ILLINOIS

POLLUTION

CONTROL

BOARD

December

20,

1984

IN

TIlE

MATTER

OF:

)

)

R84—10

RCRA

PROCEDURAL

RULES

)

FINAL

ORDER.

ADOPTED

RULE.

FINAL

ORDER

OF

THE

BOARD

(by

J.

Anderson):

On

June

14,

1984

the

Board

proposed

to

adopt

amendments

to

35

Ill.

Adm.

Code

102,

103

and

104

to

establish

special

procedures

to

be

followed

in

cases

involving

the

RCRA

rules

or

RCRA

permits.

The

proposal

appeared

at

8

Ill.

Reg.

9888,

June

29,

1984.

On

November

8,

1984

the

Board

modified

the

proposal

in

response

to

piblic

comments,

and

sent

the

proposal

to

second

notice.

On

December

11,

1984,

the

Joint

Committee

on

Adminis-

trative

itles

(JCAR)

objected

to

provisions

of

Sections

103.263(a)

and

103.268(c)(1).

The

Board

has

modified the rules in response

to

these

objections

by:

1.

Deleting the provision which

addressed

the

Board’ s

extension

of

the

60

day

time

period

for

the

filing

of

a

partial

draft

permit

(Section

103.263(a));

and,

2.

Paraphrasing the language of Section 33(b) of

the

Act

(Section 103.268(c)(2)).

The

Board has made other minor changes to the rules in

response

to

comments

from

the

JCAR

staff.

The

complete

text

of

the

rules

as

modified

is

attached

to

this

Order.

The

Board

shortly

will

adopt

a

aipporting

IT

IS

SO

ORDERED.

Board

Member

B.

Forcade

concurred.

I,

Dorothy

M.

Gunn,

Clerk

of

the

Illinois

Pollution

Control

Board,

hereby

certify

that

the

above

Order

was

adopted

on

the

6ia~

dayof4cs.sseAi

,l984byavoteof

J~O

-.

~d’~~t4

/fl.

JLaJ

Dorothy

M./Gunn,

Clerk

Illinois

Pollution

Control

Board

6247

---

TITLE 35:

ENVIRONMENTAL PROTECTION

SUBTITLE A:

GENERAL PROVISIONS

CHAPTER I:

POLLUTION CONTROL BOARD

PART 102

REGULATORY AND

OTHER NONADJUDICATIVE

HEARINGS

AND PROCEEDINGS

SUBPART A:

GENERAL PROVISIONS

Applicability

Adoption of

Regulations

SUBPART

B:

PROPOSAL OF REGULATIONS

Section

102.120

102.121

102,122

102.123

102.124

Proposal of

Regulations

Authorization

of Hearing

Notice of

Hearing

~

salofRCRAAmendments

Section

102. 140

SUBPART C:

DISCOVERY

SUBPART D:

HEARINGS

Section

102,180

Authority of

Hearing Officer

Examination of

Witnesses

Prior Submissions

Written Submissions

Record

SUBPART

E:

ECONOMIC IMPACT HEARINGS

Hearings on

the Economic Impact Study of New

Proposals

102.181

Hearings on

the Economic Impact Study of Existing

Regulations

SUBPART F:

BOARD ACTION

Section

102,200

102.201

102.202

Revision of

Proposed Regulations

Notice of

Adopted

Regulations

~

Section

102.101

102. 102

Section

102,160

102.161

102.162

102. 163

102. 164

82~88

---

SUBPART

G:

OTHER

Section

102.220

Other Proceedings

Appendix

Old Rule Numbers Referenced

AUTHORITY:

Authorized by Section 26 of the Environmental

Protection

Act

(Ill.

Rev.

Stat.

1983,

ch.

111 1/2, par,

1026);

and implementing

Sections

5,

22.4(a),

27 and 28 of the

Environmental

Protection Act

(Ill,

Rev, Stat,

1983,

ch,

,ll

1/2,

pars,

1005,

1022.4(a),

1027

and

1028);

and Section

4 of

‘IAn

Act

in

relation

to

natural resources, research, data collection

and environmental studies,” approved and effective July 14,

1978,

as amended

(Ill.

Rev.

Stat.

1983,

ch.

96

1/2, par.

7404).

SOURCE:

Originally

adopted

as Chapter

1:

Procedural Rules,

Part

II:

Regulatory and

Other Nonadjudicative Hearings

and Proceedings,

in R70—4,

1 PCB

43,

October

8,

1970;

codified at 6 Iii,

Reg.

