(415 ILCS 5/7.2) (from Ch. 111 1/2, par. 1007.2)

Sec. 7.2. Identical in substance rulemakings.

(a) In the context of a mandate that the Board adopt regulations to secure federal authorization for a program, regulations that are "identical in substance" means State regulations which require the same actions with respect to protection of the environment, by the same group of affected persons, as would federal regulations if USEPA administered the subject program in Illinois. After consideration of comments from the USEPA, the Agency, the Attorney General and the public, the Board shall adopt the verbatim text of such USEPA regulations as are necessary and appropriate for authorization of the program. In adopting "identical in substance" regulations, the only changes that may be made by the Board to the federal regulations are those changes that are necessary for compliance with the Illinois Administrative Code, and technical changes that in no way change the scope or meaning of any portion of the regulations, except as follows:

(1) The Board shall not adopt the equivalent of USEPA rules that are not applicable to persons or facilities in Illinois, that govern the program authorization process, that are appropriate only in USEPA-administered programs, or that govern actions to be taken by USEPA, other federal agencies or other states.

(2) The Board shall not adopt rules prescribing things which are outside the Board's normal functions, such as rules specifying staffing or funding requirements for programs.

(3) If a USEPA rule prescribes the contents of a State regulation without setting forth the regulation itself, which would be an integral part of any regulation required to be adopted as an "identical in substance" regulation as defined in this Section, the Board shall adopt a regulation as prescribed, to the extent possible consistent with other relevant USEPA regulations and existing State law. The Board may not use this subsection to adopt any regulation which is a required rule as that term is defined by Section 28.2 of this Act. To the extent practicable, the Board in its proposed and adopted opinion shall include its rationale for adopting such regulation.

(4) Pursuant to subsection (a) of Section 5-75 of the Illinois Administrative Procedure Act, the Board may incorporate USEPA rules by reference where it is possible to do so without causing confusion to the affected public.

(5) If USEPA intends to retain decision-making authority for a portion of the program, the Board regulation shall so specify. In addition, the Board regulation shall specify whether a decision is to be made by the Board, the Agency or some other State agency, based upon the general division of functions within this Act and other Illinois statutes.

(6) Wherever appropriate, the Board regulations shall reflect any consistent, more stringent regulations adopted pursuant to the rulemaking requirements of Title VII of this Act and Section 5-35 of the Illinois Administrative Procedure Act.

(7) The Board may correct apparent typographical and grammatical errors in USEPA rules.

(b) In adopting regulations that are "identical in substance" with specified federal regulations under subsection (c) of Section 13, Section 13.3, Section 17.5, subsection (a) or (d) of Section 22.4, subsection (a) of Section 22.7, or subsection (a) of Section 22.40, subsection (H) of Section 10, or specified federal determinations under subsection (e) of Section 9.1, the Board shall complete its rulemaking proceedings within one year after the adoption of the corresponding federal rule. If the Board consolidates multiple federal rulemakings into a single Board rulemaking, the one-year period shall be calculated from the adoption date of the federal rule first adopted among those consolidated. After adopting an "identical in substance" rule, if the Board determines that an amendment is needed to that rule, the Board shall initiate a rulemaking proceeding to propose such amendment. The amendment shall be adopted within one year of the initiation of the Board's determination.

Additionally, if the Board, after adopting an "identical in substance" rule, determines that a technical correction to that rule is needed, the Board may initiate an application for certification of correction under Section 5-85 of the Illinois Administrative Procedure Act.

The one-year period may be extended by the Board for an additional period of time if necessary to complete the rulemaking proceeding. In order to extend the one-year period, the Board must make a finding, based upon the record in the rulemaking proceeding, that the one-year period is insufficient for completion of the rulemaking, and such finding shall specifically state the reasons for the extension. Except as otherwise provided above, the Board must make the finding that an extension of time is necessary prior to the expiration of the initial one-year period, and must also publish a notice of extension in the Illinois Register as expeditiously as practicable following its decision, stating the specific reasons for the Board's decision to extend. The notice of extension need not appear in the Illinois Register prior to the expiration of the initial one year period and shall specify a date certain by which the Board anticipates completion of the rulemaking, except that if a date certain cannot be specified because of a need to delay adoption pending occurrence of an event beyond the Board's control, the notice shall specify the event, explain its circumstances, and contain an estimate of the amount of time needed to complete the rulemaking after the occurrence of the specified event.

(Source: P.A. 97-945, eff. 8-10-12.)