked the Agency to clarify this language. Tr.1 at 92-93; Tr.2 at 20-21. In response, the

Agency proposed the following modification:

any person who submitted written comments on the sponsor’s EMSA or

participated in the public hearing on the sponsor’s EMSA by signing an

attendance sheet or signature card at hearing, as provided in 35 Ill. Adm. Code

187.404 . . . . PC 1 at 16.

Section 187.404, part of the Agency’s rules on EMSAs, sets forth public comment and hearing

requirements that the Agency must meet before it enters into an EMSA. See 35 Ill. Adm.

Code 187.404.

The Board finds that the Agency’s proposed language more clearly identifies who may

intervene. However, consistent with Agency’s proposed revisions to Section 106.952(f)

(discussed below at pages 20-21), the Board finds that the intervention provision also should

refer to stakeholders named or listed in the EMSA. Accordingly, the Board amends Section

106.962(a) as follows:

if the person submitted written comments on the respondent’s EMSA or

participated in the public hearing on the respondent’s sponsor’s EMSA by

signing an attendance sheet or signature card at hearing under the procedures set

forth in as provided in 35 Ill. Adm. Code 187.404, or is named or listed in the

respondent’s EMSA as a stakeholder . . . .

The Board notes that a person who intervenes also must show that the Board’s final order may

adversely affect him or her. See Section 106.962(a).

Grounds for a Finding of Deficient Performance Under the EMSA

At hearing, Board personnel had several questions about the grounds on which the

Board may find that a sponsor has performed deficiently under Section 106.954(a). Under the

Agency’s proposal, one of the grounds is that the sponsor or owner or operator of the pilot

project has not complied with environmental laws or regulations or the EMSA. Board

personnel asked if, in certain circumstances, the noncompliance of a person who is not a party

to the EMSA or noncompliance at a facility that the EMSA does not cover are grounds for a

finding of deficient performance. Board personnel also asked if a citizen complaint may serve

as a basis for a finding of deficient performance. The Agency’s responses and the Board’s

findings are set forth below.

Noncompliance of a Person Who is Not a Party to the EMSA. Under the Agency’s

proposal, Section 106.954(a)(4)-(6) (formerly Section 106.954(d)-(f)) provides that the

noncompliance of the “sponsor or the owner or operator of the pilot project” with

environmental laws or regulations or the EMSA are grounds for the Board to find deficient

performance. Section 106.942 defines “sponsor” and “pilot project.” A “sponsor” is “the

proponent of a pilot project that enters into an EMSA with the Agency.” A “pilot project” is

“an innovative environmental project that covers one or more designated facilities, designed

and implemented in the form of an EMSA.”

Board personnel asked whether Section 106.954(a)(4)-(6) should refer only to the

“sponsor” or the “owner or operator of the pilot project.” The Agency maintained that

subsections (a)(4) and (a)(5) should refer to both entities because:

the situation could arise that the sponsor to an EMSA is the corporate parent or

intermediary, but not the actual owner or operator of the Pilot Project that is in

violation of a law or regulation not covered by the EMSA. Such a situation

presents a serious question as to whether the Pilot Project should be allowed to

continue. PC 1 at 5; Tr.1 at 93-96; Tr.2 at 19-20.

The Board agrees and retains the reference to both “sponsor” and “owner or operator of the

pilot project” in subsections (a)(4) and (a)(5).

However, the Agency proposed that the Board modify Section 106.954(a)(6), which

provides that failure to comply with one or more provisions of the EMSA is a ground for a

finding of deficient performance. This subsection originally referred to both “sponsors” and

“owners or operators.” The Agency noted that only a party to the EMSA can fail to comply

with it. The Agency therefore proposed that the subsection refer only to sponsor. Tr.1 at 95;

Tr.2 at 19-20. The Board agrees and modifies subsection (a)(6) accordingly.

Noncompliance at a Facility that the EMSA Does Not Cover. Board personnel asked

whether an EMSA may be terminated if a sponsor fails to comply with environmental laws or

regulations at a facility that the EMSA does not cover. The Agency stated that it does not

intend to seek to involuntarily terminate an EMSA solely on this basis. PC 1 at 12; Tr.1 at

78-79. The Board finds that the language “law or regulation that applies to the pilot project”

in Section 106.954(a)(4) and (a)(5) means that the noncompliance of the sponsor or the owner

or operator must be in connection with the pilot project.

For consistency, the Board modifies Section 106.954(a)(3) as follows:

The respondent sponsor has falsified any monitoring data, recordkeeping

information or reports regarding the pilot project. Tr.1 at 16-17, 81.

For similar reasons, the Agency wants to add a reference to “owner or operator” in Section

106.968, which deals with subpoenas to attend a hearing. As originally proposed, if the

witness, other than the sponsor, is a non-resident of the State, the order to attend the hearing

may include payment of the witness’ reasonable expenses. The Agency would amend the

exception to refer not only to the sponsor but also to the “owner or operator of a pilot

project.” The Agency stated that it should not bear these appearance costs because the owner

or operator “will derive the most direct benefit from the EMSA, and therefore, stands in the

shoes of the sponsor for purposes of defending an EMSA against involuntary termination.”

