ILLINOIS POLLUTION CONTROL BOARD
    ~pri1 12,
    1990
    LACLEDE STEEL COMPANY,
    Petitioner,
    v.
    )
    PCB 90—29
    (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 22, 1990 by the
    Illinois Environmental Protection Agency (“Agency”). On April 2,
    1990, Laclede Steel Company (“Laclede”) filed its response
    requesting the Board deny the Agency’s motion.
    On March 5, 1990, Laclede 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 Laclede’s
    variance petition because it believes the petition is premature
    because the Toxics Control rules promulgated by the Board in R88—
    21(A) are currently on appeal in the Fifth District Appellate
    Court. The Agency then proceeds to explain its perceived impact
    which the appeal may have upon the variance proceeding, including
    the possibility of an appellate court stay of the effective date
    of the rules.
    The Board finds that the filing of this variance petition is
    not premature simply by virtue of its filing while appeals of the
    new regulation are pending. There is nothing in the Act which
    precludes a petitioner from simultaneously seeking variance
    relief from the Board and an appeal in the courts. Furthermore,
    the Act provides that persons may appeal rules adopted by the
    Board (Ill. Rev. Stat. Ch. 1ll~, par. 1029). However, Laclede’s
    belief that variances filed within 20 days of the effective date
    of ~ new rule automatically stays the effectiveness of the
    rules pursuant to Section 38(b) is erroneous. Section 38(b) of
    the Act provides for an automatic stay of some newly effective
    rules if a petition for variance is filed within 20 days, but
    110—47
    —2—
    specifically excludes rules implementing an NPDES program. The
    water toxics rules implement an NPDES program, and can
    accordingly be stayed only by Order of court.
    In the alternative, the Agency submits that the variance
    petition is inadequate under Board procedural rule Section
    104.121. The Agency alleges that Laclede has provided
    insufficient data and that Laclede has not described the nature
    and extent of its present failure to meet the numerical standards
    or particular provisions from which variance is sought, again
    citing more alleged deficiencies in data presented.
    As to the issue of a showing of a present violation, Laclede
    submits that the Agency is incorrect that Laclede 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). Laclede points to data
    which
    it believes indicates
    its inability to show compliance with the new standards.
    As to the Agency’s contentions concerning insufficient data,
    Laclede basically points to certain information on these issues
    which it believes satisfies the requirements of the procedural
    rule, adding essentially that should the Board believe more
    information is required, an order seeking more information would
    be more consistent with past precedents rather than dismissal.
    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—2lA water toxics rules. (PCB 90—27, PCB 90—
    28, 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 benchnark 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 Laclede
    bears the burden off 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.
    IT IS SO ORDERED.
    —3—
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify that. the above Order was adopted on
    the
    J’)~ZJ~
    day of
    ~
    ,
    1990, by a vote
    of
    _________
    .
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board
    110—49

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