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

SB1672sam003 99TH GENERAL ASSEMBLY

Sen. Sue Rezin

Filed: 5/21/2015

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 1672

2    AMENDMENT NO. ______. Amend Senate Bill 1672 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Environmental Protection Act is amended by
5changing Sections 9.1, 9.12, 39, and 40 and by adding Sections
63.298, 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

 

 

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1and 40 CFR 51.165.
 
2    (415 ILCS 5/3.363 new)
3    Sec. 3.363. Prevention of significant deterioration (PSD)
4permit. "Prevention of Significant Deterioration permit" or
5"PSD permit" means a permit or the portion of a permit for a
6new major source or major modification that is issued by the
7Illinois Environmental Protection Agency under the
8construction permit program pursuant to subsection (c) of
9Section 9.1 that has been approved by the United States
10Environmental Protection Agency and incorporated into the
11Illinois State Implementation Plan to implement the
12requirements of Section 165 of the Clean Air Act and 40 CFR
1351.166.
 
14    (415 ILCS 5/9.1)  (from Ch. 111 1/2, par. 1009.1)
15    Sec. 9.1. (a) The General Assembly finds that the federal
16Clean Air Act, as amended, and regulations adopted pursuant
17thereto establish complex and detailed provisions for
18State-federal cooperation in the field of air pollution
19control, provide for a Prevention of Significant Deterioration
20program to regulate the issuance of preconstruction permits to
21insure that economic growth will occur in a manner consistent
22with the preservation of existing clean air resources, and also
23provide for plan requirements for nonattainment areas to
24regulate the construction, modification and operation of

 

 

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1sources of air pollution to insure that economic growth will
2occur in a manner consistent with the goal of achieving the
3national ambient air quality standards, and that the General
4Assembly cannot conveniently or advantageously set forth in
5this Act all the requirements of such federal Act or all
6regulations which may be established thereunder.
7    It is the purpose of this Section to avoid the existence of
8duplicative, overlapping or conflicting State and federal
9regulatory systems.
10    (b) The provisions of Section 111 of the federal Clean Air
11Act (42 USC 7411), as amended, relating to standards of
12performance for new stationary sources, and Section 112 of the
13federal Clean Air Act (42 USC 7412), as amended, relating to
14the establishment of national emission standards for hazardous
15air pollutants are applicable in this State and are enforceable
16under this Act. Any such enforcement shall be stayed consistent
17with any stay granted in any federal judicial action to review
18such standards. Enforcement shall be consistent with the
19results of any such judicial review.
20    (c) The Board shall may adopt regulations establishing
21permit programs for PSD and NA NSR permits meeting the
22respective requirements of Sections 165 and 173 of the Clean
23Air Act (42 USC 7475 and 42 USC 7503) as amended. The Agency
24may adopt procedures for the administration of such programs.
25    The regulations adopted by the Board to establish a PSD
26permit program shall incorporate by reference, pursuant to

 

 

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1subsection (a) of Section 5-75 of the Illinois Administrative
2Procedures Act, the provisions of 40 CFR 52.21, except for the
3following subparts: (a)(1) Plan disapproval, (q) Public
4participation, (s) Environmental impact statements, (t)
5Disputed permits or redesignations and (u) Delegation of
6authority; the Board may adopt more stringent or additional
7provisions to the extent it deems appropriate. To the extent
8that the provisions of 40 CFR 52.21 provide for the
9Administrator to make various determinations and to take
10certain actions, these provisions shall be modified to indicate
11the Agency if appropriate. Nothing in this subsection shall be
12construed to limit the right of any person to submit a proposal
13to the Board or the authority of the Board to adopt elements of
14a PSD permit program that are more stringent than the those
15contained in 40 CFR 52.21, pursuant to the rulemaking
16requirements of Title VII of this Act and Section 5-35 of the
17Illinois Administrative Procedure Act.
18    (d) No person shall:
19        (1) violate any provisions of Sections 111, 112, 165 or
20    173 of the Clean Air Act, as now or hereafter amended, or
21    federal regulations adopted pursuant thereto; or
22        (2) construct, install, modify or operate any
23    equipment, building, facility, source or installation
24    which is subject to regulation under Sections 111, 112, 165
25    or 173 of the Clean Air Act, as now or hereafter amended,
26    except in compliance with the requirements of such Sections

 

 

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1    and federal regulations adopted pursuant thereto, and no
2    such action shall be undertaken (A) without a permit
3    granted by the Agency whenever a permit is required
4    pursuant to (i) this Act or Board regulations or (ii)
5    Section 111, 112, 165, or 173 of the Clean Air Act or
6    federal regulations adopted pursuant thereto or (B) in
7    violation of any conditions imposed by such permit. The
8    issuance or any Any denial of such a PSD permit or any
9    conditions imposed therein in such a permit shall be
10    reviewable by the Board in accordance with Section 40.3 40
11    of this Act. Other permits addressed in this subsection (d)
12    shall be reviewable by the Board in accordance with Section
13    40 of this Act.
14    (e) The Board shall exempt from regulation under the State
15Implementation Plan for ozone the volatile organic compounds
16which have been determined by the U.S. Environmental Protection
17Agency to be exempt from regulation under state implementation
18plans for ozone due to negligible photochemical reactivity. In
19accordance with subsection (b) of Section 7.2, the Board shall
20adopt regulations identical in substance to the U.S.
21Environmental Protection Agency exemptions or deletion of
22exemptions published in policy statements on the control of
23volatile organic compounds in the Federal Register by amending
24the list of exemptions to the Board's definition of volatile
25organic material found at 35 Ill. Adm. Code Part 211. The
26provisions and requirements of Title VII of this Act shall not

 

 

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1apply to regulations adopted under this subsection. Section
25-35 of the Illinois Administrative Procedure Act, relating to
3procedures for rulemaking, does not apply to regulations
4adopted under this subsection. However, the Board shall provide
5for notice, a hearing if required by the U.S. Environmental
6Protection Agency, and public comment before adopted rules are
7filed with the Secretary of State. The Board may consolidate
8into a single rulemaking under this subsection all such federal
9policy statements published in the Federal Register within a
10period of time not to exceed 6 months.
11    (f) (Blank).
12(Source: P.A. 97-95, eff. 7-12-11; 98-284, eff. 8-9-13.)
 