8357;

amended

in R84—l0 at

—

Ill.

Reg.

____

,

effective

___________________

SUBPART

B:

PROPOSAL OF REGULATIONS

Section

102.123

Proposal of RCPA Amendments

a)

As

used in

this Part,

“RCRA

rules” shall mean

—

35

Iii. Adm.

Code 703,720,721,

722,

723,

724

and 725.

~

~

Ii

~

~onsofSection22,4~22.4(b~or

22.4(c) of the

Act;

~

~

~Federa1reu1ationssincethe1astamend-

ment of the

Board~s

RCRA

rules

~

~

that a copy

of

thç~~~posal

has been served

on the United

States

Environmental Protection

Agency.

Service

shall

be made at

the

followin1 address:

Director,

Waste

Management Division

~,Reion~

230 South

Dearborn Street

~o,I11inois

60604

(Source:

Added at

Ill,

Reg.,

effective

---

Section 102.124

Notice of Site~-SpecificRCRA Proposals

a)

Public notice of hearings on site-specific RCRA

*

proposals

shall be

given

at least 30 days before

the date of the

hearing.

b)

In addition to the recuirements of Section

28 of

the Act and Section 102.122, the Board, at

a minimum,

~il1_give_notice

of

hearings on a site-specific RCRA

~roposa1to

the

foilowin

~ersoj~j~

1)

Federal agencie~~

bnthe

United

States

EnVi

ronrnentrt~jotection~ency

2)

Illinois Dep

~

3)

IflinoisDraent~f~n~rvation;

4)

Illinois

Department of Energy and

Natural

Resources

5)

Illinois

D~rtment.of

Public Health

6)

The Governor of any other State adjacent to

the County in

which

the facilIty is located

7)

Elected

officials of

any cou~ties,_inother

states, adjacent

to the

County in which the

facility

is

located,

and

elected officials

in

any municipa1it~

in

another

state,

if it is

~osest~rtothefaci1it.

c)

In

addition

to

themethcdsofnoticej~1ic~ion

of

Section

28

of

the.

~cn

and

Section

102,122,

the

Board

will iive

notice

dv

broadcast

over

at

least

one

radio

station

in

the

area

of

the

facility

__________

tc~redb~ara~hs

(d)

(2)

and

(d) (~)

t~rc

d)

A

hearing

notice

onasite~soecific

RC~ro~osa1

will

include the

followinq

information:

1)

The address

of

the

Board

office

2)

Name and

address

of

the

proponent

and,

if

different,

of

the

facility

for

which the

~

3)

A

brief

description

o:I~

the

business

conducted

at the

facthtv

and

the

activity described

in

the

petition

---

4)

~euestedinthe

*

~on;

5)

~addressandtelehonenumberof

the

Clerk of

the

Board,

from whom interested

~nfo~ation,

~osal;and

~

me,

address

and

tele

ho

ne

number

of

the

~heru1emakin;

7)

~itionofan~writtencommentoeriodor

—

a statement

that

a

comment

period

will

be

~isedinthefuture;

8)

A

statement

that

the

record

in

the

rulemaking

*

ii~~ii1aBTe

at

the

Board

oT~ice

for

inspection

p

~thoseportionswhicharec1aimedor

determine

to

be

trade

secrets,

an

t

at

~~dures

are

available

whereby

disclosure

~soughtbytheu1icc35l11.Adm.code

120)

9)

A

stateme

Lte~specif

ic rules ma

be

adopted

ursuant

to

Ifl,

Rev, Stat._1983,

seq

and 35 Iii

Adm, Code

102,

and

a

reference

to

the Board

~ationssouhttoemodified.

~

~tionalinfor~ationconsid~2dnecessar

~per~

(Source:

Added

at

The

Board

will

adopt

RCRA

reaulations

~

emen

of

this

Part

Tf

th~e

an

the

Illinois

Administrrtlve

Procedure

Act

dI~.

~

Stat

1983

cl~

127,

~O0letseAdditaoraa~~doptinreu1ations,

__

than

em

rg enc ~men

dm

~ts

the

Board

will

a)

Make

available

to

the

oublic

a proposed 0 inion and

~onta

in

in

the

th~xt oite

amen~ents

l~

~

and

theEnvironmen.t~iLthLs.;

a)

~

nheUnstedStaton~

n~o~cj~onkency,

---

d)

Receive written

conrv~~s from

the United_States

~

for at least 45

days cite

the

date of publication

in the Illinois

Reghe en

(Source:

Added at

Ill.

