Section 106.100  Applicability

 

a)         This Part applies to adjudicatory proceedings pursuant to specific rules or statutory provisions. 

 

b)         This Part must be read in conjunction with 35 Ill. Adm. Code 101, which contains procedures generally applicable to all of the Board's adjudicatory proceedings.  In the event of a conflict between the requirements of 35 Ill. Adm. Code 101 and those of this Part, the provisions of this Part apply.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.102  Severability

 

If any provision of this Part or its application to any person is adjudged invalid the adjudication does not affect the validity of this Part as a whole or of any petition not adjudged invalid.

 

Section 106.104  Definitions

 

For the purpose of this Part, words and terms will have the meaning as defined in 35 Ill. Adm. Code 101.Subpart B unless otherwise provided, or unless the context clearly indicates otherwise.

 

Section 106.106  Petitions and Hearings

 

a)         Each petition must contain an index that lists the documents comprising the petition, including any exhibits, attachments, and supporting documents.  All pages of the petition must be sequentially numbered with the letter "P" placed before the number of each page.  The index must show the page numbers upon which each document comprising the petition starts and ends.  The petition also must meet the requirements of 35 Ill. Adm. Code 101.Subpart J.

 

b)         Hearings will be conducted under 35 Ill. Adm. Code 101.Subpart F, including any hearing held by videoconference (see 35 Ill. Adm. Code 101.600(b)).

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.200  General

 

a)         Description

 

1)         Heated Effluent Demonstration

 

A)        The owner or operator of a source of heated effluent that discharges 150 megawatts (0.5 billion British thermal units per hour) or more must demonstrate, under 35 Ill. Adm. Code 302.211(f), that discharges from that source have not caused and cannot be reasonably expected to cause significant ecological damage to the receiving waters.

 

B)        The owner or operator must make the demonstration under subsection (a)(1)(A) not less than 5 years nor more than 6 years after operations commence.

 

C)        If the Board finds that the proof of the owner or operator under subsection (a)(1)(A) is inadequate, the Board's order will include a requirement that the owner or operator perform appropriate corrective measures within a reasonable time as determined by the Board.

 

2)         Artificial Cooling Lake Demonstration

 

A)        If a discharger wishes to have the Board establish specific thermal standards for its discharge to an artificial cooling lake under 35 Ill. Adm. Code 302.211(j)(5) that would apply to the discharge in lieu of the applicable provisions of the thermal water quality standards set forth in 35 Ill. Adm. Code 302.211 and 303, the discharger must demonstrate, under 35 Ill. Adm. Code 302.211(j)(3), that the artificial cooling lake receiving the heated effluent will be environmentally acceptable and within the intent of the Act.

 

B)        If the Board finds that the proof of the discharger under subsection (a)(2)(A) is adequate, the Board will establish, under 35 Ill. Adm. Code 302.211(j)(5), specific thermal standards to be applied to the discharge to the artificial cooling lake in lieu of the applicable provisions of the thermal water quality standards set forth in 35 Ill. Adm. Code 302.211 and 303.

 

C)        A Board order providing alternate thermal standards under subsection (a)(2)(B) will include, but not be limited to, the following conditions:

 

i)          Under 35 Ill. Adm. Code 302.211(j)(1), all discharges from the artificial cooling lake to other waters of the State must comply with the applicable provisions of 35 Ill. Adm. Code 302.211(b) through (e); and

 

ii)         Under 35 Ill. Adm. Code 302.211(j)(2), the heated effluent discharged to the artificial cooling lake must comply with all applicable provisions of 35 Ill. Adm. Code Subtitle C, Chapter I, except 35 Ill. Adm. Code 302.211(b) through (e).

 

3)         Sulfur Dioxide Demonstrations.  Any owner or operator of a fuel combustion emission source may petition the Board, under 35 Ill. Adm. Code 214.185 and this Subpart, for approval of substitute standards from those set forth in 35 Ill. Adm. Code 214.183 and 214.184.

 

b)         Initiation of Proceeding.  The owner or operator may initiate a heated effluent, artificial cooling lake or sulfur dioxide demonstration by filing with the Clerk a petition in accordance with this Subpart.

 

c)         Parties.  The owner or operator must be named the petitioner and the Agency must be named the respondent.

 

d)         Filing and Service.  Filing and service must be in accordance with 35 Ill. Adm. Code 101.Subparts C and J.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.202  Petition Requirements

 

a)         Heated Effluent Demonstration.  The petition must include the following information but may include additional information that the petitioner believes will be relevant to the proceeding:

 

1)         General Plant Description:

 

A)        Generating capacity;

 

B)        Type of fuel used;

 

C)        Operating characteristics of the condenser cooling system;

 

D)        History of the load factor of the plant for the time during which the plant has operated, but for no more than the last 5 years;

 

E)        Projected load factors for the life of the plant;

 

F)         Estimated date of retirement for each unit at the plant and any plans for additional units at the plant;

 

G)        History of plant shutdowns; and

 

H)        Planned, emergency, and projected shutdowns with frequency and duration.

 

2)         Description of Method for Heat Dissipation:

 

A)        Type of system used (such as once-through, mechanical, and draft cooling towers) in narrative form; and

 

B)        Summary information on temperature of discharge to receiving waters in narrative form.

 

3)         Plume Studies:

 

A)        Actual plume studies in the last 5 years correlated with plant operation and meteorological conditions;

 

B)        Theoretical plume studies for all four seasons for typical and worst case conditions.  Worst case conditions must be identified as worst conditions of plant load factors, precipitation, ambient water temperature, and air temperature; the studies must consider the frequency of occurrence and their joint probabilities of occurrence; and

 

C)        Theoretical plume studies that identify isotherms at 3° Fahrenheit (1.7° Centigrade) intervals down to ambient temperature indicating three-dimensional effects.

 

4)         A demonstration, which may take any of the forms described in subsection (b)(2), that discharges from the source of heated effluent have not caused and cannot be reasonably expected to cause significant ecological damage to the receiving waters, including:

 

A)        Biological studies in the last 5 years on receiving waters, including species studied, location of studies, and conclusions reached, including conclusions as to both the lethal and sublethal effects of the thermal discharge;

 

B)        The impact on other animal life (such as waterfowl and amphibians) in the area as a result of the thermal discharge; and

 

C)        Secondary Considerations

 

i)          Possible and known impact on recreation from thermal discharges; and

 

ii)         Management practices employed or planned in order to limit the effect of any environmental harm established under this subsection (a)(4).

 

5)         A citation to any prior proceedings, in which the petitioner was a party, brought under 35 Ill. Adm. Code 302.211(f) or (j)(3).

 

b)         Artificial Cooling Lake Demonstration.  The petition must include the following information but may include additional information that the petitioner believes will be relevant to the proceeding:

 

1)         A demonstration that the artificial cooling lake receiving the heated effluent will be environmentally acceptable and within the intent of the Act, including:

 

A)        Provision of conditions capable of supporting shellfish, fish and wildlife, and recreational uses consistent with good management practices; and

 

B)        Control of the thermal component of the discharger's effluent by a technologically feasible and economically reasonable method.

 

2)         The demonstration required under subsection (b)(1) may take the form of any of the following:

 

A)        A final environmental impact statement;

 

B)        Pertinent provisions of environmental assessments used to prepare the final environmental impact statement; or

 

C)        A showing under Section 316(a) of the Clean Water Act (33 USC 1326).

 

3)         A citation to any prior proceedings, in which the petitioner was a party, brought under 35 Ill. Adm. Code 302.211(f) or (j)(3).

 

c)         Sulfur Dioxide Demonstration.  The petition must include the following information:

 

1)         An explicit statement of the site-specific emission limitation (in pounds of sulfur dioxide per million British thermal units (btu) actual heat input and total pounds of sulfur dioxide per hour) that is proposed for the facility.

 

2)         Emission Sources Description:

 

A)        The diameter, height, exit gas temperature, and exit gas velocity for all stacks or vents through which sulfur dioxide is emitted into the atmosphere;

 

B)        A description of the fuels used including type, ultimate analysis, sulfur content, and heat content;

 

C)        A description of the type of fuel combustion equipment including method of firing and size (in million btu per hour capacity);

 

D)        A topographic map of terrain within 30 miles of the emission source or sources;

 

E)        A specific description of the location of the emission sources, including a plot plan; and

 

F)         A specific description of the operating conditions that produce maximum sulfur dioxide emissions.

 

3)         A summary of any and all ambient air quality data collected by the owner or operator of the source or sources since January 1, 1973.  The summary must include annual averages; maximum and second-highest one-hour, 3-hour, and 24-hour averages for each month; and the number of times the 3-hour and 24-hour sulfur dioxide standards were exceeded during each month.

