HB3090ham001 102ND GENERAL ASSEMBLY

Rep. Sonya M. Harper

Filed: 4/21/2021

10200HB3090ham001 LRB102 14040 CPF 25272 a

AMENDMENT TO HOUSE BILL 3090

AMENDMENT NO. ______. Amend House Bill 3090 by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be referred to as the Fairness in Environmental Permitting Act.

Section 5. Findings; purpose.

(a) The General Assembly finds that:

(1) the State of Illinois has a long-standing policy, prescribed by Article XI of the Illinois Constitution, to maintain a healthful environment for the benefit of this and future generations and that every State resident is entitled to a healthful environment;

(2) a healthful environment is essential to the sustainable growth and development of the State and its residents;

(3) persistent racial and economic inequalities, and the forces that cause them, embedded throughout society have concentrated harmful environmental polluters of the air, water and land near and within communities of color, tribal communities, and low-income communities;

(4) as a result, these communities have historically borne and continue to bear a disproportionate level of environmental pollution and associated adverse human health effects resulting from the construction and operation of industrial, municipal and commercial activities, relative to other neighborhoods;

(5) the current permitting practices of the Illinois Environmental Protection Agency are inadequate for protecting residents of these communities from bearing a disproportional level of environmental pollution and associated adverse human health effects;

(6) a permit application shall not be considered in isolation but rather as part of these communities' existing cumulative levels of environmental pollution and associated adverse human health effects, such that whether and how approval of a new permit or renewal of an existing permit would affect those cumulative burdens is independent justification for rejecting a permit application;

(7) it is essential that the Agency consider past incidents of noncompliance with permit requirements, state laws, and local ordinances when determining whether a permit application is approved or denied, such that a documented history of noncompliance is independent justification for rejecting a permit application;

(8) in-person public meetings and hearings in or near communities in which permit applicants are located or proposed to be located must inform the Agency's decision making about pending permit applications, especially in communities that have historically borne and continue to bear a disproportionate level of environmental pollution and associated adverse human health effects resulting from the construction and operation of industrial, municipal and commercial activities, relative to other neighborhoods;

(9) documenting and responding to the questions and concerns of residents at such in-person public meetings and hearings is crucial to full evaluation of a permit application, which shall not be considered complete unless residents are given the opportunity to make their voices heard in a meaningful way about a permit application that will affect their community;

(10) statutory deadlines for approving a permit application are subordinate to the overarching requirement that the Agency conduct a thorough and complete evaluation of a permit application, and thus those deadlines should be extended to the extent necessary to complete a thorough and complete evaluation that includes the factors discussed throughout these findings; and

(11) the ability for third parties to appeal the granting of a permit for a facility that emits air pollutants and is classified as a minor source ensures affected residents may hold polluters and the Agency accountable for its permitting decisions.

(b) The purpose of this amendatory Act is to bolster the Agency's permitting procedures in a way that ensures the Agency comprehensively considers a permit applicant's past noncompliance with permit requirements and state and local laws, as well as the cumulative effect approval of a permit would have on a community's levels of environmental pollution and associated adverse human health effects; affected residents are given meaningful opportunities to voice their concerns about permit applications at in-person hearings; and there is an avenue through which third parties may appeal a permit for a facility that emits air pollutants and is classified as a minor source.

Section 10. The Environmental Protection Act is amended by changing Sections 39 and 40 and by adding Title XVIII as follows:

(415 ILCS 5/39) (from Ch. 111 1/2, par. 1039)

Sec. 39. Issuance of permits; procedures.

(a) When the Board has by regulation required a permit for the construction, installation, or operation of any type of facility, equipment, vehicle, vessel, or aircraft, the applicant shall apply to the Agency for such permit and it shall be the duty of the Agency to issue such a permit upon proof by the applicant that the facility, equipment, vehicle, vessel, or aircraft will not cause a violation of this Act or of regulations hereunder. The Agency shall adopt such procedures as are necessary to carry out its duties under this Section. In making its determinations on permit applications under this Section the Agency shall may consider prior adjudications of noncompliance with this Act, local ordinances, or both by the applicant that involved a release of a contaminant into the environment. In granting permits, the Agency shall may impose reasonable conditions specifically related to the applicant's past compliance history with this Act, local ordinances, or both as necessary to correct, detect, or prevent noncompliance with this Act. The Agency shall may impose such other conditions as may be necessary to accomplish the purposes of this Act, and as are not inconsistent with the regulations promulgated by the Board hereunder. Except as otherwise provided in this Act, a bond or other security shall not be required as a condition for the issuance of a permit. If the Agency denies any permit under this Section, the Agency shall transmit to the applicant within the time limitations of this Section specific, detailed statements as to the reasons the permit application was denied. Such statements shall include, but not be limited to the following:

(i) the Sections of this Act which may be violated if the permit were granted;

(ii) the provision of the regulations, promulgated under this Act, which may be violated if the permit were granted;

(iii) the specific type of information, if any, which the Agency deems the applicant did not provide the Agency; and

(iv) a statement of specific reasons why the Act and the regulations might not be met if the permit were granted.

If there is no final action by the Agency within 90 days after the filing of the application for permit, the applicant may deem the permit issued; except that this time period shall be extended to 180 days when (1) notice and opportunity for public hearing are required by State or federal law or regulation, (2) the application which was filed is for any permit to develop a landfill subject to issuance pursuant to this subsection, or (3) the application that was filed is for a MSWLF unit required to issue public notice under subsection (p) of Section 39. The 90-day and 180-day time periods for the Agency to take final action do not apply to NPDES permit applications under subsection (b) of this Section, to RCRA permit applications under subsection (d) of this Section, to UIC permit applications under subsection (e) of this Section, or to CCR surface impoundment applications under subsection (y) of this Section, or when the Director issues a finding that additional time is necessary for the Agency to provide for public participation or to complete its analysis of the permit application or public comments to ensure compliance with the requirements of this Act.

The Agency shall publish notice of all final permit determinations for development permits for MSWLF units and for significant permit modifications for lateral expansions for existing MSWLF units one time in a newspaper of general circulation in the county in which the unit is or is proposed to be located.