Reg.

,

effective

)

TITLE 35:

ENVIRONMENTAL PROTECTION

SUBTITLE

11

PROVISIONS

CHAPTER I:

~0LLUIION CONTROL

BOARD

PART 103

ENFORCEMENI PPOCEEDINGS

SUBPART A:

GENLRAL PROVISIONS

Section

103.101

Section

103.160

103.161

103.162

103.163

Applicability

SUBPART B:

COMPLKNI, SERVICE AND

AUTHORIZATION OF HEAkING

SUBPART C:

MOTIONS, J3 NDUP \ND INTERVENTION

Motions and

Resp~rse~

Consolidation and S~’eranceof Claims and Joining

Additional Parties

Prehearing Conference~

Discovery

Admissions

Subpoenas

Settlement Proe~

RCRA Settlement

t

ur~’

Who May Initiate

Parties

Notice,

Formal

Complaint and

Answer

Service

Authorization of

Hear~ng

Notice of Hearln3

Section

103.120

103.121

103.122

103.123

103,124

103.125

Section

103,140

103.141

103.142

103.143

Intervention

Continuances

SUBPART D:

DISCOheRY

ADMISSIONS

AND SUBI 051 he

SUBPART E

Section

103 .180

103.181

1L1 IROCEDURE

---

SUBPART

F:

CONDUCT

OF

HEARINGS AND

RULES OF EVIDENCE

Section

103 .200

103.201

103.202

103. 203

103.204

103.205

103,206

103,207

103.208

103.209

Authority of Hearing Officer

Authority of

Board Members and Board Assistants

Order of Enforcement

Hearings

Conduct of Hearing

Admissible Evidence

Written Narrative

Testimony

Official Notice

Viewing of Premises

Admission of

Business Records

in Evidence

Examination of

Adverse Party or Agent and Hostile

Witnesses;

Compelling Appearance Thereof at Hearing

103,210

Amendment and

Variance

SUBPART G:

POST~~HEARINGPROCEDURES

Default

Transcript

Record

Briefs and Oral Argument

Contents of Board

Opinions

and Orders

SUBPART

H:

RELIEF FROM

FINAL ORDERS

Motion Subsequent

to Entry of Final

Order

Relief from Section

103,224 Final Orders

SUBPART

I:

DECISION

IN CASES INVOLVING

RCRA PERMITS

Section

103.260

103.261

103,262

103.263

103,264

103.265

103. 266

103. 267

103.268

~se,ScoeandApp1icabilit

Interim Order

~derofAenc

Draft Permit

Contents of

Public Notice

~ccomment

Hearing

Contents of Board

Order

Appendix

Old Rule

Numbers Referenced

AUTHORITY:

Authorized

by

Section 26

of the Environmental

Protection Act

(Ill.

Rev.

Stat.

1983,

ch. lii 1/2,

par.

1026)

Section

103.220

103,221

103.222

103.223

103

.

103.241

---

and implementing Sections

5

and

31

through 33 of the Illinois

Environmental Protection Act

(Ill,

Rev. Stat.

1983,

ch.

lii

1/2, pars.

1005 and 1031

through 1033).

SOURCE:

Originally adopted

as Chapter

1:

Procedural Rules,

Part III, Enforcement

Proceedings,

in R70-4, at

1 PCB

43,

October

8,

1970;

amended in

R80~~2,at 39 PCB 456, at

4 Ill.

Reg.

39, page 285, effective

September

12,

1980;

amended in

R80—18,

at 44 PCB 125, at

5

Ill,

Req. 14146, effective

December

3,

1981;

codified at

6

Ill.

Reg.

8357;

amended in

R84-10 at

*

Ill.

Req.

______

,

effective

_________

______

SUBPART

E:

SETTLEMENT PROCEDURE

Section 103,180

Settlement Procedure

a)

No case pending

before the

Board shall be disposed

of or modified without

an order

of the Board,

All

parties

to any

case

in which

a settlement or com~

promise

is

proposed

shall

file with the Hearing

Officer at the

time

of the scheduled hearing a

written statement,

signed by

the parties or their

authorized

representatives,

outlining the nature

of,

the reasons

for,

and the

purpose to be accom-

plished by the

settlement,

Such statement shall

contain:

I)

A full stipulation

of all material

facts

pertaining

to the nature,

extent and causes

of the

alleged violations;

2)

The nature

of the relevant parties~operations

and control

equipment;

3)

Any explanation

for

past failures

to

comply

and an assessment

of

the impact on

the

public

resulting

from such noncompliance;

4)

Details as to

future

plans for compliance,

including a

description

of additional control

measures and

the dates

for their implementation;

and

5)

The proposed penalty.

b)

When the parties

submit a

proposed settlement or

stipulation to the

Hearing

Officer,

the Hearing

Officer shall conduct a hearing in which all

interested persons

may

testify with respect to the

nature of the

alleged

violation and its impact on

62~94

---

the environment,

together

with their views on the

proposed stipulation

and

settlement.