 

4)         A summary of any and all meteorological data collected by the owner or operator of the source or sources since January 1, 1973, if the data are used in the development of the site-specific emission standard.

 

5)         A complete description of and justification for all dispersion models and plume rise equations that are used to develop the site-specific emission limitation, including all model equations.

 

6)         A description of and justification for the use of all data that were inputs to the dispersion and plume rise formula used to establish the site-specific emission standard.  The description and justification must cover, as a minimum, the following input data:

 

A)        Stack diameters, stack heights, exit gas temperatures, and exit gas velocities for all stacks and vents emitting sulfur dioxide at the subject facility as well as for any other sources of sulfur dioxide that were modeled;

 

B)        All sulfur dioxide emission sources that were modeled; and

 

C)        All meteorological data.

 

7)         Calculated maximum ground-level concentrations using the following method, or such other method (or modification of the hereinafter stated method) that the petitioner proves to the satisfaction of the Board to be acceptable.

 

A)        Selection of simulation model:

 

i)          Gaussian models that allow the input of hourly meteorological data must be used which are appropriate for the specific location and type of source or sources in question.

 

ii)         Dispersion models presented in "Guidelines on Air Quality Models" (EPA-450/2-78-027), or those deemed by the Board to be equivalent to these models must be used for detailed air quality studies.

 

B)        Selection of meteorological data and stack parameters:

 

i)          The most recent 5 years of hour-by-hour meteorological data reasonably available, including wind speed, wind direction, atmospheric stability, mixing height and surface temperature must be used, unless the petitioner demonstrates that one of the 5 years causes substantially higher concentrations than the other four, in which case detailed analyses conducted for only that "worst case" year would be acceptable.  Notwithstanding the previous sentence, one year of on-site data may be used in lieu of the 5-year data requirement;

 

ii)         Data must be from the nearest, representative, quality controlled meteorological collecting site; and

 

iii)        Stack parameters (including emission rate, stack height, stack diameter, exit velocity, and exit temperature) must reflect the maximum operating rate for comparison with the 24-hour and 3-hour sulfur dioxide standards.

 

C)        Receptors:

 

i)          Receptors must be located so as to ensure that the source's maximum impact is detected; and

 

ii)         The determination of the receptor grid must be fully documented in the modeling study;

 

D)        Special conditions:

 

i)          All special conditions that may affect the dispersion of the effluent plume, including local terrain effects and aerodynamic downwash, must be considered in the modeling study;

 

ii)         If terrain is a factor in the vicinity of the source, a model capable of handling variable-height receptors must be used; and

 

iii)        If the computed height of the effluent plume is less than 2.5 times the height of nearby buildings or local obstructions, aerodynamic downwash must be studied and considered as a possible factor in the dispersion of that effluent.

 

E)        Determination of violation:  The determination of whether an applicable air quality increment or standard is being violated must be based on the second-highest predicted concentration over the receptor grid for short-term averaging times and on the highest predicted concentration for annual averaging times. However, if only one year of meteorological data is used in the short-term analysis, then the highest predicted concentration may be compared to the applicable standard to determine whether a violation has occurred.

 

F)         Other sources:  Effects of other sources of sulfur dioxide must be taken into account in the modeling study.  Methods by which other sources of sulfur dioxide may be accounted are as follows:

 

i)          An acceptable method is to estimate the "background" from monitoring data which has been subjected to adequate quality control where available.  When monitored data is used, the background must be estimated using monitoring days with meteorological conditions similar to those identified as "worst case" for the source in question; or

 

ii)         If monitoring data is not available, then all sources of sulfur dioxide having a significant impact in the area of the source's impact area must be used in the simulation model.  These sources of sulfur dioxide must also be modeled at their maximum allowable emission rate for any studies addressing 24-hour or 3-hour averaging times.

 

8)         Estimates of the frequency, characteristics, probable time of occurrence, and duration of the meteorological conditions associated with the maximum ground-level concentration of sulfur dioxide to which the facility under study contributes.  A description of the techniques used in arriving at the above estimates must be included.

 

9)         Background concentrations that were determined for all meteorological conditions required to be examined under subsection (c)(7) and for any other meteorological conditions considered in the development of the alternative standard.

 

10)         A description of the method that was used to determine background sulfur dioxide concentrations in the vicinity of the subject facility for each of the meteorological conditions required to be examined under subsection (c)(7) and for any additional meteorological conditions considered in developing the alternative standard.

 

11)         An evaluation and calibration of the dispersion model if air quality monitoring data were available to perform the evaluation and calibration.

 

12)         A statement that the procedural requirements of 40 CFR 51.4 (1977) are met. At least 30 days prior to the date of the hearing, the petitioner must:

 

A)        Give notice to the public, by prominent advertisement in the Air Quality Control Region affected, announcing the date, time, and place of the hearing;

 

B)        Make available a copy of the petition for public inspection in at least one location in the Air Quality Control Region in which the source is located;

 

C)        Notify the Administrator of USEPA (through the Region V Office);

 

D)        Notify each local air pollution control agency located within the affected Air Quality Control Region; and

 

E)        Notify, in the case of an interstate Air Quality Control Region, any air pollution control agencies of other states included, in whole or in part, in the Region.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.204  Additional Petition Requirements in Sulfur Dioxide Demonstrations (Repealed)

 

(Source:  Repealed at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.206  Notice

 

The Clerk will give notice of the petition and hearing in accordance with 35 Ill. Adm. Code 101.602.  The proceedings must be in accordance with 35 Ill. Adm. Code 101.Subpart F, including any hearing held by videoconference (see 35 Ill. Adm. Code 101.600(b)).

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.208  Recommendation and Response

 

The Agency must file a recommendation on a petition under this Subpart as prescribed in this Section. The petitioner, any other party to the proceeding, or any person may file a response to the Agency recommendation within 14 days after the filing of the recommendation.

 

a)         Heated Effluent Demonstration

            Within 60 days after the owner or operator files the petition, the Agency must make a recommendation to the Board on the petition.  The recommendation may include:

 

1)         A description of the Agency's efforts in conducting its review of the petition;

 

2)         The Agency's conclusion as to whether discharges from the source have caused or can reasonably be expected to cause significant ecological damage to the receiving waters;

 

3)         The factual basis for the Agency's conclusion;

 

4)         Any corrective measures that the Agency recommends be taken and the recommended time period to implement the measures; and

 

5)         The Agency's recommendation on how the Board should dispose of the petition.

 

b)         Artificial Cooling Lake Demonstration

            Within 60 days after the owner or operator files the petition, the Agency must make a recommendation to the Board on the petition.  The recommendation may include:

 

1)         A description of the Agency's efforts in conducting its review of the petition;

 

2)         The Agency's conclusion as to whether the artificial cooling lake receiving the heated effluent will be environmentally acceptable and within the intent of the Act;

 

3)         The factual basis for the Agency's conclusion; and

 

4)         The Agency's recommendation on how the Board should dispose of the petition.

 

c)         Sulfur Dioxide Demonstration

            Within 90 days after the filing of the petition the Agency must make a recommendation to the Board as to be proposed site-specific emission limitation.  The recommendation may include, the following:

 

1)         A description of the efforts made by the Agency in conducting its review;

 

2)         The Agency's conclusion as to whether the proposed site-specific emission limitation is adequate to prevent violations of the Primary and Secondary Sulfur Dioxide Ambient Air Quality Standards; and

 

3)         The Agency's conclusion as to what disposition should be made of the petition.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.210  Burden of Proof

 

The burden of proof will be on the petitioner.

 

Section 106.300  General

 

a)         Description.  This Subpart applies to any owner of a new potential route, a new potential primary source other than landfilling or land treating, or new potential secondary source who files a petition for an exception from the setback requirements of Sections 14.2 and 14.3(e) of the Act under Section 14.2(c) of the Act and this Subpart.  [415 ILCS 5/14.2(c)]

 

b)         Parties.  The owner filing the petition for an exception must be named the petitioner and the Agency must be named the respondent.  Affected well owners who are not petitioners also must be named respondents.

 

c)         Filing and service.  The filing and service requirements of 35 Ill. Adm. Code 101.Subparts C and J will apply to the proceedings of this Subpart.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.302  Initiation of Proceeding

 

a)         The petitioner must file the petition for exception with the Clerk and must serve one copy upon the Agency.