PC 1 at 6; Tr.1 at 95; Tr.2 at 21. The Board accepts the Agency’s suggested revision for

second notice.

Citizen Complaint. Board personnel asked whether the Board may terminate an EMSA

because a citizen has filed a complaint. The Agency answered this question affirmatively and

proposed the following change to Section 106.954(a)(4):

The sponsor or the owner or operator of the Pilot Project has failed to comply

with one or more requirements of any federal or local environmental law or

regulation applicable to the Pilot Project and not addressed by the EMSA and

for which the appropriate authority has sent a notice of violation, complaint or

other notice of failure to comply to the sponsor or the owner or operator of the

Pilot Project or a citizen’s complaint has been filed with the Board. PC 1 at 13,

15; Tr.1 at 79-80.

The Board notes that subsection (a)(4) refers to “any federal or local environmental law

or regulation” while subsection (a)(5) refers to “State environmental law or regulation.” The

Board has no jurisdiction over citizen complaints that allege violations of federal or local

environmental laws or regulations unless the violations are also violations of State

environmental laws or regulations. Accordingly, the Board will add the Agency’s proposed

language to subsection (a)(4) but replace “the Board” with “a court of competent jurisdiction.”

In addition, the Board modifies subsection (a)(5) for consistency as follows:

The respondent sponsor or the owner or operator of the pilot project Pilot

Project has failed to comply with any requirement one or more requirements of

any State state environmental law or regulation that applies applicable to the

pilot project and that the EMSA does not address, Pilot Project and not

addressed by the EMSA, and for which a citizen’s complaint has been filed with

the Board or the Agency has mailed a notice of violation to the respondent

sponsor or the owner or operator of the pilot project under Pilot Project

pursuant to Section 31(a) or (b) of the Act.

Scope and Effect of Board Orders

At hearing, Board personnel asked questions about the Agency’s proposed Section

106.956(c), which sets forth provisions on Board decisions. Board personnel also asked

questions about the effect of termination, the effect of a Board finding that a violation of the

Act has occurred, and the remedies that the Board may order. Those questions are discussed

below.

Interim Orders. Under the Agency’s proposal, Section 106.956(c) allows the Board to

defer termination for up to 90 days to allow sponsors to come into compliance. However, the

subsection refers to a Board “final decision.” Board personnel noted and the Agency agreed

that when the Board defers termination as described above, it is not a final Board decision, but

rather an interim one. Tr.1 at 81-83; Tr.2 at 20. Accordingly, the Board deletes the word

“final.” See Section 106.956(b).

Similarly, the Agency’s proposed Section 106.956(d) refers to the “final Board opinion

and order” and yet contains a provision on requiring a performance bond or other security if

the Board allows an opportunity to come into compliance. The Board therefore deletes the

word “final” from subsection (d) as well.

Effect of Termination. Board personnel asked the Agency what effect a Board

termination of an EMSA would have on the respondent’s liability for violating environmental

laws or regulations. Initially, the Agency noted that unless an EMSA specifically addresses

given statutory or regulatory requirements, those requirements are “not covered by the EMSA

and a sponsor or owner or operator is not excused from compliance with these requirements

during the term of the EMSA.” PC 1 at 10. The Agency explained that upon termination,

“the owner or operator would be required to come into immediate compliance with all

applicable environmental laws.” PC 1 at 10.

However, the Agency also noted that Section 52.3-4(c) gives sponsors or owners or

operators sufficient time to obtain certain permits if an EMSA is terminated:

If the Agreement is terminated, the facility shall have sufficient time to apply

for and receive any necessary permits to continue the operations in effect during

the course of the Environmental Management System Agreement. Any such

application shall also be deemed a timely and complete application for renewal

of an existing permit under applicable law. PC 1 at 9; 415 ILCS 5/52.3-4(c).

Because of this language, the Agency explained that:

the sponsor or owner or operator is not subject to an enforcement action for

failure to have the necessary permits, as long as the sponsor or owner or

operator has timely applied for such permits. The term “sufficient time” is not

defined, in part, because the time necessary to apply for and receive a permit

varies on the type of permit required. PC 1 at 9; Tr.1 at 56-58.

The Board finds that the sponsor or owner or operator generally must comply

immediately with all applicable environmental laws and regulations when the Board terminates

the EMSA, although they will have time to apply for permits. In addition, to allow time to

comply with applicable environmental laws and regulations, the Board may stay its termination

order under 35 Ill. Adm. Code 101.103 or adopt a compliance schedule in its termination

order.

Effect of a Finding that a Violation of the Act has Occurred. Section 106.954(a)(4)

and (a)(5) describe the failure to comply with certain environmental laws or regulations as part

of grounds for the Board to find deficient performance. Section 106.956(d)(1) provides that

the Board may order someone to cease and desist from violating the Act and Board

regulations.