After January 1, 1994 and until July 1, 1998, operating permits issued under this Section by the Agency for sources of air pollution permitted to emit less than 25 tons per year of any combination of regulated air pollutants, as defined in Section 39.5 of this Act, shall be required to be renewed only upon written request by the Agency consistent with applicable provisions of this Act and regulations promulgated hereunder. Such operating permits shall expire 180 days after the date of such a request. The Board shall revise its regulations for the existing State air pollution operating permit program consistent with this provision by January 1, 1994.

After June 30, 1998, operating permits issued under this Section by the Agency for sources of air pollution that are not subject to Section 39.5 of this Act and are not required to have a federally enforceable State operating permit shall be required to be renewed only upon written request by the Agency consistent with applicable provisions of this Act and its rules. Such operating permits shall expire 180 days after the date of such a request. Before July 1, 1998, the Board shall revise its rules for the existing State air pollution operating permit program consistent with this paragraph and shall adopt rules that require a source to demonstrate that it qualifies for a permit under this paragraph.

(b) The Agency may issue NPDES permits exclusively under this subsection for the discharge of contaminants from point sources into navigable waters, all as defined in the Federal Water Pollution Control Act, as now or hereafter amended, within the jurisdiction of the State, or into any well.

All NPDES permits shall contain those terms and conditions, including, but not limited to, schedules of compliance, which may be required to accomplish the purposes and provisions of this Act.

The Agency may issue general NPDES permits for discharges from categories of point sources which are subject to the same permit limitations and conditions. Such general permits may be issued without individual applications and shall conform to regulations promulgated under Section 402 of the Federal Water Pollution Control Act, as now or hereafter amended.

The Agency may include, among such conditions, effluent limitations and other requirements established under this Act, Board regulations, the Federal Water Pollution Control Act, as now or hereafter amended, and regulations pursuant thereto, and schedules for achieving compliance therewith at the earliest reasonable date.

The Agency shall adopt filing requirements and procedures which are necessary and appropriate for the issuance of NPDES permits, and which are consistent with the Act or regulations adopted by the Board, and with the Federal Water Pollution Control Act, as now or hereafter amended, and regulations pursuant thereto.

The Agency, subject to any conditions which may be prescribed by Board regulations, may issue NPDES permits to allow discharges beyond deadlines established by this Act or by regulations of the Board without the requirement of a variance, subject to the Federal Water Pollution Control Act, as now or hereafter amended, and regulations pursuant thereto.

(c) Except for those facilities owned or operated by sanitary districts organized under the Metropolitan Water Reclamation District Act, no permit for the development or construction of a new pollution control facility may be granted by the Agency unless the applicant submits proof to the Agency that the location of the facility has been approved by the county board County Board of the county if in an unincorporated area, or the governing body of the municipality when in an incorporated area, in which the facility is to be located in accordance with Section 39.2 of this Act. For purposes of this subsection (c), and for purposes of Section 39.2 of this Act, the appropriate county board or governing body of the municipality shall be the county board of the county or the governing body of the municipality in which the facility is to be located as of the date when the application for siting approval is filed.

In the event that siting approval granted pursuant to Section 39.2 has been transferred to a subsequent owner or operator, that subsequent owner or operator may apply to the Agency for, and the Agency may grant, a development or construction permit for the facility for which local siting approval was granted. Upon application to the Agency for a development or construction permit by that subsequent owner or operator, the permit applicant shall cause written notice of the permit application to be served upon the appropriate county board or governing body of the municipality that granted siting approval for that facility and upon any party to the siting proceeding pursuant to which siting approval was granted. In that event, the Agency shall conduct an evaluation of the subsequent owner or operator's prior experience in waste management operations in the manner conducted under subsection (i) of Section 39 of this Act.

Beginning August 20, 1993, if the pollution control facility consists of a hazardous or solid waste disposal facility for which the proposed site is located in an unincorporated area of a county with a population of less than 100,000 and includes all or a portion of a parcel of land that was, on April 1, 1993, adjacent to a municipality having a population of less than 5,000, then the local siting review required under this subsection (c) in conjunction with any permit applied for after that date shall be performed by the governing body of that adjacent municipality rather than the county board of the county in which the proposed site is located; and for the purposes of that local siting review, any references in this Act to the county board shall be deemed to mean the governing body of that adjacent municipality; provided, however, that the provisions of this paragraph shall not apply to any proposed site which was, on April 1, 1993, owned in whole or in part by another municipality.

In the case of a pollution control facility for which a development permit was issued before November 12, 1981, if an operating permit has not been issued by the Agency prior to August 31, 1989 for any portion of the facility, then the Agency may not issue or renew any development permit nor issue an original operating permit for any portion of such facility unless the applicant has submitted proof to the Agency that the location of the facility has been approved by the appropriate county board or municipal governing body pursuant to Section 39.2 of this Act.

After January 1, 1994, if a solid waste disposal facility, any portion for which an operating permit has been issued by the Agency, has not accepted waste disposal for 5 or more consecutive calendar calendars years, before that facility may accept any new or additional waste for disposal, the owner and operator must obtain a new operating permit under this Act for that facility unless the owner and operator have applied to the Agency for a permit authorizing the temporary suspension of waste acceptance. The Agency may not issue a new operation permit under this Act for the facility unless the applicant has submitted proof to the Agency that the location of the facility has been approved or re-approved by the appropriate county board or municipal governing body under Section 39.2 of this Act after the facility ceased accepting waste.

Except for those facilities owned or operated by sanitary districts organized under the Metropolitan Water Reclamation District Act, and except for new pollution control facilities governed by Section 39.2, and except for fossil fuel mining facilities, the granting of a permit under this Act shall not relieve the applicant from meeting and securing all necessary zoning approvals from the unit of government having zoning jurisdiction over the proposed facility.

Before beginning construction on any new sewage treatment plant or sludge drying site to be owned or operated by a sanitary district organized under the Metropolitan Water Reclamation District Act for which a new permit (rather than the renewal or amendment of an existing permit) is required, such sanitary district shall hold a public hearing within the municipality within which the proposed facility is to be located, or within the nearest community if the proposed facility is to be located within an unincorporated area, at which information concerning the proposed facility shall be made available to the public, and members of the public shall be given the opportunity to express their views concerning the proposed facility.

