ILLINOIS POLLUTION CONTROL BOARD
    April 12, 1990
    SHELL OIL COMPANY,
    Petitioner,
    v.
    )
    PCB 90—27
    (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 26, 1990 by the
    Illinois Environmental Protection Agency (“Agency”). On April 3,
    1990, Shell Oil Company (“Shell”) filed its response requesting
    the Board deny the Agency’s motion.
    On March 5, 1990, Shell 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. Shell also
    requests relief from 35 Ill. Adm. Code 302.211 (temperature) and
    302.212 (ammonia nitrogen). These two sections were not amended
    by R88—21(A).
    The Agency in its motion asserts that Shell’s petition is
    deficient because it lacks the information for a variance
    petition required by 35 Ill. Adm. Code 104.121. The Agency
    points out certain information which it believes is lacking in
    the petition, including data deficiencies pertaining to Section
    302.208, and 302.102. The Agency then asserts that a variance
    may not be granted from a rule for which a petitioner is not
    presently in violation. The Agency points to the requirements of
    Subpart F, as well as Sections 302.210, 302.211 and 302.212,
    where the Agency asserts Shell has not demonstrated a present
    violation. Lastly, the Agency states that no hardship for
    compliance can be demonstrated since compliance for Shell’s
    discharge is already compelled bya recent court order (Fed.
    Dist. Ct. No. 87—5249) and by its NPDES permit.
    Shell responds that the Agency’s motion be denied as its
    petition meets the requirements contained in the Board’s
    procedural rules. Shell points out that the Agency raises a
    variety of technical issues which could be raised in the Agency’s
    110—39
    —2—
    recommendation, which would then he the subject of findings of
    fact by the Board.
    As to the issue of the showing of a present violation, Shell
    submits that the Agency is incorrect that Shell must prove a
    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).
    Shell points to reports which it believes show probability of
    violations and further submits (presumably regarding those
    regulations which were recently promulgated through R88-21(A))
    that there is no recuirement that a petitioner prove long term
    violation of a rule which has never been applicable to it.
    The Board notes that Shell also clarifies that it is not
    seeking variance from any iron water quality standard in this
    petition.
    The Board observes that most of the contentions contained in
    the Agency’s motion are technical discussions which are of the
    type normally contained in a recommendation. Therefore much of
    the discussion contained in the motion and response goes to the
    merits of the petition. Regarding the issue of the court order
    and NPDES permit, as Shell correctly points out, the Agency does
    not state how the court order or permit impacts upon the
    requested relief. This further shows that issues raised by the
    Agency pertain 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—28, POE 90—29, POE 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
    benchmark for judging the sufficiency of a petition in this
    arena, the Eoard is not prepared at this time to dismiss this
    petition as deficient. The parties have raised issues which the
    Board can best address after they have been ~r:her aired at
    hearing. However, since Petitioner bears the burden of proof, it
    ~s obvious that to tne extent additional informati~n is necessary
    :or ~~ch proof, such inior~at~cnshould be sibn:~teo curing tne
    ~o~i:se of tne oroceedino, and ~n advance of hea~::io.
    The Eoard •accordingy denies the Agencyts motion to dismiss.
    IT
    Is SO
    ORDERED.
    1
    lr)--41)
    —3—
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify that the above Order was adopted on
    the
    /~~/-
    day of
    ________________
    ,
    1990, by a vote
    of
    ~
    .
    -~
    Dorothy M.~Gunn, Clerk
    Illinois Pollution Control Board
    110—4 1

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