2023 Illinois Compiled Statutes › Chapter 415 - ENVIRONMENTAL SAFETY › 415 ILCS 5/ - Environmental Protection Act. › Title IX - Variances and Time-Limited Water Quality Standards

(415 ILCS 5/Tit. IX heading)
TITLE IX:  VARIANCES AND TIME-LIMITED WATER QUALITY STANDARDS
(Source: P.A. 99-937, eff. 2-24-17.)
(415 ILCS 5/35) (from Ch. 111 1/2, par. 1035)
Sec. 35. 
		Variances; general provisions. 
		To the extent consistent with applicable provisions of the
Federal Water Pollution Control Act, as now or hereafter amended, the Federal
Safe Drinking Water Act (P.L. 93-523), as now or hereafter amended, the Clean
Air Act as amended in 1977 (P.L. 95-95), and regulations pursuant thereto, and
to the extent consistent with applicable provisions of the Federal Resource
Conservation and Recovery Act of 1976 (P.L. 94-580), and regulations pursuant
thereto:
(a) The Board may grant individual
variances beyond the limitations prescribed in this Act, whenever it
is found, upon presentation of adequate proof, that compliance with any
rule or regulation, requirement or order of the Board would impose an
arbitrary or unreasonable hardship.  However, the Board is not required to
find that an arbitrary or unreasonable hardship exists exclusively because
the regulatory standard is under review and the costs of compliance are
substantial and certain.  In granting or denying a variance the Board shall
file and publish a written opinion stating the facts and reasons leading to
its decision.
(b) The Agency shall grant provisional variances whenever
it is found, upon presentation of adequate proof, that compliance on a short
term basis with any rule or
regulation, requirement or order of the Board, or with any permit
requirement, would impose an arbitrary or unreasonable hardship.
(Source: P.A. 93-152, eff. 7-10-03.)
(415 ILCS 5/36) (from Ch. 111 1/2, par. 1036)
Sec. 36. 
		Variances and provisional variances.
(a) In granting a variance the Board may impose such
conditions as the policies of this Act may require.  If the hardship
complained of consists solely of the need for a reasonable delay in
which to correct a violation of this Act or of the Board regulations,
the Board shall condition the grant of such variance upon the posting of
sufficient performance bond or other security to assure the completion
of the work covered by the variance.  The Board shall have no authority
to delegate to the Agency its powers to require such performance bond.
The original amount of such performance bond shall not exceed the
reasonable cost of the work to be completed pursuant to the variance.
The obligation under such bond shall at no time exceed the reasonable
cost of work remaining pursuant to the variance.
(b) Except as provided by Section 38 of this Act, any variance
granted pursuant to the provisions of this Section shall be granted for
such period of time, not exceeding five years, as shall be specified by
the Board at the time of the grant of such variance, and upon the
condition that the person who receives such variance shall make such
periodic progress reports as the Board shall specify.  Such variance may
be extended from year to year by affirmative action of the Board, but
only if satisfactory progress has been shown.
(c) Any provisional variance granted by the Agency pursuant
to subsection (b) of Section 35 shall be for a period of time not to exceed
45 days.  A provisional variance may be extended up to an additional 45 days by written decision of the Agency.
The provisional variances granted to any one person shall not exceed a total
of 90 days during any calendar year.
(Source: P.A. 93-152, eff. 7-10-03.)
(415 ILCS 5/37) (from Ch. 111 1/2, par. 1037)
Sec. 37. Variances; procedures.
(a) Any person seeking a variance pursuant to subsection
(a) of Section 35 shall do so by filing a petition for variance with the
Board and providing a copy of the petition to the Agency.  Any person filing such a petition shall (i) pay a
filing fee, (ii) promptly give written notice of such
petition to any person in the county in which the installation or property
for which variance is sought is located who has filed with the Board a written request for notice
of variance petitions, the State's attorney of such county, the Chairman of
the County Board of such county, and to each member of the General Assembly
from the legislative district in which that installation or property is
located, and (iii) publish a single notice of such petition in a newspaper
of general circulation in such county.  The notices required by this Section
shall be in a format prescribed by the Board and shall include the street address, and if there is no street address then
the legal description or the location with reference to any well known
landmark, highway, road, thoroughfare or intersection.
The Agency shall promptly investigate such petition and consider the views
of persons who might be adversely affected by the grant of a variance.
The Agency shall make a recommendation to the Board as to the
disposition of the petition.  If the Board, in its discretion, concludes
that a hearing would be advisable, or if the Agency or any other person
files a written objection to the grant of such variance within 21 days,
together with a written request for hearing, then a hearing shall be
held, under the rules prescribed in Sections 32 and 33 (a) of this Act,
and the burden of proof shall be on the petitioner.
(b) Any person seeking a provisional variance pursuant to subsection
(b) of Section 35 shall make a request to the Agency.  The Agency shall
promptly investigate and consider the merits of the request.