The Agency may issue a permit for a municipal waste transfer station without requiring approval pursuant to Section 39.2 provided that the following demonstration is made:

(1) the municipal waste transfer station was in existence on or before January 1, 1979 and was in continuous operation from January 1, 1979 to January 1, 1993;

(2) the operator submitted a permit application to the Agency to develop and operate the municipal waste transfer station during April of 1994;

(3) the operator can demonstrate that the county board of the county, if the municipal waste transfer station is in an unincorporated area, or the governing body of the municipality, if the station is in an incorporated area, does not object to resumption of the operation of the station; and

(4) the site has local zoning approval.

(d) The Agency may issue RCRA permits exclusively under this subsection to persons owning or operating a facility for the treatment, storage, or disposal of hazardous waste as defined under this Act. Subsection (y) of this Section, rather than this subsection (d), shall apply to permits issued for CCR surface impoundments.

All RCRA permits shall contain those terms and conditions, including, but not limited to, schedules of compliance, which may be required to accomplish the purposes and provisions of this Act. The Agency may include among such conditions standards and other requirements established under this Act, Board regulations, the Resource Conservation and Recovery Act of 1976 (P.L. 94-580), as amended, and regulations pursuant thereto, and may include schedules for achieving compliance therewith as soon as possible. The Agency shall require that a performance bond or other security be provided as a condition for the issuance of a RCRA permit.

In the case of a permit to operate a hazardous waste or PCB incinerator as defined in subsection (k) of Section 44, the Agency shall require, as a condition of the permit, that the operator of the facility perform such analyses of the waste to be incinerated as may be necessary and appropriate to ensure the safe operation of the incinerator.

The Agency shall adopt filing requirements and procedures which are necessary and appropriate for the issuance of RCRA permits, and which are consistent with the Act or regulations adopted by the Board, and with the Resource Conservation and Recovery Act of 1976 (P.L. 94-580), as amended, and regulations pursuant thereto.

The applicant shall make available to the public for inspection all documents submitted by the applicant to the Agency in furtherance of an application, with the exception of trade secrets, at the office of the county board or governing body of the municipality. Such documents may be copied upon payment of the actual cost of reproduction during regular business hours of the local office. The Agency shall issue a written statement concurrent with its grant or denial of the permit explaining the basis for its decision.

(e) The Agency may issue UIC permits exclusively under this subsection to persons owning or operating a facility for the underground injection of contaminants as defined under this Act.

All UIC permits shall contain those terms and conditions, including, but not limited to, schedules of compliance, which may be required to accomplish the purposes and provisions of this Act. The Agency may include among such conditions standards and other requirements established under this Act, Board regulations, the Safe Drinking Water Act (P.L. 93-523), as amended, and regulations pursuant thereto, and may include schedules for achieving compliance therewith. The Agency shall require that a performance bond or other security be provided as a condition for the issuance of a UIC permit.

The Agency shall adopt filing requirements and procedures which are necessary and appropriate for the issuance of UIC permits, and which are consistent with the Act or regulations adopted by the Board, and with the Safe Drinking Water Act (P.L. 93-523), as amended, and regulations pursuant thereto.

The applicant shall make available to the public for inspection, all documents submitted by the applicant to the Agency in furtherance of an application, with the exception of trade secrets, at the office of the county board or governing body of the municipality. Such documents may be copied upon payment of the actual cost of reproduction during regular business hours of the local office. The Agency shall issue a written statement concurrent with its grant or denial of the permit explaining the basis for its decision.

(f) In making any determination pursuant to Section 9.1 of this Act:

(1) The Agency shall have authority to make the determination of any question required to be determined by the Clean Air Act, as now or hereafter amended, this Act, or the regulations of the Board, including the determination of the Lowest Achievable Emission Rate, Maximum Achievable Control Technology, or Best Available Control Technology, consistent with the Board's regulations, if any.

(2) The Agency shall adopt requirements as necessary to implement public participation procedures, including, but not limited to, public notice, comment, and an opportunity for hearing, which must accompany the processing of applications for PSD permits. The Agency shall briefly describe and respond to all significant comments on the draft permit raised during the public comment period or during any hearing. The Agency may group related comments together and provide one unified response for each issue raised.

(3) Any complete permit application submitted to the Agency under this subsection for a PSD permit shall be granted or denied by the Agency not later than one year after the filing of such completed application.

(4) The Agency shall, after conferring with the applicant, give written notice to the applicant of its proposed decision on the application, including the terms and conditions of the permit to be issued and the facts, conduct, or other basis upon which the Agency will rely to support its proposed action.

(g) The Agency shall include as conditions upon all permits issued for hazardous waste disposal sites such restrictions upon the future use of such sites as are reasonably necessary to protect public health and the environment, including permanent prohibition of the use of such sites for purposes which may create an unreasonable risk of injury to human health or to the environment. After administrative and judicial challenges to such restrictions have been exhausted, the Agency shall file such restrictions of record in the Office of the Recorder of the county in which the hazardous waste disposal site is located.

(h) A hazardous waste stream may not be deposited in a permitted hazardous waste site unless specific authorization is obtained from the Agency by the generator and disposal site owner and operator for the deposit of that specific hazardous waste stream. The Agency may grant specific authorization for disposal of hazardous waste streams only after the generator has reasonably demonstrated that, considering technological feasibility and economic reasonableness, the hazardous waste cannot be reasonably recycled for reuse, nor incinerated or chemically, physically or biologically treated so as to neutralize the hazardous waste and render it nonhazardous. In granting authorization under this Section, the Agency may impose such conditions as may be necessary to accomplish the purposes of the Act and are consistent with this Act and regulations promulgated by the Board hereunder. If the Agency refuses to grant authorization under this Section, the applicant may appeal as if the Agency refused to grant a permit, pursuant to the provisions of subsection (a) of Section 40 of this Act. For purposes of this subsection (h), the term "generator" has the meaning given in Section 3.205 of this Act, unless: (1) the hazardous waste is treated, incinerated, or partially recycled for reuse prior to disposal, in which case the last person who treats, incinerates, or partially recycles the hazardous waste prior to disposal is the generator; or (2) the hazardous waste is from a response action, in which case the person performing the response action is the generator. This subsection (h) does not apply to any hazardous waste that is restricted from land disposal under 35 Ill. Adm. Code 728.

