ILLINOIS POLLUTION CONTROL BOARD
November
8,
1984
IN
THE
~4ATTER
OF~
R84—10
RCRA
PROCEDURAL
RULES
)
PROPOSED
RULE.
SECOND
NOTICE
P?~OPOSED ORDER
OF
THE
BOARD
(by J.
Anderson):
On
June
T~4~
1984
the Board proposed to adopt
amendments
to
35
111.
A&i~.
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.
The Board has modified the proposal
in response
to comments received during the first notice
period.
The
revised text of the proposal
is attached to this Order.
The
Board
adopts the revised text for
second notice.
This Order
is
~ipported by
a Proposed Opinion of this same date.
Because
of
its
length,
this Second Notice Order will not be
piblished
in the Opinion volumes; however,
it will be distributed to
participants.
IT
IS SO ORDERED.
Board
Member
J.
Theodore
Meyer
dissented.
Board
Members
J.
Marlin
and B. Forcade concurred.
I,
Dorothy
M.
~inn,
Clerk
of
the
Illinois
Pollution
Control
Board,
hereby
certify
that
the
above
Order
was
adopted
on
the
~
day of
~
1984 by
a
vote
of
X)~
-~
Dorothy M,
~
Clerk
Illinois Pollution Control Board
~i-125
TITLE
35:
ENVIRONMENTAL
PROTECTION
SUBTITLE
A:
GENERAL PROVISIONS
CHAPTER
1:
POLLUTION
CONTROL
BOARD
PART
:t02
REGULATORY
AND
OTHER
NONADJUDICATIVE
HEARINGS AND PROCEEDINGS
SUBPART
A:
GENERAL PROVISIONS
Section
1 02.120
102.121
102.122
102.123
102.
124
Proposal
of
Regulations
Authorization of
Hearing
Notice
of
Hearing
~sa19~fRCRA
Amendments
cc
of
S ite~S
cif ic
RCRAPrOOS
als
Section
102.140
Discovery
SUBPART
C:
DISCOVERY
SUBPART
D:
HEARINGS
Sect!
on
102.160
102.161
1 02.1
62
102.163
102.164
Authority
of
Hearing
Officer
Examination
of
Witnesses
Prior
Submissions
Written
Submissions
Record
Sect!on
102,180
SUBPART
B:
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
Sec
tion
102.200
102. 201
102.202
Revision
of Proposed Regulations
Notice of Adoptsd Regulations
On
of
RCRA
Amendments
Section
102.101
302.102
Apr. icahil
ity
Ado~tion
of
Regulations
SUBPART
B:
PROPOSAL OF
REGULATIONS
81~12e
SUBPART
G:
OTHER PROCEEDINGS
Section
102.220
Other Proceedings
AUTHORITY:
Authorized by Section 26 of the
Environmental
Protection Act
(ill.
Rev,
Stat,
1983,
ch.
Ill
1/2,
par.
1026);
and implementing Sections
5,
22,4(a), 27 and 28 of
the
Environmental Protection Act
(Ill.
Rev.
Stat.
1983,
ch,
11.
1/2,
pars.
1005,
1022.4(a),
1027 and 1028);
and Section
4 of
“An
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
Ill,
Reg.
8357;
amended in
R84-~’l0 at
8
Ill.
Reg.
_____
I
effective
___
_____
SUBPART B:
PROPOSAL OF REGULATIONS
Section_102.123
LofRc~Amendments
a)
As used_in this Part,
“RCRA rules”
shall
mean
~.Adm,Code703,720~72~724
and 725.
b)
~
to
nd the RCRA rules
shall:
1)
~
visions of_Section_22.4(a), 22,4(b)
or
22,4(c)
of the Act
~
~de
ml!stin
of all amendments to
the
corre-
4th
Feder~l re
lations
since
t he
last
amenci-
ment of the Board~sRCRA rules
3)
Includeace~ificateofser~yiceindicatin
th
theo
osal
has
been
served
on the United States Environmental
Protection
~
Service
shalIbe made at the
~win~dress:
or
Waate Mana ement Divis
ion
USEPA,
Re ion V
30 South Dearborn
Street
~ca~thois
60604
(Source:
Added at 8
111, Reg.,
effective
—
Sect!
on
102.124
~
a)
Pubi
Ic notice of he~nson
site-s ecific
RCRA
s~s
h
I be
iven at Icast34~y~~ore
he
d.ate
of
he hearin
b)
Inaddit~to~~giremen
t s
of
Sect
ion
28 of
the Act and Section 102.122,
the Board,
at a
minin~m,
wi11~
oticeof hearin
s on
a site-s
ecific RCRA
~tothefo1low~ns:
1)
~
States Environmental_~~ctio~~en~~
3)
Illinois Department of Conservation
~
Ithnois De artment of Ener
and
Natural
Resources;
5)
IUino~p~artrnentofPub1ic
Heal th
~
Thrn2Lofanot~~at~~o
~ounti~chthefacilitislocated;
7)
E~ ted official a of an
counties,
in
other
states,
ad acent to the Count
in
which the
~tedofficiasin
~iciali~inanot~rstate,ifit~
~
center to the fac
i1~i.