13    (415 ILCS 5/9.12)
14    Sec. 9.12. Construction permit fees for air pollution
15sources.
16    (a) An applicant for a new or revised air pollution
17construction permit shall pay a fee, as established in this
18Section, to the Agency at the time that he or she submits the
19application for a construction permit. Except as set forth
20below, the fee for each activity or category listed in this
21Section is separate and is cumulative with any other applicable
22fee listed in this Section.
23    (b) The fee amounts in this subsection (b) apply to
24construction permit applications relating to (i) a source
25subject to Section 39.5 of this Act (the Clean Air Act Permit

 

 

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1Program); (ii) a source that, upon issuance of the requested
2construction permit, will become a major source subject to
3Section 39.5; or (iii) a source that has or will require a
4federally enforceable State operating permit limiting its
5potential to emit.
6        (1) Base fees for each construction permit application
7    shall be assessed as follows:
8            (A) If the construction permit application relates
9        to one or more new emission units or to a combination
10        of new and modified emission units, a fee of $4,000 for
11        the first new emission unit and a fee of $1,000 for
12        each additional new or modified emission unit;
13        provided that the total base fee under this subdivision
14        (A) shall not exceed $10,000.
15            (B) If the construction permit application relates
16        to one or more modified emission units but not to any
17        new emission unit, a fee of $2,000 for the first
18        modified emission unit and a fee of $1,000 for each
19        additional modified emission unit; provided that the
20        total base fee under this subdivision (B) shall not
21        exceed $5,000.
22        (2) Supplemental fees for each construction permit
23    application shall be assessed as follows:
24            (A) If, based on the construction permit
25        application, the source will be, but is not currently,
26        subject to Section 39.5 of this Act, a CAAPP entry fee

 

 

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1        of $5,000.
2            (B) If the construction permit application
3        involves (i) a new source or emission unit subject to
4        Section 39.2 of this Act, (ii) a commercial incinerator
5        or other municipal waste, hazardous waste, or waste
6        tire incinerator, (iii) a commercial power generator,
7        or (iv) one or more other emission units designated as
8        a complex source by Agency rulemaking, a fee of
9        $25,000.
10            (C) If the construction permit application
11        involves an emissions netting exercise or reliance on a
12        contemporaneous emissions decrease for a pollutant to
13        avoid application of the federal PSD permit program (40
14        CFR 52.21) or nonattainment new source review (35 Ill.
15        Adm. Code 203), a fee of $3,000 for each such
16        pollutant.
17            (D) If the construction permit application is for a
18        new major source subject to the federal PSD permit
19        program, a fee of $12,000.
20            (E) If the construction permit application is for a
21        new major source subject to nonattainment new source
22        review, a fee of $20,000.
23            (F) If the construction permit application is for a
24        major modification subject to the federal PSD permit
25        program, a fee of $6,000.
26            (G) If the construction permit application is for a

 

 

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

 

 

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

 

 

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1    $10,000. This fee shall be submitted at the time the
2    applicant requests a public hearing or, if a public hearing
3    is not requested by the applicant, then within 30 days
4    after the applicant is informed by the Agency that a public
5    hearing will be held.
6    (d) If no other fee is applicable under this Section, a
7construction permit application addressing one or more of the
8following shall be subject to a filing fee of $500:
9        (1) A construction permit application to add or replace
10    a control device on a permitted emission unit.
11        (2) A construction permit application to conduct a
12    pilot project or trial burn for a permitted emission unit.
13        (3) A construction permit application for a land
14    remediation project.
15        (4) (Blank).
16        (5) A construction permit application to revise an
17    emissions testing methodology or the timing of required
18    emissions testing.
19        (6) A construction permit application that provides
20    for a change in the name, address, or phone number of any
21    person identified in the permit, or for a change in the
22    stated ownership or control, or for a similar minor
23    administrative permit change at the source.
24    (e) No fee shall be assessed for a request to correct an
25issued permit that involves only an Agency error, if the
26request is received within the deadline for a permit appeal to

 

 

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1the Pollution Control Board.
2    (f) The applicant for a new or revised air pollution
3construction permit shall submit to the Agency, with the
4construction permit application, both a certification of the
5fee that he or she estimates to be due under this Section and
6the fee itself.
7    (g) Notwithstanding the requirements of subsection (a) of
8Section 39 of this Act, the application for an air pollution
9construction permit shall not be deemed to be filed with the
10Agency until the Agency receives the initial air pollution
11construction permit application fee and the certified estimate
12of the fee required by this Section. Unless the Agency has
13received the initial air pollution construction permit
14application fee and the certified estimate of the fee required
15by this Section, the Agency is not required to review or
16process the application.
17    (h) If the Agency determines at any time that a
18construction permit application is subject to an additional fee
19under this Section that the applicant has not submitted, the
20Agency shall notify the applicant in writing of the amount due
21under this Section. The applicant shall have 60 days to remit
22the assessed fee to the Agency.
23    If the proper fee established under this Section is not
24submitted within 60 days after the request for further
25remittance:
26        (1) If the construction permit has not yet been issued,

 

 

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1    the Agency is not required to further review or process,
2    and the provisions of subsection (a) of Section 39 of this
3    Act do not apply to, the application for a construction
4    permit until such time as the proper fee is remitted.
5        (2) If the construction permit has been issued, the
6    Agency may, upon written notice, immediately revoke the
7    construction permit.
8    The denial or revocation of a construction permit does not
9excuse the applicant from the duty of paying the fees required
10under this Section.
11    (i) The Agency may deny the issuance of a pending air
12pollution construction permit or the subsequent operating
13permit if the applicant has not paid the required fees by the
14date required for issuance of the permit. The denial or
15revocation of a permit for failure to pay a construction permit
16fee is subject to review by the Board pursuant to the
17provisions of subsection (a) of Section 40 of this Act.
18    (j) If the owner or operator undertakes construction
19without obtaining an air pollution construction permit, the fee
20under this Section is still required. Payment of the required
21fee does not preclude the Agency or the Attorney General or
22other authorized persons from pursuing enforcement against the
23applicant for failure to have an air pollution construction
24permit prior to commencing construction.
25    (k) If an air pollution construction permittee makes a fee
26payment under this Section from an account with insufficient