 

b)         The petitioner must notify and provide a copy of the petition to the owners of each potable water supply for which the setback requirements would be affected by the exception.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.304  Petition Content Requirements

 

The petition must contain the following information:

 

a)         A written statement, signed by the petitioner or an authorized representative, outlining the scope of the evaluation, the nature of, the reasons for, and the basis of the exception, consistent with the burden of proof contained in Section 106.310;

 

b)         The nature of the petitioner's operations and control equipment;

 

c)         Documentation of service on owners required to be notified and provided with a copy of the petition as required by Section 106.302(b), 35 Ill. Adm. Code 101, and Section 14.2(c) of the Act; and

 

d)         Any other information which may be required by Section 14.2 of the Act.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.306  Response and Reply

 

a)         Within 21 days after the filing of a petition, the Agency and any owner required to be notified may file a response to any petition in which it has not joined as co-petitioner.  The response must include the comments concerning potential Board action on the petition.

 

b)         The petitioner may file a reply within 14 days after the service of any response.

 

Section 106.308  Hearing

 

The Board will hold at least one public hearing in an exception proceeding. The hearing officer will schedule the hearing.  The Clerk will give notice of hearing in accordance with 35 Ill. Adm. Code 101.  The proceedings will be in accordance with 35 Ill. Adm. Code 101.Subpart F, including any hearing held by videoconference (see 35 Ill. Adm. Code 101.600(b)).

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.310  Burden of Proof

 

The burden of proof is on the petitioner.  The petitioner must demonstrate that:

 

a)         Compliance with the setback requirements of Section 14.2 or 14.3(e) of the Act would pose an arbitrary and unreasonable hardship;

 

b)         The petitioner will utilize the best available control technology economically achievable to minimize the likelihood of contamination of the potable water supply well;

 

c)         The maximum feasible alternative setback will be utilized; and

 

d)         The location of the potential route will not constitute a significant hazard to the potable water supply well.

 

Section 106.400  General

 

a)         Description.  The provisions of this Subpart will apply to:

 

1)         Any revocation proceeding initiated by the Agency when it determines that there are grounds to revoke and reissue a Clean Air Act Permit Program (CAAPP) permit for cause, under Section 39.5(15)(b) of the Act;  and

 

2)         Any reopening proceeding initiated by the Agency under a notice that there are grounds to terminate or revoke and reissue a CAAPP permit for cause, under Section 39.5(16) of the Act.

 

b)         Parties.

 

1)         In a revocation proceeding initiated by the Agency, the Agency will be named as petitioner and the holder of the CAAPP permit will be named as respondent.

 

2)         In a reopening proceeding initiated by the Agency, the Agency will be named as petitioner and the holder of the CAAPP permit will be named as respondent.

 

c)         Filing and service.  The filing and service requirements of 35 Ill. Adm. Code 101.Subparts C and J will apply to the proceedings of this Subpart.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.402  Definitions

 

The definitions of 35 Ill. Adm. Code 101.Subpart B and Section 39.5 of the Act will apply to this Subpart unless otherwise provided, or unless the context clearly indicates otherwise.  If there is a conflict, the definitions of Section 39.5 of the Act will apply.

 

Section 106.404  Initiation of Proceedings

 

a)         Agency Revocation Proceeding.  The Agency may initiate a revocation proceeding before the Board by serving a petition for revocation upon the respondent and filing the petition with the Board.

 

b)         USEPA Reopening Proceeding.  If the Agency receives from USEPA a notice to terminate or revoke and reissue a CAAPP permit for cause, the Agency must, within 30 days after receipt of USEPA's notice, serve a petition upon the respondent and file the petition with the Board.

 

Section 106.406  Petition Content Requirements

 

a)         Agency Revocation Proceeding.  The petition in a revocation proceeding must include:

 

1)         The grounds for the revocation of the CAAPP permit;

 

2)         The associated permit record; and

 

3)         Any other information necessary to establish that the CAAPP permit should be revoked.

 

b)         USEPA Reopening Proceeding.  The petition in a reopening proceeding must include:

 

1)         USEPA notice to terminate or revoke and reissue a CAAPP permit that initiated the matter for cause;

 

2)         The associated permit record; and

 

3)         The Agency's proposed determination and the justification for the proposed determination.

 

Section 106.408  Response and Reply

 

a)         The respondent may file a response to the Agency's petition within 21 days after service of the petition.

 

b)         The Agency may file a reply within 21 days after filing of any response.

 

Section 106.410  Hearing

 

The Board will hold at least one public hearing.  The Clerk will give notice of the petition and hearing in accordance with 35 Ill. Adm. Code 101.602.  The proceeding must be conducted in accordance with 35 Ill. Adm. Code 101.Subpart F, including any hearing held by videoconference (see 35 Ill. Adm. Code 101.600(b)).

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.412  Burden of Proof

 

a)         Agency revocation proceeding.  The burden of proof will be on the Agency to establish that the permit should be revoked under the standards set forth in this Act and the Clean Air Act.

 

b)         USEPA reopening proceeding.  The burden of proof will be on the Agency.

 

Section 106.414  Opinion and Order

 

a)         Agency Revocation Proceeding:

 

1)         The Board will issue a written opinion and order within 120 days after the filing of the petition that sets forth the Board's decision and supporting rationale.

 

2)         If the Board determines that the permit should be revoked and reissued, its final order will direct the Agency to revoke and reissue the CAAPP permit consistent with Section 39.5 of the Act.

 

b)         USEPA Reopening Proceeding:

 

1)         After due consideration of the written and oral statements, the testimony and arguments that shall be submitted at hearing, the Board shall issue and enter an interim order for the proposed determination within 120 days after the filing of the petition, which shall set forth all changes, if any, required in the Agency's proposed determination.  The interim order shall comply with requirements for final order as set forth in Section 33 of the Act.  Issuance of an interim order by the Board under this subsection (b), however, shall not affect the permit status and does not constitute a final action for purposes of the Act or the Administrative Review Law.  [415 ILCS 5/39.5(16)(b)(ii)]

 

2)         The Board shall cause a copy of its interim order to be served upon all parties to the proceeding as well as upon USEPA.  The Agency shall submit the proposed determination to USEPA in accordance with the Board's interim order within 180 days after receipt of the notification from USEPA.  [415 ILCS 5/39.5(16)(b)(iii)]

 

Section 106.416  USEPA Review of Proposed Determination

 

a)         If USEPA does not object to the proposed determination within 90 days after receipt, the Board will, within 7 days after receipt of USEPA's final approval or within 21 days after expiration of the 90-day period, whichever is earlier, enter the interim order as a final order.  The final order may be appealed as provided by Title XI of the Act.  The Agency must take final action in accordance with the Board's final order.

 

b)         USEPA Objection

 

1)         If USEPA objects to the proposed determination within 90 days after receipt, the Agency shall submit USEPA's objection and the Agency's comments and recommendation on the objection to the Board and permittee upon receipt of the objection.  Within 15 days after receipt of USEPA's objection, the Agency must submit the Agency's comments and recommendation on the objection to the Board and permittee.  [415 ILCS 5/39.5(16)(c)(ii)]

 

2)         The Board shall review its interim order in response to USEPA's objection and the Agency's comments and recommendation and issue a final order in accordance with Sections 32 and 33 of the Act within 60 days after receipt of the Agency's comments and recommendation on USEPA's objection.  The Agency shall, within 90 days after receipt of such objection, respond to USEPA's objection in accordance with the Board's final order.  [415 ILCS 5/39.5(16)(c)(ii)]

 

Section 106.500  General

 

a)         Description.  The provisions of this Subpart will apply to any proceeding initiated by an owner or operator of a CAAPP source under Section 39.5(19)(a) or (e) of the Act challenging the Agency's determination not to utilize the hazardous air pollutant emission limitation proposed by the CAAPP source or the hazardous air pollutant limitation for a case-by-case maximum achievable control technology (MACT) proposed by the CAAPP source.

 

b)         Parties.  The owner or operator of the CAAPP source who initiates the proceeding must be named as petitioner and the Agency must be named as respondent.

 

c)         Filing and service.  The filing and service requirements of 35 Ill. Adm. Code 101.Subparts C and J will apply to the proceedings of this Subpart.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.502  Definitions

 

The definitions of 35 Ill. Adm. Code 101.Subpart B and Section 39.5 of the Act will apply to this Subpart unless otherwise provided, or unless the context clearly indicates otherwise.  If there is a conflict, the definitions of Section 39.5 of the Act will apply.