Board personnel asked the Agency about the effect of a Board finding in an involuntary

termination proceeding that a violation of the Act or Board regulations has occurred. The

Agency explained that it did not intend the Board order “to act as an adjudication on the merits

of a violation of the Act, other than under Section 52.3 of the Act, or of the Board’s rules and

regulations.” PC 1 at 10-11. The Agency further explained that it would be required to bring

an enforcement case against the owner or operator for the alleged violations and that the Board

could not impose statutory penalties for the alleged violations. PC 1 at 10-11; Tr.1 at 69-73;

Tr.2 at 22-23.

To clarify its position, the Agency proposed language for Section 106.954, the section

that sets forth the grounds for deficient performance:

Any finding of deficient performance of an EMSA by the Board

pursuant to subsection (a)(4) or (a)(5) of this Section shall not be binding

for any purpose or in any other enforcement proceeding under the Act

other than as provided under this Subpart K. PC 1 at 16.

The Board agrees with the Agency and adopts the proposed language with minor

modifications.

Available Remedies. Under the Agency’s proposal, Section 106.956(d)(2) allows the

Board to require “performance assurance compensation” in such amounts as appropriate in

each case. The Agency’s proposed Section 106.956(d)(4) allows the Board to impose “[s]uch

order that may be appropriate.” At hearing, Board personnel asked the Agency to explain

these provisions.

The Agency stated that “performance assurance compensation” is a monetary payment

that the Board deems appropriate under the circumstances, but that it is not a statutory penalty

imposed under Section 42 of the Act. The Agency explained that “performance assurance

compensation” includes the Board enforcing a stipulated penalties provision in an EMSA. The

Agency stated that it believed the Board can “order the sponsor to comply with any

performance assurance provisions or other remedies contained in [the] EMSA as part of the

Board’s general authority to act as the adjudicator under involuntary termination proceedings.”

PC 1 at 12; Tr.1 at 83-88.

The Board agrees with the Agency’s analysis and, for clarity, has added a new

subsection (d)(4) to Section 106.956:

Enforce any remedy provision of the EMSA; and

The former subsection (d)(4) is now subsection (d)(5):

Order Such other relief as order that may be appropriate

Adequacy of Various Time Periods

At hearing, Board personnel asked whether several provisions of the Agency’s

proposed rules provided adequate time periods. Generally, the Agency believed that its

proposal effectively balances two competing interests: (1) providing EMSA participants with

“procedural safeguards in the event of involuntary termination, except in the most egregious

circumstances [summary termination];” and (2) expeditiously terminating EMSAs so that the

facilities will quickly become subject to all applicable environmental laws, thereby protecting

the environment and maintaining citizen confidence in the EMSA program. PC 1 at 17; Tr.1 at

15-16, 26, 30-32, 37-38, 86.

Set forth below are the Agency’s comments about specific provisions and the Board’s

related findings.

Time Period for Filing an Answer. Under the Agency’s proposal, the answer must be

filed within 15 days after the respondent receives the statement of deficiency. The Agency

explained that it contemplated no extensions of time to file answers. Tr.1 at 35-36. The

Board believes it appropriate to extend the 15-day period if a respondent shows that there is

good cause for an extension. Accordingly, the Board amends the first sentence of Section

106.948(c) as follows:

The respondent Respondent must file an answer within 15 days after of receipt

of the statement of deficiency, unless the Board or the hearing officer extends

the 15-day period for good cause.

The Time Period in Which Hearings Must Take Place. Under the Agency’s proposed

Section 106.952(a), any hearing would have to be held within 60 days after the Agency filed

the statement of deficiency. In narrow circumstances, the Board could delay the hearing for

no more than 30 days.

Board personnel asked the Agency if the Board could order more than one 30-day

extension. The Agency stated that the Board could, but added that the Board does not have to

order a 30 day extension each time. The Agency stated that the Board should delay the

hearing “for the number of days necessary to alleviate the conditions requiring the extension.”

PC 1 at 3-4; Tr.1 at 74-75; Tr.2 at 18. The Agency also stated that the hearing officer should

be able to order these extensions. Tr.1 at 74-75.

The Board agrees and accepts, with several changes, the Agency’s suggested revision to

Section 106.952(c) to clarify the 30-day extension. However, the Board further amends that

subsection so that the 60-day period runs not from when the Agency files the statement of

deficiency, but from when the respondent files the answer. This change is necessary because

the hearing officer or the Clerk must provide 30 days notice of hearing. Whether there will be

a hearing is not clear until an answer is filed. Accordingly, if a hearing must be held within

60 days after the Agency files the statement of deficiency, there is not enough time to schedule

the hearing and provide the required newspaper notice. As modified, Section 106.952(c) reads

as follows:

The hearing officer Hearing Officer, after reasonable efforts to consult

appropriate consultation with the parties, will shall set a time and place for

hearing to be held within 60 days after the filing of the statement of deficiency.

