ILLINOIS POLLUTION

CONTROL BOARD

June

14,

1984

IN THE MATTER

OF:

R84—lO

RCRA AND UIC PROCEDURAL RULES

PROPOSED RULE.

FIRST NOTICE

PROPOSED OPINION AND ORDER OF

THE

BOARD

(by J. Anderson):

On March

21,

1984 the Board opened this docket for

the

purpose of adopting procedural public comment rules to

be

followed in cases arising pursuant to the RCRA rules.

On April

12,

1984 the Hearing Officer entered into

the

record Exhibit

1, consisting of

a

letter dated February 10,

1984 from Valdas

V. Adamkus, Regional Administrator of

the

United States Environmental Protection Agency

(USEPA), to

Richard J. Carlson, Director of the Illinois Environmental

Protection Agency

(Agency), together with a four page attach~

ment containing

general and specific comments concerning 35

Ill. Adm. Code 103,

104, 702,

703, and 725.

The Board

hereby orders entered into the record Exhibit

2, consisting

of

a Draft Memorandum of Agreement between the Board and

USEPA,

which Draft the Board has received from the Agency. The

First Notice Proposal is based on these exhibits.

The Board~sauthority to adopt rules,

decide enforcement

cases and grant variances could affect modifications

in RCRA

permits.

The Board has proposed special procedures to be

invoked in such situations,

The procedures are adapted

from the federal procedures

found in 35

Ill. Adm,

Code 705,

which governs issuance of RCRA permits by the Agency.

The

procedures provide for a draft decision,

to be prepared by

the Board or the Agency,

followed by notice,

public comment

and public hearing

(in enforcement cases) or the opportunity

for a public

hearing

(in variance cases) prior to a final

decision which may result

in

the issuance or modification

of

a RCRA permit~

The Part

102 amendments will require the Board to

notify

USEPA and follow

Illinois Administrative Procedure Act

notice and comment before amending the RCRA rules.

The Part

103

amendments will require the Agency to

propose, or participate in the preparation of,

a proposed

remedy,

which

will

be exposed to public comment and hearing

before the Board enters a final order in an enforcement

action

which might

result in

issuance or modification of

a RCRA

permit.

58-393

---

The Part 104 amendments will require the Agency to file

a draft permit with its recommendation.

Public notice will

be given of the recommendation,

and the public will be

allowed to comment before the Board grants a variance from

the RCRA rules.

The proposed amendments of

35

Ill. Adm. Code 102,

103

and 104 are hereby adopted for first notice.

The record

will remain open for public comment for a period of 45 days

following publication in the Illinois Register.

The full

text

of

the

proposal

is

as

follows:

58-394

---

TITLE

35:

ENVIRONMENTAL PROTECTION

SUBTITLE A:

GENERAL PROVISIONS

CHAPTER

I:

POLLUTION

CONTROL BOARD

SUBCHAPTER

a:

PROCEDURAL

RULES

PART

102

REGULATORY AND OTHER

NONADJUDICATIVE

HEARINGS AND

PROCEEDINGS

SUBPART

A:

GENERAL

Section

102.101

102.102

Section

102.120

102.122

102. 123

Applicability

Adoption of Regulations

SUBPART

B:

PROPOSAL OF REGULATIONS

Proposal of Regulations

Authorization of Hearing

Notice of Hearing

~2~9.sal

of RCRA Amendments

Section

102,140

Discovery

SUBPART

C:

DISCOVERY

SUBPART

D:

HEARINGS

Section

102.160

102, 161

102.162

102. 163

102.164

Section

102.180

Authority of Hearing

Officer

Examination of Witnesses

Prior Submissions

Written Submissions

Record

Hearings on the Economic

Impact Study of New

Proposals

102.181

Hearings on the Economic

Impact Study of

Existing

Regulations

SUBPART

F:

BOARD

ACTION

Revision of Proposed

Regulations

Notice

of

Adopted Regulations

_______

A~ption

of

RCRA

Amendments

SUBPART

B:

ECONOMIC IMPACT

HEARINGS

Section

102.200

102. 201

102.202

58-395

---

SUBPART G:

OTHER PROCEEDINGS

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,

27 and

28 of the Environmental

Protection Act

(Ill.

Rev. Stat.

1983,

ch.

111

1/2, pars.

1005,

1027 and

1028); and Section 4 of

“An Act

in relation to

natural

resources,

research, data collection and environ-

mental 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

111.