~
In
addition to the methods of noticeb
blication
of Section 28 of the Act and Section 102.122,
the
~stoveratleast
St
ation
in
the
arem of the
facilit
~
~
will includ
hefollowin
information:
1)
The
address
of the Board
office
2)
~
if
eren
~e
acilit
or
which
he
c~c ruIc is son ht
3)
~
conducted
ilit
and
he ac ivit
descr
ibed in
th~ion;
61-128
4)
Naix~e,
adores
a1’dt~2~pnenurnber_of
the
C1er~otthe Deard
from whom interested
peLso~~:~yg~tath
further informat!
on,
incinding~p~esof th~r~pos
al;
and
5)
~
Ag
y~sre esentative
in
eru
lemak
in
6)
A de5r’ription of an~y~
written_comment~riod~~o~iodor
a statement that
a ~mmen~~~
will be
establ siel
.
the future;
7)
A statement that the rcc
ordi~tIieri~~emakin
~availabivutteBoard
office
for
~
ex~J~thse ~Ettions which are ci
aimed
to
be
tradc. score
s
~d~aat~procedures
are ~wail—
able ~
~
8)
Adesortjt
.
t~ctt~~tedenviron-
mental affe to
)f activities
conducted
under
~
sal.
9)
A staternertJtsste
f
ic
rules
ma
be
A
4-A
4-
~-
Til
121
C4-
4
1
~
pur~
~
Il 1.
AdmCo&02~
enda reference
to
the
Boarci
~~tion.
soug~tobe modified.
10)
~
other
a aia lenforma~ic~~
~ttheblie~aiuatinthe1ikel
of the
ro oaed
ac
t
ivit
u
on
t
he
4~g~itof
~
Ii)
~4ition~al~nformation
considered
~saror~
(Source:
Added
at 8
1
.
Req
effective
_____
)
Section 102.202
~ar
d
will
ad
0
t RC?A re ulat~on
a
r
~he
a
lic
able
ements
of
this Part, Title VII
of
the Act and
the Il 1inois
Adininistr
ative Proc~cI e.flct
(Ill.
Rev. S~ .19B3ch.
127
p
j~4~
y
~o
ado
tin
re
lations
other_than emer enc
amendments,
the_Board
wil
1:
~
vaiiab1etotheblicg~se4~o~d
Order
cgnt
nin2 the text of the
amendments
(i-i~g
b)
Publish a notice of the
roosal
in
the
Il 1inois
Re~iat
and.t
nvironmentml Re!
ster
c)
Serveac~p~
ther
OlnionandOrder
on
the United States Environmental
Protection
~
d)
Receive written comments from the
United
States
~
for at least 45 da
s after
the date of
blication
is Re ister
(Source:
Added
at 8
Ill. Req.,
effective___________
)
TITLE 35:
ENVIRONMENTAL PROTECTION
SUBTITLE A:
GENERAL
PROVISIONS
CHAPTER
1:
POLLUTION CONTROL
BOARD
PART 103
ENFORCEMENT PROCEEDINGS
SUBPART
A:
GENERAL PROVISIONS
Section
103.101
Applicability
SUBPART B:
COMPLAINT,
SERVICE AND
AUTHORIZATION OF HEARING
Section
103.120
Who May Initiate
103.121
Parties
103.122
Notice,
Formal Complaint and Answer
103.123
Service
103.124
Authorization of Hearing
103.125
Notice of Hearing
SUBPART C;
MOTIONS, JOINDER AND
INTERVENTION
Section
103,140
Motions and Responses
103,141
Consolidation
and Severance of Claims
and Joining
Additional Parties
103.142
Intervention
103.143
Continuances
SUBPART
D:
DISCOVERY, ADMISSIONS
AND SUBPOENAS
Section
103,160
Prehearing Conferences
103.161
Discovery
103,162
Admissions
103.163
Subpoenas
61-130
7--
SUBPART
B:
SETTLEMENT
PROCEDURE
Section
103.180
103.181
Settlement Procedure
RCRA Settlement Procedure
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 Rearing
103.210
Amendment and Variance
Section
SUBPART G:
POST--HEARING
PROCEDURES
Section
103. 260
103.261
103. 262
103.263
103,264
103.265
103,267
103.268
Appendix
Record
Briefs and Oral Argument
Contents
of Board Opinions and Orders
~~ose
Sco e and A
licabilit
Interim Or er
~erofAenc
Draft Permit
~tedDraftRemed
Contents
of
Public Notice
Public Comment
Contents_of Board Order
Old Rule N~imbersReferenced
Default
Transcript
103. 220
103.221
103. 222
103,223
103.224
Section
103.240
103. 241
SUBPART H:
RELIEF FROM FINAL ORDERS
Motion Subsegqent to Entry
of Final Order
Relief from Section 103.224
Final Orders
SUBPART
I:
DECISION IN CASES INVOLVING
RCRA PERMITS
61431
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 31
through
33
of
the
Illinois
Environmental Protection Act
(111.