The Board or the hearing officer may The Board shall not extend the time for

hearing if unless all parties agree to the extension or there are extreme and

unanticipated or uncontrollable circumstances that warrant a warranting the

delay of hearing. The Board or the hearing officer may delay the hearing more

than once. In each any such event, the Board or the hearing officer will not

shall grant no delay the of hearing for more than in excess of 30 additional

days.

The Board makes corresponding changes to the second sentence of Section 106.952(a):

Any hearing will shall be held not later than 60 days after the respondent files

filing of the answer notice and statement of deficiency, subject to any extensions

ordered under subsection (c) of this Section.

If no answer is filed, the Board may terminate the EMSA without a hearing, as explained

below.

Time Period for a Board Final Decision. If a hearing is held, the Agency’s proposed

Section 106.956(c) requires the Board to render its decision within 30 days after the hearing. If

a hearing is not held, Section 106.956(b) under the Agency’s proposal states that the Board

“shall” order an EMSA terminated and that the Board’s order must be entered within 30 days

after the Agency files the statement of deficiency.

If a hearing is held, Board personnel pointed out that the Agency’s proposed Section

106.956(c) does not give the Board sufficient time to review transcripts and post-hearing

briefs. Specifically, under 35 Ill. Adm. Code 103.221 and 103.223, both of which apply

under the proposed rules,

transcripts must be filed with the Board within 15 days after the

close of hearing and the parties may submit briefs within 14 days after the Board receives the

final transcripts. In addition, the Board may take action only at its meetings, which are

generally held twice per month. Tr.1 at 32-33.

If a hearing is not held, the Board finds that Section 106.956(b) should not require the

Board to terminate an EMSA. Even if the respondent fails to timely file an answer, the

Agency still has the burden of proof, under Section 106.958, to establish deficient

performance by a preponderance of the evidence. Thus, the Agency’s statement of deficiency

must contain adequate information for the Board to find deficient performance. See Section

106.948(b). If it does not, the Board cannot be required to terminate the EMSA.

See Section 106.978.

Accordingly, the Board finds that 30 days from when the Agency files the statement of

deficiency is not sufficient time for the Board to deliberate and decide the matter. Most of this

30-day period would be taken up waiting for the respondent’s answer.

Besides the fact that the decision deadlines of the Agency’s proposed Section

106.956(b) and (c) are impractical for the reasons stated above, they are of no consequence.

The Agency stated that it did not intend to have a default judgment in favor of either party if

the Board failed to make its decision in time. Tr.1 at 34-35. The Agency also stated that it:

recognize[s] that the Board may believe that the rule needs additional revisions

consistent with it ability to act as a fair arbitrator in the context of the expedited

process set forth in these proposed rules. PC 1 at 17-18; Tr.1 at 33-34; Tr.2 at

40-41.

The Board finds that the decision deadlines are inappropriate and deletes them at second

notice. Nevertheless, the Board will decide these matters as expeditiously as practicable and

provides so in the first sentence of Section 106.956(b).

Ninety Days to Rectify Deficient Performance. Section 106.956(c)(2) of the Agency’s

proposed rules states that the Board may defer termination for a specified time, not to exceed

90 days, to allow the respondent to come into compliance. At hearing, Board personnel noted

that it may be appropriate in certain circumstances to grant extensions of this time period. For

example, a respondent may be making good progress toward compliance but still require

additional time. The Agency stated that it was amenable to the Board granting extensions for

good cause. Tr.2 at 23-27. The rules at second notice provide for these extensions in Section

106.956(c).

Time Period for Motion Subsequent to Final Order. Under the Agency’s proposal,

Section 106.980 provides that within 15 days after the Board adopts a final order, any party

may file a motion to rehear, modify, or vacate the order or for other relief. Responses must

be filed within 10 days after the motion is filed. The Board is concerned that these time

periods may be inadequate given the time that may expire before the interested parties receive

either the Board order or the motion. Accordingly, the Board amends this Section’s time

periods to 35 days and 14 days, respectively.

Time Period To Move for Relief from Final Orders. Under the Agency’s proposal, a

person has 30 days after the Board enters its final order to file a motion for relief from that

order. Again, the Board is concerned that this is not an adequate period of time. The Board

extends that period to 60 days at second notice. See Section 106.982.

Authority of the Hearing Officer

At second notice, the Board changes the proposed rules regarding motions that the

hearing officer may rule on and the scope of discovery. The Agency’s proposed Section

106.960(g) provides that the hearing officer may rule on all motions. The Board finds this

provision overbroad because it would allow the hearing officer to decide dispositive motions.

The Agency explained that it did not intend this result. Tr.1 at 96-97. Accordingly, the Board

adds to subsection (g) language from the analogous provision in Part 103 (35 Ill. Adm. Code

103.140(e)):

The hearing officer Hearing Officer may rule upon all motions, except that the

hearing officer has no authority to dismiss, or rule upon a motion to dismiss or

decide a proceeding on the merits, for failure to state a claim, for want of

jurisdiction, or to strike any claim or defense for insufficiency or want of proof.

