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|[ Introduced ]||[ Engrossed ]||[ Senate Amendment 001 ]|
90_SB0814enr 415 ILCS 5/40 from Ch. 111 1/2, par. 1040 Amends the Environmental Protection Act to allow a third party to challenge, by petition for hearing of the Pollution Control Board, a decision of the Environmental Protection Agency to issue an NPDES permit. Effective immediately. LRB9000467DPccA SB814 Enrolled LRB9000467DPccA 1 AN ACT to amend the Environmental Protection Act by 2 changing Section 40. 3 Be it enacted by the People of the State of Illinois, 4 represented in the General Assembly: 5 Section 5. The Environmental Protection Act is amended by 6 changing Section 40 as follows: 7 (415 ILCS 5/40) (from Ch. 111 1/2, par. 1040) 8 Sec. 40. Appeal of permit denial. 9 (a) (1) If the Agency refuses to grant or grants with 10 conditions a permit under Section 39 of this Act, the 11 applicant may, within 35 days, petition for a hearing before 12 the Board to contest the decision of the Agency. However, the 13 35-day period for petitioning for a hearing may be extended 14 for a period of time not to exceed 90 days by written notice 15 provided to the Board from the applicant and the Agency 16 within the initial appeal period. The Board shall give 21 day 17 notice to any person in the county where is located the 18 facility in issue who has requested notice of enforcement 19 proceedings and to each member of the General Assembly in 20 whose legislative district that installation or property is 21 located; and shall publish that 21 day notice in a newspaper 22 of general circulation in that county. The Agency shall 23 appear as respondent in such hearing. At such hearing the 24 rules prescribed in Section 32 and subsection (a) of Section 25 33 of this Act shall apply, and the burden of proof shall be 26 on the petitioner. If, however, the Agency issues an NPDES 27 permit that imposes limits which are based upon a criterion 28 or denies a permit based upon application of a criterion, 29 then the Agency shall have the burden of going forward with 30 the basis for the derivation of those limits or criterion 31 which were derived under the Board's rules. SB814 Enrolled -2- LRB9000467DPccA 1 (2) Except as provided in paragraph (a)(3), if there is 2 no final action by the Board within 120 days, petitioner may 3 deem the permit issued under this Act, provided, however, 4 that that period of 120 days shall not run for any period of 5 time, not to exceed 30 days, during which the Board is 6 without sufficient membership to constitute the quorum 7 required by subsection (a) of Section 5 of this Act, and 8 provided further that such 120 day period shall not be stayed 9 for lack of quorum beyond 30 days regardless of whether the 10 lack of quorum exists at the beginning of such 120 day period 11 or occurs during the running of such 120 day period. 12 (3) Paragraph (a)(2) shall not apply to any permit which 13 is subject to subsection (b), (d) or (e) of Section 39. If 14 there is no final action by the Board within 120 days, the 15 petitioner shall be entitled to an Appellate Court order 16 pursuant to subsection (d) of Section 41 of this Act. 17 (b) If the Agency grants a RCRA permit for a hazardous 18 waste disposal site, a third party, other than the permit 19 applicant or Agency, may petition the Board within 35 days 20 for a hearing to contest the issuance of the permit. Unless 21 the Board determines that such petition is duplicitous or 22 frivolous, or that the petitioner is so located as to not be 23 affected by the permitted facility, the Board shall hear the 24 petition in accordance with the terms of subsection (a) of 25 this Section and its procedural rules governing denial 26 appeals, such hearing to be based exclusively on the record 27 before the Agency. The burden of proof shall be on the 28 petitioner. The Agency and the permit applicant shall be 29 named co-respondents. 30 The provisions of this subsection do not apply to the 31 granting of permits issued for the disposal or utilization of 32 sludge from publicly-owned sewage works. 33 (c) Any party to an Agency proceeding conducted pursuant 34 to Section 39.3 of this Act may petition as of right to the SB814 Enrolled -3- LRB9000467DPccA 1 Board for review of the Agency's decision within 35 days from 2 the date of issuance of the Agency's decision, provided that 3 such appeal is not duplicitous or frivolous. However, the 4 35-day period for petitioning for a hearing may be extended 5 by the applicant for a period of time not to exceed 90 days 6 by written notice provided to the Board from the applicant 7 and the Agency within the initial appeal period. If another 8 person with standing to appeal wishes to obtain an extension, 9 there must be a written notice provided to the Board by that 10 person, the Agency, and the applicant, within the initial 11 appeal period. The decision of the Board shall be based 12 exclusively on the record compiled in the Agency proceeding. 13 In other respects the Board's review shall be conducted in 14 accordance with subsection (a) of this Section and the 15 Board's procedural rules governing permit denial appeals. 16 (d) In reviewing the denial or any condition of a permit 17 issued by the Agency pursuant to rules and regulations 18 adopted under subsection (c) of Section 9.1 of this Act, the 19 decision of the Board shall be based exclusively on the 20 record before the Agency including the record of the hearing, 21 if any, held pursuant to paragraph (f)(3) of Section 39 22 unless the parties agree to supplement the record. The Board 23 shall, if it finds the Agency is in error, make a final 24 determination as to the substantive limitations of the permit 25 including a final determination of Lowest Achievable Emission 26 Rate or Best Available Control Technology. 27 (e) (1) If the Agency grants or denies a permit under 28 subsection (b) of Section 39 of this Act, a third party, 29 other than the permit applicant or Agency, may petition 30 the Board within 35 days from the date of issuance of the 31 Agency's decision, for a hearing to contest the decision 32 of the Agency. 33 (2) A petitioner shall include the following within 34 a petition submitted under subdivision (1) of this SB814 Enrolled -4- LRB9000467DPccA 1 subsection: 2 (A) a demonstration that the petitioner raised 3 the issues contained within the petition during the 4 public notice period or during the public hearing on 5 the NPDES permit application, if a public hearing 6 was held; and 7 (B) a demonstration that the petitioner is so 8 situated as to be affected by the permitted 9 facility. 10 (3) If the Board determines that the petition is 11 not duplicitous or frivolous and contains a satisfactory 12 demonstration under subdivision (2) of this subsection, 13 the Board shall hear the petition (i) in accordance with 14 the terms of subsection (a) of this Section and its 15 procedural rules governing permit denial appeals and (ii) 16 exclusively on the basis of the record before the Agency. 17 The burden of proof shall be on the petitioner. The 18 Agency and permit applicant shall be named 19 co-respondents. 20 (f)
(e)Any person who files a petition to contest the 21 issuance of a permit by the Agency shall pay a filing fee. 22 (Source: P.A. 88-690, eff. 1-24-95.) 23 Section 99. Effective date. This Act takes effect upon 24 becoming law.
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