 

Section 106.504  Initiation of Proceedings

 

The owner or operator of a CAAPP source may initiate a proceeding before the Board by serving a petition upon the Agency and filing with the Clerk.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.506  Petition Content Requirements

 

A petition filed under Section 39.5(19)(a) and (e) of the Act must include:

 

a)         A detailed description of and justification for the emission limitation that is being proposed for the source and an explanation of how the emission limitation provides for the level of control required under Section 112 of the CAA (42 USC 7412);

 

b)         A petition filed under Section 39.5(19)(a) of the Act must also include justification for the Board to determine whether the emission limitation proposed by the owner or operator of the CAAPP source provides for the emission limitation equivalent to the emission limitation that would apply to the source if USEPA had promulgated the applicable emission standard under Section 112(d) of the CAA (42 USC 7412(d)) in a timely manner; and

 

c)         The Agency's notification of its refusal to adopt the CAAPP source's proposed emission limitation or the CAAPP source's MACT determination.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.508  Response and Reply

 

a)         The Agency may file a response to the petition of the owner or operator within 21 days after service of the petition.

 

b)         The owner or operator may file a reply within 21 days after the filing of any response.

 

Section 106.510  Hearing

 

The Board will hold at least one public hearing.  The Clerk will give notice of the petition and any hearing in accordance with 35 Ill. Adm. Code 101.602.  The proceeding will be conducted in accordance with 35 Ill. Adm. Code 101.Subpart F, including any hearing held by videoconference (see 35 Ill. Adm. Code 101.600(b)).

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.512  Burden of Proof

 

The burden of proof will be on the petitioner to demonstrate that the emission limitation provides for the level of control required under Section 112 of the Clean Air Act.

 

Section 106.514  Board Action

 

The Board shall determine whether the emission limitation proposed by the owner or operator or an alternative emission limitation proposed by the Agency provides for the level of control required under Section 112 of the Clean Air Act, or shall otherwise establish an appropriate emission limitation, pursuant to Section 112 of the Clean Air Act.  [415 ILCS 5/39.5(19)(a) and (e)]

 

Section 106.600  General

 

a)         Description.  The provisions of this Subpart will apply to any appeal initiated under 35 Ill. Adm. Code 212.702 by an owner or operator of a source under a finding by the Agency of culpability for an exceedence of the 24-hour ambient air quality standard for particulate matter less than or equal to 10 microns (PM-10) at 35 Ill. Adm. Code 243.120.

 

b)         Parties.  The owner or operator of a source who initiated the proceeding will be named as the petitioner and the Agency will be named as respondent.

 

c)         Filing and service.  The filing and service requirements of 35 Ill. Adm. Code 101.Subparts C and J will apply to the proceedings of this Subpart.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.602  Initiation of Proceedings

 

The owner or operator of a source may initiate a proceeding before the Board by serving a petition for review of the Agency culpability determination and filing the petition with the Clerk.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.604  Petition Content Requirements

 

A petition for review filed under this Subpart must include:

 

a)         A copy of the letter, or other written communication, setting forth the Agency's finding of culpability;

 

b)         A clear identification of the county in which the source is located; and

 

c)         A detailed description of, and justification for, the source's position that the Agency's finding of culpability is incorrect.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.606  Response and Reply

 

a)         The Agency must file a response to a petition appealing a determination of culpability within 21 days after service of the petition.

 

b)         The Agency's response must contain, at a minimum, the basis of its determination of the petitioner's culpability, including any meteorological, monitoring, or sampling data upon which the determination was made.

 

c)         The petitioner may file a reply within 7 days after the service of any response by the Agency.

 

Section 106.608  Hearing

 

a)         Within 14 days after a petition is filed, the Agency must publish notice of the petition in a newspaper of general circulation in the county in which the source is located.  Within 30 days after the filing of the petition, any person may file with the Clerk a request for hearing on the petition.

 

b)         The hearing officer will schedule any hearing.  The Clerk must give notice of the hearing in accordance with 35 Ill. Adm. Code 101.602. The proceeding will be conducted in accordance with 35 Ill. Adm. Code 101.Subpart F, including any hearing held by videoconference (see 35 Ill. Adm. Code 101.600(b)).

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.610  Burden of Proof

 

The burden of proof will be on the petitioner to demonstrate that the Agency's determination of culpability is incorrect.

 

Section 106.700  Purpose

 

The purpose of this Subpart is to set forth the criteria and procedures under which the Board or the Agency may terminate an EMSA, as defined in 35 Ill. Adm. Code 101.202.

 

Section 106.702  Applicability

 

a)         When the Agency terminates an EMSA under Section 52.3-4(b) or (b-5) of the Act, only Section 106.704 applies.

 

b)         This Subpart, except for Section 106.704, applies to proceedings in which the Board will determine whether to terminate an EMSA.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.704  Termination Under Section 52.3-4(b) or (b-5) of the Act

 

a)         To terminate an EMSA under Section 52.3-4(b) of the Act, the Agency must determine that the sponsor's performance under the EMSA has failed to:

 

1)         Achieve emissions reductions or reductions in discharges of wastes beyond the otherwise applicable statutory and regulatory requirements through pollution prevention or other suitable means; or

 

2)         Achieve real environmental risk reduction or foster environmental compliance by other persons regulated under the Act in a manner that is clearly superior to the existing regulatory system.  [415 ILCS 5/52.3-1(b)]

 

b)         To terminate an EMSA under Section 52.3-4(b-5) of the Act, the Agency must determine that the sponsor's participation in the Federal Performance Track Program has ceased. [415 ILCS 5/52.3-4(b-5)]

 

c)         If the Agency terminates an EMSA under Section 52.3-4(b) or (b-5) of the Act, the sponsor may file an appeal with the Board.  Appeals to the Board will be under 35 Ill. Adm. Code 105.Subparts A and B.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.706  Who May Initiate, Parties

 

a)         Only the Agency may commence a proceeding to terminate an EMSA under this Subpart.

 

b)         The Agency must be designated the complainant.  The sponsor must be designated the respondent.

 

c)         Misnomer of a party is not a ground for a dismissal; the name of any party may be corrected at any time.

 

Section 106.707  Notice, Statement of Deficiency, Answer

 

a)         A proceeding to terminate an EMSA will be commenced when the Agency serves a notice of filing and a statement of deficiency upon the respondent and files the notice of filing and statement of deficiency with the Clerk. (See 35 Ill. Adm. Code 101.300(b) and (c), 101.302(h), and 101.304(c).)

 

b)         The statement of deficiency must contain:

 

1)         The stated basis for the respondent's alleged deficient performance under Section 106.712(a);

 

2)         The dates, location, nature, extent and duration of any act or omission, and amount and other characteristics of any discharges or emissions, alleged to violate provisions of the Act or regulations that apply to the pilot project that the EMSA does not address;

 

3)         The dates, location, nature, extent and duration of any act or omission, and amount and other characteristics of any discharges or emissions, alleged to violate the EMSA; and

 

4)         With respect to subsections (b)(1) through (b)(3), the statement of deficiency must contain sufficient detail to advise the respondent of the extent and nature of the alleged violations to reasonably allow the respondent to prepare a defense.

 

c)         The respondent must file an answer within 15 days after receipt of the statement of deficiency, unless the Board or the hearing officer extends the 15-day period for good cause.  All material allegations of the statement of deficiency will be taken as admitted if not specifically denied by the answer, or if no answer is filed.  Any facts that constitute an affirmative defense that would be likely to surprise the complainant must be plainly set forth in the answer before hearing.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.708  Service

 

The Agency must serve a copy of the notice of filing and statement of deficiency personally, by U.S. Mail with a recipient's signature recorded, or by a third-party commercial carrier with a recipient's signature recorded.  (See 35 Ill. Adm. Code 101.300(c) and 101.304(c)(2).)

 

(Source:  Amended at 39 Ill. Reg. 12914, effective September 8, 2015)

 

Section 106.710  Notice of Hearing

 

a)         Upon the filing of a statement of deficiency, a hearing officer will be designated and the Clerk will notify the parties of the designation.  Any hearing will be held not later than 60 days after the respondent files the answer, subject to any extensions ordered under subsection (b).

 

b)         The hearing officer, after reasonable efforts to consult with the parties, will set a time and place for hearing.  The Board or the hearing officer may extend the time for hearing if all parties agree or there are extreme and unanticipated or uncontrollable circumstances that warrant a delay.  The Board or the hearing officer may delay the hearing more than once.  In each event, the Board or the hearing officer will not delay the hearing for more than 30 days.

 

c)         The hearing will be held under 35 Ill. Adm. Code 101.Subpart F, including any hearing held by videoconference (see 35 Ill. Adm. Code 101.600(b)).

 

d)         After the hearing officer schedules the hearing, the Clerk will give notice of hearing in accordance with 35 Ill. Adm. Code 101.

