Illinois General Assembly - Full Text of SB1672
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Full Text of SB1672  99th General Assembly

SB1672enr 99TH GENERAL ASSEMBLY

  
  
  

 


 
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1    AN ACT concerning safety.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Environmental Protection Act is amended by
5changing Sections 9.1, 9.12, 39, 40, and 41 and by adding
6Sections 3.298, 3.363, and 40.3 as follows:
 
7    (415 ILCS 5/3.298 new)
8    Sec. 3.298. Nonattainment new source review (NA NSR)
9permit. "Nonattainment New Source Review permit" or "NA NSR
10permit" means a permit or a portion of a permit for a new major
11source or major modification that is issued by the Illinois
12Environmental Protection Agency under the construction permit
13program pursuant to subsection (c) of Section 9.1 that has been
14approved by the United States Environmental Protection Agency
15and incorporated into the Illinois State Implementation Plan to
16implement the requirements of Section 173 of the Clean Air Act
17and 40 CFR 51.165.
 
18    (415 ILCS 5/3.363 new)
19    Sec. 3.363. Prevention of significant deterioration (PSD)
20permit. "Prevention of Significant Deterioration permit" or
21"PSD permit" means a permit or the portion of a permit for a
22new major source or major modification that is issued by the

 

 

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1Illinois Environmental Protection Agency under the
2construction permit program pursuant to subsection (c) of
3Section 9.1 that has been approved by the United States
4Environmental Protection Agency and incorporated into the
5Illinois State Implementation Plan to implement the
6requirements of Section 165 of the Clean Air Act and 40 CFR
751.166.
 
8    (415 ILCS 5/9.1)  (from Ch. 111 1/2, par. 1009.1)
9    Sec. 9.1. (a) The General Assembly finds that the federal
10Clean Air Act, as amended, and regulations adopted pursuant
11thereto establish complex and detailed provisions for
12State-federal cooperation in the field of air pollution
13control, provide for a Prevention of Significant Deterioration
14program to regulate the issuance of preconstruction permits to
15insure that economic growth will occur in a manner consistent
16with the preservation of existing clean air resources, and also
17provide for plan requirements for nonattainment areas to
18regulate the construction, modification and operation of
19sources of air pollution to insure that economic growth will
20occur in a manner consistent with the goal of achieving the
21national ambient air quality standards, and that the General
22Assembly cannot conveniently or advantageously set forth in
23this Act all the requirements of such federal Act or all
24regulations which may be established thereunder.
25    It is the purpose of this Section to avoid the existence of

 

 

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1duplicative, overlapping or conflicting State and federal
2regulatory systems.
3    (b) The provisions of Section 111 of the federal Clean Air
4Act (42 USC 7411), as amended, relating to standards of
5performance for new stationary sources, and Section 112 of the
6federal Clean Air Act (42 USC 7412), as amended, relating to
7the establishment of national emission standards for hazardous
8air pollutants are applicable in this State and are enforceable
9under this Act. Any such enforcement shall be stayed consistent
10with any stay granted in any federal judicial action to review
11such standards. Enforcement shall be consistent with the
12results of any such judicial review.
13    (c) The Board shall may adopt regulations establishing
14permit programs for PSD and NA NSR permits meeting the
15respective requirements of Sections 165 and 173 of the Clean
16Air Act (42 USC 7475 and 42 USC 7503) as amended. The Agency
17may adopt procedures for the administration of such programs.
18    The regulations adopted by the Board to establish a PSD
19permit program shall incorporate by reference, pursuant to
20subsection (a) of Section 5-75 of the Illinois Administrative
21Procedure Act, the provisions of 40 CFR 52.21, except for the
22following subparts: (a)(1) Plan disapproval, (q) Public
23participation, (s) Environmental impact statements, (t)
24Disputed permits or redesignations and (u) Delegation of
25authority; the Board may adopt more stringent or additional
26provisions to the extent it deems appropriate. To the extent

 

 

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1that the provisions of 40 CFR 52.21 provide for the
2Administrator to make various determinations and to take
3certain actions, these provisions shall be modified to indicate
4the Agency if appropriate. Nothing in this subsection shall be
5construed to limit the right of any person to submit a proposal
6to the Board or the authority of the Board to adopt elements of
7a PSD permit program that are more stringent than those
8contained in 40 CFR 52.21, pursuant to the rulemaking
9requirements of Title VII of this Act and Section 5-35 of the
10Illinois Administrative Procedure Act.
11    (d) No person shall:
12        (1) violate any provisions of Sections 111, 112, 165 or
13    173 of the Clean Air Act, as now or hereafter amended, or
14    federal regulations adopted pursuant thereto; or
15        (2) construct, install, modify or operate any
16    equipment, building, facility, source or installation
17    which is subject to regulation under Sections 111, 112, 165
18    or 173 of the Clean Air Act, as now or hereafter amended,
19    except in compliance with the requirements of such Sections
20    and federal regulations adopted pursuant thereto, and no
21    such action shall be undertaken (A) without a permit
22    granted by the Agency whenever a permit is required
23    pursuant to (i) this Act or Board regulations or (ii)
24    Section 111, 112, 165, or 173 of the Clean Air Act or
25    federal regulations adopted pursuant thereto or (B) in
26    violation of any conditions imposed by such permit. The

 

 

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1    issuance or any Any denial of such a PSD permit or any
2    conditions imposed therein in such a permit shall be
3    reviewable by the Board in accordance with Section 40.3 40
4    of this Act. Other permits addressed in this subsection (d)
5    shall be reviewable by the Board in accordance with Section
6    40 of this Act.
7    (e) The Board shall exempt from regulation under the State
8Implementation Plan for ozone the volatile organic compounds
9which have been determined by the U.S. Environmental Protection
10Agency to be exempt from regulation under state implementation
11plans for ozone due to negligible photochemical reactivity. In
12accordance with subsection (b) of Section 7.2, the Board shall
13adopt regulations identical in substance to the U.S.
14Environmental Protection Agency exemptions or deletion of
15exemptions published in policy statements on the control of
16volatile organic compounds in the Federal Register by amending
17the list of exemptions to the Board's definition of volatile
18organic material found at 35 Ill. Adm. Code Part 211. The
19provisions and requirements of Title VII of this Act shall not
20apply to regulations adopted under this subsection. Section
215-35 of the Illinois Administrative Procedure Act, relating to
22procedures for rulemaking, does not apply to regulations
23adopted under this subsection. However, the Board shall provide
24for notice, a hearing if required by the U.S. Environmental
25Protection Agency, and public comment before adopted rules are
26filed with the Secretary of State. The Board may consolidate

 

 

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1into a single rulemaking under this subsection all such federal
2policy statements published in the Federal Register within a
3period of time not to exceed 6 months.
4    (f) (Blank).
5(Source: P.A. 97-95, eff. 7-12-11; 98-284, eff. 8-9-13.)
 