Reg.

8357;

amended at 8 Iii. Reg.

_______

effective

___________________

SUBPART

B:

PROPOSAL OF REGULATIONS

Section 102.123

~osal

of RCRA Amendments

a)

As used

in this

Part,

“RCRA rules”

shall mean

35

Ill.

Adm.

Code

703,

720,

721,

722,

723, 724 and

725.

b)

~~~9sa1to~end

the RCRA rules shall:

1)

Indicate whether it

is made pursuant to the pro-

visions of

Section

22.4(a) or 22.4(b) of the Act

2)

Includeaiistin2

of

all

to the corre-

~

F’edei~airlions

since

the

last

amend—

ment

of the

Board’s RCRA

rules

3)

Include

an

attestation that

a cop~of the

roosal

has

been

served

on

the United States

Environmental

~

~h~1l~_ie

made

at

the

~in

address:

US EPA

230

South Dearborn

Street

Chica~

Illinois

60604

(Source:

Added at

8

111,

Reg.

,

effective

58-396

---

SUBPART F:

BOARD ACTION

Section

102.202

Adoption of RCRA

Amendments

~

~

Title VII of the Act and the Adminis-

trative

Procedu~

~

~~Additiona~~rior

to

adoptin9

r~ulations, other than

~

the Board will:

a)

Make

available

to

the

public

a

proposed

Opinion

and

~Fcontainin9

the

text

of

the amendments

b)

Publish

a

Notice

of

the

proposal in the Illinois

Register and the Environmental Register

C)

Serve a

copy

of the j~roposedOpinion and Order on the

United States Environmental Protection Ag~ncy

ci)

Receive written comments from the United States

environ—

~~P~2~onAenc

and other

ersons for at least

45 days after the date of pu lication in t

e

I

inois

~9~ter

(Source:

Adopted at

8 Ill.

Req.

,

effective

58-397

---

TITLE

35:

ENVIRONMENTAL PROTECTION

SUBTITLE A:

GENERAL

PROVISIONS

CHAPTER

I:

POLLUTION

CONTROL

BOARD

SUBCHAPTER

a:

PROCEDURAL

RULES

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

SUBPART B:

SETTLEMENT

PROCEDURE

Section

103.180

Settlement Procedure

103.181

RCRA

Settlement

Procedure

SUBPART F:

CONDUCT OF HEARINGS AND

RULES OF EVIDENCE

Section

103.200

Authority of Hearing Officer

58-398

---

Section

103.201

103. 202

103.203

103. 204

103. 205

103.206

103.207

103.208

103.209

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—HEARING

PROCEDURES

Section

103.220

103. 221

103,222

103. 223

103.224

Section

103.240

103. 241

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 PERNITS

Section

103. 260

103.261

103.262

103.263

103.264

103.265

103.266

103.267

103. 268

P~~Sc2pe

and

Applicability

Interim Order

~roAenc

Draft Permit

~la

tcci Draft Remed

Contents of Public Notice

Public Comment

Contents

of

Board Order

Appendix

Old

Rule Numbers Referenced

AUTHORITY:

Authorized by Section

26

of

the

Environmental

Protection Act

(I1l~Rev.

Stat.

1983,

ch.

111

1/2, par.

1026)

and

implementing

Sections

5

and

31

through 33 of the Illinois

Environmental

Protection

Act

(Ill,

Rev. Stat.

1983,

ch.

ill

1/2,

pars.

1005

and 1031

through

1033),

58-399

---

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

Iii.

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—10

at

S

Ill.

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 purpose to be accom-

plished

by the settlement.

Such statement shall

contain:

1)

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

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

58-400

---

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.

~.ction

103.181

RCRA

Settlement

Procedure

a)

This

Section

overns

settlements

of enforcement actions

r or to ent

of an interim order

ursuant

to

Su

art

I which may involve the issuance or

mod

ficationof a

~

b)

Section

103.180

procedures shall be followed

o4y~4~

the proposed settlement includes a statement bythe

A en

that the settlement does not involve

the

I~Iuance

cation 0

aRCRA~rm

t.

c)

~endetermin~that

the

sedsetti

ement

involves

the issuance or modifjcat

ion

of~~rmi~

Section 103.180

rocedures shall be followed

exce t

that

~~~settementsa:

1)

~

the re

irements of

Ill

,

Adm

.

