78-85
78-86
78-89
78-93

ILLINOIS POLLUTION CONTROL BOARD

May 14,

1987

IN THE MATTER OF:

)

PROCEDURAL RULES

)

 R82—27

R&2—36

 Consol.

)

 R83—37

ORDER OF THE BOARD

 (by J. Theodore Meyer):

In order

 to substantively amend Part 104:

 Variances of the

Board’s Procedural Rules

 a certain amount of renumbering

of

present sections will

 be necessary so as

 to add

 a number of new

sections.

 This will be accomplished by recodifying Part 104 and

then substantively amending

it.

 The following table sets forth

the recodification accomplished by this Order.

Conversion Table

 of Present and Recodified Parts:

Present Part

 Recodified Part

(Section Numbers)

 (Section Numbers)

104.200

 104.161

104.201

 104.200

104.202

 104.221

104.220

 104.224

104.221

 103.225

The Board hereby adopts

 the following recodification

amendments to Title

35:

 Environmental Protection Subtitle A:

General Provisions;

 Chapter

1:

 Pollution Control Board; Part

104:

 Variances.

 The Clerk

 is directed to file a Notice of

Recodification with the Secretary of State.

TITLE 35:

 ENVIRONMENTAL PROTECTION

SUBTITLE

A:

 GENERAL PROVISIONS

CHAPTER

I:

 POLLUTION CONTROL BOARD

PART 104

VARIANCES

SUBPART A:

 GENERAL PROVISIONS

Section

104.102

 Variance from New Regulation

104.103

 References

104.104

 RCRA Variances

SUBPART B:

 PETITION FOR VARIANCE

7g~S4

—2—

Section

104.120

 Petition for Variance

104.121

 Contents of Variance Petition

104.122

 Consistency with Federal Law

104.123

 Extension of Prior Variance

104.124

 Hearing Request or Waiver; Affidavit

104.125

 Dismissal for Inadequacy

104.126

 RCRA Variances:

 Additional Material

SUBPART C:

 NOTICE

AND

OBJECTIONS

Section

104.140

 Notice of Petition

104.141

 Objections to Petition

104.142

 RCRA Variances:

 Notice of Filing of Petition

SUBPART D:

 AUTHORIZATION OF HEARINGS

Section

104.160

 Board Action on Petitions for Variance and

Authorization of Hearing

104.161

 t~oticeof Hearing

SUBPART

E

:

 RECOMMENDAIION AND RESPONSE

Section

104.180

 Agency Investigation and Recommendation

 104.181

 Response or Amended Petition

104.182

 RCRA Variances:

 Additional Information

in

Recommendation

104.183

 RCRA Variances:

 Public Comment

SUBPART F

:

 HEARINGS

Section

104.200

 Proceedings

104.201

 Proceedings

 (Recodified)

104.202

 Transcripts~(Recodified)

SUBPART G

:

 FINAL ACTION

Section

104.220

 Decision

 (Recodified)

104.221

 Transcripts

104.224

 Decision

104.225

 RCRA Variances: Board Decision

APPENDIX

 Old Rule Numbers Referenced

78-85

—3—

AUTHORITY:

 Implementing Sections

5,

 35, 36,

 37 and 3~and

authorized by Section 26 of the Environmental Protection Act

(Ill. Rev. Stat.

 1983,

ch.

 l1~/2, pars,

 1005,

 1035,

 1036,

 1037,

1038 and 1026)

SOURCE:

 Originally adopted

 as Chapter

I:

 Procedural Rules, Part

IV:

 Variances,

 in R70—4, at

 1 PCB

 43, October

8,

 1970; amended

in R77—16,

 29 PCB

 503,

at

 2 Ill. Reg.

16,

p.

 3, effective May

1,

1978, amended

 in R79—9,

 35 PCB 433, at

3

 Ill.

 Reg. 51, p.

 128,

effective December

7,

 1979;

 amended

 in R80—12,

 40 PCB 451, at

5

Ill. Reg.

 2763, effective March

2,

 1981;

 codified at

6

 Ill.

 Reg.

