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| [ Introduced ] | [ Enrolled ] | [ Senate Amendment 001 ] |
90_SB0814eng
415 ILCS 5/40 from Ch. 111 1/2, par. 1040
Amends the Environmental Protection Act to allow a third
party to challenge, by petition for hearing of the Pollution
Control Board, a decision of the Environmental Protection
Agency to issue an NPDES permit. Effective immediately.
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1 AN ACT to amend the Environmental Protection Act by
2 changing Section 40.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Environmental Protection Act is amended by
6 changing Section 40 as follows:
7 (415 ILCS 5/40) (from Ch. 111 1/2, par. 1040)
8 Sec. 40. Appeal of permit denial.
9 (a) (1) If the Agency refuses to grant or grants with
10 conditions a permit under Section 39 of this Act, the
11 applicant may, within 35 days, petition for a hearing before
12 the Board to contest the decision of the Agency. However, the
13 35-day period for petitioning for a hearing may be extended
14 for a period of time not to exceed 90 days by written notice
15 provided to the Board from the applicant and the Agency
16 within the initial appeal period. The Board shall give 21 day
17 notice to any person in the county where is located the
18 facility in issue who has requested notice of enforcement
19 proceedings and to each member of the General Assembly in
20 whose legislative district that installation or property is
21 located; and shall publish that 21 day notice in a newspaper
22 of general circulation in that county. The Agency shall
23 appear as respondent in such hearing. At such hearing the
24 rules prescribed in Section 32 and subsection (a) of Section
25 33 of this Act shall apply, and the burden of proof shall be
26 on the petitioner. If, however, the Agency issues an NPDES
27 permit that imposes limits which are based upon a criterion
28 or denies a permit based upon application of a criterion,
29 then the Agency shall have the burden of going forward with
30 the basis for the derivation of those limits or criterion
31 which were derived under the Board's rules.
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1 (2) Except as provided in paragraph (a)(3), if there is
2 no final action by the Board within 120 days, petitioner may
3 deem the permit issued under this Act, provided, however,
4 that that period of 120 days shall not run for any period of
5 time, not to exceed 30 days, during which the Board is
6 without sufficient membership to constitute the quorum
7 required by subsection (a) of Section 5 of this Act, and
8 provided further that such 120 day period shall not be stayed
9 for lack of quorum beyond 30 days regardless of whether the
10 lack of quorum exists at the beginning of such 120 day period
11 or occurs during the running of such 120 day period.
12 (3) Paragraph (a)(2) shall not apply to any permit which
13 is subject to subsection (b), (d) or (e) of Section 39. If
14 there is no final action by the Board within 120 days, the
15 petitioner shall be entitled to an Appellate Court order
16 pursuant to subsection (d) of Section 41 of this Act.
17 (b) If the Agency grants a RCRA permit for a hazardous
18 waste disposal site, a third party, other than the permit
19 applicant or Agency, may petition the Board within 35 days
20 for a hearing to contest the issuance of the permit. Unless
21 the Board determines that such petition is duplicitous or
22 frivolous, or that the petitioner is so located as to not be
23 affected by the permitted facility, the Board shall hear the
24 petition in accordance with the terms of subsection (a) of
25 this Section and its procedural rules governing denial
26 appeals, such hearing to be based exclusively on the record
27 before the Agency. The burden of proof shall be on the
28 petitioner. The Agency and the permit applicant shall be
29 named co-respondents.
30 The provisions of this subsection do not apply to the
31 granting of permits issued for the disposal or utilization of
32 sludge from publicly-owned sewage works.
33 (c) Any party to an Agency proceeding conducted pursuant
34 to Section 39.3 of this Act may petition as of right to the
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1 Board for review of the Agency's decision within 35 days from
2 the date of issuance of the Agency's decision, provided that
3 such appeal is not duplicitous or frivolous. However, the
4 35-day period for petitioning for a hearing may be extended
5 by the applicant for a period of time not to exceed 90 days
6 by written notice provided to the Board from the applicant
7 and the Agency within the initial appeal period. If another
8 person with standing to appeal wishes to obtain an extension,
9 there must be a written notice provided to the Board by that
10 person, the Agency, and the applicant, within the initial
11 appeal period. The decision of the Board shall be based
12 exclusively on the record compiled in the Agency proceeding.
13 In other respects the Board's review shall be conducted in
14 accordance with subsection (a) of this Section and the
15 Board's procedural rules governing permit denial appeals.
16 (d) In reviewing the denial or any condition of a permit
17 issued by the Agency pursuant to rules and regulations
18 adopted under subsection (c) of Section 9.1 of this Act, the
19 decision of the Board shall be based exclusively on the
20 record before the Agency including the record of the hearing,
21 if any, held pursuant to paragraph (f)(3) of Section 39
22 unless the parties agree to supplement the record. The Board
23 shall, if it finds the Agency is in error, make a final
24 determination as to the substantive limitations of the permit
25 including a final determination of Lowest Achievable Emission
26 Rate or Best Available Control Technology.
27 (e) (1) If the Agency grants or denies a permit under
28 subsection (b) of Section 39 of this Act, a third party,
29 other than the permit applicant or Agency, may petition
30 the Board within 35 days from the date of issuance of the
31 Agency's decision, for a hearing to contest the decision
32 of the Agency.
33 (2) A petitioner shall include the following within
34 a petition submitted under subdivision (1) of this
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1 subsection:
2 (A) a demonstration that the petitioner raised
3 the issues contained within the petition during the
4 public notice period or during the public hearing on
5 the NPDES permit application, if a public hearing
6 was held; and
7 (B) a demonstration that the petitioner is so
8 situated as to be affected by the permitted
9 facility.
10 (3) If the Board determines that the petition is
11 not duplicitous or frivolous and contains a satisfactory
12 demonstration under subdivision (2) of this subsection,
13 the Board shall hear the petition (i) in accordance with
14 the terms of subsection (a) of this Section and its
15 procedural rules governing permit denial appeals and (ii)
16 exclusively on the basis of the record before the Agency.
17 The burden of proof shall be on the petitioner. The
18 Agency and permit applicant shall be named
19 co-respondents.
20 (f) (e) Any person who files a petition to contest the
21 issuance of a permit by the Agency shall pay a filing fee.
22 (Source: P.A. 88-690, eff. 1-24-95.)
23 Section 99. Effective date. This Act takes effect upon
24 becoming law.