ILLINOIS POLLUTION CONTROL BOARD
    December
    15,
    1988
    VILLAGE OF WINNETKA,
    )
    )
    Petitioner,
    v.
    )
    PCB 88—164
    )
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    Respondent.
    ORDER OF THE BOARD
    (by J. Theodore Meyer):
    This matter
    is before the Board on
    a November
    22,
    1988
    motion for confirmation filed by petitioner the Village of
    Winnetka.
    Winnetka alternatively submits an amended petition
    for
    variance.
    The Illinois Environmental Protection Agency
    (Agency)
    filed
    its response in opposition
    to the motion on November
    29,
    1988.
    Winnetka asks that the Board
    issue an order
    “confirming”
    that
    its petition for variance was filed within
    20 days after
    the
    effective date of
    35 Ill. Adm. Code 212.201 as
    to Winnetka.
    Alternatively, Winnetka files an amended petition for variance,
    with the same text as its first variance petition.
    Thus,
    Winnetka states that the amended petition
    is filed within 20 days
    of
    the effective date of
    35 Ill.
    Adm. Code 212.201
    as
    to
    Winnetka,
    since
    it
    is filed within 20 days of the Board’s order
    of November
    3,
    1988, denying Winaetka’s motion for
    reconsideration and stay in Proposed Amendment to 35
    Ill. Adm.
    Code 212.209, Village of Winnetka Generating Station,
    R86—41.
    By
    asking
    for confirmation or
    filing
    an amended petition, Winnetka
    seeks
    to take advantage of Section 38(b)
    of the Environmental
    Protection Act (Act)
    (Ill. Rev.
    Stat.
    1987,
    ch.
    1ll1/~, par.
    1038(b)).
    Section 38(b) provides that if
    a petition for variance
    from
    a rule or regulation
    is filed within
    20 days after
    the
    effective date of that rule or
    regulation,
    the operation of that
    rule or regulation
    shall be stayed
    as
    to that petitioner pending
    disposition of the petition.
    Winnetka maintains that because
    it
    became subject
    to Section 212.201
    for
    the first time when its
    site—specific petition
    (R86—41) was denied by the Board
    on August
    4,
    1988, with reconsideration denied on November
    3,
    1988,
    the
    filing of its variance petition triggered
    the automatic stay
    provision of Section 38(b)
    of the Act.
    In response,
    the Agency contends that Section 38(b) applies
    to the effective date
    of a regulation,
    not
    to the date when
    a
    94—121
    —2—
    particular entity becomes subject to that regulation.
    The Agency
    points out that Section 212.201, which became effective in 1986,
    is not a new regulation, and argues that the finality of that
    regulation should not be disturbed by any “as applied” claim by
    Winnetka.
    Thus,
    the Agency opposes Winnetka’s motion.
    However,
    the Agency suggests that this situation may be appropriate for
    the grant of a discretionary stay,
    and states that
    it would not
    object to such
    a discretionary stay.
    The Board agrees with the Agency that th~automatic stay
    provision of Section 38(b) does not apply to this situation.
    The
    Board finds that Section 38(b) applies to situations where
    a new
    rule becomes effective,
    and not
    to instances where
    an entity
    becomes subject to an existing rule.
    Thus, Winnetka’s motion for
    confirmation
    is denied.
    Because the Board today has granted the
    requested variance,
    it need not consider
    the Agency’s suggested
    discretionary stay.
    Finally, the Board notes that on December
    9, 1988, Winnetka
    filed
    a reply to the Agency’s response.
    The Board does not
    ordinarily accept replies.
    However,
    the Board has
    read the
    reply, but finds nothing
    to convince
    it that Section 38(b)
    applies to this case.
    IT
    IS SO ORDERED.
    J.
    D.
    Dumelle concurred.
    I, Dorothy M.
    Gunn, Clerk
    of the Illinois Pollution Control
    Board,
    ~.er~ebycertify
    at the above Order was adopted on
    the /~~7t~
    day of
    _______________,
    1988,
    by a vote of
    7o
    Dorothy M7/Gunn, Clerk
    Illinois P’ollution Control Board
    94—122

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