Co~

705’

and

2)

~

!i tted

for

ubi ic

notice

and

comment

ursuant

~artISection1O3,265and103.266’and

3)

~~nur8uanttoSubartIS~tjon1O~267.

4)

!~~A

enc

is

notacom

lainant

thekenc

shall

be

oined as a rae

ndent

in

accordance with

Section

~

(Sources

Added

at

8 IlL. Rag.

,

effective__

SUBPART

I:

DECI

SIONINCASESINVOLVINGRCRAPERNITS

~03.260

~j

This

Sub

art a

lies when the

Board

finds

jn

an

in er

m

or er t

a

an

en

orcemen

ac

on

nyc

yes

~ance

~f

ication

of

a

~

Enforcement

actions

which

involve

issuance

or

modification

of

a

RCRA

ermit

include those

in

tor

ant

corn

Iatere

a

ta

are

that

the

Board

will

have

to:

58-401

---

1)

revoke

a

RCRA

permit;

or

2)

order

a

RC~~ermi~

issued

or modified;

or,

3)

enter an order

which could require actions

which_would be inconsistent with the conditions

~aRcRKm~tor~~Tll.Adm.

Code 724

or

725;

or,

4)

enter an order directing facility closure

or

modificatior

after a finding that a

facility

was

operating

without a RCRA permit

and

that one was required.

c)

These procedures provide methods by which the

Board will formulate

a compliance plan,

and,

necessary, direct the issuance or modification

of the RCRA permit.

(Source:

Added at

8 Ill. Reg.

_______,

effective

Section 103.261

Interim Order

a)

An interim order invoking the procedures of this

Subpart will include:

1)

A finding

or proposed finding of violation and

oena

it

or proposed monetary penalty

each

of which may he made pursuant to hearings in a

contested enforcement action.

2)

A finding that the case is an enforcement

action which involves or may involve the

issuance or modification

of

a RCRA permit; and

3)

Joinder of the Agency if

it is not already

~party;_and

4)

A time schedule for filing by

the Agency of

a prop

eddraft permit.

b)

The interim order is not a final order and may be

appealed

,nly with leave of the Board.

(Source:

Added at

B

Ill.

Req.

______,

effective

58-402

---

Section

103,262

Jo:nde~ofAg~nc~y~

This

Section a~pp~iesif the Aqen

~party

to

an

enforcement action llwo1vir~aRCRA~rmit.TheAenc

be

oined as

a re pondant

ent

of an interim

order

ursuant

either to Section 103.261 or to Section

~

J:~~~5ftheinterim

on

the

A

a

r~c

(Source:

Added at

8 Ii),

~g

,

effective

Section 103.263

a)

Within

60

da~

a~er

~ntry

of

an

interim

order,

or

at

such

other

time

as~y~e

specified

by

the

Board,

the. Aq~r~,.I~ail file

and

serve

on

all

~rtioe

i~e.

~ c1~eeddraft ~permit or a state-

ment the~

~‘

~

~

~ii~

needs

to be issued or

modifiEd.

b)

~

t:

~t~hall

be

in substantial

~

~~nts

of

35

Ill,

Adrn.

Code

7O~

21.

T9t~2~

~

~

~.:

~h other

parties and

enter

into a~9~eement’~

substance of

the

proposed

~~j~flE

.1

~ix~

~.

recommend

to

the Board.

~

any

such conferences or

~

draft permit.