8357; amended

 in R84—10 at

 9 111.

 Reg.

 1409, effective January

16,

 1985;

 amended

 in R82—27,

 36 and R83—37 at

_____

 Ill.

Reg.

_________,

 effective

_____________________

TITLE 35:

 ENVIRONMENTAL PROTECTION

SUBTITLE A:

 GENERAL PROVISIONS

CHAPTER

I:

 POLLUTION CONTROL BOARD

PART 104

VARIANCES

SUBPART A:

 GENERAL PROVISIONS

Section 104.102

 Variance from New Regulation

If any person files a petition for variance from a regulation

within

 20 days after

 the effective date of

 such regulation,

the

operation of such rule or

 regulation shall

 be stayed

as

 to such

person pending the disposition of the petition.

 The Board may

hold

 a hearing upon the petition five days from the notice of

such hearing, and in all other

 respects the rules

 in this Part

shall

 apply to the extent they are consistent with the hearing

date set by the Board.

Section 104.103

 References

Unless the contrary

 is clearly indicated, all references to

“Parts” or NSectionsM are to Illinois Administrative Code, Title

35:

 Environmental Protection.

 For example,

 “Part

 309”

 is 35

Ill.

 Adm. Code 309,

 and “Section 309.101”

 is 35 Ill. Adm. Code

309.101.

Section 104.104

 RCRA Variances

a)

 As used

 in this Part,

 ~petition for

 a RCRA variance”

shall mean any pleading which meets either,

 or both,

of

the following criteria:

78-86

—4—

1)

 It requests

 a variance from 35 Ill. Adm. Code

 703,

720,

 721,

 722, 723,

 724 or 725;

or,

2)

 It asks that the Board order

 the Agency to

 issue or

modify any provision of a RCRA permit required

pursuant to Section 21(f) of the Act.

b)

 The federal

RCRA

rules contain procedures which are

referred

 to as “variances”

 (40 CFR 260,

 261, 262,

 263,

264,

 265 and 270

 (1984)).

The

petitioner

 should consult

the comparable Board

 regulations to decide whether the

variance procedures of this Part need to be followed.

As provided

 in Title IX of the Act and Section

104.160(f),

 the Board may grant a temporary variance.

The Board may grant permanent relief from a rule

pursuant

 to 35 Ill. Adm. Code 102.

 Pursuant to 35 Ill.

Adm. Code 105 a permit applicant may request Board

review of the Agency’s denial of

 a permit or

 issuance

with conditions.

SUBPART B:

 PETITION FOR VARIANCE

Section 104.120

 Petition for Variance

A variance proceeding shall

 be commenced

 by any person by filing

a petition for variance with the Agency and simultaneously filing

10 copies with the Clerk of the Board.

 All additional

information or amendments

 to the petition for variance shall be

filed with the Agency and Board

 in the same manner

 as that

required for commencing the action.

Section 104.121

 Contents of Variance Petition

To enable the Board

 to rule on the petition for variance, the

following information, where applicable,

 shall be included

 in the

petition:

a)

 A clear

 and complete statement of the precise extent of

the relief sought,

 including specific identification of

the particular provisions of the regulations or Board

Order

 from which the variance is sought;

b)

 A description

 of the business

 or activity of the

petitioner

 including the size of the business and number

of employees and

 a description of the location and area

affected by petitioner’s operations;

c)

 The quantity and types of materials used

 in the process

or activity for which the variance is required and

a

full description of the particular process

 or activity

in which the materials are used;

78-87

—5—

d)

 The quantity and types of materials discharged from the

process or activity requiring the variance;

 the location

of

the

points

 of discharge,

 and,

 as applicable,

the

identification of the receiving waterway or land, or the

location of the nearest air monitoring station

maintained by the Agency;

e)

 Data describing

 the nature and extent of the present

failure

 to meet the numerical standards or particular

provisions from which the variance

 is sought and

a

factual statement why compliance with the Act and

regulations was not or cannot be achieved by the

required compliance date;

f)

