ILLINOIS POLLUTION CONTROL BOARD
    March 26,
    1992
    IN 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
    )
    INTERIM ORDER OF THE BOARD
    (by
    3.
    Anderson):
    The Cabot Corp.
    (Cabot)
    filed a petition for an adjusted
    standard from the requirements of 35 Ill.
    Adin. Code 725.293 on
    December 27,
    1991.
    Cabot filed its petition pursuant to Ill.
    Rev.
    Stat.
    1991 ch.
    111½, par.
    1028.1,
    35 Ill.
    Adin.
    Code
    725.293(g)
    and 35 Iii. Adm. Code 106.Subpart D.
    Cabot seeks this
    adjusted standard from certain secondary containment requirements
    for tanks containing hazardous wastes.
    35 Ill. Adm. 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.
    The Board will delay the question of authorizing hearing
    until Cabot has either filed the required demonstration or 180
    days have elapsed since the filing of the petition.’
    180 days
    after December 27, 1991~isJune 24,
    1992.
    Ill.
    Rev.
    Stat.
    1989 ch. 111½,
    par. 1028.1(d) (1) requires a
    petitioner for an adjusted standard to publish a newspaper notice
    of the filing of its petition within 14 days of the filing with
    the Board.
    The record bears no indication that Cabot has done
    this.
    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.
    However, due to the 180-day time
    lag, unusual for adjusted standard proceedings and unique to this
    type of petition, the Board construes the Ill. Rev.
    Stat.
    1989
    ch.
    111½, par.
    1028.1(d) (1)
    14-day newspaper publication
    requirement as running from the date of filing of the alternative
    design and operating demonstration.
    Essentially, the filing of
    35 Ill. Adra. 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.
    131—559

    2
    the demonstration completes the filing of the petition.
    Only
    after the filing of the alternative design and operating
    demonstration will the petition become ripe for review of the
    full scope of and underlying justification for the relief sought
    by the petitioner.
    The Board received the “Agency Response” on March 13,
    1992.
    •The Agency filed a motion to file instanter together with this
    document.
    35
    Ill. Adm. Code 106.414(a) provides that the Agency
    must file its response within 21 days after the filing of the
    petition’.
    In this instance, this would ~meanthat an Agency
    response would have been due on or before January 18,
    1992, 55
    days before the Agency’s actual filing.
    See 35 Ill. Adm. Code
    101.109.
    In support of its motion, the Agency states that it
    received a copy of the petition on January
    2,
    1992, that the
    press of business prevented earlier completion of the response,
    that no prejudice to Cabot will result from the delay,
    and that
    the Board will benefit from the response.
    Cabot has not
    responded to the motion.
    Initially,
    for reasons outlined more fully below, the Board
    holds that the filing of the completed alternative design and
    operating practices demonstration triggers the 21 day filing
    requirement for an Agency response.
    Therefore,
    we construe the
    March 13,
    1992 filing as Agency preliminary comments.
    As such,
    the Board finds those comments very useful to the disposition of
    this matter.
    For reasons discussed at length below,
    the timely
    filing of such preliminary comments citing deficiencies in the
    petition is absolutely necessary.
    While granting the Agency’s motion to file instanter, the
    Board emphasizes our concern about the 55 day delay in filing
    these comments in an adjusted standard proceeding.
    ~
    In re
    Petition of Keystone Steel and Wire Co. for Hazardous Waste
    Delisting,
    No. AS 91-1,
    (Feb.
    6, 1992).
    These concerns are
    magnified where the Agency has raised issues that go to the heart
    of the sufficiency of the petition, and where the Agency thereby
    postpones its substantive review of the petition.
    We do
    recognize that the use of the adjusted standard procedure is
    relatively new in matters related to hazardous waste regulations
    in general, and in particular to secondary containment
    requirements for tanks, which uniquely include the 180 day post-
    filing provision.
    In this case,
    fortunately, the 180 day delayed
    filing provision provides a potential opportunity to remedy the
    situation.
    Because we have construed Cabot’s filing of the
    required demonstration as the trigger for notice and hearing
    requests, we also construe the 21 day time requirement for Agency
    response
    (absent a co-petition) as running from the date of that
    same filing.
    In so holding, we emphasize the need for the
    parties to get this adjusted standard proceeding back “on track”.
    As we stated in Keystone Steel and Wire Co., No. AS 91-1:
    13 1—560