Such

~~~en~sd9not

bind the Board.

d)

If the i~eCf iesu~sa statement

that no~~p~mit

~

the

~nin

Sub

art

1~oCre~

sFialf

t1E~T6~flowed.

(Source:

Added a~

6

LIL

Re

,

effective

Section

103.264

a)

~~p~ti~u

nc~

~reetoa4~ateddra~~emed.

b)

~~u4~cti

draftremedy shall

include

tj~i2!i~:

1)

Proposed ~nandat~

orders which the parties

-

~ei~einteBoars

final order

(Section 103,268(c)); and

2)

A draf~ermit in substal

corn liance

with

~

Biarements of

35

II 1.

Adm, Code 705.

58-403

---

3)

A statement

as to whether

or not the sti~p3~~on

is

divisible for

p~poses

of

Board determinations.

c)

All2

ties,

inc I

~

st~p~tedd~tremed

before notice i~ivenpursuant

(Source:

Added at

8

Iii,

Reg.

_______,

effective

Section 103.265

Contents of Public

Notice

a)

In addition to

all

parties, the Agency shall serve

a copy

of any draft remedy

Environmental Protection Agency at the following

address:

USEPA

230 South Dearborn Street

çg~jç~IL6

0604

b)

In addition to thereg~~e~ts

,pf

t

Section

103.125,

the

Agency

shall

give

notice

of

the

filing

of

a

draft

permit

to

th efoll~~g~p~rsons:

1)

Federal

and

State

agencies

w

th

turisdiction

___

~is~!hellfisfl~nd

wildlife resour

ces

and

over

coastal

zone

management

plans

2)

~j

vi

loi

storic Prese

rvat ion

and

State

historic

preservation officers

3)

Other appropriate government authorities,

~udin:

A)

~

B)

~

ieartmtof

Conservation;

~

~noi~p~rthentofEner

and

Natural Resources.

4)

A

ro nate officials

of other States

~

is located,

c)

In addition to the

methods

of notice b

ublication

—

o__Sect~Q~~encs~~veno~~e

~

radio

stations

in

the

area

of the facili~

58-404

---

d)

A notice of a draft ~

all

include

the

~win

information:

1)

The address of the Board office

2)

~

and address of t

rendent

and,

if

aifferent,

of the facility sub

ject

to the

enforcement_action;

3)

A

brief

desc~

on

of

the

busines

conducted

at

the f

and the

activity

which

is

the

j~ftheenforcement

action

4)

A

statement

of

the

violations the Board has

found

or

h~p~oposed

to

find

5)

A

statement that

the

Agency

has

filed

or

will

f

iie a

~~tperm~t

6)

Name,

address

and

telephone number 0fth

Clerk of the Board,

from

whom

interested

~

~21udi~~2piesof

the

proposed

or St

~and

7)

A)

Astatementtha

ta

heann9

will

be

held

and

that

the

record

will

remai~p~~or

written_comments

for

45

days

after

fifl~

of

the

proposed

or

stipulated

remedy~

The

notice will

include the address of the

Board to which

comments and, requests for

~nshal~d;or

~

~ceofahea~n;

8)

A statement that the record in the action is

availab Ieat theBoa~~ic~orinse2~,

~~tthose~ionsw~i

ch

are

claimed

tobe

trade secrets,__and tharoc

are

available

~eb~iosurem~esouhtbtheublic.

9)

A ~

effects of activities

conducted

under

the

~

10)

A

statement that enforcement

actions

are

conside

ur

suant to

TTI

I~ev.Stitfl9

83,

~

~

~I4~ti~onalinformation

considered n~sa

9~2~22~iL!~,.

(Source:

Added

at

8 Iii, Req.

_______,

effective

58-405

---

Section 103.266

Public Comment

~

States Environmental Protection

~y~commenton_the

dna

ii

thin

45~~te~t

has

been

filed

with

the

Board and notice given pursuant to Section

103.2 65.

(Source:

Added at

8 Ill, Reg.

_______,

effective

Section 103.267

He~~in

The following

shall apply in addition to Section 103,125:

a)

The

Heani~

ficer,

after

appropriate consultation

with the parties,

shall set a time and place

for

the

hearing to be held not less than 45 days after the

filing or anticipated filing of the proposed or stip

lated remedy.

b)

The hearing shall be held in the County in

which

the

facility is located,

in the population center in such

~y~los~

to

the

faciiity~.

c)

The Heaning~

Officer

shall

give

notice

of

thej~ri

to

the

persons

entitled

to

notice in Sections

103.125

and

103.265,

and

to

anI

other

persons who

have

commented,

~g~~ed

to comment

orreq~iested

not ice.

d)

Notice shall be mailed not less than 3Oda~ before

(Source:

Added

at 8

Ill. Reg.

_______,

effective

S~çtion_l03.268

Contents of Board Order

The Board~sfinal order

man_en~ementacti~~in~yin

issuance

or_modification

of

a RCRA

ermit shall include

~

th~~~ow~:

b)

Mandatory~

rs,which may include,

but

which

are

not

limited_to, the foUowi~9

exa~p~~

1)

An order to cease and

desist

condu~n

req~~~~d

activities

58-406

---

2)

An

order to closeafacility or unit

3)

An order

to

execute

apost-closure

care plan;

4)

~ianc~p~anincludin~ga

time

schedule

to assure compliance with regulations in

the shortest possible time

5)

A performance bond

6)

An order to apply for a permit or permit

modification

7)

An order revoking a permit.

C)

An

order

directing

the

Agency

to

issue

or

modify

a

RCRA

permit,

which

may

take

one

of

the

following

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

a permit in conformance with the order and

other applicable regulations.

(Source:

Added at

8 Ill. Reg.

_______,

effective

_________

58-407

---

TITLE

35:

ENVIRONMENTAL

PROTECTION

SUBTITLE

A:

GENERAL

PROVISIONS

CHAPTER I:

POLLUTION

CONTROL BOARD

SUBCHAPTER a:

PROCEDURAL

RULES

PART

104

VARIANCES

SUBPART A:

GENERAL PROVISIONS

Section

104.102

104. 103

104.104

Variance from New Regulation

References

RA

Variances

Petition for Variance

Contents of Variance Petition

Consistency with Federal Law

Extension of Prior Variance

Bearing Request or Waiver; Affidavit

Dismissal for

Inadequacy

RCRA

Variances:

Additional Material

SUBPART C:

NOTICE AND OBJECTIONS

Section

104. 140

104. 141

104.142

Notice of

Petition

Objections to Petition

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

B:

RECOMMENDATION AND RESPONSE

Agency Investigation and

Recommendation

Response or Amended Petition

RCRA

Variances:

Additional

Information

in

Recommendation

SUBPART F:

HEARINGS

SUBPART

B:

PETITION FOR VARIANCE

Section

104.120

104.121

104.122

104.123

104. 124

104.125

104.126

Section

104.

180

104.

181

104.182

Section

104.200

104.201

104.202

Notice

of

Hearing

Proceedings

Transcripts

58-408

---

SUBPART

G:

FINAL ACTION

Section

104.220

Decision

104.221

RCRA Variances:

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—l6,

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

Ill. Reg.

2763, effective March

2,

1981;

codified at

6 Ill, Reg.

8357;

amended at

8 Ill. Reg.

_______

58-409

---

SUBPART A:

GENERAL

PROVISIONS

Section

104.104

RCRA Variances

a)

As

used

in this Part,

~petition for a RCRA

vaniance~

shall

mean

an

leadin

which is

titled

~ániance

pet it ion’,

or

w

ichiseemed

such

by the Board, andwhichrneets~4~~

both,

of t~lo_g~teri~

1)

It r~questsa variance from 35

Ill. Adm, Code

703,

720,

721,

722,

723,

724 or 725;

or,

2)

It

asks

that the Board order the Agency to

modify

any provision of

a RCRA permit.

b)

Some~p~ocedureswhich

are referred to as “variances”

in

the

federal

RCRA rules

(40 CFR 260,

26lL26~

263,

264,

265

and

270)

may

be

granted

by

the

Ag~icypursuant to permit modification procedures