 A detailed description of the existing and proposed

equipment or proposed method of control to be undertaken

to achieve full compliance with the Act and regulations,

including a time schedule for the implementation of all

 phases of the control program from initiation of design

to program completion and the estimated costs involved

for each phase and the total cost to achieve compliance;

g)

 An assessment,

 with supporting factual information,

of

the environmental

 impact that the variance will impose

on human,

 plant and animal life

 in the affected area,

including, where applicable,

 data describing the

existing air

 and water quality which the discharge may

affect;

h)

 Past efforts to achieve compliance including costs

incurred, results achieved, permit status, and,

for

publicly—owned treatment works or connections thereto,

construction grant status;

i)

 A discussion of the availability of alternate methods of

compliance,

 the extent that such methods were studied,

and

 the comparative factors leading

 to the selection of

the control

 program proposed

 to achieve compliance;

j)

 A statement of the measures

to

 be undertaken during the

period of the variance

 to minimize the impact of the

discharge of contaminants on human, plant and animal

life

 in the affected area,

 including the numerical

interim discharge limitations which can be achieved

during the period of the variance;

k)

 A concise factual statement of the reasons the

petitioner believes that compliance with the particular

provisions

 of the

 regulations or Board Order would

impose

 an arbitrary or unreasonable hardship; and

1)

 Such other things as are required in this Subpart.

78-88

—U—

Section 104.122

 Consistency with Federal Law

a)

 All petitions for variances from Title II of the Act or

from 35

 Ill. Adm. Code, Subtitle

B,

Ch.

I

 (Air

Pollution),

 shall indicate whether the Board may grant

the requested

 relief consistent with the Clean Air Act

(42 U.S.C. 7401 et seq.) and the Federal regulations

adopted pursuant thereto.

 If granting

 a variance would

constitute issuance of a delayed compliance order

as

that term is defined

 in 40 CFR 65.01(e), the petition

shall

 indicate whether

 the requested relief is

consistent with Section 113(d)

 of the Clean Air Act and

40 CFR 65.01—65.10 and 65.181.

 If granting

 a variance

would require revision of the State Implementation Plan,

the petition shall indicate whether the requirements of

Section 110(a)

 of the Clean Air Act and 40 CFR 51 will

be satisfied.

b)

 All petitions for variances from Title

III

 of the Act;

from 35 Ill.

 Adm. Code, Subtitle C,

Ch.

I;

or

 from water

pollution related requirements of

 any other

 title of the

Act or chapter of the Board’s Regulations shall indicate

whether the Board may grant the relief consistent with

the Clean Water Act

 (33 U.S.C.

 1251), U.S.E.P.A.

effluent guidelines and standards, any other Federal

regulations,

 or any areawide waste treatment management

plan approved

 by the Administrator of U.S.E.P.A.

pursuant to Section 208 of the Clean Water

 Act.

c)

 All petitions

 for variances from Title

 IV of the Act or

from 35

 Ill. Adm. Code,

 Subtitle F, Ch.

I

 (Public Water

Supplies),

 shall indicate whether

 the Board may grant

the relief consistent with the Safe Drinking Water Act

(42 U.S.C.

 300(f) et seq.)

 and the U.S.E.P.A.

 National

Interim Primary Drinking Water Regulations

 (40 CFR 141).

d)

 The petition may include an analysis of applicable

federal law and legal arguments and facts which may be

necessary to show compliance with federal

 law.

If

it

does not and petitioner subsequently files a pleading

containing such,

 it will

 be deemed an amended petition,

thereby restarting the d~ëcisionperiod.

 However,

petitioner may, pursuant to Section 104.181, file a

response

 to the Agency’s analysis of federal laws

without amending the petition.

e)

 All petitions for RCRA variances shall

 include a showing

that the Board can grant

 the requested relief consistent

with, and establish RCRA permit conditions no less

stringent than,

 that which would

 be required by the

Solid Waste Disposal Act as amended by the Resource

Conservation and Recovery Act of

1976

 (P.L.94—580, as

amended by P.L.95—609,

 42 U.S.C.

 6901 et seq.), and the

regulations thereunder promulgated by the United States

78-89

—7—

Environmental Protection Agency

 (40 CFR 260, 261, 262,

263,

 264,

 265 and 270

 (1984)).