 

e)         The Agency must give notice of each statement of deficiency and hearing under Section 106.708(b) at least 10 days before the hearing to:

 

1)         All stakeholders named or listed in the EMSA; and

 

2)         Any person who submitted written comments on the respondent's EMSA or participated in the public hearing on the respondent's EMSA by signing an attendance sheet or signature card under the procedures set forth in 35 Ill. Adm. Code 187.404, if fewer than 100 persons attended the public hearing on the respondent's EMSA as indicated by signatures on the attendance sheet or signature cards.

 

f)         Failure to comply with this Section is not a defense to an involuntary termination proceeding under this Subpart, but the hearing officer may postpone the hearing upon the motion of any person prejudiced by a failure to comply with this Section.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.712  Deficient Performance

 

a)         For purposes of this Subpart, a respondent's performance under its EMSA is deficient if the Board finds that any of the following conditions exist:

 

1)         The respondent misrepresented the factual basis for entering into the EMSA.

 

2)         The respondent failed to provide access to the pilot project for the Agency to monitor compliance with an EMSA.

 

3)         The respondent falsified any monitoring data, record-keeping information or reports regarding the pilot project.

 

4)         The respondent or the owner or operator of the pilot project failed to comply with any requirement of any federal or local environmental law or regulation that applies to the pilot project and that the EMSA does not address, and for which a citizen's complaint has been filed with a court of competent jurisdiction or the appropriate authority has sent a notice of violation, complaint or other notice of failure to comply to the respondent or the owner or operator of the pilot project.

 

5)         The respondent or the owner or operator of the pilot project failed to comply with any requirement of any State environmental law or regulation that applies to the pilot project and that the EMSA does not address, and for which a citizen's complaint has been filed with the Board, or the Agency has mailed a notice of violation to the respondent or the owner or operator of the pilot project under Section 31(a) or (b) of the Act.

 

6)         The respondent failed to comply with its EMSA, subject to any grace or cure periods or rights contained in the EMSA.

 

b)         Any Board finding of deficient performance under subsection (a)(4) or (a)(5) of this Section will not be binding for any purpose or in any other proceeding under the Act, other than under this Subpart.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.714  Board Decision

 

a)         The Board will make a decision as expeditiously as practicable.  The Board's order will:

 

1)         Terminate the EMSA;

 

2)         Defer termination for a specified time, not to exceed 90 days from the date of the order, during which the respondent may rectify the deficient performance; or

 

3)         Reject termination of the EMSA.

 

b)         The Board may extend the time period under subsection (a)(2) for good cause.

 

c)         The Board may order any or all of the following:

 

1)         Direct the respondent to cease and desist from violating the Act, the Board's regulations, or the EMSA;

 

2)         Require the respondent to provide performance assurance compensation in appropriate amounts;

 

3)         Require the respondent to post a sufficient performance bond or other security to assure that the respondent corrects the violation within the time that the Board prescribes;

 

4)         Enforce any remedy provision of the EMSA; and

 

5)         Order other relief as appropriate.

 

d)         The Clerk will serve the final order on the parties under 35 Ill. Adm. Code 101.Subparts C and J.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.716  Burden of Proof

 

The Agency has the burden to prove, by a preponderance of the evidence, that there has been deficient performance under the EMSA, as set forth in Section 106.712(a) of this Subpart.

 

Section 106.718  Motions, Responses (Repealed)

 

(Source:  Repealed at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.720  Intervention

 

a)         Upon timely written motion and subject to the need to conduct an orderly and expeditious hearing, the Board will permit a person to intervene in an involuntary termination proceeding under this Subpart if the person submitted written comments on the respondent's EMSA or participated in the public hearing on the respondent's EMSA by signing an attendance sheet or signature card at hearing under the procedures set forth in 35 Ill. Adm. Code 187.404, or is named or listed in the respondent's EMSA as a stakeholder, and if the Board's final order may adversely affect the person.

 

b)         The movant must file the motion to intervene with the Board in accordance with 35 Ill. Adm. Code 101.302(h) and serve a copy on each party in accordance with 35 Ill. Adm. Code 101.304(c) not later than 48 hours before the hearing.  The Board may permit a person to intervene at any time before the beginning of the hearing when that person shows good cause for the delay.

 

c)         An intervenor has all the rights of an original party, except that the Board may limit the rights of the intervenor in accordance with 35 Ill. Adm. Code 101.402.

 

(Source:  Amended at 39 Ill. Reg. 2375, effective January 27, 2015)

 

Section 106.722  Continuances (Repealed)

 

(Source:  Repealed at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.724  Discovery, Admissions (Repealed)

 

(Source:  Repealed at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.726  Subpoenas (Repealed)

 

(Source:  Repealed at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.728  Settlement Procedure

 

a)         All parties to any proceeding in which a settlement is proposed must file with the Clerk before the time of the scheduled hearing a written statement, signed by the parties or their authorized representatives, that outlines the nature of, the reasons for, and the purpose to be accomplished by, the settlement.  The statement must contain:

 

1)         A full stipulation of all material facts that pertain to the nature, extent and causes of the alleged violations;

 

2)         The nature of the relevant parties' operations and control equipment;

 

3)         Any explanation for past failures to comply and an assessment of the impact on the public from the failure to comply;

 

4)         Details about future plans for compliance, including a description of additional control measures and the dates on which they will be implemented; and

 

5)         The proposed performance assurance payment, if any.

 

b)         If an agreed settlement is filed under this Section, the Board may dismiss the proceeding without holding a hearing.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.730  Authority of Hearing Officer, Board Members, and Board Assistants (Repealed)

 

(Source:  Repealed at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.732  Order and Conduct of Hearing (Repealed)

 

(Source:  Repealed at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.734  Evidentiary Matters (Repealed)

 

(Source:  Repealed at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.736  Post-Hearing Procedures (Repealed)  

 

(Source:  Repealed at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.738  Motion After Entry of Final Order (Repealed)

 

(Source:  Repealed at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.740  Relief from Final Orders (Repealed)

 

(Source:  Repealed at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.800  General

 

a)         Description.  This Subpart applies to any person who files a petition for Board authorization to use cleaning agents that contain phosphorus of an amount exceeding 0.5% by weight. [415 ILCS 92/5(e)]  

 

b)         Parties.  The person filing the petition for authorization must be named the petitioner. 

 

c)         Filing and Service.  The filing and service requirements of 35 Ill. Adm. Code 101.Subparts C and J will apply to the proceedings of this Subpart.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.802  Definitions

 

The definitions of 35 Ill. Adm. Code 101 Subpart B and Section 5 of the Regulation of Phosphorus in Detergents Act will apply to this Subpart unless otherwise provided, or unless the context clearly indicates otherwise.  If there is a conflict, the definitions of Section 5 of the Act will apply.

 

(Source:  Added at 34 Ill. Reg. 11486, effective July 23, 2010)

 

Section 106.804  Initiation of Proceeding

 

The petitioner must file the petition for authorization with the Clerk and must serve one copy upon the Agency.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.806  Petition Content Requirements

 

The petition must contain the following information:

 

a)         A written statement, signed by the petitioner or an authorized representative, concerning the cleaning agent containing excess phosphorus for which authorization is sought and outlining a description of the cleaning agent and its phosphorus content, the duration of, the reasons for, and the basis of the authorization sought, consistent with the burden of proof stated in Section 106.812;

 

b)         The nature of the petitioner's operations;

 

c)         Any other information that may be required by Section 5 of the Regulation of Phosphorus in Detergents Act. 

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.808  Response and Reply

 

a)         Within 21 days after the filing of a petition, the Agency may file a response to any petition in which it has not joined as co-petitioner.  The response must include the comments concerning potential Board action on the petition.

 

b)         The petitioner may file a reply within 14 days after the service of any Agency response.

 

(Source:  Added at 34 Ill. Reg. 11486, effective July 23, 2010)

 

Section 106.810  Hearing

 

The Board will hold a public hearing in an authorization proceeding only if a hearing is requested by the petitioner, the Agency, or any other person within 14 days after the filing of any reply under Section 106.808(b).  The hearing officer will schedule the hearing.  The Clerk will give notice of hearing in accordance with 35 Ill. Adm. Code 101.  The proceedings will be in accordance with 35 Ill. Adm. Code 101.Subpart F, including any hearing held by videoconference (see 35 Ill. Adm. Code 101.600(b)).

