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Illinois Compiled Statutes

415 ILCS 5/40 (2026)

Appeal of permit denial

✓ current as of May 2026
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(415 ILCS 5/40) (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.)

    
Notes of Decisions
Cited in 15 cases, 1995–2016 · leading case: City of Elgin v. Cnty. of Cook, 660 N.E.2d 875 (Ill. 1995).
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City of Elgin v. Cnty. of Cook, 660 N.E.2d 875 (Ill. 1995). · cites it 6× “(415 ILCS 5/40(a)(1) (West 1992).) Further, the Act only authorizes judicial review of Pollution Control Board permitting decisions, and not Agency permitting decisions.”
Town & Country Utils., Inc. v. Illinois Pollution Control Bd., 866 N.E.2d 227 (Ill. 2007). · cites it 2× “Section 40 sets forth the process for an “[alppeal of permit denial” to the Board (415 ILCS 5/40 (West 2002)), while section 40.”
Illinois Env't Prot. Agency v. Illinois Pollution Control Bd., 896 N.E.2d 479 (Ill. App. Ct. 2008). · cites it 7× “” 415 ILCS 5/40(a)(l) (West 2002). Appellants argue that the Board did not require the Environmental Groups to establish with certainty that the permit would violate the Act and Code.”
Panhandle E. Pipe Line Co. v. Env't Prot. Agency, 734 N.E.2d 18 (Ill. App. Ct. 2000). · cites it 2× “1040 (now 415 ILCS 5/40 (West 1998)) (Board review provision).”
Prairie Rivers Network v. Illinois Pollution Control Bd., 781 N.E.2d 372 (Ill. App. Ct. 2002). “) 415 ILCS 5/40(e) (West 2000). As earlier discussed, the cardinal rule of statutory construction is to ascertain and give effect to the legislature’s intent.”
Prairie Rivers Network v. The Illinois Pollution Control Bd., 2016 IL App (1st) 150971 (Ill. App. Ct. 2016). “These third-party petitions to the Board were brought pursuant to sections 40(e)(1) and 40(e)(2) of the Act (415 ILCS 5/40(e)(1), (2) (West 2014)). Petitioners bore the burden of proving that the permits violated the Act and/or the Board's regulations.”
ESG Watts, Inc. v. Illinois Pollution Control Bd., 760 N.E.2d 1004 (Ill. App. Ct. 2001). · cites it 2× “However, the 35-day period for petitioning for a hearing may be extended for a period of time not to exceed 90 days by written notice provided to the Board from the applicant and the [IEPA] within the initial appeal period.”
City of Waukegan v. Env't Prot. Agency, 791 N.E.2d 635 (Ill. App. Ct. 2003). “(415 ILCS 5/40(a)(1) (West 1992).) Further, the Act only authorizes judicial review of Pollution Control Board permitting decisions, and not Agency permitting decisions.”
United Disposal of Bradley, Inc. v. Pollution Control Bd., 842 N.E.2d 1161 (Ill. App. Ct. 2006). “Given that section 40 of the Act states that “the decision of the Board shall be based exclusively on the record before the Agency including the record of the hearing, if any” (415 ILCS 5/40(d) (West 2004)), and the Agency’s action of ignoring its own rule which resulted in its…”
Illinois Env't Prot. Agency v. Jersey Sanitation Corp., 336 Ill. App. 3d 582 (Ill. App. Ct. 2003). “” 415 ILCS 5/40(a)(l) (West 2000). Here, the Board found Jersey had not waived its objections; instead it found Jersey’s facility was “at a very different place in its history and a condition that may have been appropriate during the operation of the facility may not be…”
Illinois Env't Prot. Agency v. Illinois Pollution Control Bd. (Ill. App. Ct. 2008). · cites it 7× “” 415 ILCS 5/40(a)(1) (West 2002). Appellants argue that the Board did not require the Environmental Groups to establish with certainty that the permit would violate the Act and Code.”
Town & Country Utils., Inc. v. Illinois Pollution Bd. (Ill. 2007). · cites it 2× “Section 40 sets forth the process for an “[a]ppeal of permit denial” to the Board (415 ILCS 5/40 (West 2002)), while section 40.”
Show all 15 citing cases →
— 415 ILCS 5/40(a)(1) — 8 cases
City of Elgin v. Cnty. of Cook, 660 N.E.2d 875 (Ill. 1995). “(415 ILCS 5/40(a)(1) (West 1992).) Further, the Act only authorizes judicial review of Pollution Control Board permitting decisions, and not Agency permitting decisions.”
Town & Country Utils., Inc. v. Illinois Pollution Control Bd., 866 N.E.2d 227 (Ill. 2007). “Section 40 sets forth the process for an “[alppeal of permit denial” to the Board (415 ILCS 5/40 (West 2002)), while section 40.”
City of Waukegan v. Env't Prot. Agency, 791 N.E.2d 635 (Ill. App. Ct. 2003). “(415 ILCS 5/40(a)(1) (West 1992).) Further, the Act only authorizes judicial review of Pollution Control Board permitting decisions, and not Agency permitting decisions.”