Rev.
Stat.
1983,
ch,
111
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—l8,
at
44 PCB 125,
at 5
Ill.
Reg.
14146, effective
December
3, 1981; codified at
6 Ill.
Reg. 8357; amended in
R84-40
at 8
III.
Reg.
,
effective
__________________
SUBPART
B:
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 pirpose to be accom-
plished
by
the
settlement,
Such statement
shall
contain:
1)
A
full
stipilation 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 piblic
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
stipilation 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
61432
—9
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,
~
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.
ci)
If the Board determines that
a:~ettlementinvolves
or may involve the issuance
or modification of
a
RCRA permit it will enter
an
interim
order
p.irsuant
to Section 103.261.
(Source:
Amended at
8
Iii.
Reg.
,
effective
)
SUBPART
I:
DECISION IN CASES
INVOLVING
RCRA
PERMITS
Section
103.260
Purpose,
Scope and
Applicabi1i~
a)
This
Subpart
applies
when
the
Board
finds
in
an
interim
order
that
an
enforcement
action
involves
issuance or
~Tfication
of a RCRA permit
b)
Enforcement actions which involve issuance or
modification
of
a
RCRA
permit include those in
which,
to
grant
complete relief,
it appears that
the Board will have to:
1)
revoke
a RCRA
perrnit;
or
2)
order
a
RCRApermit
issued
or modified;
or,
3)
enter
an
order
which could require actions
which
would
be
different from the conditions
of a RCRA permit
or
35
111.
Adm.
Code
724
or
725;
or,
4)
enter
an order directing facility closure
or
modification
after
a finding that a
facii~j~era1~np
wi
thout
a
RCRA
permit
and
that
orejg~~d.
c)
Theas
cedure
vide methods
bj~
which the
Board will
formu I t~a corn 1ianc~j?~1
an,
and,
if
ns~essar~~ctthe
issuance
or
moth fication
theRçj~~rmi
t
(Source~ Added
at 8
111.
leg.
effective~
______)
Section 103.261
a)
The Board will enter an interim order
invo~~e
procedures
of
this
Sub art on its own
motion
or on
?hè
motTon o~any~part~Be
ore the Board enters
an
interim
order the parties must
develop,
through
hearings
or
admissions pursuant
to
Section 103.162,
a
sufficient
record
to support
the findings which
the Board must make ir~~~a~jb).
b)
An interim
orde:r
i
0km
thejrocedures
of
this
~wil1inc1ude:
1)
~~r~dinqorrc,~osedfinding
of
violation
and
an
nait’ or
ro
osed
monetary
~en aity;
~4
2)
~~dint~iatthe
case is an enforcement
action
which
involves
or
issuance
or
modification
of aRCRA
~permit;
and
3)
Joinder
of the Aenc
i~ itis
not aireadi
and
4)
A time schedule for
filing
by
the
Agency
of
tial~ra~~mit,
c)
The interim order
is
not
a
final
order
and
may be
~ppealed only
with
:Leave of the
Board.
(Source:
Added
at
8
Ill.
Reg.
______
effective
Section
103.262
If the Board
directs that the
Agency be joined,
the
Clerk
will
~dbmessener~~certified
mail addressed
to the Agency~
a copy
of
the
Board
Order re~~j~9~nder.
Such mailing
con~erviceofroces~nc,
(Source:
Added at 8
111.
Reg.