~~~pplicab

le Board rule so

provides.

Board

variances

are

granted on a showing of arbitrary or

unreasonable

hardship,

require

a

compliance

plan

and

are temporary.

The

Board may grant permanent

relief

from

a rule p~rsuantto 35 Ill.

Adm, Code 102.

c)

~

for

,

Board

~review

~

issuance with

conditions.

(Source:

Added

at

8 Ill.

Req.

_______,

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 Ill. 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.Ol—65.lO and 65.181.

If

granting a variance

would

require

revision

of

the State Implementation

Plan,

the

petition shall

indicate whether the

requlrements of Section 110(a) of the

Clean

Air

Act and

40 CFR 51 will be satisfied.

58-410

---

b)

All

petitions for

variances

from Title

III of the

Act;

from 35 Iii. 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.

pun—

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 with,

and

eis

CRA.jermit

conditions

no

~

Solid Waste

Disosal

~

Conservation

and

Re~Aet~l976j~1b

.L

.94-580,

as

amended

~

lationsthereromulated~h~nitedS~t~s

Environmental

Protect ion

Aen

C!R260,2

61,

270).

S

uch

etit

ipns

sha U

indicatewhe~nfederalpr~is~9nsautho~ze

the ~

ne

h

ow

at

it ioner

wou

id

entit

led

tothe~~iestedrelief

pursuant to

federal

law

(Source:

Amended at

8 Ill,

Reg.