 

 

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1funds to cover the amount of the fee payment, the Agency shall
2notify the permittee of the failure to pay the fee. If the
3permittee fails to pay the fee within 60 days after such
4notification, the Agency may, by written notice, immediately
5revoke the air pollution construction permit. Failure of the
6Agency to notify the permittee of the permittee's failure to
7make payment does not excuse or alter the duty of the permittee
8to comply with the provisions of this Section.
9    (l) The Agency may establish procedures for the collection
10of air pollution construction permit fees.
11    (m) Fees collected pursuant to this Section shall be
12deposited into the Environmental Protection Permit and
13Inspection Fund.
14(Source: P.A. 97-95, eff. 7-12-11.)
 
15    (415 ILCS 5/39)  (from Ch. 111 1/2, par. 1039)
16    Sec. 39. Issuance of permits; procedures.
17    (a) When the Board has by regulation required a permit for
18the construction, installation, or operation of any type of
19facility, equipment, vehicle, vessel, or aircraft, the
20applicant shall apply to the Agency for such permit and it
21shall be the duty of the Agency to issue such a permit upon
22proof by the applicant that the facility, equipment, vehicle,
23vessel, or aircraft will not cause a violation of this Act or
24of regulations hereunder. The Agency shall adopt such
25procedures as are necessary to carry out its duties under this

 

 

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1Section. In making its determinations on permit applications
2under this Section the Agency may consider prior adjudications
3of noncompliance with this Act by the applicant that involved a
4release of a contaminant into the environment. In granting
5permits, the Agency may impose reasonable conditions
6specifically related to the applicant's past compliance
7history with this Act as necessary to correct, detect, or
8prevent noncompliance. The Agency may impose such other
9conditions as may be necessary to accomplish the purposes of
10this Act, and as are not inconsistent with the regulations
11promulgated by the Board hereunder. Except as otherwise
12provided in this Act, a bond or other security shall not be
13required as a condition for the issuance of a permit. If the
14Agency denies any permit under this Section, the Agency shall
15transmit to the applicant within the time limitations of this
16Section specific, detailed statements as to the reasons the
17permit application was denied. Such statements shall include,
18but not be limited to the following:
19        (i) the Sections of this Act which may be violated if
20    the permit were granted;
21        (ii) the provision of the regulations, promulgated
22    under this Act, which may be violated if the permit were
23    granted;
24        (iii) the specific type of information, if any, which
25    the Agency deems the applicant did not provide the Agency;
26    and

 

 

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1        (iv) a statement of specific reasons why the Act and
2    the regulations might not be met if the permit were
3    granted.
4    If there is no final action by the Agency within 90 days
5after the filing of the application for permit, the applicant
6may deem the permit issued; except that this time period shall
7be extended to 180 days when (1) notice and opportunity for
8public hearing are required by State or federal law or
9regulation, (2) the application which was filed is for any
10permit to develop a landfill subject to issuance pursuant to
11this subsection, or (3) the application that was filed is for a
12MSWLF unit required to issue public notice under subsection (p)
13of Section 39. The 90-day and 180-day time periods for the
14Agency to take final action do not apply to NPDES permit
15applications under subsection (b) of this Section, to RCRA
16permit applications under subsection (d) of this Section, or to
17UIC permit applications under subsection (e) of this Section.
18    The Agency shall publish notice of all final permit
19determinations for development permits for MSWLF units and for
20significant permit modifications for lateral expansions for
21existing MSWLF units one time in a newspaper of general
22circulation in the county in which the unit is or is proposed
23to be located.
24    After January 1, 1994 and until July 1, 1998, operating
25permits issued under this Section by the Agency for sources of
26air pollution permitted to emit less than 25 tons per year of

 

 

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1any combination of regulated air pollutants, as defined in
2Section 39.5 of this Act, shall be required to be renewed only
3upon written request by the Agency consistent with applicable
4provisions of this Act and regulations promulgated hereunder.
5Such operating permits shall expire 180 days after the date of
6such a request. The Board shall revise its regulations for the
7existing State air pollution operating permit program
8consistent with this provision by January 1, 1994.
9    After June 30, 1998, operating permits issued under this
10Section by the Agency for sources of air pollution that are not
11subject to Section 39.5 of this Act and are not required to
12have a federally enforceable State operating permit shall be
13required to be renewed only upon written request by the Agency
14consistent with applicable provisions of this Act and its
15rules. Such operating permits shall expire 180 days after the
16date of such a request. Before July 1, 1998, the Board shall
17revise its rules for the existing State air pollution operating
18permit program consistent with this paragraph and shall adopt
19rules that require a source to demonstrate that it qualifies
20for a permit under this paragraph.
21    (b) The Agency may issue NPDES permits exclusively under
22this subsection for the discharge of contaminants from point
23sources into navigable waters, all as defined in the Federal
24Water Pollution Control Act, as now or hereafter amended,
25within the jurisdiction of the State, or into any well.
26    All NPDES permits shall contain those terms and conditions,

 

 

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1including but not limited to schedules of compliance, which may
2be required to accomplish the purposes and provisions of this
3Act.
4    The Agency may issue general NPDES permits for discharges
5from categories of point sources which are subject to the same
6permit limitations and conditions. Such general permits may be
7issued without individual applications and shall conform to
8regulations promulgated under Section 402 of the Federal Water
9Pollution Control Act, as now or hereafter amended.
10    The Agency may include, among such conditions, effluent
11limitations and other requirements established under this Act,
12Board regulations, the Federal Water Pollution Control Act, as
13now or hereafter amended, and regulations pursuant thereto, and
14schedules for achieving compliance therewith at the earliest
15reasonable date.
16    The Agency shall adopt filing requirements and procedures
17which are necessary and appropriate for the issuance of NPDES
18permits, and which are consistent with the Act or regulations
19adopted by the Board, and with the Federal Water Pollution
20Control Act, as now or hereafter amended, and regulations
21pursuant thereto.
22    The Agency, subject to any conditions which may be
23prescribed by Board regulations, may issue NPDES permits to
24allow discharges beyond deadlines established by this Act or by
25regulations of the Board without the requirement of a variance,
26subject to the Federal Water Pollution Control Act, as now or