 Such petitions shall

indicate whether any federal provisions authorize the

relief requested,

 and shall include any facts necessary

to show that the petitioner

 would

 be entitled

 to the

requested relief pursuant to federal law.

Section 104.123

 Extension of Prior Variance

a)

 A petition

 to extend a prior variance granted by the

Board shall be commenced by filing

 a petition for

variance with the Agency and the Board

 in accordance

with the requirements of Sections 104.120

and

104.121.

 To the extent that the information required by

Sections 104.120

 and 104.121 has been included

 in the

 prior petition for variance for which extension is

sought,

 a resubmission of that information shall not be

required provided that the petition shall request the

incorporation of the record, opinion and order

 in the

prior proceeding into the new petition.

b)

 A petition to extend a prior variance shall

 be a new

petition for variance before the Board and shall be

subject

 to all

 of the requirements of this Part except

as provided in subsection

 (a).

Section 104.124

 Hearing Request or Waiver; Affidavit

The petition shall contain a request for a hearing on the

petition

 if desired by petitioner;

or,

 in the alternative,

a

statement waiving a hearing, accompanied by such affidavits or

other proof in support of the material facts alleged

 in the

petition as the petitioner may submit, sufficient to enable the

Board,

if

 it so decides,

 to rule upon the petition without a

hearing.

 In the event that a hearing on the variance petition

has been waived by the petitioner and

 no hearing

 is held,

the

petition for variance, the Agency recommendation, and any

amendments or responses thereto shall constitute the entire

record in the proceeding

 and the decision of the Board shall be

rendered after consideration of the record except that the Board

may take official notice of prior regulatory proceedings and

 opinions of the Board

 in adopting the regulations or

 orders of

the Board from which the variance

 is sought.

Section 104.125

 Dismissal for Inadequacy

The

 failure

 to satisfy the requirements of this Subpart, to the

extent that the Board

 is not reasonably informed of petitioner’s

circumstances, will render

 the petition for variance subject

to

dismissal

 for inadequacy, unless the Board shall rule otherwise.

78-90

—8—

Section

104.126

 RCRA

Variances:

 Additional Material

a)

 The petitioner must clearly identify

 a petition for

a

RCRA variance as

 such.

b)

 Persons who have,

 or are required

 to have,

 a RCRA permit

and who seek a RCRA variance which could result

in

modification or issuance of the RCRA permit must have on

file with the Agency

 a RCRA permit application

reflecting

 the requested variance prior to filing the

variance petition.

 Petitioner

 shall attach to the variance petition a copy

of the RCRA permit application,

 or such portion as may

be relevant

 to the variance request.

d)

 Petitioner

 shall attach to the variance petition proof

of service on USEPA as required by Section 104.142

SUBPART C:

 NOTICE AND OBJECTIONS

Section 104.140

 Notice of Petition

a)

 The Board shall give notice of all variance petitions to

all persons on its mailing list through publication of

notice of the petition

 in the Board’s Environmental

Register

 in the first publication of the Environmental

Register after the Board has considered the petition in

accordance with Section 104.160(b).

b)

 The Agency shall give written notice of all variance

petitions to

 any person

 in the county in which

the

installation or property is located for which the

variance

 is sought who has

 in writing to

 the Agency

requested notice of variance petitions,

 the States

Attorney of such county,

 the Chairman of the County

Board of such county,

 and to each member of the General

Assembly from the legislative district in which the

installation or property is located and to other persons

as required by law.

 Slithin 10 days after

 the petition

is filed,

 the Agency shall publish notice of such

petition

newspaper

general

circulation

the

county

 in which the installation or property

 is located

for which the variance is sought.

Section 104.141

 Objections

 to Petition

a)

 Any person may file with the Clerk, within 21 days after

the filing of the petition,

 a written objection to the

grant of the variance.

 Such objection may

 or may not be

accompanied by a petition to intervene in accordance

78-91

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with Section 103.220.

