415 ILCS 5/38.5

(415 ILCS 5/38.5)

Sec. 38.5. Time-limited water quality standards.

(a) To the extent consistent with the Federal Water Pollution Control Act, rules adopted by the United States Environmental Protection Agency under that Act, this Section, and rules adopted by the Board under this Section, the Board may adopt, and may conduct non-adjudicatory proceedings to adopt, a time-limited water quality standard for a watershed or one or more of the following:

(1) water bodies;

(2) waterbody segments; or

(3) dischargers.

(b) A time-limited water quality standard may be sought by:

(1) persons who file with the Board a petition for a time-limited water quality standard under this Section; and

(2) persons who have a petition for a variance from a water quality standard under Section 35 of this Act converted into a petition for a time-limited water quality standard under subsection (c) of this Section.

(c) Any petition for a variance from a water quality standard under Section 35 of this Act that was filed with the Board before the effective date of this amendatory Act of the 99th General Assembly and that has not been disposed of by the Board shall be converted, by operation of law, into a petition for a time-limited water quality standard under this Section on the effective date of this amendatory Act of the 99th General Assembly.

(d) The Board's hearings concerning the adoption of time-limited water quality standards shall be open to the public and must be held in compliance with 40 CFR 131.14, including, but not limited to, the public notice and participation requirements referenced in 40 CFR 25 and 40 CFR 131.20(b); this Section; and rules adopted by the Board under this Section.

(e) Within 21 days after any petition for a time-limited water quality standard is filed with the Board under this Section, or within 21 days after the effective date of this amendatory Act of the 99th General Assembly in the case of a petition for time-limited water quality standard created under subsection (c) of this Section, the Agency shall file with the Board a response that:

(1) identifies the discharger or classes of dischargers affected by the water quality standard from which relief is sought;

(2) identifies the watershed, water bodies, or waterbody segments affected by the water quality standard from which relief is sought;

(3) identifies the appropriate type of time-limited water quality standard, based on factors, such as the nature of the pollutant, the condition of the affected water body, and the number and type of dischargers; and

(4) recommends, for the purposes of subsection (h), prompt deadlines for the classes of dischargers to file a substantially compliant petition.

(f) Within 30 days after receipt of a response from the Agency under subsection (e) of this Section, the Board shall enter a final order that establishes the discharger or classes of dischargers that may be covered by the time-limited water quality standard and prompt deadlines by which the discharger and dischargers in the identified classes must, for the purposes of subsection (h), file with the Board either:

(1) a petition for a time-limited water quality standard, if the petition has not been previously filed; or

(2) an amended petition for a time-limited water quality standard, if the petition has been previously filed and it is necessary to file an amended petition to maintain a stay under paragraph (3) of subsection (h) of this Section.

(g) As soon as practicable after entering an order under subsection (f), the Board shall conduct an evaluation of the petition to assess its substantial compliance with 40 CFR 131.14, this Section, and rules adopted pursuant to this Section. After the Board determines that a petition is in substantial compliance with those requirements, the Agency shall file a recommendation concerning the petition.

(h)(1) The effectiveness of a water quality standard from which relief is sought shall be stayed as to the following persons from the effective date of the water quality standard until the stay is terminated as provided in this subsection:

(A) any person who has a petition for a variance seeking relief from a water quality standard under Section 35 of this Act converted into a petition for a time-limited water quality standard under subsection (c) of this Section;

(B) any person who files a petition for a time-limited water quality standard within 35 days after the effective date of the water quality standard from which relief is sought; and

(C) any person, not covered by subparagraph (B) of this subsection, who is a member of a class of dischargers that is identified in a Board order under subsection (f) that concerns a petition for a time-limited water quality standard that was filed within 35 days after the effective date of the water quality standard from which relief is sought and who files a petition for a time-limited water quality standard before the deadline established for that class under subsection (f) of this Section.