 

 

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1hereafter amended, and regulations pursuant thereto.
2    (c) Except for those facilities owned or operated by
3sanitary districts organized under the Metropolitan Water
4Reclamation District Act, no permit for the development or
5construction of a new pollution control facility may be granted
6by the Agency unless the applicant submits proof to the Agency
7that the location of the facility has been approved by the
8County Board of the county if in an unincorporated area, or the
9governing body of the municipality when in an incorporated
10area, in which the facility is to be located in accordance with
11Section 39.2 of this Act. For purposes of this subsection (c),
12and for purposes of Section 39.2 of this Act, the appropriate
13county board or governing body of the municipality shall be the
14county board of the county or the governing body of the
15municipality in which the facility is to be located as of the
16date when the application for siting approval is filed.
17    In the event that siting approval granted pursuant to
18Section 39.2 has been transferred to a subsequent owner or
19operator, that subsequent owner or operator may apply to the
20Agency for, and the Agency may grant, a development or
21construction permit for the facility for which local siting
22approval was granted. Upon application to the Agency for a
23development or construction permit by that subsequent owner or
24operator, the permit applicant shall cause written notice of
25the permit application to be served upon the appropriate county
26board or governing body of the municipality that granted siting

 

 

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1approval for that facility and upon any party to the siting
2proceeding pursuant to which siting approval was granted. In
3that event, the Agency shall conduct an evaluation of the
4subsequent owner or operator's prior experience in waste
5management operations in the manner conducted under subsection
6(i) of Section 39 of this Act.
7    Beginning August 20, 1993, if the pollution control
8facility consists of a hazardous or solid waste disposal
9facility for which the proposed site is located in an
10unincorporated area of a county with a population of less than
11100,000 and includes all or a portion of a parcel of land that
12was, on April 1, 1993, adjacent to a municipality having a
13population of less than 5,000, then the local siting review
14required under this subsection (c) in conjunction with any
15permit applied for after that date shall be performed by the
16governing body of that adjacent municipality rather than the
17county board of the county in which the proposed site is
18located; and for the purposes of that local siting review, any
19references in this Act to the county board shall be deemed to
20mean the governing body of that adjacent municipality;
21provided, however, that the provisions of this paragraph shall
22not apply to any proposed site which was, on April 1, 1993,
23owned in whole or in part by another municipality.
24    In the case of a pollution control facility for which a
25development permit was issued before November 12, 1981, if an
26operating permit has not been issued by the Agency prior to

 

 

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1August 31, 1989 for any portion of the facility, then the
2Agency may not issue or renew any development permit nor issue
3an original operating permit for any portion of such facility
4unless the applicant has submitted proof to the Agency that the
5location of the facility has been approved by the appropriate
6county board or municipal governing body pursuant to Section
739.2 of this Act.
8    After January 1, 1994, if a solid waste disposal facility,
9any portion for which an operating permit has been issued by
10the Agency, has not accepted waste disposal for 5 or more
11consecutive calendars years, before that facility may accept
12any new or additional waste for disposal, the owner and
13operator must obtain a new operating permit under this Act for
14that facility unless the owner and operator have applied to the
15Agency for a permit authorizing the temporary suspension of
16waste acceptance. The Agency may not issue a new operation
17permit under this Act for the facility unless the applicant has
18submitted proof to the Agency that the location of the facility
19has been approved or re-approved by the appropriate county
20board or municipal governing body under Section 39.2 of this
21Act after the facility ceased accepting waste.
22    Except for those facilities owned or operated by sanitary
23districts organized under the Metropolitan Water Reclamation
24District Act, and except for new pollution control facilities
25governed by Section 39.2, and except for fossil fuel mining
26facilities, the granting of a permit under this Act shall not

 

 

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1relieve the applicant from meeting and securing all necessary
2zoning approvals from the unit of government having zoning
3jurisdiction over the proposed facility.
4    Before beginning construction on any new sewage treatment
5plant or sludge drying site to be owned or operated by a
6sanitary district organized under the Metropolitan Water
7Reclamation District Act for which a new permit (rather than
8the renewal or amendment of an existing permit) is required,
9such sanitary district shall hold a public hearing within the
10municipality within which the proposed facility is to be
11located, or within the nearest community if the proposed
12facility is to be located within an unincorporated area, at
13which information concerning the proposed facility shall be
14made available to the public, and members of the public shall
15be given the opportunity to express their views concerning the
16proposed facility.
17    The Agency may issue a permit for a municipal waste
18transfer station without requiring approval pursuant to
19Section 39.2 provided that the following demonstration is made:
20        (1) the municipal waste transfer station was in
21    existence on or before January 1, 1979 and was in
22    continuous operation from January 1, 1979 to January 1,
23    1993;
24        (2) the operator submitted a permit application to the
25    Agency to develop and operate the municipal waste transfer
26    station during April of 1994;

 

 

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1        (3) the operator can demonstrate that the county board
2    of the county, if the municipal waste transfer station is
3    in an unincorporated area, or the governing body of the
4    municipality, if the station is in an incorporated area,
5    does not object to resumption of the operation of the
6    station; and
7        (4) the site has local zoning approval.
8    (d) The Agency may issue RCRA permits exclusively under
9this subsection to persons owning or operating a facility for
10the treatment, storage, or disposal of hazardous waste as
11defined under this Act.
12    All RCRA permits shall contain those terms and conditions,
13including but not limited to schedules of compliance, which may
14be required to accomplish the purposes and provisions of this
15Act. The Agency may include among such conditions standards and
16other requirements established under this Act, Board
17regulations, the Resource Conservation and Recovery Act of 1976
18(P.L. 94-580), as amended, and regulations pursuant thereto,
19and may include schedules for achieving compliance therewith as
20soon as possible. The Agency shall require that a performance
21bond or other security be provided as a condition for the
22issuance of a RCRA permit.
23    In the case of a permit to operate a hazardous waste or PCB
24incinerator as defined in subsection (k) of Section 44, the
25Agency shall require, as a condition of the permit, that the
26operator of the facility perform such analyses of the waste to