 A copy of such objection shall

be

mailed to the petitioner and the Agency by the Clerk.

b)

 Paragraph

(a)

 does

 not apply to RCRA variances.

Sections 104.183 and 104.200 provide for public comment

and a public hearing on all such petitions.

Section 104.142

 RCRA Variances:

 Notice of Filing of Petition

a)

 Any petition requesting

 a RCRA variance shall not be

deemed filed until proof of service has been filed with

the Board.

 Petitioner

 shall serve the United States

Environmental Protection Agency a copy of any petition

requesting

 a RCRA variance at the following address:

Director, Waste Management Division

USEPA, Region V

230

South

Dearborn

Street

Chicago,

60604

addition

the

 requirements of Section 37

the

Act

and Section 104.140, the Agency at a minimum shall give

notice of the filing of a petition for a RCRA variance

to

 the following persons:

1)

 Federal

 agencies as designated by the United States

Environmental Protection Agency;

2)

 Illinois Department of Transportation;

3)

 Illinois Department of Conservation;

4)

 Illinois Department of Energy and Natural

Resources;

Illinois

Department

Public

Health;

The

Governor

any

other

State

adjacent

the

County

 in which the facility

 is located;

Elected

officials

any

counties,

other

states,

adjacent

the

County

which

the

facility

located, and elected officials in any municipality,

in another state,

 if it

 is the closest population

center

 to the facility.

 In addition

 to the methods of notice by publication of

Section 104.140,

 the Agency shall give notice by

broadcast over

 at least one local

 radio station in the

area

 of the facility containing the information required

by paragraphs

 (d)(2)

and

 (d)(4)

 through (d)(7).

78-92

—10—

d)

 The notices

 required by paragraphs

 (b) and

 (c) shall

be

accomplished within the time limit established by

Section 104.140(b).

e)

 A notice of the filing of a petition for a RCRA variande

shall

 include the following information:

1)

 The address of the Board office;

2)

 Name and address of the petitioner

 and, if

different, of the facility for which the variance

is sought;

3)

 A brief description of the business conducted at

the facility and the activity described in the

petition;

4)

 Name, address and telephone number of the Clerk

of

the Board,

 from whom interested persons may obtain

further information,

 including copies

 of the

variance petition; and

5)

 A statement that the Agency is preparing a

recommendation,

 the date on which the

recommendation

 is to be filed,

 and the name,

address and telephone number of the Agency employee

responsible

for

 the recommendation;

6)

 A statement that a hearing will be held after the

filing of the recommendation and that the record

will remain open for written comments for 45 days

after filing of the recommendation.

 The notice

will include the address of the Board to which

comments shall

 be mailed;

7)

 A statement that the record

 in the variance

proceeding

 is available at

 the Board office for

inspection, except those portions which are claimed

to be trade secrets,

 and that procedures are

available whereby disclosure may be sought by the

public.

8)

 A statement that variances may be granted pursuant

to Ill. Rev.

 Stat.

 1983,

 ch. 1l1~,pars.

 1035 et

seq. and

 35 Ill. Adm. Code 104, and

 a reference

to

the Board regulations

 or order from which a

variance is sought.

9)

 Any additional information considered necessary or

proper.

SUBPART D:

 AUTHORIZATION OF HEARINGS

78-93

—11—

Section 106.160

 Board Action on Petitions for Variance

and Authorization of Hearing

a)

 The Clerk

 shall assign a docket number

 to each petition

filed, deposit the petition in the Board’s files,

and

distribute copies

 to each Board Member.