Under the Agency’s proposal, Section 106.966(a) provides that discovery, except

requests to produce documents, admit facts, and state the identity and location of persons

having knowledge of facts, is not be permitted unless all parties agree and the hearing officer

orders it. The Agency stated that it felt depositions and interrogatories were time-consuming

and did not fit within the timeframes of its proposed procedures. However, the Agency added

that its proposal allows for additional discovery to be ordered as the Board deems necessary.

The Agency’s language, however, does not leave expanded discovery solely to the

hearing officer’s discretion. It also requires that all parties agree to the expanded discovery.

At second notice, the Board deletes the latter requirement. The Board finds that there may be

circumstances when additional discovery tools, such as depositions and interrogatories, are

appropriate and the hearing officer should be able to order their use. The rules still do not

specifically provide for depositions or interrogatories, but the hearing officer may order them

if appropriate. The Board amends Section 106.966(a) as follows:

Pre-trial discoveryDiscovery, except requests to produce for production of

documents, admit facts admissions of fact and state the production of the

identity and location of persons with having knowledge of facts, as set forth in

subsection (b) of this Section below, is shall not be permitted unless the hearing

officer except as agreed to by all parties and directed pursuant to a Hearing

Officer orders otherwise.

Notice of Hearings

Under the Agency’s originally proposed Section 106.952, the hearing officer must give

notice of the hearing to the parties at least 20 days before the hearing. The Agency must give

notice of the hearing and statement of deficiency at least ten days before the hearing to (1) all

stakeholders named or listed in or otherwise involved in the development of the EMSA and (2)

the public in a newspaper of general circulation.

At hearing, Board personnel had several questions about this provision. The Board

discusses the Agency’s responses and the Board’s findings below.

Public Notice. Board personnel noted 30 days notice of an involuntary termination

hearing, rather than the 20 days set forth in the Agency’s originally proposed Section 106.952,

may be required under the Clean Air Act if EMSAs are submitted as revisions to Illinois’ State

Implementation Plan.

The Agency was unsure if the Clean Air Act’s notice requirements would apply, but

agreed that it would be prudent to modify Section 106.952(e) to require a 30-day notice.

Given the short time frame for holding a hearing, the Agency also requested that the hearing

officer, rather than the Agency, provide notice to the public by publication in a newspaper of

general circulation where the pilot project is located. PC 1 at 4; Tr.1 at 100-106; Tr.2 at 18-

19. The Board agrees with the Agency’s proposed changes to Section 106.952(e) and makes

other minor modifications:

The hearing officer or the Clerk will Hearing Officer shall give notice of the

hearing, at least 30 20 days before the hearing, to the parties under in

accordance with Section 106.950(b) of this Subpart, and to the public by public

advertisement in a newspaper of general circulation in the county in which the

pilot project is located Part.

Notice to Specific Persons. Under the Agency’s original proposal, Section 106.952(f)

reads as follows:

The Agency shall give notice of each complaint and hearing at least 10

days before the hearing to:

All stakeholders named or listed in the EMSA or otherwise

involved in the development of the EMSA for the Pilot Project in

accordance with Section 106.950(b); and

The public, by public advertisement in a newspaper of general

circulation in the county in which the Pilot Project is located.

At hearing, Board personnel asked the Agency what it meant by stakeholders “otherwise

involved in the development of the EMSA for the Pilot Project” and whether the Agency had

considered notice by publication rather than notice to each individual if a large number of

individuals attended the hearing on the EMSA. Tr.1 at 89-93; Tr.2 at 41-43.

In response, the Agency proposed changes to subsection (f). PC 1 at 14-15. With a

few revisions (reflected below), the Board adopts the Agency’s suggested changes for second

notice:

The Agency must shall give notice of each statement of deficiency

complaint and hearing under 106.950(b) at least ten days before the

hearing to:

All stakeholders named or listed in the EMSA or otherwise

involved in the development of the EMSA for the Pilot Project in

accordance with Section 106.950(b); and

Any person who submitted written comments on the respondent’s

EMSA or participated in the public hearing on the respondent’s

EMSA by signing an attendance sheet or signature card under the

procedures set forth in 35 Ill. Adm. Code 187.404, if less than

100 persons attended the public hearing on the respondent’s

EMSA as indicated by signatures on the attendance sheet or

signature cards The public, by public advertisement in a

newspaper of general circulation in the county in which the Pilot

Project is located.

As noted above, Section 187.404 is part of the Agency’s rules on EMSAs and sets forth public

comment and hearing requirements that the Agency must meet before it enters into an EMSA.

See 35 Ill. Adm. Code 187.404. The Agency also noted that notice by publication in a

newspaper under Section 106.952(e) would act as notice to persons at the hearing on the

EMSA if 100 or more persons attended. PC 1 at 4-5.

CONCLUSION

In addition to the changes discussed above, the Board has made minor changes to the

rules for clarity and consistency, and to comply with changes that JCAR has requested. These

changes do not merit discussion. Additions to the Agency’s proposal are underlined; deletions

to the Agency’s proposal are stricken through.

