ILLINOIS POLLUTION CONTROL BOARD
    September
    3,
    1981
    VILLAGE OF WAUCONDA,
    Petitioner,
    )
    v.
    )
    PCI3
    81—12
    ILLINOIS
    ENVIRONMENTAL
    PROTECTION
    ,
    )
    Respondent.
    ORDER OF THE BOARD
    (by
    J. Anderson):
    On August 17,
    1981 the Village of Wauconda petitioned for
    rehearing
    of its
    request for variance which was denied by the
    Board’s Opinion and Order of July
    9,
    1981.
    In support of its
    petition, the Village argues that
    1)
    the operation of the Board’s
    barium standard
    Rule
    304(B)(4) of Chapter
    6
    deprives the Village
    of property without due process of law
    in that the standard is
    allegedly unsupported by medical or scientific evidence,
    2)
    the
    Agency’s
    filing
    of
    a negative Recommendation concerning its
    petition was the filing of an objection which should have triggere~i
    a mandatory
    hearing
    pursuant to Section 37 of the Environmental
    Protection
    Act
    (Act),
    and 3) that the Village’s original waiver of
    hearing should
    not
    be construed so as to eliminate the Village’s
    right to
    rebut
    information contained in the Agency’s recommendation.
    In its August
    24,
    1981 Response,
    the Agency urges that the
    petition
    be denied.
    The Board finds that the Agency’s rejoinder
    to each of
    these
    points is apt,
    and correctly reflects settled
    interpretations of the Board’s procedural rules and the Act.
    The
    Village’s
    due
    process argument could and should have been raised
    in its original petition,
    the amended petition it did file, or
    in
    an
    amended
    petition
    it could have filed within
    7 days of receipt
    of the Agency’s Recommendation pursuant to Procedural Rule 406.
    This argument is not timely
    or properly raised in the context of
    a petition
    for
    rehearing.
    Hearing in this matter was not mandated by the Act,
    as the
    Board has previously held that,
    consistent with legislative intent,
    an Agency negative Recommendation filed within 30 days of receipt
    of a petition pursuant to Procedural Rule 405 will not be construed
    as an Agency objection pursuant to Section 37
    of the Act and
    Procedural Rule 404.
    Mississippi River Grain Elevator
    v.
    IEPA,
    PCB 80—19.
    As aforementioned, the Village could have elected
    to
    request hearing after receipt of the Agency’s Recommendation,
    as
    an early Rule 401(b) waiver of hearing does not extinguish the
    43—279
    2
    clearly stated
    Rule 406(b) right to request a hearing at a much
    later
    stage
    in the
    variance process0
    On the other hand,
    the
    Village could also have chosen to rebut
    information
    in the
    Recommendation
    by filing a Response to
    it,
    pursuant
    to Procedural
    Rule
    401(a)0
    The
    Board did not construe,
    and
    could not have by
    its rules,
    a waiver as extinguishing the
    Vi1lage~s
    rebuttal rights.
    For the foregoing
    reasons,
    the
    petition
    for rehearing is
    hereby denied0
    IT
    IS SO ORDERED.
    I,
    Christan
    L, Moffett, Clerk of the Illinois PollutIon
    Control
    Board, hereby certify that the above Order was
    adopted on
    the
    ~
    day of
    ~
    1981
    by a
    vote of
    ~
    Christan L. Moffett, Ci~rk
    Illinois Pollution Control Board
    43—280

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