 Copies of

objections

 to the petition, amendments,

 the Agency’s

recommendations and responses to the recommendation

shall be filed and distributed as received.

b)

 All petitions for variance shall

 be placed on the Board

agenda and the Board will authorize one or more of the

following actions,

 as they shall determine:

1)

 The petition may be dismissed

 if the Board

determines that

 it is not adequate under Subpart B

or the Act; or,

2)

 The Board may enter

 an order

 for additional

information in support of the petition; or,

3)

 The Board may accept

 the petition and defer

decision until an Agency recommendation has been

served upon the petitioner and filed with the

Board;

or,

4)

 The Board may authorize a hearing on the petition.

c)

 The Board shall authorize a hearing on any petition for

variance, determined

 to be an adequate petition by the

Board,

 in any of the following circumstances:

1)

 When a hearing

 is requested by the petitioner on

filing the petition in accordance with Section

104.124;

or,

2)

 When an objection to

 the variance has been filed

within 21 days after

the

 filing of the petition in

accordance with Section 104.141; or,

3)

 When a petition for a RCRA variance has been filed;

or,

4)

 When a hearing

 is requested by an amended petition

within

 7 days after receipt of the Agency

recommendation by the petitioner

 in accordance with

Section 104.181(b);

or,

d)

 When a hearing has been authorized by the Board pursuant

 to subsections (b)(4)

or

 Cc), the Chairman shall

designate

 a Hearing Officer

 in accordance with Section

103.181(b).

78-94

—12—

e)

 If no hearing has been authorized pursuant to

subsections (b)(4)

or

 (c),

 the Board shall act within 90

days of

 the filing of the petition and shall prepare an

opinion stating reasons supporting the grant or denial

of the petition, except that the Board shall not act to

grant or deny any petition until after 21 days have

elapsed from the date of filing.

 The decision period on

RCRA, UIC and NPDES Variances is as provided

 in Section

38(c)

 of the Act.

f)

 No variance shall

 be granted, with or without hearing,

without

showing

 affidavits or other adequate proof

the

petitioner

that

 compliance with the regulations

Board

order

would

impose

 arbitrary or unreasonable

hardship

upon

the

petitioner.

Section

104.161

Notice

Hearing

The

Hearing

Officer,

after

appropriate

consultation

with

the parties, shall

set

time

and

place

for

 hearing

to

be held within 60 days of the filing

 of the petition.

b)

 The Hearing Officer shall give notice of the hearing

in

accordance with

 35 Ill.

 Adrn. Code 103.123(b),

 at least

21 days before the hearing

 to the petitioner, the

Agency,

 and anyone who has filed an objection to the

petition.

c)

 The Clerk

 shall publish the

 time and place of the

hearing

 in the Board’s Environmental Register in the

first publication of the Environmental Register

 after

the Hearing Officer shall have set the date for hearing.

d)

 Notice of hearings on petitions for

RCRA

variances shall

be subject to the following provisions instead of

paragraphs

 (a),

(b)

and

(C):

1)

 The Hearing Officer, after appropriate consultation

with the parties,

 shall set

 a time and place for

the hearing

 to be held not less than

 30 days

 after

the filing of the recommendation.

 The Hearing

Officer may give notice of any hearing prior

 to the

actual

 filing of the recommendation.

 If the

recommendation is actually filed less than 30 days

before the scheduled date of the hearing, the

 ~iearingOfficer

 shall reschedule

 the hearing and

give public notice again.

2)

 The hearing shall be held

 in the County in which

the facility is located,

 in the population center

in such county closest to the facility.

78-95

—13—

3)

 The Hearing Officer

 shall give notice of the

hearing to

the

persons

entitled

notice

Section

104.140

and

 104.142, and

 to any other

persons who have commented, requested to comment or

requested notice.

4)

 Notice shall be mailed not less than 30 days before

the hearing.

(Source:

 New Section

 104.161 recodified from former Section

104.200 at

_______

 Ill. Reg.

___________)

SUBPART

E:

 RECOMMENDATION AND RESPONSE

Section 104.180

 Agency Investigation and Recommendation

a)

 After investigating the variance petition and

considering the views of persons who might be adversely

affected by the grant of the variance, the Agency shall

within

 30 days of the filing of the petition or any

amendment thereto make a recommendation to the Board on

the disposition of the petition

 The recommendation

shall include:

1)

 A description of the efforts made by the Agency to

investigate the facts as alleged and to ascertain

the views

 of persons who might be affected and

a

summary of the views so ascertained;

2)

 A statement of the degree

 to which,

if

 at all, the

Agency disagrees with the facts as alleged

 in the

petition, including facts refuting any allegations

in the petition for variance;

3)

 Allegations of any other

 facts

 the Agency believes

relevant

 to the disposition of the petition;

4)

 The Agency’s estimate of the costs that compliance

would impose on the petitioner and on others and of

the injury that the grant of the variance would

impose on the public including the effect that

continued discharge of contaminants will have upon

the environment;

5)

 The Agency’s analysis of applicable federal

 laws

and regulations and an opinion concerning the

consistency of the petition with such federal laws

and regulations;

and

6)

 The Agency’s conclusion of what disposition should

be made of the petition.