6    (415 ILCS 5/9.12)
7    Sec. 9.12. Construction permit fees for air pollution
8sources.
9    (a) An applicant for a new or revised air pollution
10construction permit shall pay a fee, as established in this
11Section, to the Agency at the time that he or she submits the
12application for a construction permit. Except as set forth
13below, the fee for each activity or category listed in this
14Section is separate and is cumulative with any other applicable
15fee listed in this Section.
16    (b) The fee amounts in this subsection (b) apply to
17construction permit applications relating to (i) a source
18subject to Section 39.5 of this Act (the Clean Air Act Permit
19Program); (ii) a source that, upon issuance of the requested
20construction permit, will become a major source subject to
21Section 39.5; or (iii) a source that has or will require a
22federally enforceable State operating permit limiting its
23potential to emit.
24        (1) Base fees for each construction permit application
25    shall be assessed as follows:

 

 

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1            (A) If the construction permit application relates
2        to one or more new emission units or to a combination
3        of new and modified emission units, a fee of $4,000 for
4        the first new emission unit and a fee of $1,000 for
5        each additional new or modified emission unit;
6        provided that the total base fee under this subdivision
7        (A) shall not exceed $10,000.
8            (B) If the construction permit application relates
9        to one or more modified emission units but not to any
10        new emission unit, a fee of $2,000 for the first
11        modified emission unit and a fee of $1,000 for each
12        additional modified emission unit; provided that the
13        total base fee under this subdivision (B) shall not
14        exceed $5,000.
15        (2) Supplemental fees for each construction permit
16    application shall be assessed as follows:
17            (A) If, based on the construction permit
18        application, the source will be, but is not currently,
19        subject to Section 39.5 of this Act, a CAAPP entry fee
20        of $5,000.
21            (B) If the construction permit application
22        involves (i) a new source or emission unit subject to
23        Section 39.2 of this Act, (ii) a commercial incinerator
24        or other municipal waste, hazardous waste, or waste
25        tire incinerator, (iii) a commercial power generator,
26        or (iv) one or more other emission units designated as

 

 

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1        a complex source by Agency rulemaking, a fee of
2        $25,000.
3            (C) If the construction permit application
4        involves an emissions netting exercise or reliance on a
5        contemporaneous emissions decrease for a pollutant to
6        avoid application of the federal PSD permit program (40
7        CFR 52.21) or nonattainment new source review (35 Ill.
8        Adm. Code 203), a fee of $3,000 for each such
9        pollutant.
10            (D) If the construction permit application is for a
11        new major source subject to the federal PSD permit
12        program, a fee of $12,000.
13            (E) If the construction permit application is for a
14        new major source subject to nonattainment new source
15        review, a fee of $20,000.
16            (F) If the construction permit application is for a
17        major modification subject to the federal PSD permit
18        program, a fee of $6,000.
19            (G) If the construction permit application is for a
20        major modification subject to nonattainment new source
21        review, a fee of $12,000.
22            (H) (Blank).
23            (I) If the construction permit application review
24        involves a determination of the Maximum Achievable
25        Control Technology standard for a pollutant and the
26        project is not otherwise subject to BACT or LAER for a

 

 

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1        related pollutant under the federal PSD permit program
2        or nonattainment new source review, a fee of $5,000 per
3        unit for which a determination is requested or
4        otherwise required.
5            (J) (Blank).
6        (3) If a public hearing is held regarding the
7    construction permit application, an administrative fee of
8    $10,000. This fee shall be submitted at the time the
9    applicant requests a public hearing or, if a public hearing
10    is not requested by the applicant, then within 30 days
11    after the applicant is informed by the Agency that a public
12    hearing will be held.
13    (c) The fee amounts in this subsection (c) apply to
14construction permit applications relating to a source that,
15upon issuance of the construction permit, will not (i) be or
16become subject to Section 39.5 of this Act (the Clean Air Act
17Permit Program) or (ii) have or require a federally enforceable
18state operating permit limiting its potential to emit.
19        (1) Base fees for each construction permit application
20    shall be assessed as follows:
21            (A) For a construction permit application
22        involving a single new emission unit, a fee of $500.
23            (B) For a construction permit application
24        involving more than one new emission unit, a fee of
25        $1,000.
26            (C) For a construction permit application

 

 

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1        involving no more than 2 modified emission units, a fee
2        of $500.
3            (D) For a construction permit application
4        involving more than 2 modified emission units, a fee of
5        $1,000.
6        (2) Supplemental fees for each construction permit
7    application shall be assessed as follows:
8            (A) If the source is a new source, i.e., does not
9        currently have an operating permit, an entry fee of
10        $500;
11            (B) If the construction permit application
12        involves (i) a new source or emission unit subject to
13        Section 39.2 of this Act, (ii) a commercial incinerator
14        or a municipal waste, hazardous waste, or waste tire
15        incinerator, (iii) a commercial power generator, or
16        (iv) an emission unit designated as a complex source by
17        Agency rulemaking, a fee of $15,000.
18        (3) If a public hearing is held regarding the
19    construction permit application, an administrative fee of
20    $10,000. This fee shall be submitted at the time the
21    applicant requests a public hearing or, if a public hearing
22    is not requested by the applicant, then within 30 days
23    after the applicant is informed by the Agency that a public
24    hearing will be held.
25    (d) If no other fee is applicable under this Section, a
26construction permit application addressing one or more of the

 

 

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1following shall be subject to a filing fee of $500:
2        (1) A construction permit application to add or replace
3    a control device on a permitted emission unit.
4        (2) A construction permit application to conduct a
5    pilot project or trial burn for a permitted emission unit.
6        (3) A construction permit application for a land
7    remediation project.
8        (4) (Blank).
9        (5) A construction permit application to revise an
10    emissions testing methodology or the timing of required
11    emissions testing.
12        (6) A construction permit application that provides
13    for a change in the name, address, or phone number of any
14    person identified in the permit, or for a change in the
15    stated ownership or control, or for a similar minor
16    administrative permit change at the source.
17    (e) No fee shall be assessed for a request to correct an
18issued permit that involves only an Agency error, if the
19request is received within the deadline for a permit appeal to
20the Pollution Control Board.
21    (f) The applicant for a new or revised air pollution
22construction permit shall submit to the Agency, with the
23construction permit application, both a certification of the
24fee that he or she estimates to be due under this Section and
25the fee itself.
26    (g) Notwithstanding the requirements of subsection (a) of

 

 

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1Section 39 of this Act, the application for an air pollution
2construction permit shall not be deemed to be filed with the
3Agency until the Agency receives the initial air pollution
4construction permit application fee and the certified estimate
5of the fee required by this Section. Unless the Agency has
6received the initial air pollution construction permit
7application fee and the certified estimate of the fee required
8by this Section, the Agency is not required to review or
9process the application.
10    (h) If the Agency determines at any time that a
11construction permit application is subject to an additional fee
12under this Section that the applicant has not submitted, the
13Agency shall notify the applicant in writing of the amount due
14under this Section. The applicant shall have 60 days to remit
15the assessed fee to the Agency.
16    If the proper fee established under this Section is not
17submitted within 60 days after the request for further
18remittance:
19        (1) If the construction permit has not yet been issued,
20    the Agency is not required to further review or process,
21    and the provisions of subsection (a) of Section 39 of this
22    Act do not apply to, the application for a construction
23    permit until such time as the proper fee is remitted.
24        (2) If the construction permit has been issued, the
25    Agency may, upon written notice, immediately revoke the
26    construction permit.