If the Agency fails to take final action within 30 days after receipt of
the request for a provisional variance, or if the Agency denies the
request, the person may initiate a proceeding with the Board under
subsection (a) of Section 35.
If the Agency grants a  provisional variance, the Agency must promptly
file a copy of its written decision with the Board, and shall
give prompt notice of its action to the public by issuing a press release for
distribution to newspapers of general circulation in the county.  The Board
must maintain for public inspection copies of all provisional variances filed
with it by the Agency.
(Source: P.A. 98-822, eff. 8-1-14.)
(415 ILCS 5/38) (from Ch. 111 1/2, par. 1038)
Sec. 38. 
		
		(a) Except as otherwise provided in subsection (c), if the
Board fails to take final action upon a variance request within 120 days
after the filing of the petition or the receipt of a request for hearing
pursuant to subsection (a) of Section 37, whichever is later, the
petitioner may deem the request granted under this Act, for a period not to
exceed one year.  However, the period of 120 days shall not run for any such
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, provided 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.
(b) If any person files a petition for a variance from a rule or
regulation within 20 days after the effective date of such rule or
regulation, the operation of such rule or regulation shall be stayed as to such
person pending the disposition of the petition; provided, however, that
the operation of any rule or regulation adopted by the Board which implements,
in whole or in part, a State RCRA, UIC, or NPDES program shall not be stayed.
The Board may hold a hearing upon said petition 5 days from the date of
notice of such hearing or thereafter. All the provisions of this Title
shall apply to petitions for extension of existing variances and to
proposed Contaminant Reduction programs designed to secure delayed
compliance with the Act or with Board regulations.
(c) Subsection (a) shall not apply to a request for a variance from
any provision of this Act or any rule or regulation adopted by the Board
which implements, in whole or in part, a State RCRA, UIC, or NPDES program.
If the Board fails to take final action on any request for a variance from
any such rule or regulation within 120 days of the filing of the petition,
the Petitioner shall be entitled to an Appellate Court order pursuant to
Section 41(d) of this Act.
(Source: P.A. 87-914.)
(415 ILCS 5/38.5)
Sec. 38.5. Time-limited water quality standards.
(a) To the extent consistent with the Federal Water Pollution Control Act, rules adopted by the United States Environmental Protection Agency under that Act, this Section, and rules adopted by the Board under this Section, the Board may adopt, and may conduct non-adjudicatory proceedings to adopt, a time-limited water quality standard for a watershed or one or more of the following:
(1) water bodies;
(2) waterbody segments; or
(3) dischargers.
(b) A time-limited water quality standard may be sought by:
(1) persons who file with the Board a petition for a     time-limited water quality standard under this Section; and
(2) persons who have a petition for a variance from a     water quality standard under Section 35 of this Act converted into a petition for a time-limited water quality standard under subsection (c) of this Section.
(c) Any petition for a variance from a water quality standard under Section 35 of this Act that was filed with the Board before the effective date of this amendatory Act of the 99th General Assembly and that has not been disposed of by the Board shall be converted, by operation of law, into a petition for a time-limited water quality standard under this Section on the effective date of this amendatory Act of the 99th General Assembly.
(d) The Board's hearings concerning the adoption of time-limited water quality standards shall be open to the public and must be held in compliance with 40 CFR 131.14, including, but not limited to, the public notice and participation requirements referenced in 40 CFR 25 and 40 CFR 131.20(b); this Section; and rules adopted by the Board under this Section.
(e) Within 21 days after any petition for a time-limited water quality standard is filed with the Board under this Section, or within 21 days after the effective date of this amendatory Act of the 99th General Assembly in the case of a petition for time-limited water quality standard created under subsection (c) of this Section, the Agency shall file with the Board a response that:
(1) identifies the discharger or classes of     dischargers affected by the water quality standard from which relief is sought;
(2) identifies the watershed, water bodies, or     waterbody segments affected by the water quality standard from which relief is sought;
(3) identifies the appropriate type of time-limited     water quality standard, based on factors, such as the nature of the pollutant, the condition of the affected water body, and the number and type of dischargers; and
(4) recommends, for the purposes of subsection (h),     prompt deadlines for the classes of dischargers to file a substantially compliant petition.
(f) Within 30 days after receipt of a response from the Agency under subsection (e) of this Section, the Board shall enter a final order that establishes the discharger or classes of dischargers that may be covered by the time-limited water quality standard and prompt deadlines by which the discharger and dischargers in the identified classes must, for the purposes of subsection (h), file with the Board either:
(1) a petition for a time-limited water quality     standard, if the petition has not been previously filed; or
(2) an amended petition for a time-limited water     quality standard, if the petition has been previously filed and it is necessary to file an amended petition to maintain a stay under paragraph (3) of subsection (h) of this Section.
(g) As soon as practicable after entering an order under subsection (f), the Board shall conduct an evaluation of the petition to assess its substantial compliance with 40 CFR 131.14, this Section, and rules adopted pursuant to this Section. After the Board determines that a petition is in substantial compliance with those requirements, the Agency shall file a recommendation concerning the petition.
