ILLINOIS POLLUTION CONTROL BOARD
September
20,
1979
IN THE
MATTER
OF’
AMENDMENTS TO THE
)
R79—9
PROCEDURAL RULES
OPINION AND ORDER OF THE BOARD
(by Mr. Dumelle):
On June 22,
1979 the Board proposed amendments
to
Procedural Rule
405.
The Proposed Order was published
in
Environmental Register #196 on June 28,
1978.
On August 21,
1979 the Agency requested that Procedural Rules
401 and 405
be amended instead, This Opinion supports the Board’s decision
to follow the Agency’s suggestion.
Section
35
of the Act states that the Board’s authority
to grant variances
is limited by the Clean Water Act
(33
U.S.C.
§1251 et seq.),
the Clean Air Act
(42 U.S.C.
§7401
et
seq.),
the Safe Drinking Water Act
(42 U.S.C.
§300 f
and the Federal regulations adopted under these
laws.
These amendments
are intended to assure that the
records
in variances from Chapters
2,
3,
and
6 of the Board’s
regulations
include an
analysis of pertinent Federal
laws
and regulations.
The amendments should not be construed as
an attempt by the Board to clarify
the meaning or scope of
Federal
law.
The Board is simply trying to make certain
that
it
is advised of Federal issues when
it renders its
decisions.
The Board has chosen to amend Procedural Rule 401 to
place the burden on
variance petitioners to show compliance
with Federal laws and regulations.
While this may constitute
some
hardship
on some petitioners,
it is consistent with
Section
37 of the Act which places the burden of proof with
them.
AIR VARIANCES
The
new Rule 401(d)
will require each petitioner to
indicate
whether
a request
for
relief
constitutes
a
request
for a delayed compliance order
or
for a revision
to
the
State Implementation Plan,
This distinction
is
important
because most air variances will
fall
into one category or
the other
with the attendant limitations of each.
The
decision as to which form of federal relief
is required will
initially be up to
the Board.
A further analysis of delayed
compliance orders can be
found at
43
Federal Register
44522,
September 18,
1978.
35—433
—2--
WATER VARIANCES
The new Rule 401(e)
is stated quite broadly because of
the significant volume of federal regulation under the Clean
Water Act and the wide scope of areawide waste treatment
management plans.
The Board will not always be bound to
follow all these regulations and plans, hut
it should know
whether
its decisions conflict with them.
Informed decision
making here should help in the operation of the NPDES program.
PUBLIC_WATER SUPPLY VARIANCES
The new Rule 401(f) makes specific mention of the USEPA
Drinking Water Regulations because of the unique way
in
which these standards are implemented.
IJSEPA often makes
its standards directly applicable to all water supplies,
even
if
a
less stringent state standard is in effect.
Consequently the Board must know what the Federal standards
are so that petitioners are not granted measures
of false
relief.
The amendments
to Rule 405 will
insure that the Board
is advised of the Agency’s conclusions on the applicability
and interpretation of all relevant Federal
laws and regulations.
The Board has elected to retain jurisdiction in this
proceeding
in the event that publication in the Illinois
~4ster
and the attendant rulemaking procedures under the
Illinois Administrative Prodedure Act
(Ill.
Rev.
Stat.,
ch.
127,
§1001 et
seq.) require any changes.
ORDER
1.
Procedural Rule 401 is hereby amended to read as
follows:
(a)-(c) No change.
(di
All petitions for variances from Title II of the
Act or from the Chapter
2, Air Pollution of the Board’s
Regulations shall
include an analysis showing that the
Board may grant the requested relief consistent with
the Clean Air Act
(42 U.S.C.
§7401 etseg~.) and the
Federal regulations adopted pursuant thereto.
If
granting a variance would constitute issuance of
a
delayed compliance order as that term
is defined in 40
C.F.R.
§65.01(e),
the petition shall
show that
the
requested relief is consistent with Section 113(d)
of
the Clean Air Act
42
U.S.C.
§7413(d)
and 40 C.F.R.
§~65.01—65--i0and 65.181.
If granting
a variance would
require revision of the State Implementation Plan,
the
petition shall show how the requirements
of Section
110(a)
of the Clean Air Act
42
U.S.C.
§7410(a)
and 40
C.F.R.
Part 51 will
be satisfied.
35—4 34
—3—
(e)
All petitions for variances from Title III of the
Act;
from Chapter
3, Water Pollution of the Board’s
Regulations;
or from water pollution related requirements
of any other title of the Act or chapter of the Board’s
regulations shall include an analysis showing that the
Board may grant the relief consistent with the Clean
Water Act
(33 U.S.C.
§1251 ~
U.S.E.P.A. effluent
guidelines and standards,
any other Federal regulations,
or any areawide waste treatment management plan approved
by the Administrator of U.S.E.P.A. pursuant to Section
208 of the Clean Water Act
(33 U.S.C.
§1288).
(f)
All petitions
for variances from Title IV of the
Act or from Chapter
6,
Public Water Supplies of the
Board’s Regulations shall
include an analysis showing
that the Board may grant the relief consistent with the
Safe Drinking Water Act
(42 U.S.C.
§300
f et seq.) and
the U.S.E.P.A. Drinking Water Regulations
(40 C.F.R.
Part 141).
(g)
The failure to satisfy the requirements
of this
Rule,
to the extent that the Board is not reasonably
informed of petitioner’s circumstances,
will render the
Petition for Variance subject to dismissal for inadequacy,
unless the Board shall
rule otherwise.
2.
Procedural Rule 405 is hereby amended to read as
follows:
(a)(1)—(a)(4)
No change.
(a)(5)
The Agency’s views with respect
to the Petitioner’s
assertions concerning the applicability and interpretation
of Federal law and/or regulations as required by Rule
401(d),
(e), or
(f).
(a)(6)
The Agency’s conclusion of what disposition
should be made
of the petition.
(b)
No change.
3.
The Board retains jurisdiction
in this proceeding.
IT
IS SO ORDERED.
Mr. Werner dissents.
I,
Christan
L.
Moffett, Clerk of the Illinois Pollution
Control Board, hereby cert~ifythe above Opini n a d Order
were adopted on the
~pJ~
day of
_____________
1979 by a vote of
~Lj_____,.
Christan L. Moff~t~j)Clerk
Illinois Pollutioi~ontrol Board
35—435