Illinois General Assembly - Illinois Compiled Statutes

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415 ILCS 5/40

(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 after the
date on which the Agency served its decision on the applicant, 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 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.  The Board shall give 21 days' 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 after the date on which it received the petition,
the 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 after the date on which it received the petition,
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, within 35
days after the date on which the Agency issued its decision, petition the
Board for a hearing to contest the issuance of the permit.
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 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 duplicative
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 NA NSR 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, 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.

(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 duplicative 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) Any person who files a petition to contest the issuance of a
permit by the Agency shall pay a filing fee.

(g) If the Agency grants or denies a permit under subsection (y) of Section 39, a third party, other than the permit applicant or Agency, may appeal the Agency's decision as provided under federal law for CCR surface impoundment permits.

(Source: P.A. 101-171, eff. 7-30-19; 102-558, eff. 8-20-21.)