(i) Before issuing any RCRA permit, any permit for a waste storage site, sanitary landfill, waste disposal site, waste transfer station, waste treatment facility, waste incinerator, or any waste-transportation operation, any permit or interim authorization for a clean construction or demolition debris fill operation, or any permit required under subsection (d-5) of Section 55, the Agency shall conduct an evaluation of the prospective owner's or operator's prior experience in waste management operations, clean construction or demolition debris fill operations, and tire storage site management. The Agency may deny such a permit, or deny or revoke interim authorization, if the prospective owner or operator or any employee or officer of the prospective owner or operator has a history of:

(1) repeated violations of federal, State, or local laws, regulations, standards, or ordinances in the operation of waste management facilities or sites, clean construction or demolition debris fill operation facilities or sites, or tire storage sites; or

(2) conviction in this or another State of any crime which is a felony under the laws of this State, or conviction of a felony in a federal court; or conviction in this or another state or federal court of any of the following crimes: forgery, official misconduct, bribery, perjury, or knowingly submitting false information under any environmental law, regulation, or permit term or condition; or

(3) proof of gross carelessness or incompetence in handling, storing, processing, transporting or disposing of waste, clean construction or demolition debris, or used or waste tires, or proof of gross carelessness or incompetence in using clean construction or demolition debris as fill.

(i-5) Before issuing any permit or approving any interim authorization for a clean construction or demolition debris fill operation in which any ownership interest is transferred between January 1, 2005, and the effective date of the prohibition set forth in Section 22.52 of this Act, the Agency shall conduct an evaluation of the operation if any previous activities at the site or facility may have caused or allowed contamination of the site. It shall be the responsibility of the owner or operator seeking the permit or interim authorization to provide to the Agency all of the information necessary for the Agency to conduct its evaluation. The Agency may deny a permit or interim authorization if previous activities at the site may have caused or allowed contamination at the site, unless such contamination is authorized under any permit issued by the Agency.

(j) The issuance under this Act of a permit to engage in the surface mining of any resources other than fossil fuels shall not relieve the permittee from its duty to comply with any applicable local law regulating the commencement, location or operation of surface mining facilities.

(k) A development permit issued under subsection (a) of Section 39 for any facility or site which is required to have a permit under subsection (d) of Section 21 shall expire at the end of 2 calendar years from the date upon which it was issued, unless within that period the applicant has taken action to develop the facility or the site. In the event that review of the conditions of the development permit is sought pursuant to Section 40 or 41, or permittee is prevented from commencing development of the facility or site by any other litigation beyond the permittee's control, such two-year period shall be deemed to begin on the date upon which such review process or litigation is concluded.

(l) No permit shall be issued by the Agency under this Act for construction or operation of any facility or site located within the boundaries of any setback zone established pursuant to this Act, where such construction or operation is prohibited.

(m) The Agency may issue permits to persons owning or operating a facility for composting landscape waste. In granting such permits, the Agency may impose such conditions as may be necessary to accomplish the purposes of this Act, and as are not inconsistent with applicable regulations promulgated by the Board. Except as otherwise provided in this Act, a bond or other security shall not be required as a condition for the issuance of a permit. If the Agency denies any permit pursuant to this subsection, the Agency shall transmit to the applicant within the time limitations of this subsection specific, detailed statements as to the reasons the permit application was denied. Such statements shall include but not be limited to the following:

(1) the Sections of this Act that may be violated if the permit were granted;

(2) the specific regulations promulgated pursuant to this Act that may be violated if the permit were granted;

(3) the specific information, if any, the Agency deems the applicant did not provide in its application to the Agency; and

(4) a statement of specific reasons why the Act and the regulations might be violated if the permit were granted.

If no final action is taken by the Agency within 90 days after the filing of the application for permit, the applicant may deem the permit issued. Any applicant for a permit may waive the 90-day limitation by filing a written statement with the Agency.

The Agency shall issue permits for such facilities upon receipt of an application that includes a legal description of the site, a topographic map of the site drawn to the scale of 200 feet to the inch or larger, a description of the operation, including the area served, an estimate of the volume of materials to be processed, and documentation that:

(1) the facility includes a setback of at least 200 feet from the nearest potable water supply well;

(2) the facility is located outside the boundary of the 10-year floodplain or the site will be floodproofed;

(3) the facility is located so as to minimize incompatibility with the character of the surrounding area, including at least a 200 foot setback from any residence, and in the case of a facility that is developed or the permitted composting area of which is expanded after November 17, 1991, the composting area is located at least 1/8 mile from the nearest residence (other than a residence located on the same property as the facility);

(4) the design of the facility will prevent any compost material from being placed within 5 feet of the water table, will adequately control runoff from the site, and will collect and manage any leachate that is generated on the site;

(5) the operation of the facility will include appropriate dust and odor control measures, limitations on operating hours, appropriate noise control measures for shredding, chipping and similar equipment, management procedures for composting, containment and disposal of non-compostable wastes, procedures to be used for terminating operations at the site, and recordkeeping sufficient to document the amount of materials received, composted and otherwise disposed of; and

(6) the operation will be conducted in accordance with any applicable rules adopted by the Board.

The Agency shall issue renewable permits of not longer than 10 years in duration for the composting of landscape wastes, as defined in Section 3.155 of this Act, based on the above requirements.

The operator of any facility permitted under this subsection (m) must submit a written annual statement to the Agency on or before April 1 of each year that includes an estimate of the amount of material, in tons, received for composting.

(n) The Agency shall issue permits jointly with the Department of Transportation for the dredging or deposit of material in Lake Michigan in accordance with Section 18 of the Rivers, Lakes, and Streams Act.

(o) (Blank.)

