(415 ILCS 5/40.1) (from Ch. 111 1/2, par. 1040.1)
Sec. 40.1.
Appeal of siting approval.
(a) If the county board or the governing body of the municipality,
as determined by paragraph (c) of Section 39 of this Act, refuses to grant
or grants with conditions approval under Section 39.2 of this Act, the
applicant may, within 35 days after the date on which the local siting
authority disapproved or conditionally approved siting, petition for a
hearing before the Board to contest the decision of the county
board or the governing body of the municipality. The Board shall publish
21 day notice of the hearing on the appeal in a newspaper of general
circulation published in that county. The county board or governing
body of the municipality shall appear as respondent in such hearing, and
such hearing shall be based exclusively on the record before the county
board or the governing body of the municipality. At such hearing the rules
prescribed in Sections 32 and 33 (a) of this Act shall apply, and the burden
of proof shall be on the petitioner; however, no new or additional evidence
in support of or in opposition to any finding, order, determination or decision
of the appropriate county board or governing body of the municipality shall
be heard by the Board. In making its orders and determinations under this
Section the Board shall include in its consideration the written decision
and reasons for the decision of the county board or the governing body of
the municipality, the transcribed record of the hearing held pursuant to
subsection (d) of Section 39.2, and the fundamental fairness of the
procedures used by the county board or the governing body of the
municipality in reaching its decision. The Board shall transmit a copy of
its decision to the office of the county board or governing body of the
municipality where it shall be available for public inspection and copied
upon payment of the actual cost of reproduction. If there is no final
action by the Board within 120 days after the date on which it received
the petition, the petitioner may deem the site location approved;
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.
(b) If the county board or the governing body of the municipality as
determined by paragraph (c) of Section 39 of this Act, grants approval under
Section 39.2 of this Act, a third party other than the applicant who
participated in the public hearing conducted by the county board or governing
body of the municipality may, within 35 days after
the date on which the local siting authority granted siting approval, petition
the Board for a hearing to contest the approval of the county board or the
governing body of the municipality. Unless the Board determines that such
petition is duplicative or frivolous, or that the
petitioner is so located as to not be affected by the proposed 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 county board or the
governing body of the municipality. The burden of proof shall be on the
petitioner. The county board or the governing body of the municipality
and the applicant shall be named as co-respondents.
The Board shall transmit a copy of its decision to the office of the
county board or governing body of the municipality where it shall be
available for public inspection and may be copied upon payment of the
actual cost of reproduction.
(c) Any person who files a petition to contest a decision of the
county board or governing body of the municipality shall pay a filing fee.
(Source: P.A. 92-574, eff. 6-26-02.)
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(415 ILCS 5/40.2) (from Ch. 111 1/2, par. 1040.2)
Sec. 40.2. Application of review process.
(a) Subsection (a) of Section 40 does not apply to any permit which is
subject to Section 39.5. If the Agency refuses to grant or grants with
conditions a CAAPP permit, makes a determination of incompleteness regarding a
submitted CAAPP application, or fails to act on an application for a CAAPP
permit, permit renewal, or permit revision within the time specified in
paragraph 5(j) of Section 39.5 of this Act, the applicant, any person who
participated in the public comment process pursuant to subsection 8 of Section
39.5 of this Act, or any other person who could obtain judicial review pursuant
to Section 41(a) of this Act, may,
within 35 days after final permit action, 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 by the applicant for an
additional 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.
Notwithstanding the preceding requirements, petitions for a
hearing before the Board under this subsection may be filed after the 35-day
period, only if such petitions are based solely on grounds arising after the
35-day period expires. Such petitions shall be filed within 35 days after the
new grounds for review arise. If the final permit action being challenged is
the Agency's failure to take final action, a petition for a hearing before the
Board shall be filed before the Agency denies or issues the final permit.
The Agency shall appear as respondent in such hearing. At such hearing the
rules prescribed in Sections 32 and 33(a) of this Act shall apply, and the
burden of proof shall be on the petitioner.
(b) The Agency's failure to take final action within 90 days of receipt of
an application requesting minor permit modification procedures (or 180 days for
modifications subject to group processing requirements), pursuant to subsection
14 of Section 39.5, will be subject to this Section and Section 41 of this Act.
(c) If there is no final action by the Board within 120 days after the
date on which it received the petition, the permit shall not be deemed
issued; rather, the petitioner shall be entitled to an Appellate Court order
pursuant to Section 41(d) of this Act. The 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; the 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 the 120 day period or occurs during the running of the
120 day period.
(d) Any person who files a petition to contest the final permit action by
the Agency under this Section shall pay a filing fee.
(e) The Agency shall notify USEPA, in writing, of any petition for hearing
brought under this Section involving a provision or denial of a Phase II acid
rain permit within 30 days of the filing of the petition. USEPA may intervene
as a matter of right in any such hearing. The Agency shall notify USEPA, in
writing, of any determination or order in a hearing brought under this Section
that interprets, voids, or otherwise relates to any portion of a Phase II acid
rain permit.
(f) If requested by the applicant, the Board may stay the effectiveness of any final Agency action identified in subsection (a) of this Section during the pendency of the review process. If requested by the applicant, the Board shall stay the effectiveness of all the contested conditions of a CAAPP permit. The Board may stay the effectiveness of any or all uncontested conditions if the Board determines that the uncontested conditions would be affected by its review of contested conditions. If the Board stays any, but not all, conditions, then the applicant shall continue to operate in accordance with any related terms and conditions of any other applicable permits until final Board action in the review process. If the Board stays all conditions, then the applicant shall continue to operate in accordance with all related terms and conditions of any other applicable permits until final Board action in the review process. Any stays granted by the Board shall be deemed effective upon the date of final Agency action appealed by the applicant under this subsection (f). Subsection (b) of Section 10-65 of the Illinois Administrative Procedure Act shall not apply to actions under this subsection. (Source: P.A. 96-934, eff. 6-21-10.)
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