 

 

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1    The denial or revocation of a construction permit does not
2excuse the applicant from the duty of paying the fees required
3under this Section.
4    (i) The Agency may deny the issuance of a pending air
5pollution construction permit or the subsequent operating
6permit if the applicant has not paid the required fees by the
7date required for issuance of the permit. The denial or
8revocation of a permit for failure to pay a construction permit
9fee is subject to review by the Board pursuant to the
10provisions of subsection (a) of Section 40 of this Act.
11    (j) If the owner or operator undertakes construction
12without obtaining an air pollution construction permit, the fee
13under this Section is still required. Payment of the required
14fee does not preclude the Agency or the Attorney General or
15other authorized persons from pursuing enforcement against the
16applicant for failure to have an air pollution construction
17permit prior to commencing construction.
18    (k) If an air pollution construction permittee makes a fee
19payment under this Section from an account with insufficient
20funds to cover the amount of the fee payment, the Agency shall
21notify the permittee of the failure to pay the fee. If the
22permittee fails to pay the fee within 60 days after such
23notification, the Agency may, by written notice, immediately
24revoke the air pollution construction permit. Failure of the
25Agency to notify the permittee of the permittee's failure to
26make payment does not excuse or alter the duty of the permittee

 

 

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1to comply with the provisions of this Section.
2    (l) The Agency may establish procedures for the collection
3of air pollution construction permit fees.
4    (m) Fees collected pursuant to this Section shall be
5deposited into the Environmental Protection Permit and
6Inspection Fund.
7(Source: P.A. 97-95, eff. 7-12-11.)
 
8    (415 ILCS 5/39)  (from Ch. 111 1/2, par. 1039)
9    Sec. 39. Issuance of permits; procedures.
10    (a) When the Board has by regulation required a permit for
11the construction, installation, or operation of any type of
12facility, equipment, vehicle, vessel, or aircraft, the
13applicant shall apply to the Agency for such permit and it
14shall be the duty of the Agency to issue such a permit upon
15proof by the applicant that the facility, equipment, vehicle,
16vessel, or aircraft will not cause a violation of this Act or
17of regulations hereunder. The Agency shall adopt such
18procedures as are necessary to carry out its duties under this
19Section. In making its determinations on permit applications
20under this Section the Agency may consider prior adjudications
21of noncompliance with this Act by the applicant that involved a
22release of a contaminant into the environment. In granting
23permits, the Agency may impose reasonable conditions
24specifically related to the applicant's past compliance
25history with this Act as necessary to correct, detect, or

 

 

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1prevent noncompliance. The Agency may impose such other
2conditions as may be necessary to accomplish the purposes of
3this Act, and as are not inconsistent with the regulations
4promulgated by the Board hereunder. Except as otherwise
5provided in this Act, a bond or other security shall not be
6required as a condition for the issuance of a permit. If the
7Agency denies any permit under this Section, the Agency shall
8transmit to the applicant within the time limitations of this
9Section specific, detailed statements as to the reasons the
10permit application was denied. Such statements shall include,
11but not be limited to the following:
12        (i) the Sections of this Act which may be violated if
13    the permit were granted;
14        (ii) the provision of the regulations, promulgated
15    under this Act, which may be violated if the permit were
16    granted;
17        (iii) the specific type of information, if any, which
18    the Agency deems the applicant did not provide the Agency;
19    and
20        (iv) a statement of specific reasons why the Act and
21    the regulations might not be met if the permit were
22    granted.
23    If there is no final action by the Agency within 90 days
24after the filing of the application for permit, the applicant
25may deem the permit issued; except that this time period shall
26be extended to 180 days when (1) notice and opportunity for

 

 

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1public hearing are required by State or federal law or
2regulation, (2) the application which was filed is for any
3permit to develop a landfill subject to issuance pursuant to
4this subsection, or (3) the application that was filed is for a
5MSWLF unit required to issue public notice under subsection (p)
6of Section 39. The 90-day and 180-day time periods for the
7Agency to take final action do not apply to NPDES permit
8applications under subsection (b) of this Section, to RCRA
9permit applications under subsection (d) of this Section, or to
10UIC permit applications under subsection (e) of this Section.
11    The Agency shall publish notice of all final permit
12determinations for development permits for MSWLF units and for
13significant permit modifications for lateral expansions for
14existing MSWLF units one time in a newspaper of general
15circulation in the county in which the unit is or is proposed
16to be located.
17    After January 1, 1994 and until July 1, 1998, operating
18permits issued under this Section by the Agency for sources of
19air pollution permitted to emit less than 25 tons per year of
20any combination of regulated air pollutants, as defined in
21Section 39.5 of this Act, shall be required to be renewed only
22upon written request by the Agency consistent with applicable
23provisions of this Act and regulations promulgated hereunder.
24Such operating permits shall expire 180 days after the date of
25such a request. The Board shall revise its regulations for the
26existing State air pollution operating permit program

 

 

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1consistent with this provision by January 1, 1994.
2    After June 30, 1998, operating permits issued under this
3Section by the Agency for sources of air pollution that are not
4subject to Section 39.5 of this Act and are not required to
5have a federally enforceable State operating permit shall be
6required to be renewed only upon written request by the Agency
7consistent with applicable provisions of this Act and its
8rules. Such operating permits shall expire 180 days after the
9date of such a request. Before July 1, 1998, the Board shall
10revise its rules for the existing State air pollution operating
11permit program consistent with this paragraph and shall adopt
12rules that require a source to demonstrate that it qualifies
13for a permit under this paragraph.
14    (b) The Agency may issue NPDES permits exclusively under
15this subsection for the discharge of contaminants from point
16sources into navigable waters, all as defined in the Federal
17Water Pollution Control Act, as now or hereafter amended,
18within the jurisdiction of the State, or into any well.
19    All NPDES permits shall contain those terms and conditions,
20including but not limited to schedules of compliance, which may
21be required to accomplish the purposes and provisions of this
22Act.
23    The Agency may issue general NPDES permits for discharges
24from categories of point sources which are subject to the same
25permit limitations and conditions. Such general permits may be
26issued without individual applications and shall conform to

 

 

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1regulations promulgated under Section 402 of the Federal Water
2Pollution Control Act, as now or hereafter amended.
3    The Agency may include, among such conditions, effluent
4limitations and other requirements established under this Act,
5Board regulations, the Federal Water Pollution Control Act, as
6now or hereafter amended, and regulations pursuant thereto, and
7schedules for achieving compliance therewith at the earliest
8reasonable date.
9    The Agency shall adopt filing requirements and procedures
10which are necessary and appropriate for the issuance of NPDES
11permits, and which are consistent with the Act or regulations
12adopted by the Board, and with the Federal Water Pollution
13Control Act, as now or hereafter amended, and regulations
14pursuant thereto.
15    The Agency, subject to any conditions which may be
16prescribed by Board regulations, may issue NPDES permits to
17allow discharges beyond deadlines established by this Act or by
18regulations of the Board without the requirement of a variance,
19subject to the Federal Water Pollution Control Act, as now or
20hereafter amended, and regulations pursuant thereto.
21    (c) Except for those facilities owned or operated by
22sanitary districts organized under the Metropolitan Water
23Reclamation District Act, no permit for the development or
24construction of a new pollution control facility may be granted
25by the Agency unless the applicant submits proof to the Agency
26that the location of the facility has been approved by the

 

 