The Hearing

Officer shall transmit

such

record of hearing to

the

Board,

together

with

all exhibits.

c)

The Board shall

consider such proposed settlement

and stipulation

and the hearing

record.

The Board

may accept,

suggest revisions in, reject the

proposed settlement

and stipulation,

or direct

further hearings as it

appears appropriate.

Where

an NPDES

(National Pollutant Discharge Elimination

System)

permit

is

involved in

the settlement,

notice of hearing

shall

be

published in

the Environ-

mental Register at

least

30 days

prior to such

hearing.

d)

if the

Board determines

that a settlement involves

~invo1ve

the

hesuance or modification of

a

RCRA permit

it will

enter

an

interim

order

pursuant

to

Section 103.261,

(Source:

Amended

at

Ill,

Reg.

_______,

effective

)

SUBPART

I:

DECISION IN CASES INVOLVING RCRA PERMITS

Section 103.260

Purpose, Scope

arid

Applicability

a)

This SubQarta

sen

the Board finds

man

interim order that

an

enforcement action involves

issuance

or

modthFT~atTh~

of

a

RCRA permit

*

b)

Enforcement

actions which involve

issuance

or

modification

ot

a

RCR7~.permit

:Lnclude

those

~n

which,

to

9rant complete relief,

it

~

the

Board

will

have

to:

1)

revoke

a

RCRA permit;

or

2)

~

or

modified;

or

3)

enter

an

order

which

could

require

actions

which

would

be

different

from

the

conditions

of

a

RCRA

permit or

35

Iii.

Adm.

Code

724

or

725;

or

4)

enter

an

order

directing

facility

closure

or

modification

after

a

finding

that

a

~a~1~wa~peratinqwithouta

RCR~~t

and

that

one

was regui~ed.

62~95

---

c)

These procedures provide methods by which the

Board will formu1at~acompiiance plan,

and,

if

necessary,

direct

the

issuance or modification

of a RCRA permit.

(Source:

Added at

Ill.

Req.

_______,

Section 103.261

Interim Order

a)

The Board will

enter

an

interim order invoking

the

procedures

of this

~i~art

on its own moEion or on

the motion of any party,

Before the Board enters

an interim order the parties must develop, through

hearin*~sor admissi5i~spursuant to Section 103.162,

a sufficient record

to

support the findings which

~he Board must make

in

paragraph

(b).

b)

An interim order

invoking

the procedures of this

Subpart will

include

1)

A finding or proposed finding of violation and

any penalty~orproposed monetary penalty; and

2)

A finding that the case is

an enforcement

issuance or modification of

a RCRA permit; and

3)

Joinder

of

the

Agency

if it is not already

a

p

arty

and

4)

~

~ialdraft~ern~it,

c)

The interim order

is not a final order and may he

~

(Source:

Added at

Iii,

Req.

,

effective

__________)

Section 103.262

joinder of

Acrencv

If the Board directs that t~~enc’

be

joined,

the Clerk will

send, by messenger or by certified mail addressed to the Agency,

a copy of the Board Order

requiring

joinder.

Such mailing

shall constitute service of process upon the Agency.

(Source:

Added at

Ill. Req.

_____

,

effective

___________

Section 103.263

Draft

Perwit or

Statement

a)

Within 60 dal

te:~ntryc-aninterim

order,

the

Agency

shall

file and serve

on

all

parties

either

a

62~96

---

a

statement

that

no

RCRA

p~rn1tneeds to be

issu~

or modifled

b)

The

partial draft

permit

shall

be

in

compliance

*

~ththere~men~s

of

35

IlL

Adm.

Code

705,141

and shall includ~uch~onditionsastheAen~

finds are

necessary to correct the

violations

:Eound in the

interim oroer.

c)

The A~ncy

may confer with other

parties and enter

into agreements

as to tOe

substance of the partial

~ft

~errnit

which it will recommend to the

Board

~fl~2_~9a~L

sha~

‘c1~eany_suchoonferencesor

a~ements

~

agreements do not bind the Board

d)

I~~Aency

issues a

statement

that no

____

needs

to be issued

or mc~f:Led,the remaining Sub

art

I~rocedureswilinotoefo1iowed, unless the

Board

determines

otherwise.

