ILLINOIS POLLUTION CONTROL BOARD

December 16,

1976

IN THE MATTER OF

)

PROCEDURAL RULES

)

 R75-1

REVISIONS

)

ORDER OF THE BOARD

 (by Mr. Dumelle):

The proposed final draft of the Revised Procedural Rules,

published in Environmental Register #136 on November

8,

 1976,

is

hereby adopted by the Board, effective March 1,

 1977, with the

following changes:

Rule 309(a)

The 60-day time period

 is changed to 90-days.

Rule 308(a)

At line 16 of this Rule the following is

 inserted after the

word “repre~entative”:

“,

 and the hearing officer designated by

the Board,”.

Rule 311(a)

The 45-day time period

 is changed to 90-days.

Rule 311(b)

The words “Any continuance” are inserted to replace the

word “Continuances” at line

1.

Rule 326

The Published Rule 326 becomes Rule 326(a)

 and the following

is added

as Rule

 326(b):

Rule 326(b)

At any time prior to commencement of hearing and prior to

the close of hearing, the Hearing Officer may upon motion of

a

party permit

 a supplemental pleading setting forth continuing

transactions or occurrences which have continued or occurred

subsequent to the date of the filing of the initial pleading

 or any amendment thereto,

so

 long as no undue surprise results

that cannot be remedied by

 a continuance.

Part IV: Variances

This Part has been redrafted and appears,

 in its entirety,

as follows:

24—481

PART IV:

 VARIANCES

401

 Requirement for Petition for Variance.

(a)

 A variance proceeding shall be commenced by any person

by filing a Petition for Variance with the Agency and

simultaneously filinq 10 copies with the Clerk of

the

Board.

 All additional information or amendments to

the Petition for Variance shall be filed with the Agency

and Board

 in the same manner as that required for

 corn—

inencing the action.

 To enable the Board

 to rule on the

Petition for Variance, the followinq information, where

applicable, shall be included in the petition:

1.

 A clear and complete statement of the precise

extent of the relief souctht, including specific

identification of the particular provisions of

the regulations or Board Order from which the

variance is sou~ht;

2.

 A description of the business or activity of the

petitioner including the size of the business and

number of employees and a description of the lo-

cation

 arid area affected by petitioner’s operations;

3

 The quantity and types of materials used in the

 process or activity for which the variance is

required and a full description of the particular

process or activity in which the materials are

used:

4.

 The quantity and types of materials discharged

from the process or activity requiring the variance;

the location of the points of discharge,

 and, as

applicable, the identification of the receiving

waterway or land,

 or the location of the nearest

air monitoring station maintained by the Illinois

Environmental Protection Agency;

 Data describing the nature and extent of the present

failure to meet the numerical standards or particular

provisions from which the variance is sought and a

factual statement why compliance with the Act and

regulations was not or cannot be achieved by the

required compliance data;

—

482

—3—

6.

 A detailed description of the existing and pro-

posed equipment or proposed method of control

to be undertaken to achieve full compliance with

the Act and regulations,

 including a time schedule

for the implementation of all phases of the con-

trol program from initiation of desiqn to program

completion and the estimated costs involved for

each phase and the total cost to achieve compliance;

7.

 An assessment, with supporting factual information,

 of the environmental impact that the variance will

impose on human, plant,

 and animal life in the

affected area,

 including, where applicable, data

describing the existing air and water quality which

the discharge may affect;

8.

 Past efforts to achieve compliance including costs

incurred, results achieved,

permit

status,

 and,

for publicly—owned treatment works or connections

thereto, construction grant status;

9.

 A discussion of the availability of alternate

methods of compliance, the extent that such methods

were studied,

 and the comparative factors leading

to the selection of the control program proposed

to achieve compliance;

10.

 A statement of the measures to be undertaken during

the period of the variance to minimize the inmact

of the discharge of contaminants on human, plant,

and animal

 life in the affected area,

 including

the numerical interim discharge limitations which

can be achieved during the period of the variance.

(b)

 The petition shall contain a request for a hearing on the

petition if desired by petitioner; or,

 in the alternative,

a statement waiving

 a hearing, accompanied by such affidavits

or other prool

 in supnort; of

the material

 facts i~lleqed in

the petition as

 the petitioner may submit, sufficient to

enable the Board,

if

 it so decides, to rule upon the

petition without a hearing.