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1County Board of the county if in an unincorporated area, or the
2governing body of the municipality when in an incorporated
3area, in which the facility is to be located in accordance with
4Section 39.2 of this Act. For purposes of this subsection (c),
5and for purposes of Section 39.2 of this Act, the appropriate
6county board or governing body of the municipality shall be the
7county board of the county or the governing body of the
8municipality in which the facility is to be located as of the
9date when the application for siting approval is filed.
10    In the event that siting approval granted pursuant to
11Section 39.2 has been transferred to a subsequent owner or
12operator, that subsequent owner or operator may apply to the
13Agency for, and the Agency may grant, a development or
14construction permit for the facility for which local siting
15approval was granted. Upon application to the Agency for a
16development or construction permit by that subsequent owner or
17operator, the permit applicant shall cause written notice of
18the permit application to be served upon the appropriate county
19board or governing body of the municipality that granted siting
20approval for that facility and upon any party to the siting
21proceeding pursuant to which siting approval was granted. In
22that event, the Agency shall conduct an evaluation of the
23subsequent owner or operator's prior experience in waste
24management operations in the manner conducted under subsection
25(i) of Section 39 of this Act.
26    Beginning August 20, 1993, if the pollution control

 

 

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1facility consists of a hazardous or solid waste disposal
2facility for which the proposed site is located in an
3unincorporated area of a county with a population of less than
4100,000 and includes all or a portion of a parcel of land that
5was, on April 1, 1993, adjacent to a municipality having a
6population of less than 5,000, then the local siting review
7required under this subsection (c) in conjunction with any
8permit applied for after that date shall be performed by the
9governing body of that adjacent municipality rather than the
10county board of the county in which the proposed site is
11located; and for the purposes of that local siting review, any
12references in this Act to the county board shall be deemed to
13mean the governing body of that adjacent municipality;
14provided, however, that the provisions of this paragraph shall
15not apply to any proposed site which was, on April 1, 1993,
16owned in whole or in part by another municipality.
17    In the case of a pollution control facility for which a
18development permit was issued before November 12, 1981, if an
19operating permit has not been issued by the Agency prior to
20August 31, 1989 for any portion of the facility, then the
21Agency may not issue or renew any development permit nor issue
22an original operating permit for any portion of such facility
23unless the applicant has submitted proof to the Agency that the
24location of the facility has been approved by the appropriate
25county board or municipal governing body pursuant to Section
2639.2 of this Act.

 

 

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1    After January 1, 1994, if a solid waste disposal facility,
2any portion for which an operating permit has been issued by
3the Agency, has not accepted waste disposal for 5 or more
4consecutive calendars years, before that facility may accept
5any new or additional waste for disposal, the owner and
6operator must obtain a new operating permit under this Act for
7that facility unless the owner and operator have applied to the
8Agency for a permit authorizing the temporary suspension of
9waste acceptance. The Agency may not issue a new operation
10permit under this Act for the facility unless the applicant has
11submitted proof to the Agency that the location of the facility
12has been approved or re-approved by the appropriate county
13board or municipal governing body under Section 39.2 of this
14Act after the facility ceased accepting waste.
15    Except for those facilities owned or operated by sanitary
16districts organized under the Metropolitan Water Reclamation
17District Act, and except for new pollution control facilities
18governed by Section 39.2, and except for fossil fuel mining
19facilities, the granting of a permit under this Act shall not
20relieve the applicant from meeting and securing all necessary
21zoning approvals from the unit of government having zoning
22jurisdiction over the proposed facility.
23    Before beginning construction on any new sewage treatment
24plant or sludge drying site to be owned or operated by a
25sanitary district organized under the Metropolitan Water
26Reclamation District Act for which a new permit (rather than

 

 

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1the renewal or amendment of an existing permit) is required,
2such sanitary district shall hold a public hearing within the
3municipality within which the proposed facility is to be
4located, or within the nearest community if the proposed
5facility is to be located within an unincorporated area, at
6which information concerning the proposed facility shall be
7made available to the public, and members of the public shall
8be given the opportunity to express their views concerning the
9proposed facility.
10    The Agency may issue a permit for a municipal waste
11transfer station without requiring approval pursuant to
12Section 39.2 provided that the following demonstration is made:
13        (1) the municipal waste transfer station was in
14    existence on or before January 1, 1979 and was in
15    continuous operation from January 1, 1979 to January 1,
16    1993;
17        (2) the operator submitted a permit application to the
18    Agency to develop and operate the municipal waste transfer
19    station during April of 1994;
20        (3) the operator can demonstrate that the county board
21    of the county, if the municipal waste transfer station is
22    in an unincorporated area, or the governing body of the
23    municipality, if the station is in an incorporated area,
24    does not object to resumption of the operation of the
25    station; and
26        (4) the site has local zoning approval.

 

 

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1    (d) The Agency may issue RCRA permits exclusively under
2this subsection to persons owning or operating a facility for
3the treatment, storage, or disposal of hazardous waste as
4defined under this Act.
5    All RCRA permits shall contain those terms and conditions,
6including but not limited to schedules of compliance, which may
7be required to accomplish the purposes and provisions of this
8Act. The Agency may include among such conditions standards and
9other requirements established under this Act, Board
10regulations, the Resource Conservation and Recovery Act of 1976
11(P.L. 94-580), as amended, and regulations pursuant thereto,
12and may include schedules for achieving compliance therewith as
13soon as possible. The Agency shall require that a performance
14bond or other security be provided as a condition for the
15issuance of a RCRA permit.
16    In the case of a permit to operate a hazardous waste or PCB
17incinerator as defined in subsection (k) of Section 44, the
18Agency shall require, as a condition of the permit, that the
19operator of the facility perform such analyses of the waste to
20be incinerated as may be necessary and appropriate to ensure
21the safe operation of the incinerator.
22    The Agency shall adopt filing requirements and procedures
23which are necessary and appropriate for the issuance of RCRA
24permits, and which are consistent with the Act or regulations
25adopted by the Board, and with the Resource Conservation and
26Recovery Act of 1976 (P.L. 94-580), as amended, and regulations

 

 

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1pursuant thereto.
2    The applicant shall make available to the public for
3inspection all documents submitted by the applicant to the
4Agency in furtherance of an application, with the exception of
5trade secrets, at the office of the county board or governing
6body of the municipality. Such documents may be copied upon
7payment of the actual cost of reproduction during regular
8business hours of the local office. The Agency shall issue a
9written statement concurrent with its grant or denial of the
10permit explaining the basis for its decision.
11    (e) The Agency may issue UIC permits exclusively under this
12subsection to persons owning or operating a facility for the
13underground injection of contaminants as defined under this
14Act.
15    All UIC permits shall contain those terms and conditions,
16including but not limited to schedules of compliance, which may
17be required to accomplish the purposes and provisions of this
18Act. The Agency may include among such conditions standards and
19other requirements established under this Act, Board
20regulations, the Safe Drinking Water Act (P.L. 93-523), as
21amended, and regulations pursuant thereto, and may include
22schedules for achieving compliance therewith. The Agency shall
23require that a performance bond or other security be provided
24as a condition for the issuance of a UIC permit.
25    The Agency shall adopt filing requirements and procedures
26which are necessary and appropriate for the issuance of UIC

 

 

