By Jeryl L. Olson and Eric E. Boyd

On July 12, 2011, Illinois Governor Pat Quinn signed the House Bill 1297.  With one stroke of the pen, the legislation provides the mechanisms to streamline the Illinois permitting process and to provide the necessary funding for air permit programs. 

For Illinois businesses, the new expedited permit review provision may be the most significant portion of the new legislation.  The provision adds a new Section 39.14 to the Illinois Environmental Protection Act (“Act”).  415 ILCS 5/39.14 which allows any applicant for any permit under the Act to request the Agency to expedite the review of the permit application.  Following the request, the Agency must within a reasonable time indicate in writing whether or not it will perform an expedited review.  The period of  “expedited review” is to be mutually agreed upon by the Agency and the applicant.  The fee for an expedited review will be hefty:  four times the standard permit fee plus the standard permit fees.  If the Agency fails to complete an expedited review within the period of time agreed upon, the applicant will be entitled to a refund of the expedited permit fee on a pro-rated basis “as mutually agreed upon by the Agency and the applicant.”  The expedited permit review provisions do not apply to applications related to emergencies necessitating immediate action by the Agency. 

Another significant provision of the legislation is to establishes a registration system for smaller air sources.  The small sources that register for the program must pay an annual registration fee of $235.  The registration will exempt the source from the requirement to obtain an air pollution installation or operating permit.  The sources not eligible for the smaller source registration program include:

  1. Clean Air Act Permit Program (CAAPP) or federally enforceable state operating permit (FESOP) sources;
  2. Sources for which the U.S. EPA has determined that a permit is required;
  3. Sources that emit five tons per year or more of combined particulate matter, carbon monoxide, nitrogen and oxides, sulfur dioxide, or volatile organic material;
  4. Sources that emit .5 tons or more per year of any hazardous air pollutant;
  5. Sources that emit .05 tons per year or more of lead or mercury; and
  6. Sources that are subject to a 40 CFR Part 61 or Part 63 standard for hazardous air pollutants, including area resources. 

The Agency is required to propose rules to the Pollution Control Board regarding the implementation of the registration of the smaller source program.

The legislation also provides, for the first time, the availability of “general permits” and “permits by rule.”  New Section 39.10 of the Act provides that the Agency may issue general permits for construction, installation and operation of categories of facilities. 415 ILCS 5/39.10.  The general permit program requires, among other things, a submittal of a notice of intent to be covered by the general permit, and payment of applicable permitting fees.  The Agency is required, within six months of the effective date of the legislation, and after consultation with the regulated community, to identify the types of permits for which general permits would be appropriate, consistent with state and federal law. 

The new “permit by rule” provision is at Section 39.12. 415 ILCS 5/39.12.  The provision states that the Board may adopt rules providing for permits by rule.  Like general permits, permits by rule would require a permittee to submit a notice of intent to be subject to the permit by rule, and to pay applicable permitting fees.  A proposal for a permit by rule may be made by any person. 

An interesting portion of the new legislation is the requirement that the Agency develop a web portal “for the purpose of enhancing review and promoting timely issuance of permits”.  Within six months of the effective date, the Agency is required to develop the portal and to include a checklist and guidelines relating to the completion of permit applications.  Within two years of the effective date, the Agency must include permit applications that can be completed and saved electronically on-line and that can be submitted electronically with digital signatures.  Also within two years of the effective date, the Agency is required to establish an on-line tracking system so applicants can review the status of pending applications.  Prior to the development of the on-line tracking system, the Agency is required to post semi-annual reports on the website regarding statistics on the timeframe for issuing air construction permits, new NPDES permits and associated water construction permits, and modifications of major NPDES permits and associated water construction permits.  The new provision also allows the Agency to share copies of draft permits and final permits with the applicant prior to issuance if the permit applicant requests the draft documents.  The section also allows for applicants to suggest permit language for Agency consideration. 

Except with respect to fees associated with expedited permit review, the increases in the air permit fee provisions were not significant.  Beginning January 1, 2012, the fee for the lifetime operating permits and FESOPs increases from $200 to $235 per year.  The fees for sites with permitted emissions of at least 25 tons but less than 100 tons per year increase from $18.00 to $21.50.  Finally, for sources permitted to emit at least 100 tons per year of any combination of regular air pollutants, the fee increases to $21.50 per ton per year (up from $18 per ton) and provides fee caps. 

Governor Quinn has indicated that the new legislation shows that Illinois has a pro-business environment.  According to a press release, Governor Quinn said:

“Simplifying and speeding up the review process for environmental permits will help Illinois companies begin hiring, investing and producing more quickly.  This law is a great example of my administration’s commitment to reducing the burden on Illinois’ businesses — both large and small — so they can grow and create more jobs. 

Whether the legislation will have the effects intended remains to be seen.  The legislation was supported by the business community.