______,
effective
___________)
Section
l03~263
Draft Permit or
Statement
a)
Within
60 days after
~
an interim order, or
at
such other tim~~ma~be spedified
by the
Board,
the
c’s
1
file and
serve
on afl~ arties either a
51~
134
11—
~tial
draft 2ermit or
a statement that no
RCRA
~—
—~-~---——-
p~~itneeds_to be
i
ssuedormoairieci.
b)
The~~~L
draft
rmit
shall
be
in
substantial
~
Adm,
Code 705.141_and shall
include
such
conditions
as
~
orrec
tthe
violations found in the
interim order.
c)
!
encmaconf?~Lwith other
parties and enter
~
draft~~~whichit will
recommend
to
the
Boar~
~
~
Such
~entsdonotbindtheBoard.
ci)
L~~!n~y~ssuesastatement
that noj~m~
needs to be issued or modi
the remain
ing
Su~ar
dures
will n2t be
how
nless the
B ar
determines_otherwise.
(Source:
Added at
8
Ill, Reg.
_____
effective
____________)
Section
103.264
~ate4ra~~emed
a)
~
)~
~
1)
~
ties
~g~~houl~dbe
included in the Board’s fthal
~
one
or ~
~win:
A)
An order to cease and
desist
onduc~J~
~~ed~2tivi
ties
13)
An
order to close a
f
ac
ii
tj~it;
C)
An
order toexecute~g~i~care
2L~L
D)
~~~i!~udinatime
schedule to assu
omliance
wi
threg~
lations in the
short~~ssibl~time
B)
Anordert~rovide
~rmance
bond
or
other
financial
assurance
E~
An or
der to
~mit
or~~t
modification;
G)
~
2)
~
ti
on
103. 26
3)
A statement asto whe
thero~~sti1a-
~isdivi~eforrosesofBoard
determinations.
~
ties
inclu
din
the
Aene
,mustsinthe
~
~anttoSectionl03.26~
(Source:
Added at
8 III,
Reg.
,
effective
-
)
Section
103.265
C~ontentsof Public Notice
a)
~
~~~jartialdraftrmi~pnthe
United
States Environmental
Pr
otection~~y~he
~wina~ss:
tor
Waste Nana ement Div
ision
Re ion V
230 South Dearborn Street
~~aolL
60604
b)
itiont~hereirementsoft~c~and
Section
l03.l25,~2yila~mini~m
~ot
i~e
f iiin
of a
tial
dr af
t
to
t he
followin
ers
on
S
fl
Laencie~sdesinate~bth~United
States_Environmental Prt
ion
~engy
2)
~
~
~nois
Dc artment
of
Con
servation
U
~nois
Dc artment of Ener
and
Natural
Resources
~
~flnoisD~r~nt~b1icHea1th
6)
T!ernorofan~~herSt~jacen~o
ç~n~y~jiwhichthef
ac ilj~J~jocated
7)
Else
tedo
cials
of
an
counties
in
other
!~ad~acen~otheCou.~tin
which
the
~~litis1o$~ted,
and
elected
officials
in
~~~nici
alit
in
her
state,
if it
Ts
the
ci
o~t
ion
enter
to
the
ac
I3~
C)
In
addition
to
the
methods
of no~~bb1ic~ation
ofSection3,l25~~n2h~j~ive_notice
~~ro
adcast over at Isast
one
radlo
stati
on
in
the
atea
of the
aciiity.
ci)
i~~ceofaartialdr
a
f~
the
foilowiIl~nformation
2)
Name
and address of t~
ondnt
and,
if
different,
of the ~
to the
~T5~cementactran;
3)
Abrief deset
on
oft
sinessconduc
ted
~
the
of the enfor
c
ement ac
tion
4)
A
statement
of the violations
the
Board
has
~or
has
ro osed to find;
5)
&ement~~~~enchas
filed
a~~ial
~rmit;
6)
~
number
of the
-
~oftheBoardfromw~rested
ersons
ma
obtain further
information
~
~rstilatedremed;and
7)
U
~eme
nt that
ahe ar in
will
be bel ci
and that the record
wil
1remaJ~92~n
for
written
comme~~r45d~~ter
~~nd/or
~~jatedre~~ed.The
notice will
include
the
address of
the Board to
which
comments
mailed;
an ci
~
~9~2fa~!ar1n;
8)
A
statement
that the record
in
the action is
avail
able
at
the Board off
ic~~nsc~4~,
those
ortions which are claimed
to be
~
~
~the2ib1ic.
9)
~~2ri~on
of
the antic
i~ted
environ
mental
effects
of
activities
conducted
under
the
~aldraftermitand/orsti1~med.
10)
A
statement
that
enforcement
actions
are
~
t611
1
.Rev.S
tat,
1983,
ch.l1il/2,~.lQ~e.
Ii)
~
dci
ion
information considered
necessary
9~2P~
(Source:
Added
at
8
III.
