ILLINOIS POLLUTION CONTROL BOARD

March 23, 1989

DEMERT & DOUGHERTY, INC.,

)

Petitioner,

v.

)

PCB 89—54

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

Respondent.

ORDER OF THE BOARD (by B. Forcade):

Demert & Dougherty, Inc. (“Demert”) filed a March 15, 1989

petition “pursuant to 35 Ill. Adni. Code, Parts 104, 302 and 304”

seeking “a variance from the total dissolved solids limitation of

35 Ill. Adni. Code 302.208 and a corresponding modification of

NPDES Permit No. 1L0002836. That petition is deficient as a

variance petition in the following ways:

1. It seeks relief from a water quality

standard, rather than from Section

304.105, which is the prohibition against

causing or contributing to violation of

such standards. (The Board can establish

a site—specific rule granting relief from

water quality standards, but can only

grant a variance from Section 304.105.)

2. It fails to set forth a fixed term for

the requested variance. (The Board may

only grant a variance for a fixed term

not to exceed five years.)

3. It fails to outline a plan by which

Demert will ultimately achieve compli-

ance.

(The Board may only grant a

variance upon a showing that the

petitioner will make reasonable progress

toward ultimate compliance with the

relevant rule.

4.

It does not include

a statement whether

the Board may grant the requested relief

consistent with federal law. (The Board

may only grant variance relief to the

extent such relief is consistent with

federal law and regulations.

97—215

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—2—

5. Paragraph 15 of the petition asserts that

Section 304.103 would not require

“compliance with numerical effluent

standards,” but does not explain how this

provision would apply to the water

quality standard from which relief is

sought.

The Board is aware that alternative possibilities exist for

Demert. Demert could pursue a variance seeking a Board

determination that such relief is inappropriate because the

challenged rule somehow does not apply. Dernert could seek a

short—term variance until it can determine alternatives for

compliance or file a petition for some other form of relief. In

either instance, Demert must correct the above—described

deficiencies. Alternatively, Demert could seek a site—specific

rulemaking or an adjusted standard. However, the petition does

not assert such. Rather, the petition apparently seeks a

permanent variance from a water quality standard. As such, it is

not adequate.

Unless an amended petition is filed within 45 days of the

date of this Order curing the above—noted defects this matter

will be subject to dismissal.

IT IS SO ORDERED

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above Order was adopted on

the ~?i’~day of _______________________, 1989, by a vote

of

~

Illi

Control Board

97—2 16