Public Act 90-0274 of the 90th General Assembly
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.