(p) (1) Any person submitting an application for a permit for a new MSWLF unit or for a lateral expansion under subsection (t) of Section 21 of this Act for an existing MSWLF unit that has not received and is not subject to local siting approval under Section 39.2 of this Act shall publish notice of the application in a newspaper of general circulation in the county in which the MSWLF unit is or is proposed to be located. The notice must be published at least 15 days before submission of the permit application to the Agency. The notice shall state the name and address of the applicant, the location of the MSWLF unit or proposed MSWLF unit, the nature and size of the MSWLF unit or proposed MSWLF unit, the nature of the activity proposed, the probable life of the proposed activity, the date the permit application will be submitted, and a statement that persons may file written comments with the Agency concerning the permit application within 30 days after the filing of the permit application unless the time period to submit comments is extended by the Agency.

When a permit applicant submits information to the Agency to supplement a permit application being reviewed by the Agency, the applicant shall not be required to reissue the notice under this subsection.

(2) The Agency shall accept written comments concerning the permit application that are postmarked no later than 30 days after the filing of the permit application, unless the time period to accept comments is extended by the Agency.

(3) Each applicant for a permit described in part (1) of this subsection shall file a copy of the permit application with the county board or governing body of the municipality in which the MSWLF unit is or is proposed to be located at the same time the application is submitted to the Agency. The permit application filed with the county board or governing body of the municipality shall include all documents submitted to or to be submitted to the Agency, except trade secrets as determined under Section 7.1 of this Act. The permit application and other documents on file with the county board or governing body of the municipality shall be made available for public inspection during regular business hours at the office of the county board or the governing body of the municipality and may be copied upon payment of the actual cost of reproduction.

(q) Within 6 months after July 12, 2011 (the effective date of Public Act 97-95), the Agency, in consultation with the regulated community, shall develop a web portal to be posted on its website for the purpose of enhancing review and promoting timely issuance of permits required by this Act. At a minimum, the Agency shall make the following information available on the web portal:

(1) Checklists and guidance relating to the completion of permit applications, developed pursuant to subsection (s) of this Section, which may include, but are not limited to, existing instructions for completing the applications and examples of complete applications. As the Agency develops new checklists and develops guidance, it shall supplement the web portal with those materials.

(2) Within 2 years after July 12, 2011 (the effective date of Public Act 97-95), permit application forms or portions of permit applications that can be completed and saved electronically, and submitted to the Agency electronically with digital signatures.

(3) Within 2 years after July 12, 2011 (the effective date of Public Act 97-95), an online tracking system where an applicant may review the status of its pending application, including the name and contact information of the permit analyst assigned to the application. Until the online tracking system has been developed, the Agency shall post on its website semi-annual permitting efficiency tracking reports that include statistics on the timeframes for Agency action on the following types of permits received after July 12, 2011 (the effective date of Public Act 97-95): air construction permits, new NPDES permits and associated water construction permits, and modifications of major NPDES permits and associated water construction permits. The reports must be posted by February 1 and August 1 each year and shall include:

(A) the number of applications received for each type of permit, the number of applications on which the Agency has taken action, and the number of applications still pending; and

(B) for those applications where the Agency has not taken action in accordance with the timeframes set forth in this Act, the date the application was received and the reasons for any delays, which may include, but shall not be limited to, (i) the application being inadequate or incomplete, (ii) scientific or technical disagreements with the applicant, USEPA, or other local, state, or federal agencies involved in the permitting approval process, (iii) public opposition to the permit, or (iv) Agency staffing shortages. To the extent practicable, the tracking report shall provide approximate dates when cause for delay was identified by the Agency, when the Agency informed the applicant of the problem leading to the delay, and when the applicant remedied the reason for the delay.

(r) Upon the request of the applicant, the Agency shall notify the applicant of the permit analyst assigned to the application upon its receipt.

(s) The Agency is authorized to prepare and distribute guidance documents relating to its administration of this Section and procedural rules implementing this Section. Guidance documents prepared under this subsection shall not be considered rules and shall not be subject to the Illinois Administrative Procedure Act. Such guidance shall not be binding on any party.

(t) Except as otherwise prohibited by federal law or regulation, any person submitting an application for a permit may include with the application suggested permit language for Agency consideration. The Agency is not obligated to use the suggested language or any portion thereof in its permitting decision. If requested by the permit applicant, the Agency shall meet with the applicant to discuss the suggested language.

(u) If requested by the permit applicant, the Agency shall provide the permit applicant with a copy of the draft permit prior to any public review period.

(v) If requested by the permit applicant, the Agency shall provide the permit applicant with a copy of the final permit prior to its issuance.

(w) An air pollution permit shall not be required due to emissions of greenhouse gases, as specified by Section 9.15 of this Act.

(x) If, before the expiration of a State operating permit that is issued pursuant to subsection (a) of this Section and contains federally enforceable conditions limiting the potential to emit of the source to a level below the major source threshold for that source so as to exclude the source from the Clean Air Act Permit Program, the Agency receives a complete application for the renewal of that permit, then all of the terms and conditions of the permit shall remain in effect until final administrative action has been taken on the application for the renewal of the permit.

(y) The Agency may issue permits exclusively under this subsection to persons owning or operating a CCR surface impoundment subject to Section 22.59.

All CCR surface impoundment permits shall contain those terms and conditions, including, but not limited to, schedules of compliance, which may be required to accomplish the purposes and provisions of this Act, Board regulations, the Illinois Groundwater Protection Act and regulations pursuant thereto, and the Resource Conservation and Recovery Act and regulations pursuant thereto, and may include schedules for achieving compliance therewith as soon as possible.

The Board shall adopt filing requirements and procedures that are necessary and appropriate for the issuance of CCR surface impoundment permits and that are consistent with this Act or regulations adopted by the Board, and with the RCRA, as amended, and regulations pursuant thereto.

The applicant shall make available to the public for inspection all documents submitted by the applicant to the Agency in furtherance of an application, with the exception of trade secrets, on its public internet website as well as at the office of the county board or governing body of the municipality where CCR from the CCR surface impoundment will be permanently disposed. Such documents may be copied upon payment of the actual cost of reproduction during regular business hours of the local office.

The Agency shall issue a written statement concurrent with its grant or denial of the permit explaining the basis for its decision.