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.812  Burden of Proof

 

The burden of proof is on the petitioner.  The petitioner must demonstrate that:

 

a)         There is no adequate substitute for that cleaning agent for which authorization is sought; or

 

b)         Compliance with the requirements of Section 5 of the Regulation of Phosphorus in Detergents Act would otherwise be unreasonable or create a significant hardship on the user. [415 ILCS 92/5(e)]

 

(Source:  Added at 34 Ill. Reg. 11486, effective July 23, 2010)

 

Section 106.900  General

 

a)         Applicability.  This Subpart applies to any person who files a petition for Board authorization concerning an individual site to:

 

1)         Apply landscape waste or composted landscape waste at a rate greater than the agronomic rates of 20 tons per acre per year, under Sections 21(q) and (q)(2) of the Act; or

 

2)         Operate an on-farm composting facility constituting more than 2% of the property's total acreage, under Section 21(q)(3) of the Act. 

 

b)         Demonstration.  Any person who files a petition for Board authorization under this Subpart must demonstrate that the site's soil characteristics or crop needs require a higher rate. [415 ILCS 5/21(q) and (q)(3)(A)]

 

c)         Parties.  The person filing the petition for authorization must be named the petitioner and the Agency must be named the respondent. 

 

d)         Filing and Service.  The filing and service requirements of 35 Ill. Adm. Code 101.Subparts C and J will apply to the proceedings.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.902  Initiation of Proceeding

 

The petitioner must file the petition for authorization with the Clerk and must serve one copy upon the Agency.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.904  Petition Content Requirements

 

The petition must contain the following information:

 

a)         A written statement, signed by the petitioner or an authorized representative, concerning the property for which authorization is sought, outlining a description of the specific percentage of the property or the specific application rate sought and the duration of, the reasons for, and the basis for the authorization sought, consistent with the burden of proof stated in Section 106.914;

 

b)         The nature of the petitioner's operations;

 

c)         Any other applicable information that may be required by Section 21(q) of the Act, including:

 

1)         A map of the location where land application or composting would take place;

 

2)         A description of the uses of the surrounding areas; the method for nutrient calculations;  

 

3)         The soil sampling analysis for samples taken within one year prior to the filing of the petition in accordance with the sampling protocols of subsections (e) and (f);

 

4)         The intended crop or planting; a description of any additives to the landscape waste;

 

5)         The method for incorporating the landscape waste or compost into the soil;

 

6)         The maximum time between acceptance of landscape waste or compost and its incorporation into soil;

 

7)         The weather conditions under which incorporation will occur; the method of minimizing stormwater/snowmelt runoff;

 

8)         A screening plan to ensure materials accepted do not contain materials other than landscape waste;

 

9)         A contingency plan that describes methods for dealing with emergency situations and methods for the removal of material that is not landscape waste from incoming loads; and

 

10)         The method of preventing nuisance conditions such as vectors, odors, litter or dust.

 

d)         For demonstrations under Section 106.914(a), a plan, including soil testing in accordance with subsections (e) and (f) no less than once every five years, to show that applying landscape waste or composted landscape waste at rates greater than an agronomic rate of 20 tons per acre per year will be, or will continue to be, beneficial to the site's soil characteristics or crop needs.  The plan must specify any soil parameters to be analyzed, such as soil organic content and nutrients and any limits on them.

 

e)         Soil samples collected that will represent the entire landscape waste or composted landscape waste application site.

 

1)         Soil Plow Zone − one soil sample must be collected per 8 acres of application site area to a depth of 12 inches.  Each soil sample taken must be a homogeneous mixture composed of at least 10 subsamples randomly collected within the 8-acre area.

 

2)         Soil Profiles − one soil core sample per 8 acres of land application site must be obtained to a depth of 5 feet using a soil tube or soil auger type implement. Soil cores must be divided into 5 one foot subsamples and each subsample must be analyzed separately.

 

3)         Soil sample collection under subsections (a) and (b) may be modified by the Board upon request by the petitioner after considering the application rate of the landscape waste or composted landscape waste and the continuity of soil types of the application site.

 

f)         Soil analysis performed in accordance with the following references, unless equivalent results can be obtained by other methods.  The petitioner must demonstrate that equivalent results are obtainable based on the nature of the test methodology, the nature of the parameter, and the level of statistical accuracy.

 

1)         Physical Testing Methods

Methods of Soil Analysis − Part 1, Physical and Mineralogical Properties (1986), Soil Science Society of America (SSSA) and American Society of Agronomy, Inc. (ASA), 5585 Guilford Road, Madison, Wisconsin 53711.

 

2)         Chemical Testing Methods

Methods of Soil Analysis − Part 3, Chemical Methods (1996), Soil Science Society of America (SSSA) and American Society of Agronomy, Inc. (ASA), 5585 Guilford Road, Madison, Wisconsin 53711.

 

3)         For the purposes of this Subpart I, the Board incorporates by reference the soil test methods listed in subsections (f)(1) and (f)(2).  This incorporation includes no later amendments or editions.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.906  Petition Notice Requirements

 

a)         The petitioner must 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 by the petitioner's activity that is the subject of the Section 21(q) petition.

 

b)         Notice Requirements.  The information in the notice must be presented so as to be understood in accordance with the context of this Section's requirements.

 

1)         The title of the notice must be in the following form:  "Notice of Petition For Authorization Under 415 ILCS 5/21(q) by (petitioner's name) before the Illinois Pollution Control Board". 

 

2)         The notice must contain the name and address of the petitioner and the statement that the petitioner has filed with the Board an authorization petition under Section 21(q). 

 

3)         The notice must provide the date upon which the petition was filed, the Board docket number, the proposed authorization, a general description of the petitioner's activity that is the subject of the authorization proceeding and the location of the petitioner's activity.   

 

4)         The concluding portion of the notice must read as follows: 

 

"Any person may cause a public hearing to be held in the above-described authorization proceeding by filing a hearing request with the Illinois Pollution Control Board within 21 days after the date of the publication of this notice.  The hearing request should clearly indicate the docket number for the adjusted standard proceeding, as found in this notice, and must be mailed to the Clerk, Illinois Pollution Control Board, 100 W. Randolph Street, Suite 11-500, Chicago, Illinois 60601."

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.908  Proof of Petition Notice Requirements

 

Within 30 days after the filing of the petition, the petitioner must file a certificate of publication, issued by the publisher of the authorization petition notice certifying the publication of that notice.  The certificate must be issued in accordance with Section 1 of the Notice by Publication Act [715 ILCS 5/1].

 

(Source:  Added at 36 Ill. Reg. 16581, effective November 5, 2012)

 

Section 106.910  Response and Reply

 

a)         Within 45 days after the filing of a petition, the Agency may file a response to any petition in which it has not joined as co-petitioner.  The response must include the comments concerning potential Board action on the petition.

 

b)         The petitioner may file a reply within 14 days after the service of any Agency response.

 

(Source:  Added at 36 Ill. Reg. 16581, effective November 5, 2012)

 

Section 106.912  Hearing

 

a)         Any person can request that a public hearing be held in an authorization proceeding.  The requests must be filed not later than 21 days after the date of the publication of the petition notice in accordance with Section 106.906.  Requests for hearing must make reference to the Board docket number assigned to the proceeding.  A copy of each timely hearing request will be mailed to the petitioner and Agency by the Clerk.  Participation by the public at the hearing must be in accordance with 35 Ill. Adm. Code 101.110 and 101.628.  The Board may also, in its discretion, hold a public hearing when it determines a public hearing is advisable.

 

b)         When all parties and participants who have requested a hearing under this Subpart have withdrawn their requests for a hearing, the hearing will not be held unless the Board, in its discretion, deems it advisable.

 

c)         The hearing officer will set a time and place for the hearing.  The hearing officer will attempt to consult with the petitioner and the Agency before scheduling a hearing.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.914  Burden of Proof

 

The burden of proof is on the petitioner.  A petitioner may seek authorization, for an individual site, to:

 

a)         Apply landscape waste or composted landscape waste at rates greater than "agronomic rates" of not more than 20 tons per acre per year.  An owner or operator seeking to apply landscape waste or composted landscape waste in accordance with Section 21(q)(2) of the Act at rates greater than agronomic rates must demonstrate to the Board that the site's soil characteristics or crop needs require a higher rate as specified in the petition.  [415 ILCS 5/21(q)]

 

b)         Increase in total acreage of on-farm composting facility.  A farm owner or operator seeking to apply landscape waste or landscape waste compost in accordance with Section 21(q)(3)(A) of the Act at a composting facility on which the composting material is utilized and who proposes to do so on more than 2% of the property's total acreage on which the composting material is utilized by the farmer, must demonstrate to the Board that the site's soil characteristics or crop needs require a higher rate as specified in the petition.