 In the event that

 a hearing

on the variance petition has been waived by the petitioner

and no hearing is held,

 the Petition for Variance, the

Agency recommendation,

 and any amendments or responses

thereto shall constitute the entire record in the proceeding

and the decision

of

the Board shall be rendered after con-

sideration of the record except that the Board may take

official notice of prior regulatory proceedings and opinions

of the Board in adopting the regulations or orders of the

Board from which the variance is sought.

—

483

—4—

Cc)

 The petition shall include a concise factual statement

of the reasons the petitioner believes that compliance

with the particular provisions of the regulations or Board

Order would impose an arbitrary or unreasonable hardship.

(d)

 The failure to satisfy the requirements of this rule,

to

the extent that the Board is not reasonably informed of

petitioner’s circumstances, will render the Petition for

Variance subject to dismissal for inadequacy, unless the

Board shall rule otherwise.

402

 Extension of Prior

 or Existing Variance.

(a)

 A petition to extend

 a prior or existing variance granted

 by the Board shall

 be commenced by filing a Petition for

Variance with the Agency and the Board in accordance with

the

requirements

Rule

401.

the

extent

that

the

information required by Rule 401 has been included in the

prior Petition for Variance for which extension is sought,

a resubmission of that information shall not be required

provided that the petition shall request the incorporation

of the record, opinion and order in the prior proceeding

into the new petition.

(b)

 A petition to extend a prior or existing variance shall be

a new Petition for Variance before the Board and shall

subject

all

the

 requirements of this Part except

as provided in Rule 402 (a).

403

 Notice of Petition.

(a)

 The Board shall give notice of all variance petitions to

all

persons

its

mailing

list

through

publication

notice of the petition in

 the- Board’s Environmental Register

in the first publication of the Environmental Register after

the

Board

has

 considered

 the Petition

 in accordance with

Rule

407(b)

(b)

The

Agency

shall

give

 written notice of all variance peti-

tions

 to any person in the country in which the installation

or

property

located

for

 which the variance is sought

who have

writing

the

Agency

requested

notice

variance petitions,

 and to each member of the General

Assembly

from

the

legislative district in which the installa-

tion or property

located

and

other

persons

required

by law.

 Within 10 days after the petition is filed,

the

Agency shall publish notice of such petition in a newspaper

of general circulation in the county in which the installa-

tion or property is located for which the variance

 is sought.

—

484

—5—

404

 Objections

 to Petition.

Any person may file with the Clerk, within

 21 days

after the filinq of the petition,

 a written objection

to the grant of the variance.

 Such objection may or

may not be accompanied by a petition to intervene in

accordance with Rule

 310.

 A copy of such objection

shall be mailed to the petitioner and the Agency by

 the Clerk.

405

 Agency Investigation and Recommendation.

(a)

 After investigating the variance petition and considering

the views of persons who might be adversely affected by

the grant of the variance, the Agency shall within 30 days

of the filing of

the

petition or any amendment thereto

make a recommendation to the Board on the disposition of

the petition.

 The recommendation shall include:

1.

 A description of the efforts made by the Agency to

investigate the facts

 as alleged and to ascertain

the views of persons who might be affected and a

summary of the views so ascertained;

statement

the

degree

which,

all,

the

Agency disagrees with the facts

 as alleged in the

petition, including facts refuting any allegations

in the Petition for Variance;

3.

 Allegations of any other facts the Agency believes

relevant to the disposition of the petition;

4.

 The Agency’s estimate of the costs that compliance

would impose on the petitioner and on others and of

the injury that the grant of the variance would impose

on the public including the effect that continued

discharge of contaminants will have upon the environ-

ment;

and

5.

 The Agency’s conclusion of what disposition should

 be made of the petition.

(b)

 The Agency shall

serve

a

copy of its recommendation on

the petitioner in accordance with Rule

 305(b).

 Failure

of the AcTency to

tliLely

file its recommendation shall be

grounds for the Hearing Officer to adjourn the hearing

to a date which will allow reasonable time to prepare.

—

485

—6—

406

 Objection to Recommendation.

Within

 7 days after receipt of the Agency Recommendation,

the petitioner may:

(a)

 File with the Board

 a response to any Agency recommendation

and a copy shall be served upon the Agency; or,

(b)

 File an amended Petition for Variance in accordance with

Rule 401, requesting that the matter be set for hearing.