The Board finds that the proposed rules, as

modified at second notice, are economically reasonable and technically feasible.

ORDER

The Board directs the Clerk to file these proposed amendments with JCAR.

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE A: GENERAL PROVISIONS

CHAPTER I: POLLUTION CONTROL BOARD

PART 106

HEARINGS PURSUANT TO SPECIFIC RULES

SUBPART A: HEATED EFFLUENT DEMONSTRATIONS

All of proposed Subpart K to Part 106 is a new rule. However, to identify changes to the

Agency’s proposal, the Board underlines only those portions of Subpart K that are additions to

the Agency’s proposal. As discussed above at page 3, because of the Board’s statutory

deadline to adopt these rules, for first notice the Board adopted the Agency’s proposal without

modification.

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

106.304

Recommendation

106.305

Notice and Hearing

106.306

Transcripts

SUBPART D: RCRA ADJUSTED STANDARD PROCEDURES

Section

106.401

Petition (Repealed)

106.402

Notice of Petition (Repealed)

106.403

Recommendation (Repealed)

106.404

Response (Repealed)

106.405

Public Comment (Repealed)

106.406

Public Hearings (Repealed)

106.407

Decision (Repealed)

106.408

Appeal (Repealed)

106.410

Scope and Applicability

106.411

Joint or Single Petition

106.412

Request to Agency to Join as Co-Petitioner

106.413

Contents of Petition

106.414

Response and Reply

106.415

Notice and Conduct of Hearing

106.416

Opinions and Orders

SUBPART E: AIR ADJUSTED STANDARD PROCEDURES

Section

106.501

Scope and Applicability

106.502

Joint or Single Petition

106.503

Request to Agency to Join As Co-Petitioner

106.504

Contents of Petition

106.505

Response and Reply

106.506

Notice and Conduct of Hearing

106.507

Opinions and Orders

SUBPART F: WATER WELL SETBACK EXCEPTION PROCEDURES

Section

106.601

Scope and Applicability

106.602

Contents of Petition

106.603

Response and Reply

106.604

Notice and Conduct of Hearing

106.605

Opinions and Orders

SUBPART G: ADJUSTED STANDARDS

Section

106.701

Applicability

106.702

Definitions

106.703

Joint or Single Petition

106.704

Request to Agency to Join As Co-Petitioner

106.705

Petition Contents

106.706

Petition Verification

106.707

Federal Procedural Requirements

106.708

Incorporated Material

106.709

Motions

106.710

Service of Filings

106.711

Petition Notice

106.712

Proof of Petition Notice

106.713

Request for Public Hearing

106.714

Agency Response

106.715

Amended Petition and Amended Response

106.801

Hearing Scheduled

106.802

Hearing Notice

106.803

Pre-Hearing Submission of Testimony and Exhibits

106.804

Discovery

106.805

Admissible Evidence

106.806

Order of Hearing

106.807

Post-hearing Comments

106.808

Burden of Proof

106.901

Board Deliberations

106.902

Dismissal of Petition

106.903

Board Decision

106.904

Opinion and Order

106.905

Appeal of Board Decisions

106.906

Publication of Adjusted Standards

106.907

Effect of Filing a Petition

SUBPART H: REVOCATION AND REOPENING OF CLEAN AIR ACT PERMIT

PROGRAM (CAAPP) PERMITS

Section

106.910

Applicability

106.911

Definitions

106.912

Petition

106.913

Response and Reply

106.914

Notice and Hearing

106.915

Opinion and Order

106.916

USEPA Review of Proposed Determination

SUBPART I: MAXIMUM ACHIEVABLE CONTROL TECHNOLOGY

DETERMINATIONS

Section

106.920

Applicability

106.921

Definitions

106.922

Petition

106.923

Response and Reply

106.924

Notice and Hearing

106.925

Opinion and Order

SUBPART J: CULPABILITY DETERMINATIONS

Section

106.930

Applicability

106.931

Petition for Review

106.932

Response and Reply

106.933

Notice and Hearing

106.934

Opinion and Order

SUBPART K: INVOLUNTARY TERMINATION OF PROCEDURES FOR

ENVIRONMENTAL MANAGEMENT SYSTEM AGREEMENTS (EMSAs)

Section

106.940

Purpose, Applicability

106.942

Definitions

106.944

Severability

106.945 Termination Under Section 52.3-4(b) of the Act

106.946

Who May Initiate, Parties

106.948

Notice, Statement of Deficiency, and Answer

106.950

Service

106.952

Notice of Hearing

106.954

Deficient Performance

106.956

Board Decision

106.958

Burden of Proof

106.960

Motions, and Responses

106.962

Intervention

106.964

Continuances

106.966

Discovery, Admissions

106.968

Subpoenas

106.970

Settlement Procedure

106.972

Authority of Hearing Officer, Board Members and Board Assistants

106.974

Order and Conduct of Hearing

106.976

Evidentiary Matters

106.978

Post-Hearing Procedures

106.980

Motion After Subsequent to Entry of Final Order

106.982

Relief from Section 106.956 Final Orders

APPENDIX A

Old Rule Numbers Referenced

AUTHORITY: Implementing Sections 5, 14.2(c), 22.4, 27, 28, 28.1, 28.5 and 39.5 and

authorized by Sections 26 and 39.5 of the Environmental Protection Act (Ill. Rev. Stat. 1991,

ch. 111 ½, pars. 1005, 1014.2(c), 1022.4, 1027, 1028, 1028.1, 1028.5, 1039.5, and