(Source:

Added at

Ill,

Reg~.

,

effective

____________)

Section 103.264

Stipulated

Draft

Remedy

a)

The parties may agree

to

b)

A stipulated draft re

‘shall include the fo11owing~

1)

Proposed

mandatory

orders which the parties

agree should

bin

included in

the Board~sfinal

order,

whIch may include one or more of th~

fo11owir~:

A)

An

order to cease

and_desist

conducting

regulated activities;

C)

An

order no excout

a

ost-ciosure care

plan

~

~

schedule

no

aseure

~

possible time

E)

A

order no ccv~dea

rformaie bond

or onhei:

:~arc:~.

en. assurance;

~i

___

E.apermltoroerm.it

modrfiuat:. cc

---

~l2~

~

errevok~erm~.

2)

A

partial

draft permit or statement

as

provided

bZ

Section

103.263,

3)

A

statement as

to whether

or not the stipula-

tion

is divisible

for

determinations.

c)

Al 1

parties

~

~

pursuant

to Section

103,265.

(Source:

Added

at

Ill.

Reg.

,

effective

__________

Section 103.265

Contents

of Public Notice

a)

~

any p

artial

draft

p

rmit

on

the

Unite

E

nvironmental P

rotection A en

cy at the

foflowin9 address:

Director, Waste

Management

Division

USEPA, Region

V

230 South Dearborn Street

Chicago,

IL

60604

b)

In addition to the requirements of the P~ctand

Section 103.125, the Agency shall, at a minimum,

give notice of the

filing of

a partial draft

~mit

to the

following persons:

1)

~a1aenciesasdesinatedbytheUnited

—

States

Environmental Protection Agency

~

~

3)

Illinois

Department of Conservation;

~

~n2~EartmentofEner~dN!~ural

Resources

5)

Illinois

Department of

Public Health

6)

The Governor of

an~

other State adjacent to

the

County in

which

the

facility

is

located

7)

Elected

officials of

any counties,

in other

ad ~ac

ent to the

county in which the

facility

is located, and

elected officials in

ic

i ality

,

in another

st ate

,

if it is

~osestpoulationcentert~efacilit,

62~98

---

c)

In addition to the methods of noti~j~blic~on

—

of

Section 103.125, the Agency shall give notice

by broadcast over at least

one radio

station in the

area of the facility containing

the

information

required by paragraphs

Cd) (2),

Cd) (4)

and

(d) (6)

through(d)(8).

d)

~ce~

artial draft permit shall

include

—

the ~

1)

The address of the Board office

2)

Name and address of the respondent and, if

of the facilit

sub ect to

t

e

enforcement action

3)

~

4es2ritionof

the business conducted

~

is the

~2toftheenforcem~ntacti

on

4)

A statement of the violations the Board has

5)

A statement that the Agency has filed a partial

draft permit

6)

Name,

address and telephone number of the

Clerk of the Board, from whom interested

~nsmaobtainfurtherinformation,

including~copies

of

the partial draft permit

7)

~

~e~thatahearinwillbeh~!d

~at

the record will rernain o en

for written comments for 45 days after

~in

of

the

p

artial

draft

ermit and/or

~la

ted remed

The notice will inc

lude

the address of

the

Board to which comments

shall be mailed;

and,

~

~c~f~rin

8)

A statement that the record in the action is

~bleattheBoardoficeorinspection,

~pttoseortionswhica~~a~or

determined to be trade secrets,

and that

procedures are available whereb

disclosure

62~99

---

—14—

9)

A statement that enforcement actions are

considered pursuant to

Ill, Rev. Stat.

1983,

ch.

111 1/2, pars, 1030 et seq.

10)

Arty

additional information considered necessary

or proper.

(Source:

Added at

Ill. Reg.

_______,

effective

Section 103.266

Public Comment

Any person,

including the United States Environmenta1 Protection

~ency,

may comment on the partial

draft remedy within 45 days after

draft permit or stipulated

it has been filed with the

Board and notice given pursuant to Section 103,265,

(Source:

Added at

—

Ill.