(2) If the Board determines that the petition of a person described in paragraph (1) of this subsection is in substantial compliance, then the stay shall continue until the Board:

(A) denies the petition and all rights to judicial review of the Board order denying the petition are exhausted; or

(B) adopts the time-limited water quality standard and the United States Environmental Protection Agency either:

(i) approves the time-limited water quality standard; or

(ii) disapproves the time-limited water quality standard for failure to comply with 40 CFR 131.14.

(3) If the Board determines that the petition of a person described in paragraph (1) of this subsection is not in substantial compliance, then the Board shall enter an interim order that identifies the deficiencies in the petition that must be corrected for the petition to be in substantial compliance. The petitioner must file an amended petition by the deadlines adopted by the Board pursuant to subsection (f), and the Board shall enter, after the applicable Board-established deadline, a final order that determines whether the amended petition is in substantial compliance.

(4) If the Board determines that the amended petition described in paragraph (3) of this subsection is in substantial compliance, then the stay shall continue until the Board:

(A) denies the petition and all rights to judicial review of the Board order denying the petition are exhausted; or

(B) adopts the time-limited water quality standard and the United States Environmental Protection Agency either:

(i) approves the time-limited water quality standard; or

(ii) disapproves the time-limited water quality standard for failure to comply with 40 CFR 131.14.

(5) If the Board determines that the amended petition described in paragraph (3) of this subsection is not in substantial compliance by the Board-established deadline, the Board shall deny the petition and the stay shall continue until all rights to judicial review are exhausted.

(6) If the Board determines that a petition for a time-limited water quality standard is not in substantial compliance and if the person fails to file, on or before the Board-established deadline, an amended petition, the Board shall dismiss the petition and the stay shall continue until all rights to judicial review are exhausted.

(7) If a person other than a person described in paragraph (1) of subsection (h) of this Section files a petition for a time-limited water quality standard, then the effectiveness of the water quality standard from which relief is sought shall not be stayed as to that person. However, the person may seek a time-limited water quality standard from the Board by complying with 40 CFR 131.14, this Section, and rules adopted pursuant to this Section.

(i) Each time-limited water quality standard adopted by the Board for more than one discharger shall set forth criteria that may be used by dischargers or classes of dischargers to obtain coverage under the time-limited water quality standard during its duration. Any discharger that has not obtained a time-limited water quality standard may obtain coverage under a Board-approved time-limited water quality standard by satisfying, at the time of the renewal or modification of that person's federal National Pollutant Discharge Elimination System (NPDES) permit or at the time the person files an application for certification under Section 401 of the federal Clean Water Act, the Board-approved criteria for coverage under the time-limited water quality standard.

(j) Any person who is adversely affected or threatened by a final Board order entered pursuant to this Section may obtain judicial review of the Board order by filing a petition for review within 35 days after the date the Board order was served on the person affected by the order, under the provisions of the Administrative Review Law, and the rules adopted pursuant thereto, except that review shall be afforded directly in the appellate court for the district in which the cause of action arose and not in the circuit court. For purposes of judicial review under this subsection, a person is deemed to have been served with the Board's final order on the date on which the order is first published by the Board on its website.

No challenge to the validity of a final Board order under this Section shall be made in any enforcement proceeding under Title XII of this Act as to any issue that could have been raised in a timely petition for review under this subsection.

(k) Not later than 6 months after the effective date of this amendatory Act of the 99th General Assembly, the Agency shall propose, and not later than 9 months thereafter the Board shall adopt, rules that prescribe specific procedures and standards to be used by the Board when adopting time-limited water quality standards. The public notice and participation requirements in 40 CFR 25 and 40 CFR 131.20(b) shall be incorporated into the rules adopted under this subsection.

Until the rules adopted under this subsection are effective, the Board may adopt time-limited water quality standards to the full extent allowed under this Section and 40 C.F.R. 131.14.

(l) Section 5-35 of the Illinois Administrative Procedure Act, Title VII of this Act, and the other Sections in Title IX of this Act do not apply to Board proceedings under this Section.

(Source: P.A. 99-937, eff. 2-24-17.)