1026)(P.A. 87-1213, effective September 26, 1992, and P.A. 88-464, effective August 28,

1993)[415 ILCS 5/5, 14.2(c), 22.4, 27, 28, 28.1, 28.5, 39.5 and 26]; implementing and

authorized by Section 52.3 of the Environmental Protection Act, 415 ILCS 5/52.3, P.A. 76-

2429, §52.3 added by P.A. 89-465, §10, effective June 13, 1996.

SOURCE: Filed with the Secretary of State January 1, 1978; amended at 4 Ill. Reg. 2, p.

186, effective December 27, 1979; codified at 6 Ill. Reg. 8357; amended in R85-22 at 10 Ill.

Reg. 992, effective February 2, 1986; amended in R86-46 at 11 Ill. Reg. 13457, effective

August 4, 1987; amended in R82-1 at 12 Ill. Reg. 12484, effective July 13, 1988; amended in

R88-10 at 12 Ill. Reg. 12817, effective July 21, 1988; amended in R88-5(A) at 13 Ill. Reg.

12055, effective July 10, 1989; amended in R88-5(B) at 14 Ill. Reg. 9442, effective June 5,

1990; amended at 18 Ill. Reg. 4230, effective March 8, 1994; amended in R99-9 at 23 Ill.

Reg. ____________, effective ________________________.

SUBPART K: INVOLUNTARY TERMINATION OF PROCEDURES FOR

ENVIRONMENTAL MANAGEMENT SYSTEM AGREEMENTS (EMSAs)

Section 106.940 Purpose, Applicability

The purpose of this Subpart is to set forth the criteria and procedures under

which the Board or the Agency may terminate for involuntary termination of an

EMSA, as defined in Section 106.942 of this Subpart Part.

This Subpart shall apply to all proceedings to involuntarily terminate an EMSA

entered into pursuant to Section 52.3 of the Act and 35 Ill. Adm. Code 187,

except as set forth in subsection (c) of this Section.

b)c)

When the Agency terminates an EMSA under This Part is not applicable to any

Sponsor that is subject to termination of an EMSA by the Agency pursuant to

Section 52.3-4(b) of the Act, only Sections 106.942 and 106.945 of this Subpart

apply.

This Subpart, except for Section 106.945, applies to proceedings in which the

Board will determine whether to terminate an EMSA.

(Source: Added at 23 Ill. Reg. ____________, effective ____________________)

Section 106.942 Definitions

For purposes of this Subpart, the words and terms used in this Subpart shall have the meanings

given below. Words and terms not defined in this Subpart, if defined in the Act, shall have

the meanings that the Act provides as provided in the Act.

“Act” means the Environmental Protection Act [415 ILCS 5].

“Agency” “

Agency

” means the Environmental Protection Agency.

Environmental

Protection Agency established by the Act

. (Section 3.08 of the Act).

“Board” means the Illinois Pollution Control Board established by the Act. (Section 5

of the Act).

“Clerk” means the Clerk of the Board.

“Director” means the Director of the Illinois Environmental Protection Agency.

“Environmental Management System” means the system by which an entity achieves

continuous environmental improvement by integrating environmental management into

on-going business planning and manages environmental performance, including, but

not limited to, environmental management systems implementing International

Organization for Standardization (ISO) 14001 standard.

“Environmental Management System Agreement” or “EMSA” (EMSA)” means the

agreement between the Agency and a sponsor, entered into under Section 52.3 of the

Act and 35 Ill. Adm. Code 187, that describes the innovative environmental measures

to be implemented, schedules to attain for attaining goals, and mechanisms for

accountability.

“Innovative environmental measures” Environmental Measures” means any

procedures, practices, technologies or systems that pertain to environmental

management and are expected to improve environmental performance when applied.

“Pilot Program” means the program described in this Part that allows the use of

EMSAs to promote innovative environmental measures.

“Pilot project” Project” means an innovative environmental project that covers

covering one or more designated facilities, designed and implemented in the form of an

EMSA executed by the Agency and a sponsor in accordance with this Part.

“Sponsor” means the proponent of a pilot project that enters into an EMSA with the

Agency.

(Source: Added at 23 Ill. Reg. ____________, effective ____________________)

Section 106.944 Severability

If any provision of this Subpart is adjudged invalid, or if its application to any person or in any

circumstance is adjudged invalid, the such invalidity does not affect the validity of this Subpart

as a whole, or any Section, subsection, sentence or clause not adjudged invalid.