(z) If the Director receives a written request from a third party for the Agency to conduct a public hearing or a public meeting regarding any pending permit decision, a public hearing or public meeting shall be held in person at a location in close proximity to the facility, site, or activity described in the permit application.

(Source: P.A. 101-171, eff. 7-30-19; revised 9-12-19.)

(415 ILCS 5/40) (from Ch. 111 1/2, par. 1040)

Sec. 40. Appeal of permit denial.

(a)(1) If the Agency refuses to grant or grants with conditions a permit under Section 39 of this Act, the applicant may, within 35 days after the date on which the Agency served its decision on the applicant, petition for a hearing before the Board to contest the decision of the Agency. However, the 35-day period for petitioning for a hearing may be extended for an additional period of time not to exceed 90 days by written notice provided to the Board from the applicant and the Agency within the initial appeal period. The Board shall give 21 days' notice to any person in the county where is located the facility in issue who has requested notice of enforcement proceedings and to each member of the General Assembly in whose legislative district that installation or property is located; and shall publish that 21-day notice in a newspaper of general circulation in that county. The Agency shall appear as respondent in such hearing. At such hearing the rules prescribed in Section 32 and subsection (a) of Section 33 of this Act shall apply, and the burden of proof shall be on the petitioner. If, however, the Agency issues an NPDES permit that imposes limits which are based upon a criterion or denies a permit based upon application of a criterion, then the Agency shall have the burden of going forward with the basis for the derivation of those limits or criterion which were derived under the Board's rules.

(2) Except as provided in paragraph (a)(3), if there is no final action by the Board within 120 days after the date on which it received the petition, the petitioner may deem the permit issued under this Act, provided, however, that that period of 120 days shall not run for any period of time, not to exceed 30 days, during which the Board is without sufficient membership to constitute the quorum required by subsection (a) of Section 5 of this Act, and provided further that such 120 day period shall not be stayed for lack of quorum beyond 30 days regardless of whether the lack of quorum exists at the beginning of such 120-day period or occurs during the running of such 120-day period.

(3) Paragraph (a)(2) shall not apply to any permit which is subject to subsection (b), (d) or (e) of Section 39. If there is no final action by the Board within 120 days after the date on which it received the petition, the petitioner shall be entitled to an Appellate Court order pursuant to subsection (d) of Section 41 of this Act.

(b) If the Agency grants a RCRA permit for a hazardous waste disposal site, a third party, other than the permit applicant or Agency, may, within 35 days after the date on which the Agency issued its decision, petition the Board for a hearing to contest the issuance of the permit. Unless the Board determines that such petition is duplicative or frivolous, or that the petitioner is so located as to not be affected by the permitted facility, the Board shall hear the petition in accordance with the terms of subsection (a) of this Section and its procedural rules governing denial appeals, such hearing to be based exclusively on the record before the Agency. The burden of proof shall be on the petitioner. The Agency and the permit applicant shall be named co-respondents.

The provisions of this subsection do not apply to the granting of permits issued for the disposal or utilization of sludge from publicly owned publicly-owned sewage works.

(c) Any party to an Agency proceeding conducted pursuant to Section 39.3 of this Act may petition as of right to the Board for review of the Agency's decision within 35 days from the date of issuance of the Agency's decision, provided that such appeal is not duplicative or frivolous. However, the 35-day period for petitioning for a hearing may be extended by the applicant for a period of time not to exceed 90 days by written notice provided to the Board from the applicant and the Agency within the initial appeal period. If another person with standing to appeal wishes to obtain an extension, there must be a written notice provided to the Board by that person, the Agency, and the applicant, within the initial appeal period. The decision of the Board shall be based exclusively on the record compiled in the Agency proceeding. In other respects the Board's review shall be conducted in accordance with subsection (a) of this Section and the Board's procedural rules governing permit denial appeals.

(d) In reviewing the denial or any condition of a NA NSR permit issued by the Agency pursuant to rules and regulations adopted under subsection (c) of Section 9.1 of this Act, the decision of the Board shall be based exclusively on the record before the Agency including the record of the hearing, if any, unless the parties agree to supplement the record. The Board shall, if it finds the Agency is in error, make a final determination as to the substantive limitations of the permit including a final determination of Lowest Achievable Emission Rate.

(e)(1) If the Agency grants or denies a permit under subsection (b) of Section 39 of this Act, a third party, other than the permit applicant or Agency, may petition the Board within 35 days from the date of issuance of the Agency's decision, for a hearing to contest the decision of the Agency.

(2) A petitioner shall include the following within a petition submitted under subdivision (1) of this subsection:

(A) a demonstration that the petitioner raised the issues contained within the petition during the public notice period or during the public hearing on the NPDES permit application, if a public hearing was held; and

(B) a demonstration that the petitioner is so situated as to be affected by the permitted facility.

(3) If the Board determines that the petition is not duplicative or frivolous and contains a satisfactory demonstration under subdivision (2) of this subsection, the Board shall hear the petition (i) in accordance with the terms of subsection (a) of this Section and its procedural rules governing permit denial appeals and (ii) exclusively on the basis of the record before the Agency. The burden of proof shall be on the petitioner. The Agency and permit applicant shall be named co-respondents.

(f) Any person who files a petition to contest the issuance of a permit by the Agency shall pay a filing fee.

(g) If the Agency grants or denies a permit under subsection (y) of Section 39, a third party, other than the permit applicant or Agency, may appeal the Agency's decision as provided under federal law for CCR surface impoundment permits.

(h) If the Agency grants a permit to construct, modify, or operate a facility that emits air pollutants and is classified as a minor source, a third party other than the permit applicant or Agency may, within 35 days after the date on which the Agency issued its decision, petition the Board for a hearing to contest the issuance of the permit. Unless the Board determines that the petition is duplicative or frivolous, or that the petitioner is so located as to not be affected by the permitted facility, the Board shall hear the petition in accordance with the terms of subsection (a) of this Section and its procedural rules governing denial appeals, such hearing to be based exclusively on the record before the Agency. The burden of proof shall be on the petitioner. The Agency and the permit applicant shall be named co-respondents.

(Source: P.A. 100-201, eff. 8-18-17; 101-171, eff. 7-30-19; revised 9-12-19.)

