ILLINOIS POLLUTION CONTROL BOARD
    April 12, 1990
    USS DIVISION OF USX CORPORATION,
    Petitioner,
    v.
    )
    PCB 90-28
    (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 23, 1990 by the
    Illinois Environmental Protection Agency (“Agency”). On April 2,
    1990, USS Division of USX Corporation (“USS”) filed its response
    requesting the Board deny the Agency’s motion.
    On March 5, 1990, USS 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.
    The Agency requests that the Board dismiss USS’ variance
    petition because it believes that the petition is premature due
    to court appeals of the recent amendments from which USS seeks
    variance, stating that USS is establishing its request for a stay
    in the appellate court by filing this variance. In the
    alternative, the Agency submits that the variance petition is
    inadequate under 35 Ill. Adm. Code 104.121, alleging that USS has
    provided insufficient and speculative data to show violations of
    the standards, and that the lack of data makes it impossible for
    the Board to determine the effectiveness of the compliance plan
    or whether hardship exists or whether the requested variance
    would meet federal approvability requirements.
    The Board finds that the filing of this variance petition is
    not premature simply by virtue of its being filed while appeals
    of the new regulations are pending. irrespective of any motives
    for the filings, as USS correctly points out in its reply, there
    is nothing in the Act which precludes a petitioner from pursuing
    both variance relief from the Board and an appeal in the courts
    simultaneously.
    110—4 3
    —2—
    As to the issue of the showing of a present violation, USS
    submits that the Agency is incorrect that USS must prove a
    present 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). USS points to data which it believes describes its
    inability to comply with the numerical standards.
    USS further submits that its request for relief is not
    speculative since it lacks information to demonstrate compliance
    with the new rules, and seeks time to either demonstrate
    compliance or to show that further relief is necessary.
    The Board observes that most of the contentions contained in
    the Agency’s motion are of the type which are normally contained
    in a recommendation. Therefore, much of the discussion contained
    in the motion and response goes 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—21A water toxics rules. (PCB 90—27, PCB 90—
    29, PCB 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 Board is not prepared at this time to
    dismiss this petition as deficient. However, since USS bears
    the burden of proof, it is obvious that to the extent additional
    information is necessary for such proof, such information should
    be submitted during the course of the proceeding, and in advance
    of hearing.
    The Board accordingly denies the Agency’s motion to dismiss.
    Finally, the Board must address the Agency’s suggestion that
    the filing of this petition stays the effectiveness of the water
    toxics rules pursuant to Section 104.102. Section 104.102 is an
    old rule which was drafted to track Section 38(b) of the Act.
    Since the adoption of the rule, Section 38(b) of the Act was
    amended and now provides for an automatic stay of some newly
    effective rules if a petition for variance is filed wIthin 20
    days, but soecifically excludes rules implementing an NPE)ES
    program. Section 104.102 cannot be read as giving greater rights
    than the Board’s enabling statute allows. The water toxics rules
    can accordingly be stayed only by Order of court.
    IT IS SO ORDERED.
    ~.1fl—44
    —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.~unn, Clerk
    Illinois Pollution Control Board
    110—45

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