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1permits, and which are consistent with the Act or regulations
2adopted by the Board, and with the Safe Drinking Water Act
3(P.L. 93-523), as amended, and regulations pursuant thereto.
4    The applicant shall make available to the public for
5inspection, all documents submitted by the applicant to the
6Agency in furtherance of an application, with the exception of
7trade secrets, at the office of the county board or governing
8body of the municipality. Such documents may be copied upon
9payment of the actual cost of reproduction during regular
10business hours of the local office. The Agency shall issue a
11written statement concurrent with its grant or denial of the
12permit explaining the basis for its decision.
13    (f) In making any determination pursuant to Section 9.1 of
14this Act:
15        (1) The Agency shall have authority to make the
16    determination of any question required to be determined by
17    the Clean Air Act, as now or hereafter amended, this Act,
18    or the regulations of the Board, including the
19    determination of the Lowest Achievable Emission Rate,
20    Maximum Achievable Control Technology, or Best Available
21    Control Technology, consistent with the Board's
22    regulations, if any.
23        (2) The Agency shall adopt requirements as necessary to
24    implement public participation procedures, including, but
25    not limited to, public notice, comment, and an opportunity
26    for hearing, which must accompany the processing of

 

 

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1    applications for PSD permits. The Agency shall briefly
2    describe and respond to all significant comments on the
3    draft permit raised during the public comment period or
4    during any hearing. The Agency may group related comments
5    together and provide one unified response for each issue
6    raised.
7        (3) Any complete permit application submitted to the
8    Agency under this subsection for a PSD permit shall be
9    granted or denied by the Agency not later than one year
10    after the filing of such completed application.
11        (4) (2) The Agency shall, after conferring with the
12    applicant, give written notice to the applicant of its
13    proposed decision on the application including the terms
14    and conditions of the permit to be issued and the facts,
15    conduct or other basis upon which the Agency will rely to
16    support its proposed action.
17        (3) Following such notice, the Agency shall give the
18    applicant an opportunity for a hearing in accordance with
19    the provisions of Sections 10-25 through 10-60 of the
20    Illinois Administrative Procedure Act.
21    (g) The Agency shall include as conditions upon all permits
22issued for hazardous waste disposal sites such restrictions
23upon the future use of such sites as are reasonably necessary
24to protect public health and the environment, including
25permanent prohibition of the use of such sites for purposes
26which may create an unreasonable risk of injury to human health

 

 

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1or to the environment. After administrative and judicial
2challenges to such restrictions have been exhausted, the Agency
3shall file such restrictions of record in the Office of the
4Recorder of the county in which the hazardous waste disposal
5site is located.
6    (h) A hazardous waste stream may not be deposited in a
7permitted hazardous waste site unless specific authorization
8is obtained from the Agency by the generator and disposal site
9owner and operator for the deposit of that specific hazardous
10waste stream. The Agency may grant specific authorization for
11disposal of hazardous waste streams only after the generator
12has reasonably demonstrated that, considering technological
13feasibility and economic reasonableness, the hazardous waste
14cannot be reasonably recycled for reuse, nor incinerated or
15chemically, physically or biologically treated so as to
16neutralize the hazardous waste and render it nonhazardous. In
17granting authorization under this Section, the Agency may
18impose such conditions as may be necessary to accomplish the
19purposes of the Act and are consistent with this Act and
20regulations promulgated by the Board hereunder. If the Agency
21refuses to grant authorization under this Section, the
22applicant may appeal as if the Agency refused to grant a
23permit, pursuant to the provisions of subsection (a) of Section
2440 of this Act. For purposes of this subsection (h), the term
25"generator" has the meaning given in Section 3.205 of this Act,
26unless: (1) the hazardous waste is treated, incinerated, or

 

 

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1partially recycled for reuse prior to disposal, in which case
2the last person who treats, incinerates, or partially recycles
3the hazardous waste prior to disposal is the generator; or (2)
4the hazardous waste is from a response action, in which case
5the person performing the response action is the generator.
6This subsection (h) does not apply to any hazardous waste that
7is restricted from land disposal under 35 Ill. Adm. Code 728.
8    (i) Before issuing any RCRA permit, any permit for a waste
9storage site, sanitary landfill, waste disposal site, waste
10transfer station, waste treatment facility, waste incinerator,
11or any waste-transportation operation, or any permit or interim
12authorization for a clean construction or demolition debris
13fill operation, the Agency shall conduct an evaluation of the
14prospective owner's or operator's prior experience in waste
15management operations and clean construction or demolition
16debris fill operations. The Agency may deny such a permit, or
17deny or revoke interim authorization, if the prospective owner
18or operator or any employee or officer of the prospective owner
19or operator has a history of:
20        (1) repeated violations of federal, State, or local
21    laws, regulations, standards, or ordinances in the
22    operation of waste management facilities or sites or clean
23    construction or demolition debris fill operation
24    facilities or sites; or
25        (2) conviction in this or another State of any crime
26    which is a felony under the laws of this State, or

 

 

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1    conviction of a felony in a federal court; or conviction in
2    this or another state or federal court of any of the
3    following crimes: forgery, official misconduct, bribery,
4    perjury, or knowingly submitting false information under
5    any environmental law, regulation, or permit term or
6    condition; or
7        (3) proof of gross carelessness or incompetence in
8    handling, storing, processing, transporting or disposing
9    of waste or clean construction or demolition debris, or
10    proof of gross carelessness or incompetence in using clean
11    construction or demolition debris as fill.
12    (i-5) Before issuing any permit or approving any interim
13authorization for a clean construction or demolition debris
14fill operation in which any ownership interest is transferred
15between January 1, 2005, and the effective date of the
16prohibition set forth in Section 22.52 of this Act, the Agency
17shall conduct an evaluation of the operation if any previous
18activities at the site or facility may have caused or allowed
19contamination of the site. It shall be the responsibility of
20the owner or operator seeking the permit or interim
21authorization to provide to the Agency all of the information
22necessary for the Agency to conduct its evaluation. The Agency
23may deny a permit or interim authorization if previous
24activities at the site may have caused or allowed contamination
25at the site, unless such contamination is authorized under any
26permit issued by the Agency.

 

 

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1    (j) The issuance under this Act of a permit to engage in
2the surface mining of any resources other than fossil fuels
3shall not relieve the permittee from its duty to comply with
4any applicable local law regulating the commencement, location
5or operation of surface mining facilities.
6    (k) A development permit issued under subsection (a) of
7Section 39 for any facility or site which is required to have a
8permit under subsection (d) of Section 21 shall expire at the
9end of 2 calendar years from the date upon which it was issued,
10unless within that period the applicant has taken action to
11develop the facility or the site. In the event that review of
12the conditions of the development permit is sought pursuant to
13Section 40 or 41, or permittee is prevented from commencing
14development of the facility or site by any other litigation
15beyond the permittee's control, such two-year period shall be
16deemed to begin on the date upon which such review process or
17litigation is concluded.
18    (l) No permit shall be issued by the Agency under this Act
19for construction or operation of any facility or site located
20within the boundaries of any setback zone established pursuant
21to this Act, where such construction or operation is
22prohibited.
23    (m) The Agency may issue permits to persons owning or
24operating a facility for composting landscape waste. In
25granting such permits, the Agency may impose such conditions as
26may be necessary to accomplish the purposes of this Act, and as

 

 

