(415 ILCS 5/27) (from Ch. 111 1/2, par. 1027)
Sec. 27. Rulemaking.
(a) The Board may adopt substantive regulations as described in this Act. Any such regulations may make different provisions as required by circumstances for different contaminant sources and for different geographical areas; may apply to sources outside this State causing, contributing to, or threatening environmental damage in Illinois; may make special provision for alert and abatement standards and procedures respecting occurrences or emergencies of pollution or on other short‑term conditions constituting an acute danger to health or to the environment; and may include regulations specific to individual persons or sites. In promulgating regulations under this Act, the Board shall take into account the existing physical conditions, the character of the area involved, including the character of surrounding land uses, zoning classifications, the nature of the existing air quality, or receiving body of water, as the case may be, and the technical feasibility and economic reasonableness of measuring or reducing the particular type of pollution. The generality of this grant of authority shall only be limited by the specifications of particular classes of regulations elsewhere in this Act.
No charge shall be established or assessed by the Board or Agency against any person for emission of air contaminants from any source, for discharge of water contaminants from any source, or for the sale, offer or use of any article.
Any person filing with the Board a written proposal for the adoption, amendment, or repeal of regulations shall provide information supporting the requested change and shall at the same time file a copy of such proposal with the Agency and the Department of Natural Resources. To aid the Board and to assist the public in determining which facilities will be affected, the person filing a proposal shall describe, to the extent reasonably practicable, the universe of affected sources and facilities and the economic impact of the proposed rule.
(b) Except as provided below and in Section 28.2, before the adoption of any proposed rules not relating to administrative procedures within the Agency or the Board, or amendment to existing rules not relating to administrative procedures within the Agency or the Board, the Board shall:
(1) request that the Department of Commerce and
| Economic Opportunity conduct a study of the economic impact of the proposed rules. The Department may within 30 to 45 days of such request produce a study of the economic impact of the proposed rules. At a minimum, the economic impact study shall address (A) economic, environmental, and public health benefits that may be achieved through compliance with the proposed rules, (B) the effects of the proposed rules on employment levels, commercial productivity, the economic growth of small businesses with 100 or less employees, and the State's overall economy, and (C) the cost per unit of pollution reduced and the variability in cost based on the size of the facility and the percentage of company revenues expected to be used to implement the proposed rules; and | |
(2) conduct at least one public hearing on the |
| economic impact of those new rules. At least 20 days before the hearing, the Board shall notify the public of the hearing and make the economic impact study, or the Department of Commerce and Economic Opportunity's explanation for not producing an economic impact study, available to the public. Such public hearing may be held simultaneously or as a part of any Board hearing considering such new rules. | |
In adopting any such new rule, the Board shall, in its written opinion, make a determination, based upon the evidence in the public hearing record, including but not limited to the economic impact study, as to whether the proposed rule has any adverse economic impact on the people of the State of Illinois.
(c) On proclamation by the Governor, pursuant to Section 8 of the Illinois Emergency Services and Disaster Act of 1975, that a disaster emergency exists, or when the Board finds that a severe public health emergency exists, the Board may, in relation to any proposed regulation, order that such regulation shall take effect without delay and the Board shall proceed with the hearings and studies required by this Section while the regulation continues in effect.
When the Board finds that a situation exists which reasonably constitutes a threat to the public interest, safety or welfare, the Board may adopt regulations pursuant to and in accordance with Section 5‑45 of the Illinois Administrative Procedure Act.
(d) To the extent consistent with any deadline for adoption of any regulations mandated by State or federal law, prior to initiating any hearing on a regulatory proposal, the Board may assign a qualified hearing officer who may schedule a prehearing conference between the proponents and any or all of the potentially affected persons. The notice requirements of Section 28 shall not apply to such prehearing conferences. The purposes of such conference shall be to maximize understanding of the intent and application of the proposal, to reach agreement on aspects of the proposal, if possible, and to attempt to identify and limit the issues of disagreement among the participants to promote efficient use of time at hearing. No record need be kept of the prehearing conference, nor shall any participant or the Board be bound by any discussions conducted at the prehearing conference. However, with the consent of all participants in the prehearing conference, a prehearing order delineating issues to be heard, agreed facts, and other matters may be entered by the hearing officer. Such an order will not be binding on nonparticipants in the prehearing conference.