Reg~
,
effective
)
Section_103.266
Public Comment
~
s Environmental Protection
A~ency~~y~
comment
on the partial
draft permit
within
45 ~
after
it
has
been filed with the
Board
and
notice~iven
pit-
suant
to
Section
103.265.
(Source:
Added at
8
iii. Reg~
____,
effective
)
Section
103.267
Hearinc
The foilowing~~la1in
addition
to Section 103.125:
a)
~flj~arinOffi~~r,after
appropriate
consultation
with
the
parties,
shall
set
a time and place for the
hearing~j~p
be
held
not
less than 30 days afte~Effi
filing of th~partial
draft permit and/or
stip.ilated
b)
The hearing
shall
be
held
in the county in which
the
facil~iJsloc~,inth~~lation
center
in such
~g~t
closest
to
the
facility.
c)
The Clerk in con
suitation
_with
the
Hear
in~Officer
~~~jive
notice
of
the
hearing
to the persons
entitled
to
notice
in
Sections 103.125 and 103.265,
and
to
an
other
rsons
who
have
commented,
requested
to comment
or
requeste
notice,
and
t
any~
rsons
on
~
by the Agency
*
ci)
Notice
shall
be
mailed
not
less
t
das
before
the
he,
(Source:
Added
at
8 IlL
Reg.
,
effective
)
Section
103.268
Contents of
Board Order
a)
The Board will not enter
an order which would
~
aRCRA
~~nlesst~’~,1ic
notice,
piblic
comment
and
he
arin~J2~edures
of_this
Sub~part
have
be~n
~o1 1owed.
61~
138
15~~
b)
If
the
Boarci determines
that,
~
e
te
rel~
it
mu st
or
deL
t
issuance_or
modi~ication
~9~~çRAr$t,it
s
fin al order
will
include
~
~
the foilow-
U
An or
der
J~ssue
or
modif
apermit in
~or
man
cc
with a draft
r
mit ;
2)
An
order to issue
or
modi fj
a2~rmitin
~
as modified
~oard
order;
3)
Guidelines for
issuance
or modification
of
~
and
~
gu
1
ation s.
C)
If the ~
Lfies
a
schedule
leading
to.~c~Li—
ance with the Act and Board rules:
U
~
scfleduIs
shall re
ire cg~phiance
as soon
~le;and,
2)
~
er ma
irdition
al
financial.
assurance.
TITLE 35:
ENVIRONMENTAL
PROTECTION
SUBTITLE A:
GENERAL PROVISIONS
CHAPTER
1:
POLLUTION
CONTROL
BOARD
PART 104
VARIANCES
SUBPART
A:
GENERAL
PROVISIONS
Section
104.102
104. 103
104.104
Variance from New Regulation
References
RCRA Variances
SUBPART
B:
PETITION
FOR
VARIANCE
Section
104.120
104.121
104.122
104.123
104.124
104.125
104.126
Petition
for
Variance
Contents of Variance Petition
Consistency with Federal
Law
Extension of Prior Variance
Hearing Request or Waiver;
Affidavit
Dismissal
for Inadequacy
RCRA Variances:
Additional
Material
(Source:
Added
at 8
Ill. Reg.
______,
effective
_________
)
61~i39
—16~
SUBPART
C:
NOTICE AND OBJECTIONS
Section
104.140
104.141
104.142
Notice of Petition
Objections to Petition
~ç~jjg~jj3flgofPetition
SUBPART
D:
AUTHORIZATION
OF HEARINGS
Section
104.160
Section
104.180
104.181
104.182
104.183
Board Action on Petitions for Variance
and
Authorization of Hearing
SUBPART
B:
RECOMMENDATION AND
RESPONSE
Agency
Investigation
and
Recommendation
Response or Amended Petition
RCRA Variances:
Additional
Information in
Recommendation
RCRA Variances:
Public
Comment
Section
104.200
104.201
104,202
Notice
of
Hearing
Proceedings
Transcripts
Section
104.220
104.221
Dec
ion
RCRA_Variances:
Board Decision
Appendix
Old Rule Numbers Referenced
AUTHORITY:
Authorized by Section 26 of the
Environmental
Protection Act
(111,
Rev.
Stat,
1983,
ch,
ill 1/2,
par.
1026)
and implementing Sections
5 and 35 through
38 of the
Environ-
mental Protection Act
(Ill.
Rev.
Stat.
1983,
ch.
ill
1/2,
pars. 1005 and 1035 through 1038).
SOURCE:
Originally adopted as Chapter
1:
Procedural.
Rules,
Part IV:
Variances,
in R7O~4,at
1 PCB
43, October
8, 1970;
amended in R77~46, 29
PCB 503,
at
2
Ui.
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 R84~1Oat 8 Iii.
Reg.