 

 

09900SB1672sam003- 24 -LRB099 09565 MGM 35987 a

1be incinerated as may be necessary and appropriate to ensure
2the safe operation of the incinerator.
3    The Agency shall adopt filing requirements and procedures
4which are necessary and appropriate for the issuance of RCRA
5permits, and which are consistent with the Act or regulations
6adopted by the Board, and with the Resource Conservation and
7Recovery Act of 1976 (P.L. 94-580), as amended, and regulations
8pursuant thereto.
9    The applicant shall make available to the public for
10inspection all documents submitted by the applicant to the
11Agency in furtherance of an application, with the exception of
12trade secrets, at the office of the county board or governing
13body of the municipality. Such documents may be copied upon
14payment of the actual cost of reproduction during regular
15business hours of the local office. The Agency shall issue a
16written statement concurrent with its grant or denial of the
17permit explaining the basis for its decision.
18    (e) The Agency may issue UIC permits exclusively under this
19subsection to persons owning or operating a facility for the
20underground injection of contaminants as defined under this
21Act.
22    All UIC permits shall contain those terms and conditions,
23including but not limited to schedules of compliance, which may
24be required to accomplish the purposes and provisions of this
25Act. The Agency may include among such conditions standards and
26other requirements established under this Act, Board

 

 

09900SB1672sam003- 25 -LRB099 09565 MGM 35987 a

1regulations, the Safe Drinking Water Act (P.L. 93-523), as
2amended, and regulations pursuant thereto, and may include
3schedules for achieving compliance therewith. The Agency shall
4require that a performance bond or other security be provided
5as a condition for the issuance of a UIC permit.
6    The Agency shall adopt filing requirements and procedures
7which are necessary and appropriate for the issuance of UIC
8permits, and which are consistent with the Act or regulations
9adopted by the Board, and with the Safe Drinking Water Act
10(P.L. 93-523), as amended, and regulations pursuant thereto.
11    The applicant shall make available to the public for
12inspection, all documents submitted by the applicant to the
13Agency in furtherance of an application, with the exception of
14trade secrets, at the office of the county board or governing
15body of the municipality. Such documents may be copied upon
16payment of the actual cost of reproduction during regular
17business hours of the local office. The Agency shall issue a
18written statement concurrent with its grant or denial of the
19permit explaining the basis for its decision.
20    (f) In making any determination pursuant to Section 9.1 of
21this Act:
22        (1) The Agency shall have authority to make the
23    determination of any question required to be determined by
24    the Clean Air Act, as now or hereafter amended, this Act,
25    or the regulations of the Board, including the
26    determination of the Lowest Achievable Emission Rate,

 

 

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1    Maximum Achievable Control Technology, or Best Available
2    Control Technology, consistent with the Board's
3    regulations, if any.
4        (2) The Agency shall adopt requirements as necessary to
5    implement public participation procedures, including, but
6    not limited to, public notice, comment, and an opportunity
7    for hearing, which must accompany the processing of
8    applications for PSD permits. The Agency shall briefly
9    describe and respond to all significant comments on the
10    draft permit raised during the public comment period or
11    during any hearing. The Agency is not required to respond
12    to each comment in an individualized manner, but must
13    demonstrate that all significant comments were considered.
14        (3) Any complete permit application submitted to the
15    Agency under this subsection for a PSD permit shall be
16    granted or denied by the Agency not later than one year
17    after the filing of such completed application.
18        (4) (2) The Agency shall, after conferring with the
19    applicant, give written notice to the applicant of its
20    proposed decision on the application including the terms
21    and conditions of the permit to be issued and the facts,
22    conduct or other basis upon which the Agency will rely to
23    support its proposed action.
24        (3) Following such notice, the Agency shall give the
25    applicant an opportunity for a hearing in accordance with
26    the provisions of Sections 10-25 through 10-60 of the

 

 

09900SB1672sam003- 27 -LRB099 09565 MGM 35987 a

1    Illinois Administrative Procedure Act.
2    (g) The Agency shall include as conditions upon all permits
3issued for hazardous waste disposal sites such restrictions
4upon the future use of such sites as are reasonably necessary
5to protect public health and the environment, including
6permanent prohibition of the use of such sites for purposes
7which may create an unreasonable risk of injury to human health
8or to the environment. After administrative and judicial
9challenges to such restrictions have been exhausted, the Agency
10shall file such restrictions of record in the Office of the
11Recorder of the county in which the hazardous waste disposal
12site is located.
13    (h) A hazardous waste stream may not be deposited in a
14permitted hazardous waste site unless specific authorization
15is obtained from the Agency by the generator and disposal site
16owner and operator for the deposit of that specific hazardous
17waste stream. The Agency may grant specific authorization for
18disposal of hazardous waste streams only after the generator
19has reasonably demonstrated that, considering technological
20feasibility and economic reasonableness, the hazardous waste
21cannot be reasonably recycled for reuse, nor incinerated or
22chemically, physically or biologically treated so as to
23neutralize the hazardous waste and render it nonhazardous. In
24granting authorization under this Section, the Agency may
25impose such conditions as may be necessary to accomplish the
26purposes of the Act and are consistent with this Act and

 

 