(Source: P.A. 94‑793, eff. 5‑19‑06.) |
(415 ILCS 5/28) (from Ch. 111 1/2, par. 1028)
Sec. 28. Proposal of regulations; procedure.
(a) Any person may present written proposals for the adoption, amendment, or repeal of the Board's regulations, and the Board may make such proposals on its own motion. If the Board finds that any such proposal is supported by an adequate statement of reasons, is accompanied by a petition signed by at least 200 persons, is not plainly devoid of merit and does not deal with a subject on which a hearing has been held within the preceding 6 months, the Board shall schedule a public hearing for consideration of the proposal. If such proposal is made by the Agency or by the Department, the Board shall schedule a public hearing without regard to the above conditions. The Board may hold one or more hearings to consider both the merits and the economics of the proposal. The Board may also in its discretion schedule a public hearing upon any proposal without regard to the above conditions.
No substantive regulation shall be adopted, amended, or repealed until after a public hearing within the area of the State concerned. In the case of state‑wide regulations hearings shall be held in at least two areas. At least 20 days prior to the scheduled date of the hearing the Board shall give notice of such hearing by public advertisement in a newspaper of general circulation in the area of the state concerned of the date, time, place and purpose of such hearing; give written notice to any person in the area concerned who has in writing requested notice of public hearings; and make available to any person upon request copies of the proposed regulations, together with summaries of the reasons supporting their adoption.
Any public hearing relating to the adoption, amendment, or repeal of Board regulations under this subsection shall be held before a qualified hearing officer, who shall be attended by at least one member of the Board, designated by the Chairman. All such hearings shall be open to the public, and reasonable opportunity to be heard with respect to the subject of the hearing shall be afforded to any person. All testimony taken before the Board shall be recorded stenographically. The transcript so recorded, and any written submissions to the Board in relation to such hearings, shall be open to public inspection, and copies thereof shall be made available to any person upon payment of the actual cost of reproducing the original.
After such hearing the Board may revise the proposed regulations before adoption in response to suggestions made at the hearing, without conducting a further hearing on the revisions.
In addition, the Board may revise the proposed regulations after hearing in response to objections or suggestions made by the Joint Committee on Administrative Rules pursuant to subsection (b) of Section 5‑40 and subsection (a) of Section 5‑110 of the Illinois Administrative Procedure Act, where the Board finds (1) that such objections or suggestions relate to the statutory authority upon which the regulation is based, whether the regulation is in proper form, or whether adequate notice was given, and (2) that the record before the Board is sufficient to support such a change without further hearing.
Any person heard or represented at a hearing or requesting notice shall be given written notice of the action of the Board with respect to the subject thereof.
No rule or regulation, or amendment or repeal thereof, shall become effective until a certified copy thereof has been filed with the Secretary of State, and thereafter as provided in the Illinois Administrative Procedure Act as amended.
Any person who files a petition for adoption of a regulation specific to that person shall pay a filing fee.
(b) The Board shall not, on its own motion, propose regulations pursuant to subsection (a) of this Section or Sections 28.2, 28.4 or 28.5 of this Act to implement the provisions required by or related to the Clean Air Act Amendments of 1990, as now or hereafter amended. However, nothing herein shall preclude the Board from, on its own motion:
(1) making technical corrections to adopted rules |
| pursuant to Section 100.240 of Title 1 of the Illinois Administrative Code; | |
(2) modifying a proposed rule following receipt of |
| comments, objections, or suggestions without agreement of the proponent after the end of the hearing and comment period; | |
(3) initiating procedural rulemaking in accordance |
| with Section 26 of this Act; or | |
(4) initiating rulemaking necessitated by a court |
| order directed to the Board. | |
(Source: P.A. 87‑860; 87‑1213; 88‑45.) |
(415 ILCS 5/28.1) (from Ch. 111 1/2, par. 1028.1)
Sec. 28.1. (a) After adopting a regulation of general applicability, the Board may grant, in a subsequent adjudicatory determination, an adjusted standard for persons who can justify such an adjustment consistent with subsection (a) of Section 27 of this Act. In granting such adjusted standards, the Board may impose such conditions as may be necessary to accomplish the purposes of this Act. The rule‑making provisions of the Illinois Administrative Procedure Act and Title VII of this Act shall not apply to such subsequent determinations.