SB1672 Enrolled- 31 -LRB099 09565 MGM 29774 b

1are not inconsistent with applicable regulations promulgated
2by the Board. Except as otherwise provided in this Act, a bond
3or other security shall not be required as a condition for the
4issuance of a permit. If the Agency denies any permit pursuant
5to this subsection, the Agency shall transmit to the applicant
6within the time limitations of this subsection specific,
7detailed statements as to the reasons the permit application
8was denied. Such statements shall include but not be limited to
9the following:
10        (1) the Sections of this Act that may be violated if
11    the permit were granted;
12        (2) the specific regulations promulgated pursuant to
13    this Act that may be violated if the permit were granted;
14        (3) the specific information, if any, the Agency deems
15    the applicant did not provide in its application to the
16    Agency; and
17        (4) a statement of specific reasons why the Act and the
18    regulations might be violated if the permit were granted.
19    If no final action is taken by the Agency within 90 days
20after the filing of the application for permit, the applicant
21may deem the permit issued. Any applicant for a permit may
22waive the 90 day limitation by filing a written statement with
23the Agency.
24    The Agency shall issue permits for such facilities upon
25receipt of an application that includes a legal description of
26the site, a topographic map of the site drawn to the scale of

 

 

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1200 feet to the inch or larger, a description of the operation,
2including the area served, an estimate of the volume of
3materials to be processed, and documentation that:
4        (1) the facility includes a setback of at least 200
5    feet from the nearest potable water supply well;
6        (2) the facility is located outside the boundary of the
7    10-year floodplain or the site will be floodproofed;
8        (3) the facility is located so as to minimize
9    incompatibility with the character of the surrounding
10    area, including at least a 200 foot setback from any
11    residence, and in the case of a facility that is developed
12    or the permitted composting area of which is expanded after
13    November 17, 1991, the composting area is located at least
14    1/8 mile from the nearest residence (other than a residence
15    located on the same property as the facility);
16        (4) the design of the facility will prevent any compost
17    material from being placed within 5 feet of the water
18    table, will adequately control runoff from the site, and
19    will collect and manage any leachate that is generated on
20    the site;
21        (5) the operation of the facility will include
22    appropriate dust and odor control measures, limitations on
23    operating hours, appropriate noise control measures for
24    shredding, chipping and similar equipment, management
25    procedures for composting, containment and disposal of
26    non-compostable wastes, procedures to be used for

 

 

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1    terminating operations at the site, and recordkeeping
2    sufficient to document the amount of materials received,
3    composted and otherwise disposed of; and
4        (6) the operation will be conducted in accordance with
5    any applicable rules adopted by the Board.
6    The Agency shall issue renewable permits of not longer than
710 years in duration for the composting of landscape wastes, as
8defined in Section 3.155 of this Act, based on the above
9requirements.
10    The operator of any facility permitted under this
11subsection (m) must submit a written annual statement to the
12Agency on or before April 1 of each year that includes an
13estimate of the amount of material, in tons, received for
14composting.
15    (n) The Agency shall issue permits jointly with the
16Department of Transportation for the dredging or deposit of
17material in Lake Michigan in accordance with Section 18 of the
18Rivers, Lakes, and Streams Act.
19    (o) (Blank.)
20    (p) (1) Any person submitting an application for a permit
21for a new MSWLF unit or for a lateral expansion under
22subsection (t) of Section 21 of this Act for an existing MSWLF
23unit that has not received and is not subject to local siting
24approval under Section 39.2 of this Act shall publish notice of
25the application in a newspaper of general circulation in the
26county in which the MSWLF unit is or is proposed to be located.

 

 

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1The notice must be published at least 15 days before submission
2of the permit application to the Agency. The notice shall state
3the name and address of the applicant, the location of the
4MSWLF unit or proposed MSWLF unit, the nature and size of the
5MSWLF unit or proposed MSWLF unit, the nature of the activity
6proposed, the probable life of the proposed activity, the date
7the permit application will be submitted, and a statement that
8persons may file written comments with the Agency concerning
9the permit application within 30 days after the filing of the
10permit application unless the time period to submit comments is
11extended by the Agency.
12    When a permit applicant submits information to the Agency
13to supplement a permit application being reviewed by the
14Agency, the applicant shall not be required to reissue the
15notice under this subsection.
16    (2) The Agency shall accept written comments concerning the
17permit application that are postmarked no later than 30 days
18after the filing of the permit application, unless the time
19period to accept comments is extended by the Agency.
20    (3) Each applicant for a permit described in part (1) of
21this subsection shall file a copy of the permit application
22with the county board or governing body of the municipality in
23which the MSWLF unit is or is proposed to be located at the
24same time the application is submitted to the Agency. The
25permit application filed with the county board or governing
26body of the municipality shall include all documents submitted

 

 

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1to or to be submitted to the Agency, except trade secrets as
2determined under Section 7.1 of this Act. The permit
3application and other documents on file with the county board
4or governing body of the municipality shall be made available
5for public inspection during regular business hours at the
6office of the county board or the governing body of the
7municipality and may be copied upon payment of the actual cost
8of reproduction.
9    (q) Within 6 months after the effective date of this
10amendatory Act of the 97th General Assembly, the Agency, in
11consultation with the regulated community, shall develop a web
12portal to be posted on its website for the purpose of enhancing
13review and promoting timely issuance of permits required by
14this Act. At a minimum, the Agency shall make the following
15information available on the web portal:
16        (1) Checklists and guidance relating to the completion
17    of permit applications, developed pursuant to subsection
18    (s) of this Section, which may include, but are not limited
19    to, existing instructions for completing the applications
20    and examples of complete applications. As the Agency
21    develops new checklists and develops guidance, it shall
22    supplement the web portal with those materials.
23        (2) Within 2 years after the effective date of this
24    amendatory Act of the 97th General Assembly, permit
25    application forms or portions of permit applications that
26    can be completed and saved electronically, and submitted to

 

 

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1    the Agency electronically with digital signatures.
2        (3) Within 2 years after the effective date of this
3    amendatory Act of the 97th General Assembly, an online
4    tracking system where an applicant may review the status of
5    its pending application, including the name and contact
6    information of the permit analyst assigned to the
7    application. Until the online tracking system has been
8    developed, the Agency shall post on its website semi-annual
9    permitting efficiency tracking reports that include
10    statistics on the timeframes for Agency action on the
11    following types of permits received after the effective
12    date of this amendatory Act of the 97th General Assembly:
13    air construction permits, new NPDES permits and associated
14    water construction permits, and modifications of major
15    NPDES permits and associated water construction permits.
16    The reports must be posted by February 1 and August 1 each
17    year and shall include:
18            (A) the number of applications received for each
19        type of permit, the number of applications on which the
20        Agency has taken action, and the number of applications
21        still pending; and
22            (B) for those applications where the Agency has not
23        taken action in accordance with the timeframes set
24        forth in this Act, the date the application was
25        received and the reasons for any delays, which may
26        include, but shall not be limited to, (i) the

 

 

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1        application being inadequate or incomplete, (ii)
2        scientific or technical disagreements with the
3        applicant, USEPA, or other local, state, or federal
4        agencies involved in the permitting approval process,
5        (iii) public opposition to the permit, or (iv) Agency
6        staffing shortages. To the extent practicable, the
7        tracking report shall provide approximate dates when
8        cause for delay was identified by the Agency, when the
9        Agency informed the applicant of the problem leading to
10        the delay, and when the applicant remedied the reason
11        for the delay.
12    (r) Upon the request of the applicant, the Agency shall
13notify the applicant of the permit analyst assigned to the
14application upon its receipt.
15    (s) The Agency is authorized to prepare and distribute
16guidance documents relating to its administration of this
17Section and procedural rules implementing this Section.
18Guidance documents prepared under this subsection shall not be
19considered rules and shall not be subject to the Illinois
20Administrative Procedure Act. Such guidance shall not be
21binding on any party.
22    (t) Except as otherwise prohibited by federal law or
23regulation, any person submitting an application for a permit
24may include with the application suggested permit language for
25Agency consideration. The Agency is not obligated to use the
26suggested language or any portion thereof in its permitting

