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