(415 ILCS 5/Tit. XVIII heading new)

TITLE XVIII: ENVIRONMENTAL JUSTICE

(415 ILCS 5/60 new)

Sec. 60. Findings; purpose.

(a) The General Assembly finds that:

(1) the State of Illinois has a long-standing policy, prescribed by Article XI of the Illinois Constitution, to maintain a healthful environment for the benefit of this and future generations and that every State resident is entitled to a healthful environment;

(2) a healthful environment is essential to the sustainable growth and development of the State and its residents;

(3) persistent racial and economic inequalities, and the forces that cause them, embedded throughout our society have concentrated harmful environmental polluters of the air, water, and land near and within communities of color, tribal communities, and low-income communities;

(4) as a result these communities have historically borne and continue to bear a disproportionate level of environmental pollution and associated adverse human health effects resulting from the construction and operation of industrial, municipal, and commercial activities relative to other neighborhoods;

(5) such adverse human health effects include, but are not limited to, asthma, cancer, elevated blood lead levels, cardiovascular disease, and developmental disorders;

(6) children are especially vulnerable to the adverse health effects caused by exposure to pollution, and such health effects may severely limit a child's potential for future success;

(7) the legacy of permitting sources of pollution in these communities continues to impose adverse health effects caused by pollution that impede the growth, stability, and well-being of individuals and families living in and near these communities;

(8) meaningful participation of State residents, especially those who live in such communities that have historically borne and continue to bear a disproportionate level of environmental pollution and associated adverse human health effects resulting from the construction and operation of industrial, municipal, and commercial activities is critical to ensuring that environmental justice considerations permeate the development of, decision-making related to, and implementation of all environmental laws, rules, policies, permits, and other actions by the Illinois Environmental Protection Agency in a way that protects and improves the well-being of these communities;

(9) all residents have the right to file legal grievances related to environmental justice; and

(10) it is time for the State to correct these longstanding and ongoing injustices.

(b) The purpose of this Title is to require that environmental justice considerations are incorporated in all Illinois Environmental Protection Agency actions and decisions to ensure that no person or group of persons of common race, ethnicity, color, religion, sexual orientation, or socioeconomic status shall bear a disproportionate level of adverse human health or environmental effects resulting from the construction or operation of industrial, municipal, or commercial activities, and that all residents of this State shall have the right and ability to meaningfully engage in the public participation provisions of this Act regardless of race, ethnicity, color, religion, sexual orientation, or socioeconomic status. This Title implements Article XI of the Illinois Constitution.

(c) The terms and provisions of this Title shall be liberally construed to effectuate the purposes of this Title as set forth in subsection (a) of this Section.

(415 ILCS 5/65 new)

Sec. 65. Definitions. In this Title:

"Agency" means the Illinois Environmental Protection Agency.

"Board" means the Illinois Pollution Control Board.

"Commission" means the Illinois Commission on Environmental Justice.

"Director" means the Director of the Environmental Protection Agency.

"Environmental justice" means that no resident or group of residents of this State of common race, ethnicity, color, religion, sexual orientation, or socioeconomic status shall bear a disproportionate level of adverse human health or environmental effects resulting from the construction or operation of industrial, municipal, or commercial activities, and that all residents have the right and ability to engage meaningfully in the public participation provisions of this Act regardless of race, ethnicity, color, religion, sexual orientation, or socioeconomic status.

"Environmental justice community" means those communities identified by the Agency under Section 70.

"Facility" means an entity that requires a permit from the Agency.

"Linguistic isolation percentage" means the percentage of households in an environmental justice community in which all members age 14 years and older speak a non-English language and speak English less than "very well" according to the United States Census Bureau's latest 1-year or 5-year American Community Survey.

"Meaningful public participation" means giving residents of environmental justice communities the full and complete opportunity to participate in the Agency's decision-making process about: (i) proposed regulated facilities that may adversely affect the residents' environment or health; (ii) the expansion or continued operation of existing regulated facilities that may adversely affect the residents' environment or health; and (iii) all other Agency rules, regulations, and policies that may affect environmental justice communities.

"Permit" means a permit issued by the Agency.

(415 ILCS 5/70 new)

Sec. 70. Identifying environmental justice communities.

(a) The Agency shall by rule establish a process for identifying environmental justice communities based on methodologies that factor socioeconomic, demographic, and environmental burden indicators. Such indicators may include, but are not limited to:

(1) National-Scale Air Toxics Assessment (NATA) air toxics cancer risk;

(2) National-Scale Air Toxics Assessment (NATA) respiratory hazard index;

(3) National-Scale Air Toxics Assessment (NATA) diesel particulate matter;

(4) PM2.5;

(5) ozone;

(6) traffic proximity and volume;

(7) lead paint indicator;

(8) proximity to Risk Management Plan sites;

(9) proximity to Hazardous Waste Treatment, Storage, and Disposal Facilities;

(10) proximity to National Priorities List sites;

(11) wastewater dischargers indicator;

(12) percent low income;

(13) percent minority;

(14) percent less than high school education;

(15) linguistic isolation;

(16) individuals under age 5;

(17) individuals over age 64;

(18) asthma emergency department visits;

(19) percent low birth weight infants;

(20) drinking water watch;

(21) proximity to site remediation program sites;

(22) Leaking Underground Storage Tank Incident tracking;

(23) proximity to State response action program sites;

(24) proximity to solid waste facilities;

(25) record of violations compiled by the Occupational Safety and Health Administration of the United States Department of Labor, the Illinois Department of Labor, or both; and

(26) the presence of migrant, seasonal, and transitory workers.

(b) The Agency shall annually review and update the underlying data for, and use of, indicators under subsection (a) for the sake of accuracy and to comport with best practices as developed by entities, including, but not limited to: the United States Environmental Protection Agency; State agencies, including the Illinois Department of Public Health, the Illinois Housing Development Authority, the Illinois Department of Education, the Illinois Power Agency, the Illinois Department of Agriculture, and the Illinois Department of Natural Resources; State municipalities and units of local government; and the executive branch, agencies, municipalities, and units of local government in other states.

(c) The Agency shall establish a process by which communities not designated as environmental justice communities may petition for such designation.