78-96

—14—

b)

 The Agency shall serve

 a copy of its recommendation on

the petitioner

 in accordance with Section 103.123(b).

Failure of the Agency to timely file its recommendation

 shall be grounds for the Hearing Officer to adjourn the

hearing

 to a date which will allow reasonable time

to

prepare.

Section 104.181

 Response or Amended Petition

Within

 7 days after receipt of the Agency Recommendation, the

petitioner may:

a)

 File with the Board a response to any Agency

recommendation and

 a copy shall

 be served upon the

Agency;

or,

File

amended

petition

for

variance

accordance

with

Section 104.121, requesting that the matter be set for

hearing.

 The Board

 shall authorize the matter for

hearing and render a final decision within 90 days after

the filing of the amended petition.

Section 104.182

 RCRA

Variances:

 Additional Information

Recommendation

a)

 This section shall apply to Agency recommendations on

petitions for RCRA Variances in addition to

the

provisions of Section 104.180

b)

 The Agency shall

 file its recommendation with the Board

within 30 days after

the

petition

filed.

c)

 The recommendation shall include a fact sheet or

statement of basis as provided

 in 35 Ill.

 Adm. Code

705.141 through 705.143,

 insofar

 as relevant

 to the

variance requested.

d)

 If the Agency recommends that the variance be granted,

a

partial draft permit reflecting the variance and

recommended conditions

 shall

be

 included with the

recommendation.

e)

 If the Agency recommends that the variance be denied,

a

notice of intent

 to deny shall be included with the

recommendation.

f)

 The Agency shall serve

 its recommendation on the United

States Environmental Protection Agency and all persons

who

have

notified

the

Agency

that

they

intend

comment

or have otherwise asked to be served a copy of the

recommendation.

78-97

—15—

Section 104.183

 RCRA

Variances:

 Public Comment

a)

 Any person,

 including the United States Environmental

Protection Agency, may comment

 in writing within 45 days

after

 the Agency files

 its recommendation.

b)

 Comment may be on both the petition for

 a RCRA variance

and

the

recommendation.

c)

 The Board will mail

 copies of any written comment to the

petitioner,

 the Agency and the United States

Environmental Protection Agency, unless the person

filing

the

comment

files

proof

service

the

persons entitled to copies.

SUBPART F:

 HEARINGS

Section 104.200

 Proceedings

a)

 Proceedings upon a petition for variance shall

be

in

accordance with Part 103, except as otherwise provided

in this Part.

b)

 In a hearing

 on the petition for variance the burden of

proof shall

 be on the petitioner and

 it shall be the

duty of the petitioner,

 at hearing,

 to prove each

material fact alleged

 in the petition for variance.

(Source:

 Former Section 102.200 recodified

 to new Section

104.161; Section 102.200

 recodified from Section 102.201

at

_____

 Ill.

 Reg.

_______

Section 104.201

 Proceedings

 (Recodified)

(Source:

 Section 104.201 recodified

 to Section 104.200 at

Ill. Reg.

________

Section 104.202

 Transcripts

 (Recodified)

(Source:

 Section 104.202 recodified to Section 104.221 at

Ill. Reg.

________)

SUBPART

FINAL

ACTION

78-98

—16—

Section 104.220

 Decision (Recodified)

(Source:

 Section 104.220 recodified

 to Section 104.224 at

Ill. Reg.