___
,
effective
____
SUBPART
F:
HEARINGS
SUBPART G:
FINAL ACTION
61~
140
—17—
SUBPART
A:
GENERAL PROVISiONS
Section
104.104
RCRA
Variances
a)
As used
in
this
P
rt.
~petition for a RCRA
variances
1j~ea~np1eadin9
which
meets
either,
or
both,
ofth~~1o~ncr
i
ter
i
a:
1)
It
requests
a
variance from 35
Ill.
Adm.
Code
~
721,
722, 723,
724
or 725; ~
2)
It asks that
the
Board order the Agency to
issue
or modify any provision of a
RCRA
permit
required
pirsuant
to
Section
21(f)
of
the
Act.
b)
The federal RCRA rules
contain
procedures
which
are
referred
to as “variances”
(40 CFR
260,261,
262,
2~264,
265 and 270
(1984).
The petitioner
should consult the comparable
Board
regulations
to decide whether the variance procedures of this
Part need to be followed.
As provided
in Title
IX
of
the Act,
the
Board
may
grant
a temporary variance
on a showing
of arbitrary or unreasonable hardsh~!p
and submittal
of
a compliance plan.
The Board may
9rant permanent relief
from
a
rule
pirsuant
to
35 Ill.
Adm, Code 102.
Pursuant to 35
Ill. Mm.
Code 105
a permit applicant may request Board
review
of
the
Agency~s denial
of
a
permit
or
issuance
with
conditions.
(Source:
Added
at
8
Ill. Reg.
______,
effective
SUBPART B:
PETITION
FOR
VARIANCE
Section 104,122
Consistency with Federal Law
a)
All petitions for variances from Title
II of the
Act or from 35
Iii.
Mm.
Code,
Subtitle 8, 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 pirsuant thereto.
If
granting a variance would constitute is~iance
of
a
delayed compliance
order
as
that
tern
is
defined
in
40
CVR
65.01(e),
the
petition
shall
indicate
whether
the
re~iested relief
is
consistent
with
Section
113(d)
of
the
Clean
Air
Act
and
40 CVR
65~01-65.10
and
65.181.
If
granting
a
variance
would
re~iire
revision
of
the
State
laplesentation
Plan,
the
petition shall
indicate
whether
the
81-14~
requirements
of
Section
110(a)
of
the
Clean Air
Act and 40 CFR 31 ~il1 be satisfied.
b)
All petitions for variances
from Title III of the
At;
from
35
I11~~dm.
Code,
Subtitle C,
Ch.
I;
or
from
water pollution related
requirements of
any
other title of the
Act
or chapter
of the Board’ s
Regul ations shall
indicate whether
the Board may
grant the relief consistent with
the
Clean
Water
Act ~33
U.S.C.
~t251~
U.S.E.P.A.
effluent
guidelines
~
standard~ any other Federal regulations,
or
a~’yareawide
was~:ntreatment
management plan
apiroved by the Administrator of
UOS.E,P.A.
plr—
suarit to Section 208
of
the
Clean Water Act.
c)
All petitions
Icr
var
:~ances
from
Title
IV of the
Act or from 35
J11. Adm.
Code,
Subtitle
F,
Ch.
I
(Public Water Supplie~),
shall
indicate
whether
the
Hoard
may
grant
the
relief
consistent with the
Safe
Drinking
Water
~lct
(42
U.S.C.
300(f) et seq.)
arid the U~S.E.P.A.National
Interim Primary Drinking
Water Regulations
140
CFR 141).
~)
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
~eriocL
However~
petitioner may, pirsuant
t:o
Section
104.
10:1
file.
a response to the Agency’ s
analysis of federal
laws
without.
amending
the
petition.
e)
Al.
petitions
for
RCRA
variances
shall
include
as
in__that
the
Board
canS~ant_the~iested
relief consistent with,
and
establish RcRApermit
con~itions
no
less
strin
9ent than
,that~hich
~
Solid
Waste
i~sos~ai
~~a~endedbtI~e
Resource Conservation and
Recovery Act
of 1976
(P.L,94—580,
a~~~edb
P.
L
.
95~~
42
U.S.C.
6901)
and the
regulations
thereunder
proinul
ated
b
the
United
States
Environ—
ta~r~tection
Agency.
0 CFR 260,
261,
262,
~
(1984))
Such
petitions
shall
~
authorize
~e~requestec,
and
snail
include a~~y
tacts
~
tI)e petitioner
would
be
entitled
eeste~rel~ef~~tofederal1aw.
Arneude~
~t
8111.
•Reg.
—
~ effective
_________)
S
I 4~?.