(b) In adopting a rule of general applicability, the Board may specify the level of justification required of a petitioner for an adjusted standard consistent with this Section.
(c) If a regulation of general applicability does not specify a level of justification required of a petitioner to qualify for an adjusted standard, the Board may grant individual adjusted standards whenever the Board determines, upon adequate proof by petitioner, that:
(1) factors relating to that petitioner are substantially and significantly different from the factors relied upon by the Board in adopting the general regulation applicable to that petitioner;
(2) the existence of those factors justifies an adjusted standard;
(3) the requested standard will not result in environmental or health effects substantially and significantly more adverse than the effects considered by the Board in adopting the rule of general applicability; and
(4) the adjusted standard is consistent with any applicable federal law.
(d) The Board shall adopt procedures applicable to such adjusted standards determinations which, at a minimum, shall provide: (1) that the petitioner shall submit to the Board proof that, within 14 days after the filing of the petition, it has published notice of the filing of the petition by advertisement in a newspaper of general circulation in the area likely to be affected, including the nature of the relief sought and advising of the right of any person to request a hearing within 21 days of the publication of the notice; (2) that if the Board in its discretion determines that a hearing would be advisable, or upon the request of any person received by the Board within 21 days after publication of the notice of the filing of the petition, the Board shall hold a public hearing on the petition, and at least 20 days before the hearing the Board shall publish notice of the hearing by advertisement in a newspaper of general circulation in the area likely to be affected; and (3) that the Board shall issue an order and opinion stating the facts and reasons leading to the final Board determination. Such Board orders and opinions shall be maintained for public inspection by the Clerk of the Board and a listing of all determinations made pursuant to this Section shall be published in the Illinois Register and the Environmental Register at the end of each fiscal year. The Agency shall participate in proceedings pursuant to this Section. The Board may grant adjusted standards under this Section prior to adopting procedures applicable to such adjusted standard determinations.
(e) If any person files a petition for an individual adjusted standard in lieu of complying with the applicable regulation within 20 days after the effective date of the regulation, the operation of the regulation shall be stayed as to such person pending the disposition of the petition; provided, however, that the operation of any regulation shall not be stayed if that regulation was adopted by the Board to implement, in whole or in part, the requirements of the federal Clean Air Act, Safe Drinking Water Act or Comprehensive Environmental Response, Compensation and Liability Act, or the State RCRA, UIC or NPDES programs. The Board may, at any time after the petition is filed, dismiss the petition if it determines that the petition is frivolous or duplicative, or that the petitioner is not pursuing disposition of the petition in a timely manner.
(f) Within 20 days after the effective date of any regulation that implements in whole or in part the requirements of the Clean Air Act, if any person files a petition for an individual adjusted standard in lieu of complying with the regulation, such source will be exempt from the regulation until the Board makes a final determination on the petition. If the regulation adopted by the Board from which the individual adjusted standard is sought replaces a previously adopted Board regulation, the source shall be subject to the previously adopted Board regulation until final action is taken by the Board on the petition. In its final action on the petition, the Board shall either establish an adjusted standard for the source or adopt a standard for the source that is the same as that contained in the regulation from which the adjusted standard was sought.
(g) A final Board determination made under this Section may be appealed pursuant to Section 41 of this Act.
(h) This Section shall not be construed so as to affect or limit the authority of the Board to adopt, amend or repeal regulations specific to individual persons, geographic areas or sites pursuant to Sections 27 and 28 of this Act, or so as to affect or impair the validity of any existing regulations.
(i) Any person who files a petition for an adjusted standard under this Section shall pay a filing fee.
(Source: P.A. 85‑1440.) |
(415 ILCS 5/28.2) (from Ch. 111 1/2, par. 1028.2)
Sec. 28.2. Federally required rules.
(a) For the purposes of this Section, "required rule" means a rule that is needed to meet the requirements of the federal Clean Water Act, Safe Drinking Water Act, Clean Air Act (including required submission of a State Implementation Plan), or Resource Conservation and Recovery Act, other than a rule required to be adopted under subsection (c) of Section 13, Section 13.3, Section 17.5, subsection (a) or (d) of Section 22.4, subsection (a) of Section 22.7, or subsection (a) of Section 22.40.