___________

Section 104.221

 Transcripts

a)

 In any proceeding brought pursuant to this Part, where a

hearing has been authorized by the Board,

 the petitioner

at its own cost shall furnish

 to the Board within

15

days following the completion of the hearing seven

legible copies of a complete stenographic transcript of

the proceedings of the hearing and any delay

 in the

filing

 of the transcript shall constitute waiver of the

right to a decision within

 90 days under Section 38 of

the Act.

b)

 Upon petition and good cause shown, the Board may assume

the cost of the stenographic transcript of the hearing

provided, however, that such petition shall have been

filed with and granted by the Board prior to the

hearing.

(Source:

 Former Section 104.221 recodified to Section 104.225;

new Section 104.221 recodified from Section 104.202 at

____

 Ill.

Reg.

__________

Section 104.224

 Decision

The Board

 shall render

 a final decision upon the petition within

90 days after

 the filing of the petition, except that any party

may agree to waive his right to

 a decision within

 90 days.

 Time

included

 in a continuance granted at the request of the

petitioner

 shall not be counted towards the running

 of the

90

days.

 When exigencies of time require,

 the Board

 may delay the

filing

 of an opinion for

 30 days after the filing of

 its final

order

 under this Part.

 Where the petition for variance

is

amended, the 90 day period shall commence from the date of

 filing

of the amendment.

 Any order

 for the filing of a bond shall be

in

accordance with the Act.

(Source:

 Section 104.224 recodified from Section 104.220

______

Ill.

Reg.

_________

Section 104.225

 RCRA

Variances:

Board

Decision

78-99

—17—

a)

 Decision periods for

RCRA

variances are as provided in

Section 38(c)

 of the Act.

b)

 The Board will not grant a variance from 35 Ill.

 Adni.

Code 703,

 720, 721,

 722,

 723,

 724 or 725,

 or order

issuance or modification of a RCRA permit,

 unless the

procedures of this Part applicable to petitions for RCRA

variances have been followed.

 The Board may grant a RCRA variance only to the extent

 consistent with, and with conditions

 no less stringent

than, those which would

 be required by the Solid Waste

Disposal Act as amended by the Resource Conservation and

Recovery Act, and 40 CFR 260, 261, 262,

 263,

 264, 265

and 270.

 Variances shall require compliance with the

regulations

 in the shortest possible time.

d)

 The Board’s final Order may direct the Agency to issue

or modify a RCRA permit with conditions which may be set

forth specifically

 in the Order,

 or which may consist of

general guidelines

 to be followed by the Agency,

together with applicable regulations,

in

 issuing a

permit.

e)

 The Board will

 send copies

 of its final Opinion and

Order

 to the Agency by messenger,

 to the United States

Environmental Protection Agency,

 the petitioner

 and any

other party by certified mail, and to all other persons

who have requested such information by first class mail.

(Source:

 Section 104.225 recodified from Section 104.221

at

______

 Ill. Reg.

___________

APPENDIX

OLD RULE NUMBERS REFERENCED

The following table

 is provided

 to aid

 in referencing old Board

rule numbers

 to section numbers pursuant to codification.

Chapter

1:

 Procedural Rules

 35 Ill.

 Adni.

 Code

Parts 101—107

Part IV:

 Variances

 Part 104:

 Variances

Rule 401(a)

 Section 104.120

Rule 401(a)&(c)

 Section 104.121

Rule 401(b)

 Section 104.124

Rule 401(d)—(g)

 Section 104.122

Rule 401(h)

 Section 104.125

Rule 402

 Section 104.123

Rule 403

 Section 104.140

Rule 404

 Section 104.141

Rule 405

 Section 104.180

78-100

—18—

Rule 406

Rule 407

Rule 408

Rule 409

Rule 410

Rule 411

Rule 412

Section

Section

Section

Section

Section

Section

Section

104.181

104. 160

104.200

104.201

104

220

104.102

104.202

IT

 IS SO ORDERED

I, Dorothy

 M. Gunn,

 Clerk

Board, hereby certif

 that the

the

/~~,llZ

 day of

_______________

of the Illinois Pollution Control

above Order was adopted on

 1987, by a vote of

/L~/

Dorothy M.

 q~ánn,Clerk

Illinois Pollution Control Board

78-IOi