(h)(1) The effectiveness of a water quality standard from which relief is sought shall be stayed as to the following persons from the effective date of the water quality standard until the stay is terminated as provided in this subsection:
(A) any person who has a petition for a variance         seeking relief from a water quality standard under Section 35 of this Act converted into a petition for a time-limited water quality standard under subsection (c) of this Section;
(B) any person who files a petition for a         time-limited water quality standard within 35 days after the effective date of the water quality standard from which relief is sought; and
(C) any person, not covered by subparagraph (B)         of this subsection, who is a member of a class of dischargers that is identified in a Board order under subsection (f) that concerns a petition for a time-limited water quality standard that was filed within 35 days after the effective date of the water quality standard from which relief is sought and who files a petition for a time-limited water quality standard before the deadline established for that class under subsection (f) of this Section.
(2) If the Board determines that the petition of a     person described in paragraph (1) of this subsection is in substantial compliance, then the stay shall continue until the Board:
(A) denies the petition and all rights to         judicial review of the Board order denying the petition are exhausted; or
(B) adopts the time-limited water quality         standard and the United States Environmental Protection Agency either:
(i) approves the time-limited water quality             standard; or
(ii) disapproves the time-limited water             quality standard for failure to comply with 40 CFR 131.14.
(3) If the Board determines that the petition of a     person described in paragraph (1) of this subsection is not in substantial compliance, then the Board shall enter an interim order that identifies the deficiencies in the petition that must be corrected for the petition to be in substantial compliance. The petitioner must file an amended petition by the deadlines adopted by the Board pursuant to subsection (f), and the Board shall enter, after the applicable Board-established deadline, a final order that determines whether the amended petition is in substantial compliance.
(4) If the Board determines that the amended petition     described in paragraph (3) of this subsection is in substantial compliance, then the stay shall continue until the Board:
(A) denies the petition and all rights to         judicial review of the Board order denying the petition are exhausted; or
(B) adopts the time-limited water quality         standard and the United States Environmental Protection Agency either:
(i) approves the time-limited water quality             standard; or
(ii) disapproves the time-limited water             quality standard for failure to comply with 40 CFR 131.14.
(5) If the Board determines that the amended petition     described in paragraph (3) of this subsection is not in substantial compliance by the Board-established deadline, the Board shall deny the petition and the stay shall continue until all rights to judicial review are exhausted.
(6) If the Board determines that a petition for a     time-limited water quality standard is not in substantial compliance and if the person fails to file, on or before the Board-established deadline, an amended petition, the Board shall dismiss the petition and the stay shall continue until all rights to judicial review are exhausted.
(7) If a person other than a person described in     paragraph (1) of subsection (h) of this Section files a petition for a time-limited water quality standard, then the effectiveness of the water quality standard from which relief is sought shall not be stayed as to that person. However, the person may seek a time-limited water quality standard from the Board by complying with 40 CFR 131.14, this Section, and rules adopted pursuant to this Section.
(i) Each time-limited water quality standard adopted by the Board for more than one discharger shall set forth criteria that may be used by dischargers or classes of dischargers to obtain coverage under the time-limited water quality standard during its duration. Any discharger that has not obtained a time-limited water quality standard may obtain coverage under a Board-approved time-limited water quality standard by satisfying, at the time of the renewal or modification of that person's federal National Pollutant Discharge Elimination System (NPDES) permit or at the time the person files an application for certification under Section 401 of the federal Clean Water Act, the Board-approved criteria for coverage under the time-limited water quality standard.
(j) Any person who is adversely affected or threatened by a final Board order entered pursuant to this Section may obtain judicial review of the Board order by filing a petition for review within 35 days after the date the Board order was served on the person affected by the order, under the provisions of the Administrative Review Law, and the rules adopted pursuant thereto, except that review shall be afforded directly in the appellate court for the district in which the cause of action arose and not in the circuit court. For purposes of judicial review under this subsection, a person is deemed to have been served with the Board's final order on the date on which the order is first published by the Board on its website.
No challenge to the validity of a final Board order under this Section shall be made in any enforcement proceeding under Title XII of this Act as to any issue that could have been raised in a timely petition for review under this subsection.
(k) Not later than 6 months after the effective date of this amendatory Act of the 99th General Assembly, the Agency shall propose, and not later than 9 months thereafter the Board shall adopt, rules that prescribe specific procedures and standards to be used by the Board when adopting time-limited water quality standards. The public notice and participation requirements in 40 CFR 25 and 40 CFR 131.20(b) shall be incorporated into the rules adopted under this subsection.
Until the rules adopted under this subsection are effective, the Board may adopt time-limited water quality standards to the full extent allowed under this Section and 40 C.F.R. 131.14.
(l) Section 5-35 of the Illinois Administrative Procedure Act, Title VII of this Act, and the other Sections in Title IX of this Act do not apply to Board proceedings under this Section.
(Source: P.A. 99-937, eff. 2-24-17.)