(b) When the Agency proposes a rule that it believes to be a required rule, the Agency shall so certify in its proposal, identifying the federal law to which the proposed rule will respond and the rationale upon which the certification is based. If the certification is accompanied by a written confirmation from USEPA, the certification shall be under the signature of the regional administrator, the deputy regional administrator, the appropriate division director or a responsible senior official from USEPA headquarters. The Board shall either accept or reject the certification within 45 days and shall reference the certification in the first notice of the proposal published in the Illinois Register as provided by the Illinois Administrative Procedure Act. First notice of the proposal shall be submitted for publication in the Illinois Register as expeditiously as is practicable, but in no event later than 6 months from the date the Board determines whether an economic impact study should be conducted. Should the Board reject an Agency certification, the proposal shall not be considered a required rule. If the Board fails to act within the requisite 45 day period, the certification shall be deemed granted.
(c) Whenever a required rule is needed, the Board shall adopt a rule (i) that fully meets the applicable federal law and (ii) that is not inconsistent with any substantive environmental standard or prohibition that is specifically and completely contained and fully set forth within any Illinois statute, except as authorized by this Act. In determining whether the rule fully meets the applicable federal law, the Board shall consider all relevant evidence in the record.
(Source: P.A. 87‑860; 88‑496.) |
(415 ILCS 5/28.3) (from Ch. 111 1/2, par. 1028.3)
Sec. 28.3. (a) Utilizing the provisions of Section 28.1 and this Section alternative requirements may be established by the Board in an adjusted standards proceeding for the direct discharge of waste solids to the Mississippi or Ohio Rivers from clarifier sludge and filter backwash generated in the water purification process. Any public water supply utilizing the Mississippi or Ohio Rivers as its raw water source may initiate such a proceeding provided that its waste solids are generated as described herein and it does not utilize lime softening in the purification process. An adjusted standard granted by the Board in an adjusted standard proceeding shall be based upon water quality effects, actual and potential stream uses, and economic considerations, including those of the discharger and those affected by the discharge.
(b) No later than January 1, 1991, the public water supply shall make a declaration regarding the intent to pursue an adjusted standard and assemble and submit to the Agency any background information in its possession relevant to current discharge practices. The Agency, after a review of its files and the submittal, shall request such further information as it deems necessary for its initial determination. The Agency shall promptly notify the public water supply in writing of any discretionary determination that it will not agree with pursuit of an adjusted standard and shall indicate the basis for such determination. Such basis may include but not be limited to a judgment that the information submitted is insufficient, that due to the nature of the discharge an adjusted standard would be environmentally unsound, or that a specific alternative control strategy being considered by the supply is infeasible from either an engineering or pollutant removal standpoint. If the supply and the Agency agree on alternative controls, an adjusted standard proceeding before the Board shall be commenced by the supply by filing jointly with the Agency a petition. If the Agency has declined to agree with an alternate control strategy or if the supply declines to accept an Agency proposal, the supply may commence singly an adjusted standard proceeding before the Board.
(c) If the public water supply and the Agency jointly file an adjusted standard petition, justifications shall be included in the petition. Justification based upon discharge impact shall include, as a minimum, an evaluation of receiving stream ratios, known stream uses, accessibility to stream and side land use activities (residential, commercial, agricultural, industrial, recreational), frequency and extent of discharges, inspections of unnatural bottom deposits, odors, unnatural floating material or color, stream morphology and results of stream chemical analyses. Where minimal impact cannot be established, justification shall also include evaluations of stream sediment analyses, biological surveys (including habitat assessment), and thorough stream chemical analyses that may include but are not limited to analysis of parameters regulated in 35 Ill. Adm. Code 302. Except as otherwise provided in this Section, the petitioner shall adhere to the general procedural rules for adjusted standards petitions as adopted by the Board. If the petitioner files singly, justification shall include all components identified as applicable to instances where minimal impact cannot be established.