(d) The Agency shall include representatives of State environmental justice organizations, other State environmental justice stakeholders, and the Commission in the development of the processes required to be developed by subsections (a) through (c).

(415 ILCS 5/75 new)

Sec. 75. Public notice; community outreach.

(a) The Agency shall adopt rules that provide for meaningful public participation in, and notice of, Agency decisions and actions that may affect environmental justice communities, including, but not limited to: rulemaking; policymaking; and approval, renewal, or modification of a permit from the Agency for any facility located or proposed to be located in an environmental justice community. No later than one year after the effective date of this amendatory Act of the 102nd General Assembly, the Agency shall propose, and not later than one year after proposal, the Board shall adopt, rules under this Section. The rules shall be consistent with the findings in subsection (a) of Section 60 and, at a minimum, include provisions stipulating that the Agency shall:

(1) provide and distribute to the public all public notices and documents, including, but not limited to, informational hearings, fact sheets, permit applications, environmental justice impact statements, and proposed projects, in multi-lingual format, to environmental justice communities with linguistic isolation;

(2) include notification to elected officials for the location in which the facility seeking a permit is located, and notification to child care center directors, school principals, and public park superintendents whose buildings are located within one mile of the location of the facility seeking a permit;

(3) present on the Agency's website in a readily accessible manner all public notices and documents, including, but not limited to, informational hearings, environmental justice impact statements, fact sheets, permit applications, proposed projects, and any document subject to the Freedom of Information Act, no later than 10 calendar days after the document's date of release or publishing, whichever comes first;

(4) provide and distribute to the public all public documents and notices, including, but not limited to, those described in paragraph (2), through mediums, including, but not limited to, document repositories and electronic and postal mailing lists;

(5) provide translators at public hearings and meetings of any kind in environmental justice communities with a linguistic isolation or upon request; and

(6) conduct an in-person public hearing or public meeting at a location in close proximity to a facility seeking a permit if the Director receives a written request from a third party for the Agency to conduct a public hearing or a public meeting regarding a pending permit.

(b) The Agency shall include representatives of State environmental justice organizations, other State environmental justice stakeholders and the Commission in the development of rules required to be created under subsection (a).

(415 ILCS 5/80 new)

Sec. 80. Environmental justice impact statements.

(a) The Agency shall develop a uniform environmental justice impact statement template that, at a minimum, requires that a permit applicant assesses and details the potential environmental and public health effects associated with a proposed new facility or with the expansion of an existing facility, including any adverse environmental or public health effects that cannot be avoided if the permit is granted and the environmental or public health effects already borne by the environmental justice community as a result of existing conditions located in or affecting the environmental justice community. No later than one year after the effective date of this amendatory Act of the 102nd General Assembly, the Agency shall propose, and not later than months one year after proposal, the Board shall adopt, an environmental justice impact statement template.

(b) The Agency shall not consider complete for review any application for a permit for a new facility, the expansion of an existing facility, or renewal of an existing facility if the facility is located, or proposed to be located, in whole or in part, in an environmental justice community, unless and until the permit applicant:

(1) prepares an environmental justice impact statement that conforms to the template that is developed per the requirements of subsection (a); and

(2) transmits the environmental justice impact statement to the Agency, State and local officials who represent the pertinent environmental justice community, and residents and environmental justice organizations located in the environmental justice community.

(c) The Agency shall present completed environmental justice impact statements on the Agency's website in a readily accessible manner.

(d) Notwithstanding the provisions of any other law, rule, or regulation, the Agency, after review of the environmental justice impact statement prepared pursuant to paragraph (1) of subsection (b), and any other relevant information, including, but not limited to, information gleaned from public hearings and other meaningful public participation rules developed by the Agency pursuant to Section 75, shall deny a permit for a new facility or the expansion of an existing facility, or deny or apply new conditions to the renewal of an existing facility's permit, upon a finding that approval of the permit or permit renewal, as proposed, would, together with other environmental or public health consequences affecting the environmental justice community, cause or contribute to adverse cumulative environmental or public health effects in the environmental justice community that are higher than those borne by other communities within the State, county, or other geographic unit of analysis as determined by the Agency pursuant to rule, regulation, or guidance.

(e) The Agency shall include representatives of State environmental justice organizations, other State environmental justice stakeholders, and the Commission in the development of the environmental justice impact statement template as mandated under subsection (a). The Agency shall respond in writing to all significant public comments received during this process.

(f) Environmental justice impact statements and the Agency's review of these statements shall be included in the record of the Agency's decision for facility permits, and the adequacy of the Agency's environmental justice decisions shall be a basis for permit appeals to the Board by members of the public.

(415 ILCS 5/85 new)

Sec. 85. Environmental justice grievance procedure.

(a) No later than 60 days after the effective date of this Amendatory Act of the 102nd General Assembly, the Agency shall establish an environmental justice grievance procedure by which any person or class of persons who believe they have been discriminated against by the Agency may file a complaint for a violation of:

(1) provisions of this Title;

(2) Title VI, Section 601 of the 1964 Civil Rights Act, pursuant to 40 CFR 5 and 7.90;

(3) the Illinois Civil Rights Act of 2006; or

(4) other provisions of this Act.

(b) Decisions made by the Agency under the grievance procedure to be established under subsection (a) shall be appealable to the Board and the Circuit Courts of the State.

(c) The Agency shall include representatives of State environmental justice organizations, other State environmental justice stakeholders, and the Commission in the development of the processes required to be developed under subsection (a).

(d) The Agency shall maintain an online repository of all grievances filed with the Agency and the resolution of those grievances.

(e) Final Agency decisions to decline to commence enforcement following a citizen complaint can serve as the basis of a grievance pursuant to this Section.

(415 ILCS 5/90 new)

Sec. 90. Permit applicant fee.In addition to any other fee authorized by law, rule, or regulation, the Agency shall by rule establish and assess each permit applicant a reasonable fee to cover Agency costs associated with the implementation of this Title, including, but not limited to, costs to provide technical assistance to permit applicants and environmental justice communities, as needed, to comply with this Title.

Section 99. Effective date. This Act takes effect upon becoming law.".