ILLINOIS POLLUTION CONTROL BOARD

July 9,

1992

THE

MATTER

OF:

)

THE PETITION OF CABOT CORP. FOR)

 AS 91-10

AN ADJUSTED STANDARD FROM THE

)

 (Adjusted Standard)

REQUIREMENTS OF 35 Ill. Adm.

Code 725.293

)

ORDER OF THE BOARD (by J. Anderson):

The Cabot Corp.

 (Cabot)

 filed

 a petition for an adjusted

standard from the requirements of 35 Ill. Adm. Code 725.293 on

December 27,

 1991.

 Cabot filed its petition pursuant to Ill.

Rev. Stat.

 1991 ch.

 111½, par.

 1028.1,

 35 Ill. Adm. Code

725.293(g)

 and 35 Ill. Adm. Code 106.Subpart D.

 Cabot seeks this

adjusted standard from certain secondary containment requirements

for tanks containing hazardous wastes.

 35 Ill.

 Adin. Code

725.293(h) (3)

 requires that a petitioner submit its completed

alternative design and operating practices demonstration within

180 days of filing its petition for an adjusted standard.

Cabot filed its completed demonstration on motion instanter

on June 25, 1992,

 one day late.

 The motion instanter states that

the filing was late because of its sheer volume and because Cabot

effected last minute revisions.

 Accompanying the motion

instanter are motions to file on other than recycled paper,

 because recycled paper was not immediately available to Cabot,

 and a motion to file fewer than nine copies of the attachments to

the demonstration.

 Cabot states that it was impossible to timely

obtain

the

required

nine

copies.

Cabot

asserts

that

the

main

body

the

demonstration

 is over 200 pages, and the appendices

are over 300 pages.

 The Board notes that several of the

attachments

are

oversized,

which

would

tend

complicate

copying.

 The motion states that the Agency has no objection.

The Board hereby grants Cabot leave to file its completed

demonstration instanter with fewer than nine copies of the

attachments and duplicated on other than recycled paper.

By our order of March 26,

 1992, the Board delayed the

question of authorizing hearing until Cabot filed the required

demonstration.

 Cabot has not yet filed an express request or

waiver of hearing.

 In the course of its April 10,

 1992 response

to the Agency’s preliminary comments, Cabot states as follows:

Cabot remains confident,

 however, that the Board will

•

provide

Cabot

fair

hearing

 after Cabot

completes

its

demonstration.

Cabot

Respons~ to

Agency

Preliminary

Comments

13.

This

ambiguous

and

insufficient.

The

Board

hereby

orders

that

I 35-0085

2

Cabot shall submit a written filing that expressly requests or

waives a public hearing.

 Cabot shall submit this written

statement no later than the date upon which its response to the

Agency recommendation is due.

By our order of March 26,

 1992, we held that the filing of

the completed demonstration triggers the deadline for filing the

notice of newspaper publication and for filing the Agency

recommendation.

 We further extended the deadline for filing the

Agency recommendation from 21 days to 30 days after the filing of

the completed demonstration, and extended the deadline for filing

Cabot’s response from 14 days to 21 days after the

recommendation.

 The record bears no indication that Cabot has

filed a notice of publication as of this date.

 It is due within

14 days of the filing of the completed demonstration, by July 6,

1992.

 As stated in our March 26 order,

 a failure to publish a

notice required by statute renders a petition as filed defective

and, thus,

 subject to dismissal for lack of Board jurisdiction.

The extended filing deadline for the Agency recommendation

 renders that document due on or before July 25,

 1992, unless, as

noted in the March 2. order, the Agency can justify an additional

extension of time in an appropriate motion.

 The Cabot response

is. due 21 days after the filing of the Agency recommendation.

By our order of March 26,

 1992, the Board strongly

encouraged dialog between Cabot and the Agency in this matter.

As a part of its March 23,

 1992 filing, Cabot stated that it was

entering into discussions with the Agency.

 The Board again

stresses that this is highly desirable.

 It will serve to narrow

the issues,

 as well as to possibly eliminate some of the Agency’s

potential concerns.

 This will serve to leave the Board free to

decide only the remaining substantive issues;

 it could also

result in the Agency withdrawing objections it may have.

As

previously noted, Cabot may be required to comply with the

general RCRA regulations on or before January,

 1994 if the Board

denies relief on the petition.

 While it is desirable for the

parties to resolve as many issues as possible between themselves,

this matter is subject to a tight time-frame.

In summary, the Cabot notice of newspaper publication is due

on or before July 6, 1992.

 The Agency recommendation is due on

or before July 25,

 1992, unless the Board grants an extension of

time before that date.

 Cabot’s response is due no later than 21

days after the Agency files its recommendation.

 Cabot shall

submit either an express written request or a written waiver of

hearing no later than the date upon which its response is due.

The Board will delay accepting the petition until Cabot has

filed the notice of newspaper publication.

 We will defer setting

this matter for hearing until 21 days after publication of the

newspaper notice of filing and after the parties have completed

0135-0086

3

their respective filings.’

IT IS SO ORDERED.

I, Dorothy M.

 Gunn,

 Clerk of the Illinois Pollution Control

Board

 do hereby cert

 y that the above order was adopted pn the

___________

 day of

/

 1992, by a vote of

~

Dorothy M. ~nn,

 Clerk

Illinois Poflution Control Board

1

~

 Ill. Adm. Code 106.415(a)

 requires that the Board

conduct a public hearing on an adjusted standard petition.

The

Board adopted this provision in R86—46,

 at 11 Ill.

 Reg.

13457

(Aug.

 14, 1987)

 (effective August

4,

 1987).

 In P.A. 85—1048,

1988 Ill. Legis.

 Serv.

 (West)

 344,

356

 (July 14,

 1988)

 (effective

Jan.

1,

 1989), the General Assembly amended Section 28.1(d)

of

the Environmental Protection Act,

 Ill. Rev.

 Stat.

 1989 ch.

 111½,

par.

 1028.1(d),

 to eliminate the former mandatory public hearing

requirement.

 It provides instead that the Board or another.

person may request a public hearing after public notice.

0135-0087