(d) Any petition submitted pursuant to this Section shall include the following:
(1) A written statement, signed by the petitioners |
| or their authorized representatives, outlining the scope of the evaluation, the nature of, the reasons for, and the basis for the justification for the adjusted standard; | |
(2) Citations to any final enforcement actions |
| against the petitioner and any variances granted to the petitioner where compliance has not been achieved; | |
(3) A description of the proposed alternative |
| control strategy and the discharge limitations associated with said alternative strategy; and | |
(4) A compliance schedule and effective date for |
| attainment of the adjusted standard. No petition for an adjusted standard filed under this Section shall be accepted by the Board after January 1, 1992. | |
(e) The Board shall give notice of the petition and shall schedule a hearing in accordance with 35 Ill. Adm. Code 103. The proceedings shall be in accordance with 35 Ill. Adm. Code 103.
(f) In considering the proposed petition and the hearing record, the Board shall take into account the factors contained in subsection (a) of Section 27 of this Act. The Board shall issue and enter a written opinion stating the facts and reasons leading to its decision within 120 days after the filing of the petition. The Board shall issue and enter such orders concerning a petition for an adjusted standard as are appropriate for the reasons stated in its written opinion. Such decisions may include but are not limited to decisions accepting or rejecting the petition, directing that hearings be held to develop further information or to cure any procedural defects, or remanding the petition to the petitioners with suggested revisions. The Board shall also include a compliance schedule for construction of any treatment works, discharge outfall facilities or operational controls that may be required as a result of its final order.
(g) Application of otherwise applicable discharge limitations to discharges subject to this Section shall be held in abeyance pending Board action for those petitioners pursuing an adjusted standard as long as they have adhered to the filing times in this Section and are making timely and appropriate progress in seeking an adjusted standard. Petitioners must take all reasonable steps to minimize discharge quantities and adverse environmental impacts for the interim operating period during pursuit of an adjusted standard. In no instances shall interim operating procedures be relaxed from previously demonstrated and generally attainable performance levels.
(Source: P.A. 86‑1363.) |
(415 ILCS 5/28.5)
Sec. 28.5. Clean Air Act rules; fast‑track.
(a) This Section applies through December 31, 2014 and applies solely to the adoption of rules proposed by the Agency and required to be adopted by the State under the Clean Air Act as amended by the Clean Air Act Amendments of 1990 (CAAA).
(b) For purposes of this Section, a "fast‑track" rulemaking proceeding is a proceeding to promulgate a rule that the CAAA requires to be adopted. For the purposes of this Section, "requires to be adopted" refers only to those regulations or parts of regulations for which the United States Environmental Protection Agency is empowered to impose sanctions against the State for failure to adopt such rules. All fast‑track rules must be adopted under procedures set forth in this Section, unless another provision of this Act specifies the method for adopting a specific rule.
(c) When the CAAA requires rules other than identical in substance rules to be adopted, upon request by the Agency, the Board must adopt rules under fast‑track rulemaking requirements.
(d) The Agency must submit its fast‑track rulemaking proposal in the following form:
(1) The Agency must file the rule in a form that
| meets the requirements of the Illinois Administrative Procedure Act and regulations promulgated thereunder. | |
(2) The cover sheet of the proposal shall |
| prominently state that the rule is being proposed under this Section. | |
(3) The proposal shall clearly identify the |
| provisions and portions of the federal statute, regulations, guidance, policy statement, or other documents upon which the rule is based. | |
(4) The supporting documentation for the rule shall |
| summarize the basis of the rule. | |
(5) The Agency must describe in general the |
| alternative selected and the basis for the alternative. | |
(6) The Agency must file a summary of economic and |
| technical data upon which it relied in drafting the rule. | |
(7) The Agency must provide a list of any documents |
| upon which it directly relied in drafting the rule or upon which it intends to rely at the hearings and must provide such documents to the Board. Additionally, the Agency must make such documents available at an appropriate location for inspection and copying at the expense of the interested party. | |
(8) The Agency must include in its submission a |
| description of the geographical area to which the rule is intended to apply, a description of the process or processes affected, an identification by classes of the entities expected to be affected, and a list of sources expected to be affected by the rule to the extent known to the Agency. | |
(e) Within 14 days of receipt of the proposal, the Board must file the rule for first notice under the Illinois Administrative Procedure Act and must schedule all required hearings on the proposal and cause public notice to be given in accordance with the Illinois Administrative Procedure Act and the CAAA.