09900SB1672sam003- 28 -LRB099 09565 MGM 35987 a

1regulations promulgated by the Board hereunder. If the Agency
2refuses to grant authorization under this Section, the
3applicant may appeal as if the Agency refused to grant a
4permit, pursuant to the provisions of subsection (a) of Section
540 of this Act. For purposes of this subsection (h), the term
6"generator" has the meaning given in Section 3.205 of this Act,
7unless: (1) the hazardous waste is treated, incinerated, or
8partially recycled for reuse prior to disposal, in which case
9the last person who treats, incinerates, or partially recycles
10the hazardous waste prior to disposal is the generator; or (2)
11the hazardous waste is from a response action, in which case
12the person performing the response action is the generator.
13This subsection (h) does not apply to any hazardous waste that
14is restricted from land disposal under 35 Ill. Adm. Code 728.
15    (i) Before issuing any RCRA permit, any permit for a waste
16storage site, sanitary landfill, waste disposal site, waste
17transfer station, waste treatment facility, waste incinerator,
18or any waste-transportation operation, or any permit or interim
19authorization for a clean construction or demolition debris
20fill operation, the Agency shall conduct an evaluation of the
21prospective owner's or operator's prior experience in waste
22management operations and clean construction or demolition
23debris fill operations. The Agency may deny such a permit, or
24deny or revoke interim authorization, if the prospective owner
25or operator or any employee or officer of the prospective owner
26or operator has a history of:

 

 

09900SB1672sam003- 29 -LRB099 09565 MGM 35987 a

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

 

 

09900SB1672sam003- 30 -LRB099 09565 MGM 35987 a

1the owner or operator seeking the permit or interim
2authorization to provide to the Agency all of the information
3necessary for the Agency to conduct its evaluation. The Agency
4may deny a permit or interim authorization if previous
5activities at the site may have caused or allowed contamination
6at the site, unless such contamination is authorized under any
7permit issued by the Agency.
8    (j) The issuance under this Act of a permit to engage in
9the surface mining of any resources other than fossil fuels
10shall not relieve the permittee from its duty to comply with
11any applicable local law regulating the commencement, location
12or operation of surface mining facilities.
13    (k) A development permit issued under subsection (a) of
14Section 39 for any facility or site which is required to have a
15permit under subsection (d) of Section 21 shall expire at the
16end of 2 calendar years from the date upon which it was issued,
17unless within that period the applicant has taken action to
18develop the facility or the site. In the event that review of
19the conditions of the development permit is sought pursuant to
20Section 40 or 41, or permittee is prevented from commencing
21development of the facility or site by any other litigation
22beyond the permittee's control, such two-year period shall be
23deemed to begin on the date upon which such review process or
24litigation is concluded.
25    (l) No permit shall be issued by the Agency under this Act
26for construction or operation of any facility or site located

 

 

09900SB1672sam003- 31 -LRB099 09565 MGM 35987 a

1within the boundaries of any setback zone established pursuant
2to this Act, where such construction or operation is
3prohibited.
4    (m) The Agency may issue permits to persons owning or
5operating a facility for composting landscape waste. In
6granting such permits, the Agency may impose such conditions as
7may be necessary to accomplish the purposes of this Act, and as
8are not inconsistent with applicable regulations promulgated
9by the Board. Except as otherwise provided in this Act, a bond
10or other security shall not be required as a condition for the
11issuance of a permit. If the Agency denies any permit pursuant
12to this subsection, the Agency shall transmit to the applicant
13within the time limitations of this subsection specific,
14detailed statements as to the reasons the permit application
15was denied. Such statements shall include but not be limited to
16the following:
17        (1) the Sections of this Act that may be violated if
18    the permit were granted;
19        (2) the specific regulations promulgated pursuant to
20    this Act that may be violated if the permit were granted;
21        (3) the specific information, if any, the Agency deems
22    the applicant did not provide in its application to the
23    Agency; and
24        (4) a statement of specific reasons why the Act and the
25    regulations might be violated if the permit were granted.
26    If no final action is taken by the Agency within 90 days

 

 

09900SB1672sam003- 32 -LRB099 09565 MGM 35987 a

1after the filing of the application for permit, the applicant
2may deem the permit issued. Any applicant for a permit may
3waive the 90 day limitation by filing a written statement with
4the Agency.
5    The Agency shall issue permits for such facilities upon
6receipt of an application that includes a legal description of
7the site, a topographic map of the site drawn to the scale of
8200 feet to the inch or larger, a description of the operation,
9including the area served, an estimate of the volume of
10materials to be processed, and documentation that:
11        (1) the facility includes a setback of at least 200
12    feet from the nearest potable water supply well;
13        (2) the facility is located outside the boundary of the
14    10-year floodplain or the site will be floodproofed;
15        (3) the facility is located so as to minimize
16    incompatibility with the character of the surrounding
17    area, including at least a 200 foot setback from any
18    residence, and in the case of a facility that is developed
19    or the permitted composting area of which is expanded after
20    November 17, 1991, the composting area is located at least
21    1/8 mile from the nearest residence (other than a residence
22    located on the same property as the facility);
23        (4) the design of the facility will prevent any compost
24    material from being placed within 5 feet of the water
25    table, will adequately control runoff from the site, and
26    will collect and manage any leachate that is generated on

 

 

09900SB1672sam003- 33 -LRB099 09565 MGM 35987 a

1    the site;
2        (5) the operation of the facility will include
3    appropriate dust and odor control measures, limitations on
4    operating hours, appropriate noise control measures for
5    shredding, chipping and similar equipment, management
6    procedures for composting, containment and disposal of
7    non-compostable wastes, procedures to be used for
8    terminating operations at the site, and recordkeeping
9    sufficient to document the amount of materials received,
10    composted and otherwise disposed of; and
11        (6) the operation will be conducted in accordance with
12    any applicable rules adopted by the Board.
13    The Agency shall issue renewable permits of not longer than
1410 years in duration for the composting of landscape wastes, as
15defined in Section 3.155 of this Act, based on the above
16requirements.
17    The operator of any facility permitted under this
18subsection (m) must submit a written annual statement to the
19Agency on or before April 1 of each year that includes an
20estimate of the amount of material, in tons, received for
21composting.
22    (n) The Agency shall issue permits jointly with the
23Department of Transportation for the dredging or deposit of
24material in Lake Michigan in accordance with Section 18 of the
25Rivers, Lakes, and Streams Act.
26    (o) (Blank.)