,

effective

58-411

---

Section

104.126

RCRA

Variances;

Additional

Material

a)

Persons

who have, or are required to have,

a

RCR~~jt

and

who

seek

a

RCRA variance for the

~

issuan~~~çRA

ermit

must have on file

withthe~~~1ç~Aermit

a2p~1ication,,,reflecting

~~~uested

variance

prior

to filing the variance

j~on.

b)

~p~~~CRAermit

application, or such

p~4~p~j~yje

relevant

to the variance request,

shall

be

attached

to

the

variance petition.

(Source:

Added at

8

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

intervene

in

accordance

with

Section 103.220.

A

copy of such

objection

shall

be mailed to the

petitioner and the Agency by

the

Clerk,

b)

~

ah(aldp

aoly~ to

RCRA

variances.

1)

&~ninwi1Ib~~d

on a petition for a

~

~

~

heari~withini

45 days

after

the

A~enc~y

files

its recommendation.

2)

~son

incliadin

the

United ~

Envi

~

in wr

it

i~

on

tion for a RCRA variance

with

in 45~aysaftertheAency

files its

recommendation,

3)

Coj~es of

any

comment

or request for~~~

will

be

mailed

to

the

etitjoner, the A~gency

and

the

United

States

Environmental Protection

~en~

unless_the

p~on fihin~the

comment

orr~guest

files

of of service on the

~

(Source:

Amended

at

8

111.

Reg.

,

effective

58-412

---

Section 104.

142

RCRAVariances~~ofFilinof

Pet it ion

a)

Petitioner

shall

serve

the

United States Environ—

mental

Protec

io~Ae

a co

of an

etition

~

not

be

deemed

filed

until

roof of

such service

~

~fTIe~t

e

Boar

•

ervice

s

a

e

made at

the

fa1104

address:

US

EPA

~nV

230

South Dearborn Street

b)

In

addition

tç

the

iements

of the Act

and

Section

104.14

theA

ency shall

g~ivenotice

of

the ~

fora RCRA variance to

the~winersons:

1)

Federal

and

State agencies with jurisdiction

over

fish,

shellfish

and wildlife resources

and

over

coastal

zone mana9ement~~j

2)

The

Advis

ul

on Historic Preservation

and

State

Historic

Preservation Officers

3)

Other

appr

tiate

ernrnent author

ities,

including:

A)

Il10noi~~entof

Transportation;

B)

Illinoisj~~mentof

Conservation

C)

1Uinois~t~LEner~~

Natural

Resources,

4)

~ppronniate

off icials

of

other States

cent

to

the

C ou

which th

acilit

is

located.

c)

In_addition

to

the

methods

of notice b~y~ublication

ofSection1O4.i40the~~y~a1liveno~ce

~o

adcast

over

local

radio

stations

in the

a

of

the

tiaill~

d)

Notices

of

bent

variances

shall

include the

f~low4~

FL

inf a

ma

ion

1)

The

address

of

the Board

office

58-413

---

2)

Name and address_of

the petitioner and,

if

differe~~of

the facility for which the

variance

iss~3~

3)

A

brief

de son

on of the

bus mess

conducted

at the faci1i~yand

activity described in

the

~tip~

4)

Name, ~

Clerk of the

Board,

from whom interested

p~r~~obtain

further information,

includJp~p~~i~f

the

variance petition

and

5)

A

statement

that

the

Agency is preparing

a

recommendation,

and

the name, address and

tele~phone number

of

the Agency employee

resj2ón~i~Tf~the

recommendation

6)

Astaternentthatahearing

will be held if

~

one

in writing within

45~y~Mter~ef

iling of the recommendation

and

that_the

record will remain open for

written

comments

for 45

da

s after

film

of

the recommendation.

The notice wil

include

the

address

of the Board to which comments

and~grj~earinq

shall be

mailed

7)

A

statement

that

the

record in the variance

~Jnsec~2~,ex2~tthoseportionswhich

are

claimed

to

be trade

secrets, and that

procedures are available whereb~y

disclosure

~y~2u~hep~lb

1ic.

8)

~

mental effects of activities conducted under

the variance,

9)

A

statement

that variances

may be ~

2~uant

to

Ill.

Rev. Stat.

1983 c~flhl/~

p~~I0se9~~d

35Il~.Cod~0j~~

anda

ref erence

to the Board regulations

from

which

a

variance

is sou9ht,

10)

An~ther

avail

ableinformatioc~~y

~

~ct

of

the

roos

ed

act

ivit

prithe

inte~i~y of

the

rece

ivin~Water,

land or air

11)

~~additionai

information

considered

necessar~~per~

(Source:

Added at

8 Ill.

Req.

____,

effective

58~414

---

SUBPART

0:

AUTHORIZATION OF HEARINGS

Section 104.l~0