Reg.

effective

Section 103.267

Hearing

The following shall apply in addition to Sections 103.125(e)

and

(f):

a)

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 partial draft permit and/or stipulated

remedy.

b)

The hearing shall be held in the county in which the

—

facility is located,

in the population center

in such

county closest totheciiit\,

c)

The Clerk

in consultation with the Hearing Officer

—

shall give notice of the hearing to the persons

entitled to notice in Sections 103.125 and 10:L265,

and to any other persons who have commented, requested

to comment or re~~!tednotice, and to any persons on

amailin9 1istprov~dbyt1~eAency.

d)

Notice shall be mailed not less than

30 days before

the hearing.

(Source:

Added at

Ill.

Reg.

,

effective

_________

Section 103.268

Contents of Board Order

a)

The Board will not enter an order which would

~

the

issuance

or

modification of

a

RCRA

permit unless the

public

notice, public comment and

hearing procedures of

this

Subpart have been fo11o~ed.

82~100

---

b)

If the Board determines that,

to grant complete

—

relief,

it must order the issuance or modification

of a RCRA permit,

its final order will include

an order directing the Agency to issue or modify

the RCRA permit, which may take one of the follow-

ing forms:

1)

An order to issue or modify

a permit

in

conformance with a draft permit

2)

An order to issue or modify

a permit

in

conformance with

a draft permit as modified

by the Board order

3)

Guidelines

for issuance or modification of

—

~

c)

If the order ~yecifiesaschedule

leading

to

oomph-

—

ance with the Act and Board rules:

1)

Such schedule shall require compliance as_soon

as possible;

and,

2)

The order may require the posting of sufficient

performance bond or other security to assure

correction of such violation within the time

prescribed.

(Source:

Added 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

104.103

References

104.104

RCRA Variances

SUBPART B:

PETITION FOR VARIANCE

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

82-101

---

—16—

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

SUBPART E:

RECOMMENDATION 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 Coimrient

SUBPART

F:

HEARINGS

Section

104.200

Notice of Hearing

104.201

Proceedings

104.202

Transcripts

SUBPART G:

FINAL ACTION

Section

104.220

Decision

104.221

RCRA Variances:

Board Decision

Appendix

Old Rule Numbers Referenced

AUTHORITY:

Authorized by Section

26 of the Environmental

Protection Act

(Ill.

Rev. Stat.

1983,

ch.

111 1/2, par.

1026)

and implementing Sections

5 and 35 through 38 of the Environ-

mental Protection Act

(Ill.

Rev. Stat.

1983,

ch. 111 1/2,

pars.

1005 and 1035 through 1038).

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 Iii.

Reg. 2763, effective March

2,

1981;

codified at

6 Iii.

Reg.

8357; amended

in R84—10 at

Ill,

Reg.

_______,

effective

_________________.

—

62-102

---

SUBPART A:

GENERAL PROVISIONS

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:

1)

It req~estsavariancefrom 35 Iii, Adm, Code

703, 720,

721,

722,

723,

724 or 725;

or,

2)

It

asks

that the Board order tncr

to

—

issue or modify an~~rovisio~ç~ermitj

required pursuant to Section

21(f)

of the Act.

b)

The

federal

RCRA

rules con~ n

rocedures wh:Lch

are

—

referred

to

as

*Ivar1ancesI~J4~~FR 260,

261,

262,

~

264,

265

and

270

(1984)).

The

t.iori~r

should

consult

the

corn~abie

Board

rtis

to decide whether the

variance~ocedures of

this

Part need to be followed.

As provided

in

Title IX

of the Act and Section 104,160(f),

the Board mazy

grant

a temporary variance.

The Board may grant

permanent

relief

from

a

rule

pursuant

to

35

Ill.

Adm.

Code

102.

Pursuant

to

35

Iii.

Adm.

Code

105

a

permit

applicant

may

requ~est Board

review

of

the

Agency’s denial of a permit or issuance with

conditions.

(Source:

Added at

Ill.

Reg.

,

effective

____________

SUBPART B:

PETITION FOR

VARIANCE

Section 104,122

Consistency with Federal Law

a)

All petitions for variances from Title

Ii cf

the

Act

or from 35 Iii, 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.

62-103

---

—18—

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.

pur-

suant 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

decision period.

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

I

and

establish RCR

ermit

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 regula-

tions thereunder promulgated by the

United States

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.

(Source:

Amended at

Ill.

Reg.

