ILLINOIS POLLUTION CONTROL BOARD
April 12, 1990
SHELL OIL COMPANY,
Petitioner,
v.
)
PCB 90—27
(Variance)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD (by R. C. Flemal):
This matter comes before the Board upon a motion to dismiss
Petitioner’s petition for variance filed March 26, 1990 by the
Illinois Environmental Protection Agency (“Agency”). On April 3,
1990, Shell Oil Company (“Shell”) filed its response requesting
the Board deny the Agency’s motion.
On March 5, 1990, Shell filed a petition for variance for
relief from 35 Ill. Adm. Code 302.102 (mixing zones and ZIDS),
302.208 (Numeric Standards for Chemical Constituents), 302.210
(the narrative standard), and Subpart F (Procedures for
Determining Water Quality Criteria), as each rule was amended in
the Board’s Toxics Control regulatory proceeding, R88—21(A),
January 25, 1990, effective February 13, 1990. Shell also
requests relief from 35 Ill. Adm. Code 302.211 (temperature) and
302.212 (ammonia nitrogen). These two sections were not amended
by R88—21(A).
The Agency in its motion asserts that Shell’s petition is
deficient because it lacks the information for a variance
petition required by 35 Ill. Adm. Code 104.121. The Agency
points out certain information which it believes is lacking in
the petition, including data deficiencies pertaining to Section
302.208, and 302.102. The Agency then asserts that a variance
may not be granted from a rule for which a petitioner is not
presently in violation. The Agency points to the requirements of
Subpart F, as well as Sections 302.210, 302.211 and 302.212,
where the Agency asserts Shell has not demonstrated a present
violation. Lastly, the Agency states that no hardship for
compliance can be demonstrated since compliance for Shell’s
discharge is already compelled bya recent court order (Fed.
Dist. Ct. No. 87—5249) and by its NPDES permit.
Shell responds that the Agency’s motion be denied as its
petition meets the requirements contained in the Board’s
procedural rules. Shell points out that the Agency raises a
variety of technical issues which could be raised in the Agency’s
110—39
—2—
recommendation, which would then he the subject of findings of
fact by the Board.
As to the issue of the showing of a present violation, Shell
submits that the Agency is incorrect that Shell must prove a
violation, stating that rather, a petitioner need only show that
it cannot demonstrate compliance; i.e., to show a “present
failure” to meet a regulation, pursuant to Section 104.121(e).
Shell points to reports which it believes show probability of
violations and further submits (presumably regarding those
regulations which were recently promulgated through R88-21(A))
that there is no recuirement that a petitioner prove long term
violation of a rule which has never been applicable to it.
The Board notes that Shell also clarifies that it is not
seeking variance from any iron water quality standard in this
petition.
The Board observes that most of the contentions contained in
the Agency’s motion are technical discussions which are of the
type normally contained in a recommendation. Therefore much of
the discussion contained in the motion and response goes to the
merits of the petition. Regarding the issue of the court order
and NPDES permit, as Shell correctly points out, the Agency does
not state how the court order or permit impacts upon the
requested relief. This further shows that issues raised by the
Agency pertain to the merits of the petition. The Board notes
that several other petitions for variance, as well as petitions
for adjusted standards, have been filed seeking relief from the
R88—2lA water toxics rules. (PCB 90—28, POE 90—29, POE 90—30, AS
90—2, AS 90—3, AS 90-4, AS 90—5.) The Agency has requested
dismissal due to asserted informational deficiencies in each
case, save for AS 90—5. Given the nature of the water toxics
amendments and the fact that there is no previously established
benchmark for judging the sufficiency of a petition in this
arena, the Eoard is not prepared at this time to dismiss this
petition as deficient. The parties have raised issues which the
Board can best address after they have been ~r:her aired at
hearing. However, since Petitioner bears the burden of proof, it
~s obvious that to tne extent additional informati~n is necessary
:or ~~ch proof, such inior~at~cnshould be sibn:~teo curing tne
~o~i:se of tne oroceedino, and ~n advance of hea~::io.
The Eoard •accordingy denies the Agencyts motion to dismiss.
IT
Is SO
ORDERED.
1
lr)--41)
—3—
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Order was adopted on
the
/~~/-
day of
________________
,
1990, by a vote
of
~
.
-~
Dorothy M.~Gunn, Clerk
Illinois Pollution Control Board
110—4 1