The Board shall authorize the matter for hearing and render

a final decision within

 90 days after the filing of the

amended petition.

407

 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 ob-

jections to the petition,

 amendments,

 the Agency’s

recommendations and responses to the recommendation shall

 be filed and distributed as received.

(b)

A’..l

 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 Act and Rule 401

hereof;

or,

2.

 The Board may enter an order for additional informa-

tion 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 Rule 401(b);

or,

—

486

—7—

2.

 When an objection to the variance has been filed

within 21 days after the filing of the petition

in accordance with Rule 404;

or

3.

 When a hearing

 is requested by an amended petition

within

 7 days after receipt of the Agency recommenda-

tion by the petitioner

 in accordance with Rule 406 (b).

(d)

 When a hearing has been authorized by the Board pursuant

to Rule 407(b)(4)( or 407(c), the Chairman shall designate

a Hearing Officer in accordance with Rule 306(b).

(e)

 If no hearing has been authorized pursuant to Rule 407

(b) (4)

 or 407 (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

grant

or deny any petition until after

 21 days have elapsed from

the date of filing.

(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.

408

 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 Rule 305(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 publica-

tion of the Environmental Register after the Hearing Officer

shall have set the date for hearing.

409

Proceedings.

(a)

Proceedings

upon

Petition

for

Variance

shall

accordance with Part III of these Rules,

 except as other-

wise provided in this Part.

—

487

—8—

(b)

 In a hearing on a Petition for Variance the burden of

proof shall be on the petitioner and it

 shall be the

duty of the petitioner,

 at hearing, to prove each

material, fact alleged in the Petition for Variance.

410

 Decision.

The Board shall render

 a final decision upon the petition

within 90 days after the filing of the petition, except

that any party may agree to waive his right

to

 a decision

within 90 days.

 Time included in a continuance granted

at the request of the petitioner shall not be counted

towards the running of the

 90 days.

 When exigencies of

time require, the Board may delay the filing of an opinion

for

 30 days after the filing of its final order under

this Part.

 Where the Petition for Variance is amended,

the

90 days period shall commence from the date of filing of

the amendment.

 Any order for the filing of a bond shall

be in accordance with the Act.

411

 Variance from New Regulation.

I~any person files

 a Petition for Variance from a regulation

within 20 days after the effective date of such regulation,

the

operation of

 such rule or regulation shall be stayed

as to such person pending the disposition of the petition.

The Board may hold a hearing upon the petition five days

from the notice of such hearing, and in all other respects

the Rules

 in this Part shall apply to the extent they are

consistent with the hearing date set by the Board.

412

 Transcripts.

(a)

 In any proceedinq brouqht pursuant to

 t:his Part

IV,

where

a hearing has been authorized by the Board,

the

 titioner

as its own cost shall furnish to the Board within

 15 days

following the completion of the hearing seven legible

copies of

 a complete stenographic transcript of the pro-

ceedings of the hearing and any delay in the filing of the

transcript shall constitute waiver of the right

 to a decision

within 90 days under Section

 38 of the Act.

(b)

 Upon petition and good cause shown,

 the Board may assume

the cost of the stenographic transcript of the hearing pro-

vided, however, that such petition shall have been filed with

and granted by the Board prior to the hearinq~.

—

488

—9—

Rule

502(a)

(2)

The 35 day time period has been changed

to

 45 days.

Part VI.

 (This Part is reserved for rules

 to be adopted in the

future concerning Rule 203(i)

(5)

of

 the Water Pollution

Control Regulations).

Part VII: Sanctions

This Part was previously identified as Part VI.

 Rule 601

has likewise been renumbered Rule 701.

Part VIII: Canons of Ethics

That Part was previously identified as Part VII.

 Rules 701,

702 and 703 have likewise been renumbered Rules

 801,

 802,

 and 803.

Part IX: Judicial Review

This Part was previously identified as Part VIII.

 Rule 801

has likewise been renumbered Rule 901.

IT IS SO ORDERED.

I, Christan L. Moffett, Clerk of the Illinois Pollution cpntrol

Board,

 hereby certify the above Order was adopted on the

 /&tL

day

of December,

 1976 by

 a vote of

~3-.()

____

ekL~MJ

cVT1~4A~

Christan L. Moffet

 ~Cle~

Illinois Pollution Control Board

—

489