Public Act 90-0274 of the 90th General Assembly

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Public Act 90-0274

SB814 Enrolled                                LRB9000467DPccA

    AN ACT to  amend  the  Environmental  Protection  Act  by
changing Section 40.

    Be  it  enacted  by  the People of the State of Illinois,
represented in the General Assembly:

    Section 5. The Environmental Protection Act is amended by
changing Section 40 as follows:

    (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, 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 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. The Board shall give 21 day
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, 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, 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 petition the Board within 35 days
for a hearing to contest the issuance of the permit.   Unless
the  Board  determines  that  such petition is duplicitous 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 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 duplicitous 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 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,  held  pursuant  to  paragraph  (f)(3) of Section 39
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 or Best Available Control Technology.
    (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  duplicitous 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)  (e)  Any  person who files a petition to contest the
issuance of a permit by the Agency shall pay a filing fee.
(Source: P.A. 88-690, eff. 1-24-95.)

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

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