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

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