_______,

effective

62-104

---

—19—

Section l04~i26

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

?He

RCPA

Rermit must have

on

file

wit

Aenc~ a

RCRA permit application reflecting the requested

variance

~ior

to

filing

the

variance petition,

c)

Petitioner shall attach to the

variance petition

or such

portion

as ma~be relevant to thevarc~~

d)

Petitioner

shall attach to the variance

petition

~ySect:Lo~

104.142.

(Source:

Added at

Ill.

Reg,

,

effective

—

SUBPART

C:

NOTICE AND OBJECTIONS

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

objec-

tion to the grant of the variance.

Such objection

may

or may

not be accompanied by a petition to

:Lntervene

in accordance with Section 103. 220,

~

copy

of

such

objection

shall

be

mai:Led

to the

petitioner

and

the Agency

by

the

Clerk.

b)

~~~a)does

not

ayp~oRCRAvar:Lances.

Sections

104,183

and

104,200

provide

for

public

~nt

and a

ub1~~rin~~ii

S

uc

petitions

(Source:

Amended

at

Ill.

Reg.

,

effective

______

Section

104,142

iaes:ote’ili:qof

Petition

~).

~

a RCRAvariance shall

not

be

deemed

filed

until

proof

of

service

has

been

filed

with

the

Board,

Petitioner

shall

serve

~heU~ctionAenc

~

at

the

following

address

62-105

---

Director,

Waste

Management

Division

USEPA,

Region

V

230 South Dearborn Street

Chicago,

IL

60604

b)

In addition to the requirements of Section

37 of

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

a3encies

asdesi~nate db~~ited

—

States

Environmental

Protection

Ag~ncy

2)

Illinois

Department

of

Transportation

3)

Illinois Department of Conservation

4)

Illinois Department of Energy and Natural

Resources

5)

Illinois Department of Public Health

6)

The Governor of any other State adjacent to

the

County

in

which

the

facility

is

located

7)

Elected officials of any counties,

in

other

states,

adjacent to the County in which the

~1

it

is

located,

and elected officials

in

nici alit

,

in

another

state

if

it is

the

closest

population

center

to

the facility.

c)

~

~gi~e:no~~ice

by

broadcast

over

at

least

one

local

radio

station

in

the

area

of

the

facility

containing

the

informa-

~nreuiredb’7ararahs(~2)and~4T

~ouh~d~(7).

d)

The

rotices

required

~y,para~raphs(b)and(c)

-—

~1ib~~m1is~edwithin

the

time

limit

estab—

~~ed~ectio~104,14O(b)

e)

A

notice

of

the

filing

of

a

petition

for

a

RCRA

variance

shall include the following information:

1)

The

address of

the

Board

office

2)

Name

and

address

of

the

petitioner

and,

if

different,

of

the~~ility

for

which

the

~anceissouht;

62-108

---

--21—

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

~

recommendation,

the date on which the recom-

mendation is to be filed, and the

name,Thddress

~~lehon~_~umberof

the Agency

employee

responsible for the recommendation

6)

Astaternentthatahearin~

will be

held

af ter

~~~linofbhe

recommendation and that

the

record

will

remain

open

for

written

comments

f

or 45 da~ after

ffling 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 tEat

procedures are available whereby disclosure

may be sought by the public.

8)

A statement

that

variances may

be granted

~iirsuantto

Ill. Rev.Stat.

1983,

oh.

Ill

1/2,

1035

et se

and

35 ill. Adm

.

Code 104

and

a reference to the Board

regulations or

order from which a variance is

sought.

9)

Ar~y

additional information considered

necessary or

proper.

(Source:

Added at

Ill.

Req.

,

effective

SUBPART

D:

AUTHORIZATION OF HEARINGS

Section

104.160

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,

62-107

---

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 the

Ae~-a~éSubpart B or the Act ~e~ee~

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 iO4~14i;

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).

d)

When a hearing has been authorized by

the

Board

pursuant to subsections

(b) (4)

or

(c),

the Chairman

shall designate a Hearing Officer in accordance

with Section

103.181(b),

62-108

---

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 periodonRCRA,

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

a

showing

by

affidavits

or

other

adequate proof by the petitioner that compliance

with the regulations or Board order would impose

an arbitrary or unreasonable hardship upon

the

petitioner.