19
Section
104.126
RC~Variances:
Additional
Material
~
~
for
a
RCRA
variance
as
such.
b)
Persons who have,
or are re
ired
to have,
a
*
wEoseekaRcRAvari
ance
w
i
ch
ccruid
result_in
modification or issuance
of the
RCRA
permit_must
have
on
file with
the Agency a
~
t~e
re~~ted
~
C)
Petitioner
shall
attach
to
the
variance petition
~RCRArmitalication,orsuch
2~on~~!mabere1evant to the
variance
~
d)
Petitioner
shall
attach
to
the
vari
anc~~~j~ion
of
service on USEPA as
re
ired b
Section
104.142.
(Source:
Added at 8
111.
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
intervene
in
accordance with Section 103.220.
A
copy
of
such
objection
shall
be
mailed
to
the
petitioner and the Agency by the Clerk.
)~
~
~ardrulesrovideforbliccommentand
he ar in
oh
etition
S
(Source:
Amended at 8
Ill.
Reg
effective
Section_104,142
~j~rian2!~:Notic~fFi1inof
Petition
a)
An
tition re
estin
a RCRA
variance shall
~
deemed filed until
rQ2f
of
service
as
been filed with the Board,
Petitioner
shall
serve
~esEnv1r~ncy
~
ariance
~fo1lowin
address:
RI
I
42
or
We
ste Mars eme
ntD iv is ion
USE PA
Re
ion
V
230
South
Dearborn
Street
Chic~go,IL
60604
~
In
addition
~eiremen
tsof
Sectl
on 37
of
theAstandS~on104.l40theAencata
~
petition
for
a
RCRA
variance
to
th~~fl~9~n
1)
~
United
St atv
ir on ment al
Pi~
otection A enc
~
~n9!s~ar~9fTran!22rta~on;
~
Uthois~
men~of
Conservation;
U
~
Resources;
~
~n2~sDear~entoZ~bli2Health;
~
ernor
of an
otheL
State
ad
acent
to
~~j~9~ilitislocated.
7)
Elected
of
ficialsof
~
other
states,
ad~acent to
the
Count
in
which
the
acility~s1ocated,aneecteo~si~
an
minici
alit
,
in another state
if it is
~
c)
In
addition
to
the
me thods
of
notice b~yblication
of
Section 104.140
the A enc
shall
lye
notice
al
r adio
Stat on
~he~fthefacilit.
d)
A
notice
o~
hefil
in
of
a~
tion
for aRCRA
formation:
2)
Name
and
address
Of
the j~titionerand,
if
orwhichthe
varianceissg~~j
3)
Abr
ief de
sc~~ono~h~sinessconducted
att~flit~ai~ctivitdescribed~n
the
21~
4)
Name, address and te~houe
number
of
the
Clerk_of the Board
~fr
omwhom
interested
j~ersonsma
obtain further
information
including
jesj~.anceetition;
and
5)
~
a
recommendation,
the date
on which the recom—
mendation is to be filed~and
the
name~1
address
~~eh9~enumberoft~
Agenc~employee
~sib12~~her~2rnmendation;
6)
~
ment that a he
ar in
will
be held
af
ter
~flg~~~hatthe
record_will remain open for written
comments
~
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
~~in
is available
at
the Board office
~
~
are claimed to be
tr
ade
secretsL
and that
~
disclosure
~bth~1ic,
~
~ritionofth~ti9~at~environ-
mental effects of activities
conducted under
~ance,
9)
~
ranted
~~oIll.R~Stat.l983,ch.1lll/~
~35
et se
•
and 35
Ill. Adm
,
Code 104
erence
to
the
Board re
lations or
~
10)
~~er
available infor~~hic~~Z
~ttheblicinevaluatinthelikel
the
roosed
activ
ityu
on
the
~
d
or air.
11)
~~itionalinformat~onconsidered
~sarorroer,
(Source:
Added
at
8 Ill.
Reg.
effective
61~
145
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 distribete copies
to
each
Board
Member.
Copies of objections to the petition,
amendments,
the
Agency~s recommendations
and
responses to
the
recommendation shall
be filed and
distrib~itedas
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 tke
Ae~andSubpart B or the Act he~ee~
or,
2)
The Board may enter
sri 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
104.141;
or,
3)
~~atitionfora
RCRA
variance
has been
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),
61446
~2 3~
d)
When
a
hearing
has
been
authorized by the Board
pirsuant to subsections
(b)(4)
or
(c), the Chairman
shall designate
a Hearing
Officer in accordance
with Section 103,181(b),
e)
If
no hearing has been authorized
pirsuant 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.