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.

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

more of the following actions,

as they shall

determine:

1)

The petition may be dismissed if the Board

determines that

Act and Subpart B hereof; or,

2)

The Board ~mayenter 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

by the Board,

in any

of the following circumstances:

1)

When

a

hearing is requested

by the petitioner

on

filing

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)

Whenarequ~tforahearing

on a

petition

for a

RCRA variance has

been filed within

~

in accordance with Section

104.141; or,

58-415

---

3~4)

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).

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 period on RCRA, 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:

~.mendedat 8

Ill. Req.

______,

Section 104.182

RCRA Variances:

Additional Information

in Recommendation

a)

~

ecti9nshallal1toAency

recommendations

on

petitions for RCRA variances

in addition to the

provisions of Section 104.180.

b)

The recommendation shall include a

fact sheet or

statement

of basis~~p~ovided

in 35

Ill. Adm.

~

143.

c)

If the Agency recommends

that the variance be

~anted,

a draft permit reflecting the

variance

and recommended conditions shall be included

with

the recommendation,

d)

The

recommendation

shall

be served on the United

States Environmental Protection Agency and all

persons who have notified the Agency that they

intend

to

comment

or

have

otherwise asked to be

~

58-416

---

e)

The

recommendation

shal 1 be filed within

30 days

after~~petition

~led

and

at

least 45~~

before the end oft

pblic_comment period on

t~j~etition

and

at

least

45

da s before a~Jc

~

t

e

pu

ic comment

od

shall

be

extended

and add

itjonal public

hea4~~schedu

led.

f)

If the

A~~~~does

not recommend that the variance

be~~~bs~gtions

c),

d)

and e) will not be

~p~mented

unless the Board orders otherwise.

~j

Any person may comment on the recommendation in

writing or at any public hearing within 45

days

ait

li~

(Source:

Adopted

at 8

Ill. 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

Section 103.123(b),

at

least

21

days before

the

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’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

on

titions

for

RCRA

variances

shall

~

~

(b)and

(c):

1)

Thed

fficer,after a~pprqpriate

consul

-

tation

with

the

arties,

shall set a time and

p

for

the

hear1n~g~

to

e

e

not__ess

tan

S

after the

f ilin

or antici ated

f

of the recommendation.

2)

The

he

hallbhel

din the C2unt

in

~

the~

tion

center

in

such county~128

CS

~

~lit.

58-417

---

RCRA Variances:

Board Decision

_______

effective

Dorothy

M.

Gunn, Clerk

Illinois Pollution Control Board

3)

The Hearth

Officer

shall give notice of the

hear~th~

to

ns

entitled to notice in

Sections

104,140

and

104.142, and to any other

p~~swhohavecommented,reestedto

~

4)

Notice

shall

be

mailed

not less than 30 days

be~~hearin,

(Source:

Amended

at

8 Ill, Reg.

,

Section 104,221

a)

Decisio~~riods

for

RCRA

variances are as provided

in

Section 38(c)

of the Act.

b)

The_Board ma

rant a

RCRA

variance onl

to the

extent consistent with,

an

wit

con

itions no less

~

in

ant

Ithan

those

which

would be required

by~

the

Solid

Waste

Disposal

Act

as amended by the

Resource_Conservation

and

Recovery Act, and

4OCFR

260,

261,

262,

263,

264,

265 and 270.

c)

The

Board’s final Order

may

direct

the

Age~çy~to

~e~~RAj~mit

with

conditions which may be

~

all

in

th e

Order, or which

may

consist

of

~~ral

guidelines to be followed by

~

lere~ulations,

~ssuinaermit,

d)

c92~t~eB9~rd~s

final

Opinion and Order shall

be

served

up

United

States

Environmental

Protecti~ncand~l~per

sons

who

eartici—

~nthevariancero~n.

(Source:

Added

at

8

Ill.

Reg,

_______

IT IS

SO ORDERED,

I, Dorothy

M.

Gunn, Clerk of

the

Illinois

Pollution

Control

Board, hereby

certify

that

the

above

Proposed Opinion and Order

was adopted

on

the

i~~dayof

Qv~-~.

,

1984 by a

vote

of

(~.-

..Q~...

S8~41b