(Source:

Amended at

Ill,

Reg,

_______,

effective

-~_________

SUBPART E:

RECOMMENDATION AND RESPONSE

Section 104.182

RCRA Variances:

Additional Information

in Recommendation

a)

This section shall app’y to Agency recommendations

~~sforP~~ri

ances

in

addition

to

the

~sionsofSection

104,180.

b)

~

Board

within

30 days after

the petition

is filed.

c)

The recommendation

shall

include

a fact sheet or

statement

of basis as

provided in 35

111,

Adm,

Code

~~41throu~i70~5.i43,

insofar

as relevan~tothe

~ieste~i.

d)

~

~~ed,aar~~raftpermi

t

reflecting the

variance

and recommended conditions

shall

be

included

with the

recommendation.

e)

If the Agency

recommends

that the variance be

denied, a~tice

of

intent

to deny

shall be

inc~uded

with

tne

recommendation.

62-109

---

f)

The Agency shall

serve

its

recommendation

on

the

United

S

atiir

onmen

enc

and

all persons who

have

notified the Agency that they

intend to comment or have otherwise asked to be

served a copy~of

the

recommendation.

(Source:

Added at

I:Ll.

Reg,

_______,

effective

____________

Section 104,183

RCRA Variances:

Public Comment

a)

Any

person,

including

the

United

States

Environ-

—

~

ent in

writing

~hin45dasaftertheAencyfilesitsrecommen-

dation.

b)

~

—

variance

and

on the recommendation.

c)

TheBoard

~iilimail c~ies of an

written co~nient

—

___~etitioner, the Aqenc

and_the

United

States

Environmental

Protection

A

enc

,

unless_the

person

~~he~9mmexitfi1esaproo

of

service

on

the

~ns

entitle cI to cc ies

(Source:

Added at

Ill. Reg,

,

effective

-______________

SUBPART

F:

HEARINGS

Section 104,200

a)

The

Hearing

Officer,

after

appropriate

consu:Ltation

with

the

parties,

shall

set

a

time

and

place

for

hearing

to

be

held within 60

days

:f

the

filing

of

the

petition.

b)

The Hearing

Oflicer

shall give

notice of the

hearing

in

a

iCC

~i~i

r~

£11

AdIP

ode

~e~±er~

103 .123 (b~

at

least 21 day

efore

the

earing

to

the

petitioner, the 7wrencv, 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

~

*

~ubject

to

the

followin

provisions

inste

ad

of

,agra

as

(a),

(b)

and

(c):

1)

~arinOfficer,afterapproriateconsu1-

—

tation

with

it

parties,

shall set a

time

and

in

to be he

ld

not

less

th an

~ft

~he

ilin

of

the

re

omme

ndat ion

~ar

in

Of

ficer

ma

ive

notice

of

an

fln

prior

to

the

actua

1

filing

of

the

r ecorn—

mendation

If

the

recommendation

is

actually

filed

1es~

tfar

~

led

date of ~~

shall

~hedu

l~e

arin

and

ive public notice

2)

The

he~~n

I

hail

be

held

in

the

County

in

-

~h

the

failit

is

located,

in

the

~ula—

tion

center

in

such

county

closest

to_the

facility.

~

~

~~intoj~ho

persons

entitled to notice in

Sections

104

140

and

104.142,

and to any other

persons

who

have

commented, requested to

4)

Notice

shall

be

mailed

not

les

an

30da

s

bef ore

he

hear ing.

(Source:

Amended

at

I

Reg.

,

effective

SUt3PAR

C.

J~INALACTION

Section

104,221

a)

De~sion~~

d

.torRCRA

variances

are

as

provided

in

Section

38

c

t

e

Act

~

~

Ill,

Adrn,

Code

/03,

0,

21,

722,

723,

724

or 725, or

order

is su ance

or

r~odif

IC

afi

on

of

~erm

the

roc edures

of

this

P

art ap licable to

petitions

for

RCRA

variances

have been followed.

c)

~~ardrna~j~ant

aRCRAvariance

only

to

the

extent

consiaient

it

and

with

conditions

no

less

~entthan~whichwouldbereuiredb

the

So lid

Waste

~

62-111

---

Resource

Conservation

and

Recovery Act, and 40 CFR

260,

261,

262,

263,

264,

265

and

270,

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ampii an

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the

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modif

a

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pe rmit

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th conditions wh

ich

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forth

specifically in the Order, or which

of

eneral

uidelines

to

be

followed

by

~nc

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to

ether

with

applic able

regulat

ions

~suinaperrnit.

e)

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will

send

co

iesof

its

finalOinion

~nger

,

to

t he

Unit ed

Envir onmental

Protect ion

A

ency,

the

petitioner

~yotherpartybcertifiedmail,andtoal1

~personswhohavereuestedsuchinformation

by first

class mail.

(Source:

Added at

effective

62-112