ILLINOIS POLLUTION CONTROL BOARD
    April 12, 1990
    GRANITE CITY DIVISION OF
    NATIONAL STEEL CORPORATION,
    Petitioner,
    v.
    )
    PCB 90-30
    (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, Granite City Division of National Steel Corporation (“GCD”)
    filed its response requesting the Board deny the Agency’s motion.
    On March 5, 1990, GCD 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 GCD’s variance
    petition because it believes the petition is premature because
    the Toxics Control rules promulgated by the Board in R88—2l(A)
    are currently on appeal in the Fifth District Appellate Court.
    The Agency then proceeds to explain its perception of the 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 being filed 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. lll~,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—5 1
    —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 GCD has provided insufficient
    data and that GCD has not described the nature and extent of its
    present failure to meet the numerical standards •or particular
    provisions from which variance is sought, has inadequately
    described its compliance plan by failing to provide a schedule of
    compliance, and has not presented any hardship.
    As to the issue of a showing of a present violation, GCD
    submits that the Agency is incorrect that GCD 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). GCD 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,
    description of a compliance plan, and hardship, GCD 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 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 ~he 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—29, 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 ~ater toxics amendments and the fact that there is no
    previously established benchmark for judging the sufficiency of a
    petition in this arena, ~he Board is no: prepared at this time to
    dismiss this petition as deficient. However, since GCD bears the
    burden of proof, i: 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 theAgency’s motion to dismiss.
    The Board further notes two members of the public filed
    I Ifl—~
    —3—
    objections to the request for variance on April 2 and 5, 1990.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify ttiat the above Order was adopted on
    the
    /~2~Y
    day of ~
    ‘
    ,
    1990, by a vote
    of
    ________
    .
    Dorothy M. Cunn, Clerk
    Illinois Pollution Control Board
    110—53

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