 

(Source:  Added at 36 Ill. Reg. 16581, effective November 5, 2012)

 

Section 106.1000  General (Repealed)

 

(Source:  Repealed at 39 Ill. Reg. 2375, effective January 27, 2015)

 

Section 106.1002  Definitions (Repealed)

 

(Source:  Repealed at 39 Ill. Reg. 2375, effective January 27, 2015)

 

Section 106.1004  Initiation of Proceeding (Repealed)

 

(Source:  Repealed at 39 Ill. Reg. 2375, effective January 27, 2015)

 

Section 106.1006  Petition Content Requirements (Repealed)

 

(Source:  Repealed at 39 Ill. Reg. 2375, effective January 27, 2015)

 

Section 106.1008  Response and Reply (Repealed)

 

(Source:  Repealed at 39 Ill. Reg. 2375, effective January 27, 2015)

 

Section 106.1010  Burden of Proof (Repealed)

 

(Source:  Repealed at 39 Ill. Reg. 2375, effective January 27, 2015)

 

Section 106.1012  Board Decision (Repealed)

 

(Source:  Repealed at 39 Ill. Reg. 2375, effective January 27, 2015)

 

Section 106.1100  Purpose

 

This Subpart describes the factors, criteria, and standards for the establishment of alternative thermal effluent limitations under 35 Ill. Adm. Code 304.141(c) and section 316(a) of the Clean Water Act (33 USC 1251) in permits issued under 35 Ill. Adm. Code 309. 

 

(Source:  Added at 38 Ill. Reg. 6086, effective February 26, 2014)

 

Section 106.1105  General

 

a)         Description.  This Subpart applies to any point source that discharges pollutants to waters of the United States who seeks to demonstrate, under 35 Ill. Adm. Code 304.141(c) and section 316(a) of the Clean Water Act, that any effluent limitation proposed for the control of a thermal component of any discharge from such source will require effluent limitations more stringent than necessary to assure the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on the body of water into which the discharge is to be made.

 

b)         Parties.  The person making the demonstration must be named the petitioner.  The Agency must be named as a respondent.  Any interested person may become a participant in the alternative thermal effluent limitation demonstration proceeding in accordance with 35 Ill. Adm. Code 101.110 and 101.628.

 

c)         Filing and Service.  The filing and service requirements of 35 Ill. Adm. Code 101.Subparts C and J apply to the proceedings of this Subpart.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.1110  Definitions

 

In addition to these definitions, all definitions of the Illinois Environmental Protection Act [415 ILCS 5] and 35 Ill. Adm. Code 301 apply to this Subpart.  For the purpose of this Subpart:

 

"Alternative thermal effluent limitations" means all effluent limitations or standards of performance for the control of the thermal component of any discharge that are established under 35 Ill. Adm. Code 304.141(c), Section 316(a) of the CWA and this Subpart.

 

"CWA" means the Federal Water Pollution Control Act, as amended (33 USC 1251 et seq.).

 

"Representative important species" means species that are representative, in terms of their biological needs, of a balanced, indigenous community of shellfish, fish, and wildlife in the body of water into which a discharge of heat is made.

 

"Balanced, indigenous community" is synonymous with the term "balanced, indigenous population" in the CWA and means a biotic community typically characterized by diversity, the capacity to sustain itself through cyclic seasonal changes, presence of necessary food chain species, and a lack of domination by pollution tolerant species. Such a community may include historically non-native species introduced in connection with a program of wildlife management and species whose presence or abundance results from substantial, irreversible environmental modifications. Normally, however, such a community will not include species whose presence or abundance is attributable to the introduction of pollutants that will be eliminated by compliance by all sources with section 301(b)(2) of the CWA; and may not include species whose presence or abundance is attributable to alternative thermal effluent limitations imposed under this Subpart or to regulatory relief, granted by the Board, from otherwise applicable thermal limitations or standards under 35 Ill. Adm. Code 301 through 312.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.1115  Early Screening

 

a)         Prior to filing a petition for an alternative thermal effluent limitation, the petitioner must submit the following early screening information to the Agency:

 

1)         A description of the alternative thermal effluent limitation requested;

 

2)         A general description of the method by which the discharger proposes to demonstrate that the otherwise applicable thermal discharge effluent limitations are more stringent than necessary;

 

3)         A general description of the type of data, studies, experiments and other information that the discharger intends to submit for the demonstration; and

 

4)         A proposed representative important species list and supporting data and information.

 

b)         Within 30 days after the early screening information is submitted under subsection (a), the petitioner must consult with the Agency to discuss the petitioner's early screening information.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.1120  Detailed Plan of Study

 

a)         Within 60 days after the early screening information is submitted under Section 106.1115, the petitioner must submit to the Agency a detailed plan of study that the petitioner will undertake to support its alternative thermal effluent limitation demonstration.

 

b)         The petitioner must specify the nature and extent of the following types of information to be included in the plan of study:

 

1)         biological, hydrographical, and meteorological data;

 

2)         physical monitoring data;

 

3)         engineering or diffusion models;

 

4)         laboratory studies;

 

5)         representative important species; and

 

6)         other relevant information.

 

c)         In selecting representative important species, the petitioner must give special consideration  to species mentioned in applicable water quality standards.

 

d)         The petitioner must provide any additional information or studies that the Agency subsequently determines necessary to support the alternative thermal effluent limitation demonstration, including such field or other studies as may be necessary to select representative important species.

 

e)         In making the alternative thermal effluent limitation demonstration, the petitioner must consider any information or guidance published by USEPA to assist in making such demonstrations.

 

f)         Within 90 days after petitioner's submittal of its detailed plan of study, the Agency must respond in writing, either approving the detailed plan of study and representative important species or recommending necessary revisions.

 

g)         After receiving the Agency's response under subsection (f), or after 90 days have passed with no Agency response, the petitioner may proceed with the plan of study with or without making the Agency's recommended revisions.  The petitioner must complete the plan of study prior to filing the petition for an alternative thermal effluent limitation with the Board.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.1125  Initiation of Proceeding

 

After completion of the plan of study under Section 106.1120, the petitioner may file a petition for an alternative thermal effluent limitation with the Clerk and must serve one copy on the Agency and one copy on DNR.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.1130  Contents of Petition

 

A petition for an alternative thermal effluent limitation must include the following:

 

a)         Information providing a general plant description, including, as applicable:

 

1)         Generating capacity;

 

2)         Type of fuel used;

 

3)         Operating characteristics of the condenser cooling system;

 

4)         History of the load factor of the plant for the last 5 years;

 

5)         Projected load factors of the plant for the next 5 years;

 

6)         Estimated date of retirement for each unit at the plant and any plans for additional units at the plant;

 

7)         History of plant shutdowns for the last 5 years;

 

8)         Planned and emergency shutdowns with frequency and duration for the last 5 years; and

 

9)         Planned and projected shutdowns with frequency and duration for the next five years;

 

b)         Description of Method for Heat Dissipation:

 

1)         Type of system used (such as once-through, mechanical, and draft cooling towers) in narrative form; and

 

2)         Summary information on temperature of discharge to receiving waters in narrative form;

 

c)         A summary of compliance or non-compliance with thermal requirements at the facility in the past five years;

 

d)         The detailed plan of study submitted to the Agency under Section 106.1120(a) and the Agency's written response under Section 106.1120(f);

 

e)         The results of the studies conducted under the detailed plan of study submitted under Section 106.1120, including:

 

1)         background on the proposed thermal standards;

 

2)         information on data collection program and methodologies;

 

3)         summaries of physical, chemical, biological and technical data supporting the demonstration, along with a discussion of the data; and

 

4)         criteria or methodology used to assess whether a balanced indigenous community of shellfish, fish and wildlife will be maintained in the receiving waters and the protection of threatened and endangered species;

 

f)         Any additional information or studies, including information or guidance published by USEPA, that the petitioner judges to be appropriate to support the alternative thermal effluent limitation demonstration; and

 

g)         A statement of the requested relief, including:

 

1)         the alternative thermal effluent limitation;

 

2)         any relief from the mixing zone regulations in 35 Ill. Adm. Code 302.102, if applicable; and

 

3)         any other relief sought.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.1135  Petition Notice Requirements

 

a)         Within 14 days after the filing of the petition, the petitioner must publish notice of the filing of the petition by advertisement in a newspaper of general circulation in the county where the facility is located.