 

 

09900SB1672sam003- 34 -LRB099 09565 MGM 35987 a

1    (p) (1) Any person submitting an application for a permit
2for a new MSWLF unit or for a lateral expansion under
3subsection (t) of Section 21 of this Act for an existing MSWLF
4unit that has not received and is not subject to local siting
5approval under Section 39.2 of this Act shall publish notice of
6the application in a newspaper of general circulation in the
7county in which the MSWLF unit is or is proposed to be located.
8The notice must be published at least 15 days before submission
9of the permit application to the Agency. The notice shall state
10the name and address of the applicant, the location of the
11MSWLF unit or proposed MSWLF unit, the nature and size of the
12MSWLF unit or proposed MSWLF unit, the nature of the activity
13proposed, the probable life of the proposed activity, the date
14the permit application will be submitted, and a statement that
15persons may file written comments with the Agency concerning
16the permit application within 30 days after the filing of the
17permit application unless the time period to submit comments is
18extended by the Agency.
19    When a permit applicant submits information to the Agency
20to supplement a permit application being reviewed by the
21Agency, the applicant shall not be required to reissue the
22notice under this subsection.
23    (2) The Agency shall accept written comments concerning the
24permit application that are postmarked no later than 30 days
25after the filing of the permit application, unless the time
26period to accept comments is extended by the Agency.

 

 

09900SB1672sam003- 35 -LRB099 09565 MGM 35987 a

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

 

 

09900SB1672sam003- 36 -LRB099 09565 MGM 35987 a

1    and examples of complete applications. As the Agency
2    develops new checklists and develops guidance, it shall
3    supplement the web portal with those materials.
4        (2) Within 2 years after the effective date of this
5    amendatory Act of the 97th General Assembly, permit
6    application forms or portions of permit applications that
7    can be completed and saved electronically, and submitted to
8    the Agency electronically with digital signatures.
9        (3) Within 2 years after the effective date of this
10    amendatory Act of the 97th General Assembly, an online
11    tracking system where an applicant may review the status of
12    its pending application, including the name and contact
13    information of the permit analyst assigned to the
14    application. Until the online tracking system has been
15    developed, the Agency shall post on its website semi-annual
16    permitting efficiency tracking reports that include
17    statistics on the timeframes for Agency action on the
18    following types of permits received after the effective
19    date of this amendatory Act of the 97th General Assembly:
20    air construction permits, new NPDES permits and associated
21    water construction permits, and modifications of major
22    NPDES permits and associated water construction permits.
23    The reports must be posted by February 1 and August 1 each
24    year and shall include:
25            (A) the number of applications received for each
26        type of permit, the number of applications on which the

 

 

09900SB1672sam003- 37 -LRB099 09565 MGM 35987 a

1        Agency has taken action, and the number of applications
2        still pending; and
3            (B) for those applications where the Agency has not
4        taken action in accordance with the timeframes set
5        forth in this Act, the date the application was
6        received and the reasons for any delays, which may
7        include, but shall not be limited to, (i) the
8        application being inadequate or incomplete, (ii)
9        scientific or technical disagreements with the
10        applicant, USEPA, or other local, state, or federal
11        agencies involved in the permitting approval process,
12        (iii) public opposition to the permit, or (iv) Agency
13        staffing shortages. To the extent practicable, the
14        tracking report shall provide approximate dates when
15        cause for delay was identified by the Agency, when the
16        Agency informed the applicant of the problem leading to
17        the delay, and when the applicant remedied the reason
18        for the delay.
19    (r) Upon the request of the applicant, the Agency shall
20notify the applicant of the permit analyst assigned to the
21application upon its receipt.
22    (s) The Agency is authorized to prepare and distribute
23guidance documents relating to its administration of this
24Section and procedural rules implementing this Section.
25Guidance documents prepared under this subsection shall not be
26considered rules and shall not be subject to the Illinois

 

 

09900SB1672sam003- 38 -LRB099 09565 MGM 35987 a

1Administrative Procedure Act. Such guidance shall not be
2binding on any party.
3    (t) Except as otherwise prohibited by federal law or
4regulation, any person submitting an application for a permit
5may include with the application suggested permit language for
6Agency consideration. The Agency is not obligated to use the
7suggested language or any portion thereof in its permitting
8decision. If requested by the permit applicant, the Agency
9shall meet with the applicant to discuss the suggested
10language.
11    (u) If requested by the permit applicant, the Agency shall
12provide the permit applicant with a copy of the draft permit
13prior to any public review period.
14    (v) If requested by the permit applicant, the Agency shall
15provide the permit applicant with a copy of the final permit
16prior to its issuance.
17    (w) An air pollution permit shall not be required due to
18emissions of greenhouse gases, as specified by Section 9.15 of
19this Act.
20    (x) If, before the expiration of a State operating permit
21that is issued pursuant to subsection (a) of this Section and
22contains federally enforceable conditions limiting the
23potential to emit of the source to a level below the major
24source threshold for that source so as to exclude the source
25from the Clean Air Act Permit Program, the Agency receives a
26complete application for the renewal of that permit, then all

 

 

09900SB1672sam003- 39 -LRB099 09565 MGM 35987 a

1of the terms and conditions of the permit shall remain in
2effect until final administrative action has been taken on the
3application for the renewal of the permit.
4(Source: P.A. 97-95, eff. 7-12-11; 98-284, eff. 8-9-13.)
 
5    (415 ILCS 5/40)  (from Ch. 111 1/2, par. 1040)
6    Sec. 40. Appeal of permit denial.
7    (a) (1) If the Agency refuses to grant or grants with
8conditions a permit under Section 39 of this Act, the applicant
9may, within 35 days after the date on which the Agency served
10its decision on the applicant, petition for a hearing before
11the Board to contest the decision of the Agency. However, the
1235-day period for petitioning for a hearing may be extended for
13an additional 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. The Board shall give 21 day
16notice to any person in the county where is located the
17facility in issue who has requested notice of enforcement
18proceedings and to each member of the General Assembly in whose
19legislative district that installation or property is located;
20and shall publish that 21 day notice in a newspaper of general
21circulation in that county. The Agency shall appear as
22respondent in such hearing. At such hearing the rules
23prescribed in Section 32 and subsection (a) of Section 33 of
24this Act shall apply, and the burden of proof shall be on the
25petitioner. If, however, the Agency issues an NPDES permit that

 

