415 ILCS 5/40
2021 Illinois Compiled Statutes|Chapter 415 - ENVIRONMENTAL SAFETY|415 ILCS 5/ - Environmental Protection Act.|Title X - Permits

 (from Ch. 111 1/2, par. 1040)Sec. 40. Appeal of permit denial.(a)(1) If the Agency refuses to grant or grants with conditions a permit  under Section 39 of this Act, the applicant may, within 35 days after the  date on which the Agency served its decision on the applicant, petition for  a hearing before the Board to contest the decision of the Agency.  However,  the 35-day period for petitioning for a hearing may be extended for an  additional period of time not to exceed 90 days by written notice  provided to the Board from the applicant and the Agency within the initial  appeal period.  The Board shall give 21 days' notice to any person in the  county where is located the facility in issue who has requested notice of  enforcement proceedings and to each member of the General Assembly in whose  legislative district that installation or property is located; and shall  publish that 21-day notice in a newspaper of general circulation in that  county.  The Agency shall appear as respondent in such hearing.  At such  hearing the rules prescribed in Section 32 and subsection (a) of Section 33 of  this Act shall apply, and the burden of proof shall be on the petitioner.  If,  however, the Agency issues an NPDES permit that imposes limits which are based  upon a criterion or denies a permit based upon application of a criterion,  then the Agency shall have the burden of going forward with the basis for  the derivation of those limits or criterion which were derived under the  Board's rules.(2) Except as provided in paragraph (a)(3), if there is no final action by  the Board within 120 days after the date on which it received the petition,  the petitioner may deem the permit issued under this Act, provided,  however, that that period of 120 days shall not run for any period of time,  not to exceed 30 days, during which the Board is without sufficient membership  to constitute the quorum required by subsection (a) of Section 5 of this Act,  and provided further that such 120 day period shall not be stayed for lack of  quorum beyond 30 days regardless of whether the lack of quorum exists at the  beginning of such 120-day period or occurs during the running of such 120-day  period.(3) Paragraph (a)(2) shall not apply to any permit which is subject  to subsection (b), (d) or (e) of Section 39.  If there is no final action by  the Board within 120 days after the date on which it received the petition,  the petitioner shall be entitled to an Appellate Court order pursuant to  subsection (d) of Section 41 of this Act.(b) If the Agency grants a RCRA permit for a hazardous waste disposal site,  a third party, other than the permit applicant or Agency, may, within 35  days after the date on which the Agency issued its decision, petition the  Board for a hearing to contest the issuance of the permit.  Unless the Board determines that such petition is duplicative or frivolous, or that the petitioner is so located as to  not be affected by the permitted facility, the Board shall hear the  petition in accordance with the terms of subsection (a) of this Section  and its procedural rules governing denial appeals, such hearing to be  based exclusively on the record before the Agency.  The burden of proof  shall be on the petitioner.  The Agency and the permit applicant shall  be named co-respondents.The provisions of this subsection do not apply to the granting of permits  issued for the disposal or utilization of sludge from publicly owned sewage  works.(c) Any party to an Agency proceeding conducted pursuant to Section  39.3 of this Act may petition as of right to the Board for review of the  Agency's decision within 35 days from the date of issuance of the Agency's  decision, provided that such appeal is not duplicative  or frivolous.  However, the 35-day period for petitioning for a hearing may be extended  by the applicant for a period of time not to exceed 90 days by written notice  provided to the Board from the applicant and the Agency within the initial  appeal period.  If another person with standing to appeal wishes to obtain  an extension, there must be a written notice provided to the Board by that  person, the Agency, and the applicant, within the initial appeal period.  The decision of the Board shall be based exclusively on the record compiled  in the Agency proceeding.  In other respects the Board's review shall be  conducted in accordance with subsection (a) of this Section and the Board's  procedural rules governing permit denial appeals.(d) In reviewing the denial or any condition of a NA NSR permit issued by the  Agency pursuant to rules and regulations adopted under subsection (c)  of Section 9.1 of this Act, the decision of the Board  shall be based exclusively on the record before the Agency including the  record of the hearing, if any, unless the parties agree to supplement the record. The Board shall, if  it finds the Agency is in error, make a final determination as to the  substantive limitations of the permit including a final determination of  Lowest Achievable Emission Rate.(e)(1) If the Agency grants or denies a permit under subsection (b) of  Section 39 of this Act, a third party, other than the permit applicant or  Agency, may petition the Board within 35 days from the date of issuance of  the Agency's decision, for a hearing to contest the decision of the Agency.(2) A petitioner shall include the following within a petition submitted  under subdivision (1) of this subsection:(A) a demonstration that the petitioner raised the     issues contained within the petition during the public notice period or during the public hearing on the NPDES permit application, if a public hearing was held; and(B) a demonstration that the petitioner is so     situated as to be affected by the permitted facility.(3) If the Board determines that the petition is not duplicative or frivolous and contains a satisfactory demonstration under  subdivision (2) of this subsection, the Board shall hear the petition (i) in  accordance with the terms of subsection (a) of this Section and its procedural  rules governing permit denial appeals and (ii) exclusively on the basis of the  record before the Agency.  The burden of proof shall be on the petitioner.  The Agency and permit applicant shall be named co-respondents.(f) Any person who files a petition to contest the issuance of a  permit by the Agency shall pay a filing fee.(g) If the Agency grants or denies a permit under subsection (y) of Section 39, a third party, other than the permit applicant or Agency, may appeal the Agency's decision as provided under federal law for CCR surface impoundment permits.(Source: P.A. 101-171, eff. 7-30-19; 102-558, eff. 8-20-21.)