    3
    It is intended that the entity seeking the
    adjusted standard and the Agency assemble and review
    the informational justification before a petition is
    filed before the Board.
    .
    The essence of the adjusted standard procedure is
    to develop the information, the issues, and the
    response at the front end of the process.
    We advise that, where a perceived deficiency
    exists that threatens to frustrate a full Agency
    response, either the Agency or the petitioner should
    bring the matter to the Board at the outset.
    Keystone Steel and Wire Co., No. AS 91—1, at 9—10.
    Where the Agency perceives deficiencies in an adjusted
    standard petition,
    it is imperative that the Agency timely
    disclose those deficiencies.
    Where,
    as here and in the Keystone
    Steel and Wire proceeding,
    the Agency comes in late and does not
    address major portions of the petition because of asserted
    informational deficiencies, the entire adjusted standard process
    is threatened.
    The Board could face a situation where we”do
    not have the benefit of the Agency’s input on criteria whose
    review is required under the state’s federally derived
    .
    provisions.”
    Keystone Steel and Wire Co.
    at 10.
    This could face
    us with an untenable situation where such deficiencies still
    exist at the end of the process.
    As noted,
    the March 13,
    1992 Agency filing cites several
    deficiencies in the Cabot petition, apart from the pending
    alternative design and operating practices demonstration.
    Most
    of these are alleged informational deficiencies.
    For example,
    paragraphs 16,
    17,
    20,
    22, and 24 indicate that Cabot has not
    sufficiently described its tank system to permit adequate review.
    Paragraph 20 indicates that further information is necessary as
    to the character of the hazardous wastes involved.
    The
    conclusion cites several items of information required by 35 Ill.
    Adm. Code 725.293(g) that the demonstration outline and schedule
    set forth by Cabot might appear to omit.
    Finally, Paragraph 26
    outlines three informational items normally part of a Part B
    permit application that the Agency would find “useful and
    helpful”.
    Other portions of the Agency filing cite numerous disputed
    factual and legal conclusions.
    Paragraph 13 disputes Cabot’s
    assertion that the Tuscola plant has several tank systems.
    The
    Agency cites to the definitions of “ancillary equipment”,
    “tank”,
    and “tank system” at 35 Ill. Adm. Code 720.110 and asserts the
    existence of only two tanks in Cabot’s tank system.
    The Agency
    maintains that there are only two tank systems at the Tuscola
    plant.
    Paragraphs 18 and 19 of the response dispute a Cabot
    13 1—561

    4
    description of two equipment items as “above ground trenches”.
    The Board’s determination will depend on the record and the
    Cabot petition, as completed by the filing of the alternative
    design and operating demonstration and the Agency’s substantive
    response.
    Although we reserve judgment on the various potential
    informational deficiencies and issues, the Board highlights the
    unique posture of this matter.
    Inijially,
    it is always most beneficial that the petitioner
    and the Agency resolve as many issues between themselves as
    possible, preferably before filing.
    See Keystone Steel and Wire
    Q.Q~, No. AS 91—1,
    at
    9.
    This either eliminates issues or
    circumscribes the scope of the issues the Board must confront,
    thereby reducing the case to the real issues between the parties
    and allowing timely action by the Board.
    Second, the RCRA regulations addressed here contain a date—
    certain deadline on filing the petition and a later deadline for
    filing the completed alternative design and operation
    demonstration.
    This means that Cabot has this single opportunity
    to obtain relief of the type and to the extent it now seeks.
    It
    is particularly important here for the Board to resolve any
    disputes regarding informational deficiencies prior to the “180
    day” completion of the petition.
    Finally, as Cabot points out in its March 24,
    1992 motion
    for extension of time, delays
    in this proceeding foreshorten its
    time frame for compliance with the RCRA secondary. containment
    requirements.
    Cabot must comply with these requirements if the
    Board denies an adjusted standard.
    For the foregoing reasons,
    Cabot might ultimately prove well
    served,
    as would any adjusted standard petitioner, to pay close
    heed to the substance of the Agency’s March 13,
    1992 preliminary
    comments.
    This is especially true of a proceeding such as this
    one, where an adverse determination could leave a party unable to
    refile to seek alternative relief, as would be the situation in a
    normal adjusted standard proceeding.
    The March 13,
    1992 Agency preliminary comments also request
    that the Board grant additional time after the filing of the
    alternative design and operation demonstration to allow the
    Agency to review the demonstration and submit “further
    commentary.”
    The Agency suggests that 90 days is sufficient
    additional time.
    The Board construes this as a motion for an
    extension of time to file.
    In light of the fact that~the Board interprets the filing of
    the completed alternative design and operating practices
    demonstration as triggering the deadline for filing the Agency
    response, this renders the Agency response as due 21 days after
    13
    1—562