ESG Watts, Inc. v. Illinois Pollution Control Bd., 760 N.E.2d 1004 (Ill. App. Ct. 2001). “However, the 35-day period for petitioning for a hearing may be extended for a period of time not to exceed 90 days by written notice provided to the Board from the applicant and the [IEPA] within the initial appeal period.”
Illinois Env't Prot. Agency v. Illinois Pollution Control Bd. (Ill. App. Ct. 2008). “” 415 ILCS 5/40(a)(1) (West 2002). Appellants argue that the Board did not require the Environmental Groups to establish with certainty that the permit would violate the Act and Code.”
— 415 ILCS 5/40(a)(l) — 4 cases
Illinois Env't Prot. Agency v. Illinois Pollution Control Bd., 896 N.E.2d 479 (Ill. App. Ct. 2008). “” 415 ILCS 5/40(a)(l) (West 2002). Appellants argue that the Board did not require the Environmental Groups to establish with certainty that the permit would violate the Act and Code.”
Panhandle E. Pipe Line Co. v. Env't Prot. Agency, 734 N.E.2d 18 (Ill. App. Ct. 2000). “1040 (now 415 ILCS 5/40 (West 1998)) (Board review provision).”
Illinois Env't Prot. Agency v. Jersey Sanitation Corp., 336 Ill. App. 3d 582 (Ill. App. Ct. 2003). “” 415 ILCS 5/40(a)(l) (West 2000). Here, the Board found Jersey had not waived its objections; instead it found Jersey’s facility was “at a very different place in its history and a condition that may have been appropriate during the operation of the facility may not be…”
ESG Watts, Inc. v. Illinois Pollution Control Bd., 760 N.E.2d 1004 (Ill. App. Ct. 2001). “However, the 35-day period for petitioning for a hearing may be extended for a period of time not to exceed 90 days by written notice provided to the Board from the applicant and the [IEPA] within the initial appeal period.”
— 415 ILCS 5/40(d) — 1 case
United Disposal of Bradley, Inc. v. Pollution Control Bd., 842 N.E.2d 1161 (Ill. App. Ct. 2006). “Given that section 40 of the Act states that “the decision of the Board shall be based exclusively on the record before the Agency including the record of the hearing, if any” (415 ILCS 5/40(d) (West 2004)), and the Agency’s action of ignoring its own rule which resulted in its…”
— 415 ILCS 5/40(e) — 4 cases
Prairie Rivers Network v. Illinois Pollution Control Bd., 781 N.E.2d 372 (Ill. App. Ct. 2002). “) 415 ILCS 5/40(e) (West 2000). As earlier discussed, the cardinal rule of statutory construction is to ascertain and give effect to the legislature’s intent.”
Illinois Env't Prot. Agency v. Illinois Pollution Control Bd., 896 N.E.2d 479 (Ill. App. Ct. 2008). “” 415 ILCS 5/40(a)(l) (West 2002). Appellants argue that the Board did not require the Environmental Groups to establish with certainty that the permit would violate the Act and Code.”
Prairie Rivers Network v. Illinois Pollution Control Bd. (Ill. App. Ct. 2002).
Illinois Env't Prot. Agency v. Illinois Pollution Control Bd. (Ill. App. Ct. 2008). “” 415 ILCS 5/40(a)(1) (West 2002). Appellants argue that the Board did not require the Environmental Groups to establish with certainty that the permit would violate the Act and Code.”
— 415 ILCS 5/40(e)(1) — 2 cases
Prairie Rivers Network v. The Illinois Pollution Control Bd., 2016 IL App (1st) 150971 (Ill. App. Ct. 2016). “These third-party petitions to the Board were brought pursuant to sections 40(e)(1) and 40(e)(2) of the Act (415 ILCS 5/40(e)(1), (2) (West 2014)). Petitioners bore the burden of proving that the permits violated the Act and/or the Board's regulations.”
Illinois Env't Prot. Agency v. Illinois Pollution Control Bd. (Ill. App. Ct. 2008). “” 415 ILCS 5/40(a)(1) (West 2002). Appellants argue that the Board did not require the Environmental Groups to establish with certainty that the permit would violate the Act and Code.”
— 415 ILCS 5/40(e)(3) — 2 cases
Illinois Env't Prot. Agency v. Illinois Pollution Control Bd., 896 N.E.2d 479 (Ill. App. Ct. 2008). “” 415 ILCS 5/40(a)(l) (West 2002). Appellants argue that the Board did not require the Environmental Groups to establish with certainty that the permit would violate the Act and Code.”
Illinois Env't Prot. Agency v. Illinois Pollution Control Bd. (Ill. App. Ct. 2008). “” 415 ILCS 5/40(a)(1) (West 2002). Appellants argue that the Board did not require the Environmental Groups to establish with certainty that the permit would violate the Act and Code.”
— 415 ILCS 5/40(e)(l) — 1 case
Illinois Env't Prot. Agency v. Illinois Pollution Control Bd., 896 N.E.2d 479 (Ill. App. Ct. 2008). “” 415 ILCS 5/40(a)(l) (West 2002). Appellants argue that the Board did not require the Environmental Groups to establish with certainty that the permit would violate the Act and Code.”
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