 

 

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1decision. If requested by the permit applicant, the Agency
2shall meet with the applicant to discuss the suggested
3language.
4    (u) If requested by the permit applicant, the Agency shall
5provide the permit applicant with a copy of the draft permit
6prior to any public review period.
7    (v) If requested by the permit applicant, the Agency shall
8provide the permit applicant with a copy of the final permit
9prior to its issuance.
10    (w) An air pollution permit shall not be required due to
11emissions of greenhouse gases, as specified by Section 9.15 of
12this Act.
13    (x) If, before the expiration of a State operating permit
14that is issued pursuant to subsection (a) of this Section and
15contains federally enforceable conditions limiting the
16potential to emit of the source to a level below the major
17source threshold for that source so as to exclude the source
18from the Clean Air Act Permit Program, the Agency receives a
19complete application for the renewal of that permit, then all
20of the terms and conditions of the permit shall remain in
21effect until final administrative action has been taken on the
22application for the renewal of the permit.
23(Source: P.A. 97-95, eff. 7-12-11; 98-284, eff. 8-9-13.)
 
24    (415 ILCS 5/40)  (from Ch. 111 1/2, par. 1040)
25    Sec. 40. Appeal of permit denial.

 

 

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1    (a) (1) If the Agency refuses to grant or grants with
2conditions a permit under Section 39 of this Act, the applicant
3may, within 35 days after the date on which the Agency served
4its decision on the applicant, petition for a hearing before
5the Board to contest the decision of the Agency. However, the
635-day period for petitioning for a hearing may be extended for
7an additional period of time not to exceed 90 days by written
8notice provided to the Board from the applicant and the Agency
9within the initial appeal period. The Board shall give 21 day
10notice to any person in the county where is located the
11facility in issue who has requested notice of enforcement
12proceedings and to each member of the General Assembly in whose
13legislative district that installation or property is located;
14and shall publish that 21 day notice in a newspaper of general
15circulation in that county. The Agency shall appear as
16respondent in such hearing. At such hearing the rules
17prescribed in Section 32 and subsection (a) of Section 33 of
18this Act shall apply, and the burden of proof shall be on the
19petitioner. If, however, the Agency issues an NPDES permit that
20imposes limits which are based upon a criterion or denies a
21permit based upon application of a criterion, then the Agency
22shall have the burden of going forward with the basis for the
23derivation of those limits or criterion which were derived
24under the Board's rules.
25    (2) Except as provided in paragraph (a)(3), if there is no
26final action by the Board within 120 days after the date on

 

 

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1which it received the petition, the petitioner may deem the
2permit issued under this Act, provided, however, that that
3period of 120 days shall not run for any period of time, not to
4exceed 30 days, during which the Board is without sufficient
5membership to constitute the quorum required by subsection (a)
6of Section 5 of this Act, and provided further that such 120
7day period shall not be stayed for lack of quorum beyond 30
8days regardless of whether the lack of quorum exists at the
9beginning of such 120 day period or occurs during the running
10of such 120 day period.
11    (3) Paragraph (a)(2) shall not apply to any permit which is
12subject to subsection (b), (d) or (e) of Section 39. If there
13is no final action by the Board within 120 days after the date
14on which it received the petition, the petitioner shall be
15entitled to an Appellate Court order pursuant to subsection (d)
16of Section 41 of this Act.
17    (b) If the Agency grants a RCRA permit for a hazardous
18waste disposal site, a third party, other than the permit
19applicant or Agency, may, within 35 days after the date on
20which the Agency issued its decision, petition the Board for a
21hearing to contest the issuance of the permit. Unless the Board
22determines that such petition is duplicative or frivolous, or
23that the petitioner is so located as to not be affected by the
24permitted facility, the Board shall hear the petition in
25accordance with the terms of subsection (a) of this Section and
26its procedural rules governing denial appeals, such hearing to

 

 

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1be based exclusively on the record before the Agency. The
2burden of proof shall be on the petitioner. The Agency and the
3permit applicant shall be named co-respondents.
4    The provisions of this subsection do not apply to the
5granting of permits issued for the disposal or utilization of
6sludge from publicly-owned sewage works.
7    (c) Any party to an Agency proceeding conducted pursuant to
8Section 39.3 of this Act may petition as of right to the Board
9for review of the Agency's decision within 35 days from the
10date of issuance of the Agency's decision, provided that such
11appeal is not duplicative or frivolous. However, the 35-day
12period for petitioning for a hearing may be extended by the
13applicant for a period of time not to exceed 90 days by written
14notice provided to the Board from the applicant and the Agency
15within the initial appeal period. If another person with
16standing to appeal wishes to obtain an extension, there must be
17a written notice provided to the Board by that person, the
18Agency, and the applicant, within the initial appeal period.
19The decision of the Board shall be based exclusively on the
20record compiled in the Agency proceeding. In other respects the
21Board's review shall be conducted in accordance with subsection
22(a) of this Section and the Board's procedural rules governing
23permit denial appeals.
24    (d) In reviewing the denial or any condition of a NA NSR
25permit issued by the Agency pursuant to rules and regulations
26adopted under subsection (c) of Section 9.1 of this Act, the

 

 

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1decision of the Board shall be based exclusively on the record
2before the Agency including the record of the hearing, if any,
3held pursuant to paragraph (f)(3) of Section 39 unless the
4parties agree to supplement the record. The Board shall, if it
5finds the Agency is in error, make a final determination as to
6the substantive limitations of the permit including a final
7determination of Lowest Achievable Emission Rate or Best
8Available Control Technology.
9    (e) (1) If the Agency grants or denies a permit under
10    subsection (b) of Section 39 of this Act, a third party,
11    other than the permit applicant or Agency, may petition the
12    Board within 35 days from the date of issuance of the
13    Agency's decision, for a hearing to contest the decision of
14    the Agency.
15        (2) A petitioner shall include the following within a
16    petition submitted under subdivision (1) of this
17    subsection:
18            (A) a demonstration that the petitioner raised the
19        issues contained within the petition during the public
20        notice period or during the public hearing on the NPDES
21        permit application, if a public hearing was held; and
22            (B) a demonstration that the petitioner is so
23        situated as to be affected by the permitted facility.
24        (3) If the Board determines that the petition is not
25    duplicative or frivolous and contains a satisfactory
26    demonstration under subdivision (2) of this subsection,

 

 

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1    the Board shall hear the petition (i) in accordance with
2    the terms of subsection (a) of this Section and its
3    procedural rules governing permit denial appeals and (ii)
4    exclusively on the basis of the record before the Agency.
5    The burden of proof shall be on the petitioner. The Agency
6    and permit applicant shall be named co-respondents.
7    (f) Any person who files a petition to contest the issuance
8of a permit by the Agency shall pay a filing fee.
9(Source: P.A. 92-574, eff. 6-26-02.)
 