(f) The Board must set 3 hearings on the proposal, each of which shall be scheduled to continue from day to day, excluding weekends and State and federal holidays, until completed. The Board must require the written submission of all testimony at least 10 days before a hearing, with simultaneous service to all participants of record in the proceeding as of 15 days prior to hearing, unless a waiver is granted by the Board for good cause. In order to further expedite the hearings, presubmitted testimony shall be accepted into the record without the reading of the testimony at hearing, provided that the witness swears to the testimony and is available for questioning, and the Board must make every effort to conduct the proceedings expeditiously and avoid duplication and extraneous material.
(1) The first hearing shall be held within 55 days |
| of receipt of the rule and shall be confined to testimony by and questions of the Agency's witnesses concerning the scope, applicability, and basis of the rule. Within 7 days after the first hearing, any person may request that the second hearing be held. | |
(A) If, after the first hearing, the Agency and |
| affected entities are in agreement on the rule, the United States Environmental Protection Agency has not informed the Board of any unresolved objection to the rule, and no other interested party contests the rule or asks for the opportunity to present additional evidence, the Board may cancel the additional hearings. When the Board adopts the final order under these circumstances, it shall be based on the Agency's proposal as agreed to by the parties. | |
(B) If, after the first hearing, the Agency and |
| affected entities are in agreement upon a portion of the rule, the United States Environmental Protection Agency has not informed the Board of any unresolved objections to that agreed portion of the rule, and no other interested party contests that agreed portion of the rule or asks for the opportunity to present additional evidence, the Board must proceed to the second hearing, as provided in paragraph (2) of subsection (g) of this Section, but the hearing shall be limited in scope to the unresolved portion of the proposal. When the Board adopts the final order under these circumstances, it shall be based on such portion of the Agency's proposal as agreed to by the parties. | |
(2) The second hearing shall be scheduled to |
| commence within 30 days of the first day of the first hearing and shall be devoted to presentation of testimony, documents, and comments by affected entities and all other interested parties. | |
(3) The third hearing shall be scheduled to commence |
| within 14 days after the first day of the second hearing and shall be devoted solely to any Agency response to the material submitted at the second hearing and to any response by other parties. The third hearing shall be cancelled if the Agency indicates to the Board that it does not intend to introduce any additional material. | |
(g) In any fast‑track rulemaking proceeding, the Board must accept evidence and comments on the economic impact of any provision of the rule and must consider the economic impact of the rule based on the record. The Board may order an economic impact study in a manner that will not prevent adoption of the rule within the time required by subsection (n) of this Section.
(h) In all fast‑track rulemakings under this Section, the Board must take into account factors set forth in subsection (a) of Section 27 of this Act.
(i) The Board must adopt rules in the fast‑track rulemaking docket under the requirements of this Section that the CAAA requires to be adopted, and may consider a non‑required rule in a second docket that shall proceed under Title VII of this Act.
(j) The Board is directed to take whatever measures are available to it to complete fast‑track rulemaking as expeditiously as possible consistent with the need for careful consideration. These measures shall include, but not be limited to, having hearings transcribed on an expedited basis.
(k) Following the hearings, the Board must close the record 14 days after the availability of the transcript.
(l) The Board must not revise or otherwise change an Agency fast‑track rulemaking proposal without agreement of the Agency until after the end of the hearing and comment period. Any revisions to an Agency proposal shall be based on the record of the proceeding.
(m) All rules adopted by the Board under this Section shall be based solely on the record before it.
(n) The Board must complete a fast‑track rulemaking by adopting a second notice order no later than 130 days after receipt of the proposal if no third hearing is held and no later than 150 days if the third hearing is held. If the order includes a rule, the Illinois Board must file the rule for second notice under the Illinois Administrative Procedure Act within 5 days after adoption of the order.
(o) Upon receipt of a statement of no objection to the rule from the Joint Committee on Administrative Rules, the Board must adopt the final order and submit the rule to the Secretary of State for publication and certification within 21 days.
(Source: P.A. 96‑308, eff. 8‑11‑09.) |