 

b)         The notice must include:

 

1)         The name and address of the petitioner and a statement that the petitioner has filed with the Board a petition for an alternative thermal effluent limitation; 

 

2)         The date on which the petition was filed and the Board docket number;

 

3)         The regulatory standard (with appropriate Administrative Code citation) from which the alternative thermal effluent limitation is sought;

 

4)         The proposed alternative thermal effluent limitation;

 

5)         A general description of the petitioner's activity that is the subject of the alternative thermal effluent limitation proceeding;

 

6)         The location of the facility; and 

 

7)         In the concluding portion of the notice:

 

"Any person may cause a public hearing to be held in the above-described proceeding by filing a hearing request with the Illinois Pollution Control Board within 21 days after the date of the publication of this notice.  The hearing request should clearly indicate the docket number for the proceeding, as found in this notice, and must be filed with the Clerk, Illinois Pollution Control Board, 100 W. Randolph Street, Suite 11-500, Chicago, Illinois 60601."

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.1140  Proof of Petition Notice Requirements

 

Within 30 days after the filing of the petition, the petitioner must file a certificate of publication with the Clerk.  This certification must be issued by the newspaper that published the notice and must certify when the notice was published and the information the notice contained.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.1145  Recommendation and Response

 

a)         Unless otherwise ordered by the hearing officer or the Board, the Agency must file with the Board a recommendation within 45 days after the filing of a petition or amended petition for an alternative thermal effluent limitation, or when a hearing has been scheduled, at least 30 days before hearing, whichever is earlier.

 

b)         The recommendation must state the following:

 

1)         Whether the Board should grant the petitioner's requested alternative thermal effluent limitation;

 

2)         The rationale for the Agency's position;

 

3)         Whether the plan of study sufficiently addresses the Agency's response pursuant to Section 106.1120(f);

 

4)         Whether the petition has met the requirements of this Part;

 

5)         Any information the Agency believes is relevant to the Board's consideration of the proposed alternative thermal effluent limitation; and

 

6)         Whether the Agency communicated with or received comments from DNR, the United States Fish and Wildlife Service, or USEPA, and the content of those communications.

 

c)           The petitioner, any party to the proceeding, or any interested person may file a response to the Agency recommendation within 21 days after the Agency files its recommendation.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.1150  Request for Public Hearing

 

Any person can request that a public hearing be held in a proceeding under this Subpart.  The requests must be filed with the Clerk no later than 21 days after the date of the publication of the petition notice in accordance with Section 106.1135. Requests for hearing must make reference to the Board docket number assigned to the proceeding. 

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.1155  Notice and Conduct of Hearing

 

a)         The Board will hold a public hearing on the petition and alternative thermal effluent limitation demonstration when one is requested in accordance with Section 106.1150, when requested by the petitioner, or if the Board, in its discretion, determines that a hearing would be advisable.

 

b)         The hearing officer will schedule the hearing. 

 

c)         The Clerk will give notice of the hearing in accordance with 35 Ill. Adm. Code 101.  The proceedings will be conducted in accordance with 35 Ill. Adm. Code101.Subpart F, including any hearing held by videoconference (see 35 Ill. Adm. Code 101.600(b)).

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.1160  Burden of Proof

 

a)         The burden of proof is on the petitioner. 

 

b)         The petitioner must demonstrate to the satisfaction of the Board that the otherwise applicable effluent limitations under Chapter I of Subtitle C are more stringent than necessary to assure the protection and propagation of a balanced, indigenous community of shellfish, fish, and wildlife in and on the body of water into which the discharge is made.

 

c)         The demonstration must show that the alternative thermal effluent limitation desired by the petitioner, considering the cumulative impact of its thermal discharge, together with all other significant impacts on the species affected, will assure the protection and propagation of a balanced indigenous community of shellfish, fish, and wildlife in and on the body of water into which the discharge is to be made.

 

d)         Existing dischargers may base their demonstration upon the absence of prior appreciable harm in lieu of predictive studies. 

 

1)         When the petitioner bases the alternative thermal effluent limitation demonstration upon the absence of prior appreciable harm, the demonstration must show:

 

A)        That no appreciable harm has resulted from the normal component of the discharge, taking into account the interaction of such thermal component with other pollutants and the additive effect of other thermal sources to a balanced, indigenous community of shellfish, fish, and wildlife in and on the body of water into which the discharge has been made; or

 

B)        That despite the occurrence of such previous harm, the desired alternative thermal effluent limitation (or appropriate modifications thereof) will nevertheless assure the protection and propagation of a balanced, indigenous community of shellfish, fish, and wildlife in and on the body of water into which the discharge is made.

 

2)         In determining whether prior appreciable harm has occurred, the Board will consider the length of time during which the petitioner has been discharging and the nature of the discharge.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.1165  Evidentiary Matters

 

a)         The provisions of 35 Ill. Adm. Code 101 regarding admissible evidence, written narrative testimony, official notice, viewing premises, admitting business records, examining adverse parties or agents and hostile witnesses and compelling them to appear at hearing, and amendment and variance of pleadings and proof will apply to proceedings under this Subpart.

 

b)         In determining whether the protection and propagation of the affected species will be assured, the Board may consider any information contained or referenced in any applicable thermal water quality criteria and thermal water quality information published by the USEPA under section 304(a) of the CWA, or any other information in the record the Board deems relevant.

 

(Source:  Added at 38 Ill. Reg. 6086, effective February 26, 2014)

 

Section 106.1170  Opinion and Order

 

a)         After an opportunity for a public hearing and upon a satisfactory alternative thermal effluent limitation demonstration, the Board may order the Agency to include thermal discharge effluent limitations or standards in the petitioner's NPDES permit that are less stringent than those required by applicable standards and limitations if the thermal component of the discharge, taking into account the interaction of such thermal component with other pollutants, will assure the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on the body of water. 

 

b)         In granting an alternative thermal effluent limitation, the Board may impose such conditions as may be necessary to accomplish the purposes of the Act.

 

c)         If the petitioner intends for the alternative thermal effluent limitation granted by the Board under this Subpart to continue beyond the expiration of the petitioner's NPDES permit, the petitioner must apply for renewal of the alternative thermal effluent limitation under Section 106.1180.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.1175  Post-Hearing Procedures

 

a)         The provisions of 35 Ill. Adm. Code 101 regarding default, transcripts, the record, motions, briefs, and oral arguments apply to proceedings under this Subpart.

 

b)         In addition to the provisions of 35 Ill. Adm. Code 101.520 and 101.902, if USEPA objects under 40 CFR 123.44 to issuance in the petitioner's NPDES permit of the alternative thermal effluent limitation ordered by the Board, the Agency is given permission to file a motion for reconsideration of the Board's order granting the effluent limitation under 35 Ill. Adm. Code 101.520 within 35 days after the Agency's receipt of USEPA's objection.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.1180  Renewal of Alternative Thermal Effluent Limitations

 

a)         The permittee may request continuation of an alternative thermal effluent limitation granted by the Board, as part of its NPDES permit renewal application.

 

b)         Any application for renewal must include sufficient information for the Agency to compare the nature of the permittee's thermal discharge and the balanced, indigenous population of shellfish, fish, and wildlife at the time the Board granted the alternative thermal effluent limitation and the current nature of the petitioner's thermal discharge and the balanced, indigenous population of shellfish, fish, and wildlife.  The permittee must be prepared to support this comparison with documentation based upon the discharger's actual operation experience during the previous permit term. 

 

c)         If the permittee demonstrates that the nature of the thermal discharge has not materially changed to cause appreciable harm to the balanced, indigenous population of shellfish, fish, and wildlife in and on the body of water into which the discharge is made, and the alternative thermal effluent limitation granted by the Board has not caused appreciable harm to a balanced, indigenous population of shellfish, fish, and wildlife in and on the body of water into which the discharge is made, the Agency may include the alternative thermal effluent limitation in the permittee's renewed NPDES permit.

 

d)         If the nature of the thermal discharge has materially changed to cause appreciable harm to the balanced, indigenous population of shellfish, fish, and wildlife in and on the body of water into which the discharge is made, or the alternative thermal effluent limitation granted by the Board has caused appreciable harm to a balanced, indigenous population of shellfish, fish, and wildlife in and on the body of water into which the discharge is made, the Agency must not include the thermal relief granted by the Board in the permittee's renewed NPDES permit.  The permittee must file a new petition and make the required demonstration under this Subpart before the alternative thermal effluent limitation may be included in the permittee's renewed NPDES permit.

 

(Source:  Amended at 41 Ill. Reg. 10104, effective July 5, 2017)

 

Section 106.APPENDIX A  Comparison of Former and Current Rules (Repealed)

 

(Source:  Repealed at 29 Ill. Reg. 8817, effective June 8, 2005)