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