ThedecisionperiodonRCRA,j~C
~
8(c)
of
the
Act.
f)
No variance shall he 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
8
Ill. Reg.
______,
effective
SUBPART
E:
RECOMMENDATION
AND
RESPONSE
Section
104.182
RCRA Variances:
Additional
Information
in Recommendation
a)
~s~ionshallalt~encrecommendati2~s
tion
s
for RC
variances
in addition to the
~ionsofSection
104.180.
b)
The
Age~
shall file its
recommendation
with
the
wi
t hin
30
da s
af
ter
the
tition is
f
iled
c)
The
recommendation
shall
include
a fact sheet or
~~me
ntof
basis
as
rovi.d!din 35
Il
1Mm.
~
j~41t~~hj~Q5.143,insofarasrelevanttothe
~cereested,
d)
~
Aen~
mmendsthahe
variance be
~aar~aldraft~ermi
t re
flecting~
the
variance and recommended
conditions
shall
be
~erecommenation.
e)
~
be
~
all
be
included
with
the
recommendation.
61447
~24~
f)
~g~n
shall
serve its rec
ommendation
on
the
United States Environmental
Pr
otec
tJ~en~yand
a1sonswhojnotifiedt~Aen2y~hatt~
intend to comment or have otherwise
asked to be
served~~~~he
recommendation.
(Source:
Added
at 8
Ill.
Reg.
_____
,
effective
Section
104.183
RCRA Variances:
Public Comment
a)
~
Environ—
*
~
fTi~Tting
within
~
dation.
b)
ntmabeonb2~hth~~~tion
for
a RCRA
variance and on the recommendation,
c)
~
t
titioner
the A enc
and the United States
Environmental
~
theeomment files
a
r22f
of
Se
rvice
on
he
~sentitledt~es.
(Source:
Added at
8
111.
Reg.
____,
effective
-—
SUBPART
F:
HEARINGS
Section
104.200
Notice of Hearing
a)
The Hearing Officer,
after appropriate consultation
with
the
parties,
shall
set a time
and place for
hearing to be held within 60 days of
the filing of
the petition,
b)
The Hearing Officer shall give
notice
of
the
hearing in accordance with
35
Ill.
Mm,
Code
See~en
103,123(b),
at least 21 dayiTi
ethe
hearing to
the petitioner,
the Agency,
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~sEnvironmental
Register in
the
first
publication
of
the
Environmental Register
after the Hearing
Officer
shall
have set
the date
for hearing.
~25~
d)
Notice of hear~
ti
ons
for RCRAVar
lances
shall
besu~ot~followinrovisions
insteadofJgp~ja)~jb)
and
(c):
1)
~
I!earm
Offjeer
after
ron
ate consu1-
tation with the
arties,
shall
set a time
and
~
t
an
~
~
give
notice of any~
~
of the
recon-
mendation.
If the recommendation is act~á~
filed less than 30 da
s before
the
scheduled
~
shall
~~edu1h!hearin
and
g~ivepublic notice
2)
Th~
ax
in
shall
be
~1d
in
the
County
in
~
~
to
the
~lit,
3)
~~rinO~icershal1g~ive
notice of the
~n
to the
ersns
entitled to notice in
Sections 104.140 and 104,142
,~
an~
a~~vdto
an
other
~
to
~nt
or re
es
ted
n
ot
ice
4)
~
before the hea~j~g~
(Source:
Amended at
8
111.
Reg.
effective
SUBPART
G:
FINAL
ACTION
Section
104,221
RCRA Variances:
Board
Decision
a)
~
eriodorRvar
i
ance~~jrovided
in
Section
38(c)
of the Act,
!
Board will n2t
rant avariance from 35
Ill.
~
725,
or
order
issuance or modification
of
aRç~~i~
~
to
~on
s
for RCPA varIances
have be
en
f
ollowed
c)
~
9ard
ma
ran
RCRAvarianceonl~
tothe
extent consistent wi
ndwith
conditions no less
~
~id
Wa
ste Dis osal Act
as
amnded by the
61449
~26—
Resource Conservation and RecQver
Act
and
40C!R
~
shal
~
the
shorte~ossible time,
d)
~j~ard~s
final Order ma
direct t
Agenqy
to
modif
a RCR~r
mit Wi
th conditi
ons
which
~
Order~,
or
whIch
~
t~~nct9nwit~~licable
regulations,
th~narmit.
e)
The
Board will send
ç~~s
of its final Opinion
~
tp
the United
States
Environ
mentalProtection~enqy,
the
petitioner
and
an
erart~y_çertified
maQ~~andtoaU
~
~st
class
mail,
(Source:
Added at 8
Ill. Reg,
_______,
effective
61450
