415 ILCS 5/40.3

(415 ILCS 5/40.3)

Sec. 40.3. Review process for PSD permits.

(a) (1) Subsection (a) of Section 40 does not apply to any PSD permit that is subject to subsection (c) of Section 9.1 of this Act. If the Agency refused to grant or grants with conditions a PSD permit, the applicant may, within 35 days after final permit action, petition for a hearing before the Board to contest the decision of the Agency. If the Agency fails to act on an application for a PSD permit within the time frame specified in paragraph (3) of subsection (f) of Section 39 of this Act, the applicant may, before the Agency denies or issues the final permit, petition for a hearing before the Board to compel the Agency to act on the application in a time that is deemed reasonable.

(2) Any person who participated in the public comment process and is either aggrieved or has an interest that is or may be adversely affected by the PSD permit may, within 35 days after final permit action, petition for a hearing before the Board to contest the decision of the Agency. If the petitioner failed to participate in the public comment process, the person may still petition for a hearing, but only upon issues where the final permit conditions reflect changes from the proposed draft permit.

The petition shall: (i) include such facts as necessary to demonstrate that the petitioner is aggrieved or has an interest that is or may be adversely affected; (ii) state the issues proposed for review, citing to the record where those issues were raised or explaining why such issues were not required to be raised during the public comment process; and (iii) explain why the Agency's previous response, if any, to those issues is (A) clearly erroneous or (B) an exercise of discretion or an important policy consideration that the Board should, in its discretion, review.

The Board shall hold a hearing upon a petition to contest the decision of the Agency under this paragraph (a)(2) unless the request is determined by the Board to be frivolous or to lack facially adequate factual statements required in this paragraph (a)(2).

The Agency shall appear as respondent in any hearing pursuant to this subsection (a). 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.

(b) If there is no final action by the Board within 120 days after the date on which it received the petition, the PSD permit shall not be deemed issued; rather, any party shall be entitled to an Appellate Court order pursuant to subsection (d) of Section 41 of this Act. This 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.

(c) Any person who files a petition to contest the final permit action by the Agency under this Section shall pay the filing fee for petitions for review of permit set forth in Section 7.5.

(d)(1) In reviewing the denial or any condition of a PSD permit issued by the Agency pursuant to rules 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 unless the parties agree to supplement the record.

(2) If requested by the applicant, the Board may stay the effectiveness of any final Agency action on a PSD permit application identified in subsection (f) of Section 39 of this Act during the pendency of the review process. In such cases, the Board shall stay the effectiveness of all the contested conditions of the PSD permit and may stay the effectiveness of any or all uncontested conditions only if the Board determines that the uncontested conditions would be affected by its review of contested conditions. Any stays granted by the Board shall be deemed effective upon the date of final Agency action appealed by the applicant under this subsection (d). Subsection (b) of Section 10-65 of the Illinois Administrative Procedure Act shall not apply to actions under this subsection (d).

(3) If requested by a party other than the applicant, the Board may stay the effectiveness of any final Agency action on a PSD permit application identified in subsection (f) of Section 39 of this Act during the pendency of the review process. In such cases, the Board may stay the effectiveness of all the contested conditions of the PSD permit and may stay the effectiveness of any or all uncontested conditions only if the Board determines that the uncontested conditions would be affected by its review of contested conditions. The party requesting the stay has the burden of demonstrating the following: (i) that an immediate stay is required in order to preserve the status quo without endangering the public, (ii) that it is not contrary to public policy, and (iii) that there is a reasonable likelihood of success on the merits. Any stays granted by the Board shall be deemed effective upon the date of final Agency action appealed under this subsection (d) and shall remain in effect until a decision is issued by the Board on the petition. Subsection (b) of Section 10-65 of the Illinois Administrative Procedure Act shall not apply to actions under this paragraph.

(Source: P.A. 99-463, eff. 1-1-16.)