    5
    Cabot files the demonstration.
    The Agency-requested 90 days is
    an unusually long time to file this document, and the Agency has
    not submitted justification for such an extended period of time.
    The Cabot March 24,
    1992 motion for extension of time suggests
    that no more than 30 days would be necessary.
    Cabot further
    points out that delays in this proceeding would diminish its
    ability to timely comply with the RCRA regulations if the Board
    denies the petition.
    We
    yiii1 adopt the time delay agreed to by Cabot.
    The Board
    hereby grants the Agency until 30 days after the filing of the
    completed demonstration (more than a week longer than the usual
    21 day time allowed by 35
    Ill. Adm. Code 106.414(a))
    to file its
    response.
    If the Agency can later justify an additional
    extension of time,
    the Board will entertain an appropriate
    motion.
    As a part of its March 23,
    1992 filing, Cabot states that it
    is presently entering into discussions with the Agency to address
    the Agency’s concerns cited in the March 13,
    1992 filing.
    This
    is highly desirable.
    However, the Board stresses that this
    matter has two deadlines for Cabot.
    First, Cabot must file its
    completed alternative design and operating practices
    demonstration on or before June 24,
    1992
    (180 days after filing
    the petition).
    The unique posture of this type of proceeding may
    not permit the filing of subsequent amended demonstrations
    because this deadline
    is federally—derived.
    Second, as to at
    least some of its equipment,
    Cabot must comply with the general
    RCRA
    regulations on or before January,
    1994
    if the Board denies
    relief on the petition.
    This means that the Board must be in a position to resolve
    any disputes as to the sufficiency of the petition and the
    proposed alternative design and operating demonstration enough
    ahead of time to allow Cabot to cure those deficiencies.
    It also
    means that Agency assertions that it does not have enough
    information to address the substantive aspects of the completed
    demonstration,
    as it did in Keystone Steel and Wire,
    is simply
    not acceptable in the context of this proceeding.
    For these reasons, the Board hereby directs Cabot to file a
    response to this Order no later than April 10, 1992.
    That report
    shall set forth Cabot’s present position and supporting arguments
    as to each fact and legal conclusion disputed by the Agency in
    its March 13,
    1992 preliminary comments.
    That response shall
    further set forth exactly what Cabot will, do to cure each
    informational deficiency cited by the Agency as a part of the
    completed demonstration, or it shailset forth exactly why Cabot
    believes that no such deficiency exists.
    That response shall
    roughly set forth the then—current status of any discussions
    between Cabot and the Agency.
    The Agency shall file any reply to
    the Cabot responses no later than April 17,
    1992.
    This will
    131—563

    6
    enable the Board to determine whether further action is necessary
    to assure that this matter develops
    in a timely manner.
    This
    tight time-frame is regrettable, but it is necessary because of
    the delay incurred thus far.
    In its March 24,
    1992 filing, Cabot requests an extension of
    time
    to
    21
    days
    (from
    the
    regulatory
    14
    days)
    to
    respond
    to
    the
    Agency
    response.
    The
    Agency
    has
    not
    yet
    had
    an
    opportunity
    to
    respond to this motion, but the Board will grant the additional
    7
    days.
    In summary,
    a failure to file the alternative design and
    operating practices demonstration required by 35 Ill. Adm. Code
    725.293(h) (3) on or before June 24,
    1992, or a failure to file
    the proof of newspaper publication within 14 days after that
    filing, as required by Ill. Rev.
    Stat.
    1989 ch.
    111½, par.
    1028.1(d) (1), will render the petition subject to dismissal.
    The
    Board hereby grants the Agency’s motion to file its preliminary
    comments instanter.
    The Board hereby grants the Agency 30 days
    after the filing of the alternative design and operating
    practices demonstration to file its response.
    Cabot shall file
    its reply to the Agency response no later than 21 days after the
    filing of the response.
    On our own motion, the Board hereby
    directs Cabot to file a response to this Order on or before April
    10,
    1992 that addresses’the Agency preliminary comments and
    reports the status of any discussions with the Agency relating to
    the informational deficiencies cited by the Agency.
    The Agency
    must file any reply to the Cabot r778esponse on or before April
    17,
    1992.
    We will defer further action in this matter until
    after we receive these filings.
    IT IS SO ORDERED.
    R.C. Flemal concurred.
    I, Dorothy M.
    Gunn, Clerk of the Illinois Pollution Control
    Board,
    do hereby certify that the above Order was adopted on the
    ~
    day of
    ~‘)-i
    a—t~..I_/,
    1992, by a vote of
    7—~
    ~
    2~.
    Dorothy M. ç4~in, Clerk
    Illinois Pcv~4utionControl Board
    13 1—5 64

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