(Source: Added at 23 Ill. Reg. ____________, effective ____________________)

Section 106.945 Termination Under Section 52.3-4(b) of the Act

a) To terminate an EMSA under Section 52.3-4(b) of the Act, the Agency must

determine that the sponsor’s performance under the EMSA has failed to:

Achieve emissions reductions or reductions in discharges of wastes

beyond the otherwise applicable statutory and regulatory requirements

through pollution prevention or other suitable means; or

Achieve real environmental risk reduction or foster environmental

compliance by other persons regulated under this Act in a manner that is

clearly superior to the existing regulatory system.

(Section 52.3-1(b) of

the Act)

b) If the Agency terminates an EMSA under Section 52.3-4(b) of the Act, the

sponsor may, within 35 days after receipt of the Agency’s notification of the

termination, file an appeal with the Board. Appeals to the Board will be in the

manner provided for review of permit decisions in Section 40 of the Act.

(Source: Added at 23 Ill. Reg. ____________, effective ____________________)

Section 106.946 Who May Initiate, Parties

Only the Agency may commence a A proceeding to involuntarily terminate an

EMSA under this Subpart may only be commenced by the Agency.

The Agency will shall be designated the complainant. The sponsor will of an

EMSA shall be designated as, and shall be, the sole respondent.

Misnomer of a party is not a ground for a dismissal; the name of any party may

be corrected at any time.

(Source: Added at 23 Ill. Reg. ____________, effective ____________________)

Section 106.948 Notice, Statement of Deficiency, and Answer

A proceeding to involuntarily terminate an EMSA will shall be commenced

when the Agency serves by the service of a notice of filing and a statement of

deficiency upon the respondent and files the filing of 10 copies of the notice of

filing and statement of deficiency with the Clerk.

b) The notice shall be directed to the respondent notifying the respondent of the

filing of the accompanying statement of deficiency.

b) c)

The statement of deficiency must shall contain:

The stated basis for the respondent’s alleged deficient performance under

as provided in Section 106.954(a) of this Subpart below;

The dates, location, nature, extent and duration of any act or omission,

and amount and other characteristics of any discharges or emissions,

alleged to violate constitute violations of the provisions of the Act or

regulations that apply applicable to the pilot project Pilot Project and that

the EMSA does not address addressed by the EMSA;

The dates, location, nature, extent and duration of any act or omission,

and amount and other characteristics of any discharges or emissions,

alleged to violate constitute violations of the EMSA; and

With respect to subsections (b)(1) through (b)(3) (c)(1) through (c)(3) of

this Section, the statement of deficiency must complaint shall contain

sufficient detail to advise the respondent of the extent and nature of the

alleged violations to reasonably allow the respondent to prepare

preparation of a defense.

c) d)

The respondent Respondent must file an answer within 15 days after of receipt

of the statement of deficiency, unless the Board or the hearing officer extends

the 15-day period for good cause. All material allegations of the statement of

deficiency will complaint shall be taken as admitted if not specifically denied by

the answer, or if no answer is filed. Any facts that constitute constituting an

affirmative defense that which would be likely to surprise take the complainant

by surprise must be plainly set forth in the answer before prior to hearing.

(Source: Added at 23 Ill. Reg. ____________, effective ____________________)

Section 106.950 Service

The Agency must serve a A copy of the notice of filing and statement of

deficiency shall either be served personally on the respondent or the

respondent’s his authorized agent, or shall be served by registered or certified

mail with return receipt signed by the respondent or the respondent’s his

authorized agent. Proof must shall be made by affidavit of the person who

makes making personal service, or by properly executed registered or certified

mail receipt. The Agency must file proof Proof of service of the notice of filing

and statement of deficiency complaint shall be filed with the Clerk immediately

upon completion of service.

The Agency and the respondent must serve After notice and statement of

deficiency, all motions and all other notices shall be served personally, by First

Class United States mail, with sufficient postage affixed thereto, or by overnight

delivery by a nationally recognized courier service., and The Agency and the

respondent must file 10 copies of the motions and notices shall be filed with the

Clerk with proof of service.

Service is presumed complete upon personal service, four days after deposit in

the United States First Class mail, with sufficient postage affixed thereto, or the

next business day upon deposit with a nationally recognized courier service for

overnight delivery.

(Source: Added at 23 Ill. Reg. ____________, effective ____________________)

Section 106.952 Notice of Hearing

The Clerk will shall assign a docket number to each statement of deficiency

filed, deposit the statement of deficiency and notice in the Board’s files, and

distribute copies to each Board Member. Any hearing will shall be held not

later than 60 days after the respondent files filing of the answer notice and

statement of deficiency, subject to any extensions ordered under subsection (c)

of this Section.

The Chairman of the Board will shall designate a hearing officer Hearing

Officer and the Clerk will shall notify the parties of the such designation. The

hearing officer Hearing Officer may be a Member of the Board if otherwise

qualified.