 

09900SB1672sam003- 40 -LRB099 09565 MGM 35987 a

1imposes limits which are based upon a criterion or denies a
2permit based upon application of a criterion, then the Agency
3shall have the burden of going forward with the basis for the
4derivation of those limits or criterion which were derived
5under the Board's rules.
6    (2) Except as provided in paragraph (a)(3), if there is no
7final action by the Board within 120 days after the date on
8which it received the petition, the petitioner may deem the
9permit issued under this Act, provided, however, that that
10period of 120 days shall not run for any period of time, not to
11exceed 30 days, during which the Board is without sufficient
12membership to constitute the quorum required by subsection (a)
13of Section 5 of this Act, and provided further that such 120
14day period shall not be stayed for lack of quorum beyond 30
15days regardless of whether the lack of quorum exists at the
16beginning of such 120 day period or occurs during the running
17of such 120 day period.
18    (3) Paragraph (a)(2) shall not apply to any permit which is
19subject to subsection (b), (d) or (e) of Section 39. If there
20is no final action by the Board within 120 days after the date
21on which it received the petition, the petitioner shall be
22entitled to an Appellate Court order pursuant to subsection (d)
23of Section 41 of this Act.
24    (b) If the Agency grants a RCRA permit for a hazardous
25waste disposal site, a third party, other than the permit
26applicant or Agency, may, within 35 days after the date on

 

 

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

 

 

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1record compiled in the Agency proceeding. In other respects the
2Board's review shall be conducted in accordance with subsection
3(a) of this Section and the Board's procedural rules governing
4permit denial appeals.
5    (d) In reviewing the denial or any condition of a NA NSR
6permit issued by the Agency pursuant to rules and regulations
7adopted under subsection (c) of Section 9.1 of this Act, the
8decision of the Board shall be based exclusively on the record
9before the Agency including the record of the hearing, if any,
10held pursuant to paragraph (f)(3) of Section 39 unless the
11parties agree to supplement the record. The Board shall, if it
12finds the Agency is in error, make a final determination as to
13the substantive limitations of the permit including a final
14determination of Lowest Achievable Emission Rate or Best
15Available Control Technology.
16    (e) (1) If the Agency grants or denies a permit under
17    subsection (b) of Section 39 of this Act, a third party,
18    other than the permit applicant or Agency, may petition the
19    Board within 35 days from the date of issuance of the
20    Agency's decision, for a hearing to contest the decision of
21    the Agency.
22        (2) A petitioner shall include the following within a
23    petition submitted under subdivision (1) of this
24    subsection:
25            (A) a demonstration that the petitioner raised the
26        issues contained within the petition during the public

 

 

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1        notice period or during the public hearing on the NPDES
2        permit application, if a public hearing was held; and
3            (B) a demonstration that the petitioner is so
4        situated as to be affected by the permitted facility.
5        (3) If the Board determines that the petition is not
6    duplicative or frivolous and contains a satisfactory
7    demonstration under subdivision (2) of this subsection,
8    the Board shall hear the petition (i) in accordance with
9    the terms of subsection (a) of this Section and its
10    procedural rules governing permit denial appeals and (ii)
11    exclusively on the basis of the record before the Agency.
12    The burden of proof shall be on the petitioner. The Agency
13    and permit applicant shall be named co-respondents.
14    (f) Any person who files a petition to contest the issuance
15of a permit by the Agency shall pay a filing fee.
16(Source: P.A. 92-574, eff. 6-26-02.)
 
17    (415 ILCS 5/40.3 new)
18    Sec. 40.3. Review process for PSD permits.
19    (a) Subsection (a) of Section 40 does not apply to any PSD
20permit that is subject to subsection (c) of Section 9.1 of this
21Act. If the Agency refused to grant or grants a PSD permit with
22conditions, the applicant may, within 35 days after final
23permit action, petition for a hearing before the Board to
24contest the decision of the Agency. If the Agency fails to act
25on an application for a PSD permit within the time frame

 

 

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1specified in paragraph (3) of subsection (f) of Section 39 of
2this Act, the applicant may, before the Agency denies or issues
3the final permit, petition for a hearing before the Board to
4compel the Agency to act on the application in a time that is
5deemed reasonable.
6    The Agency shall appear as respondent in any hearing
7pursuant to this subsection (a). At such hearing the rules
8prescribed in Section 32 and subsection (a) of Section 33 of
9this Act shall apply, and the burden of proof shall be on the
10petitioner.
11    (b) If there is no final action by the Board within 120
12days after the date on which it received the petition, the PSD
13permit shall not be deemed issued; rather, the petitioner shall
14be entitled to an Appellate Court order pursuant to subsection
15(d) of Section 41 of this Act. This period of 120 days shall
16not run for any period of time, not to exceed 30 days, during
17which the Board is without sufficient membership to constitute
18the quorum required by subsection (a) of Section 5 of this Act.
19The 120-day period shall not be stayed for lack of quorum
20beyond 30 days, regardless of whether the lack of quorum exists
21at the beginning of the 120-day period or occurs during the
22running of the 120-day period.
23    (c) Any person who files a petition to contest the final
24permit action by the Agency under this Section shall pay a
25filing fee.
26    (d) In reviewing the denial or any condition of a PSD

 

 

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1permit issued by the Agency pursuant to rules adopted under
2subsection (c) of Section 9.1 of this Act, the decision of the
3Board shall be based exclusively on the record before the
4Agency unless the parties agree to supplement the record.
5    If requested by the applicant, the Board may stay the
6effectiveness of any final Agency action on a PSD permit
7application identified in subsection (f) of this Section 39 of
8this Act during the pendency of the review process. In such
9cases, the Board shall stay the effectiveness of all the
10contested conditions of the PSD permit and may stay the
11effectiveness of any or all uncontested conditions only if the
12Board determines that the uncontested conditions would be
13affected by its review of contested conditions. Any stays
14granted by the Board shall be deemed effective upon the date of
15final Agency action appealed by the applicant under this
16subsection (d). Subsection (b) of Section 10-65 of the Illinois
17Administrative Procedure Act shall not apply to actions under
18this subsection.".