10    (415 ILCS 5/40.3 new)
11    Sec. 40.3. Review process for PSD permits.
12    (a) (1) Subsection (a) of Section 40 does not apply to any
13PSD permit that is subject to subsection (c) of Section 9.1 of
14this Act. If the Agency refused to grant or grants with
15conditions a PSD permit, the applicant may, within 35 days
16after final permit action, petition for a hearing before the
17Board to contest the decision of the Agency. If the Agency
18fails to act on an application for a PSD permit within the time
19frame specified in paragraph (3) of subsection (f) of Section
2039 of this Act, the applicant may, before the Agency denies or
21issues the final permit, petition for a hearing before the
22Board to compel the Agency to act on the application in a time
23that is deemed reasonable.
24    (2) Any person who participated in the public comment
25process and is either aggrieved or has an interest that is or

 

 

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1may be adversely affected by the PSD permit may, within 35 days
2after final permit action, petition for a hearing before the
3Board to contest the decision of the Agency. If the petitioner
4failed to participate in the public comment process, the person
5may still petition for a hearing, but only upon issues where
6the final permit conditions reflect changes from the proposed
7draft permit.
8    The petition shall: (i) include such facts as necessary to
9demonstrate that the petitioner is aggrieved or has an interest
10that is or may be adversely affected; (ii) state the issues
11proposed for review, citing to the record where those issues
12were raised or explaining why such issues were not required to
13be raised during the public comment process; and (iii) explain
14why the Agency's previous response, if any, to those issues is
15(A) clearly erroneous or (B) an exercise of discretion or an
16important policy consideration that the Board should, in its
17discretion, review.
18    The Board shall hold a hearing upon a petition to contest
19the decision of the Agency under this paragraph (a)(2) unless
20the request is determined by the Board to be frivolous or to
21lack facially adequate factual statements required in this
22paragraph (a)(2).
23    The Agency shall appear as respondent in any hearing
24pursuant to this subsection (a). At such hearing the rules
25prescribed in Section 32 and subsection (a) of Section 33 of
26this Act shall apply, and the burden of proof shall be on the

 

 

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1petitioner.
2    (b) If there is no final action by the Board within 120
3days after the date on which it received the petition, the PSD
4permit shall not be deemed issued; rather, any party shall be
5entitled to an Appellate Court order pursuant to subsection (d)
6of Section 41 of this Act. This period of 120 days shall not
7run for any period of time, not to exceed 30 days, during which
8the Board is without sufficient membership to constitute the
9quorum required by subsection (a) of Section 5 of this Act. The
10120-day period shall not be stayed for lack of quorum beyond 30
11days, regardless of whether the lack of quorum exists at the
12beginning of the 120-day period or occurs during the running of
13the 120-day period.
14    (c) Any person who files a petition to contest the final
15permit action by the Agency under this Section shall pay the
16filing fee for petitions for review of permit set forth in
17Section 7.5.
18    (d)(1) In reviewing the denial or any condition of a PSD
19permit issued by the Agency pursuant to rules adopted under
20subsection (c) of Section 9.1 of this Act, the decision of the
21Board shall be based exclusively on the record before the
22Agency unless the parties agree to supplement the record.
23    (2) If requested by the applicant, the Board may stay the
24effectiveness of any final Agency action on a PSD permit
25application identified in subsection (f) of Section 39 of this
26Act during the pendency of the review process. In such cases,

 

 

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1the Board shall stay the effectiveness of all the contested
2conditions of the PSD permit and may stay the effectiveness of
3any or all uncontested conditions only if the Board determines
4that the uncontested conditions would be affected by its review
5of contested conditions. Any stays granted by the Board shall
6be deemed effective upon the date of final Agency action
7appealed by the applicant under this subsection (d). Subsection
8(b) of Section 10-65 of the Illinois Administrative Procedure
9Act shall not apply to actions under this subsection (d).
10    (3) If requested by a party other than the applicant, the
11Board may stay the effectiveness of any final Agency action on
12a PSD permit application identified in subsection (f) of
13Section 39 of this Act during the pendency of the review
14process. In such cases, the Board may stay the effectiveness of
15all the contested conditions of the PSD permit and may stay the
16effectiveness of any or all uncontested conditions only if the
17Board determines that the uncontested conditions would be
18affected by its review of contested conditions. The party
19requesting the stay has the burden of demonstrating the
20following: (i) that an immediate stay is required in order to
21preserve the status quo without endangering the public, (ii)
22that it is not contrary to public policy, and (iii) that there
23is a reasonable likelihood of success on the merits. Any stays
24granted by the Board shall be deemed effective upon the date of
25final Agency action appealed under this subsection (d) and
26shall remain in effect until a decision is issued by the Board

 

 

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1on the petition. Subsection (b) of Section 10-65 of the
2Illinois Administrative Procedure Act shall not apply to
3actions under this paragraph.
 
4    (415 ILCS 5/41)  (from Ch. 111 1/2, par. 1041)
5    Sec. 41. Judicial review.
6    (a) Any party to a Board hearing, any person who filed a
7complaint on which a hearing was denied, any person who has
8been denied a variance or permit under this Act, any party
9adversely affected by a final order or determination of the
10Board, and any person who participated in the public comment
11process under subsection (8) of Section 39.5 of this Act may
12obtain judicial review, by filing a petition for review within
1335 days from the date that a copy of the order or other final
14action sought to be reviewed was served upon the party affected
15by the order or other final Board action complained of, under
16the provisions of the Administrative Review Law, as amended and
17the rules adopted pursuant thereto, except that review shall be
18afforded directly in the Appellate Court for the District in
19which the cause of action arose and not in the Circuit Court.
20Review of any rule or regulation promulgated by the Board shall
21not be limited by this section but may also be had as provided
22in Section 29 of this Act.
23    (b) Any final order of the Board under this Act shall be
24based solely on the evidence in the record of the particular
25proceeding involved, and any such final order for permit

 

 

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1appeals, enforcement actions and variance proceedings, shall
2be invalid if it is against the manifest weight of the
3evidence. Notwithstanding this subsection, the Board may
4include such conditions in granting a variance and may adopt
5such rules and regulations as the policies of this Act may
6require. If an objection is made to a variance condition, the
7board shall reconsider the condition within not more than 75
8days from the date of the objection.
9    (c) No challenge to the validity of a Board order shall be
10made in any enforcement proceeding under Title XII of this Act
11as to any issue that could have been raised in a timely
12petition for review under this Section.
13    (d) If there is no final action by the Board within 120
14days on a request for a variance which is subject to subsection
15(c) of Section 38 or a permit appeal which is subject to
16paragraph (a) (3) of Section 40 or paragraph (d) of Section
1740.2 or Section 40.3, the petitioner shall be entitled to an
18Appellate Court order under this subsection. If a hearing is
19required under this Act and was not held by the Board, the
20Appellate Court shall order the Board to conduct such a
21hearing, and to make a decision within 90 days from the date of
22the order. If a hearing was held by the Board, or if a hearing
23is not required under this Act and was not held by the Board,
24the Appellate Court shall order the Board to make a decision
25within 90 days from the date of the order.
26    The Appellate Court shall retain jurisdiction during the

 

 

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1pendency of any further action conducted by the Board under an
2order by the Appellate Court. The Appellate Court shall have
3jurisdiction to review all issues of law and fact presented
4upon appeal.
5(Source: P.A. 87-1213; 88-1; 88-464; 88-670, eff. 12-2-94.)