ILLINOIS POLLUTION CONTROL BOARD
    July 26, 2007
    BIOMEDICAL TECHNOLOGY
    SOLUTIONS, INC.,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 07-149
    (Variance - Land)
    ORDER OF THE BOARD (by G.T. Girard):
    On June 28, 2007, Biomedical Technology Solutions, Inc. (BMTS) filed a petition for a
    variance (Pet.) for its medical waste treatment devices used throughout the State. BMTS is
    located in Englewood, Colorado. BMTS seeks relief from 35 Ill. Adm. Code 1422 for the
    maximum time allowed to comply with the regulations.
    See
    415 ILCS 5/35-37 (2006); 35 Ill.
    Adm. Code 104.204(k).
    BMTS has requested a hearing on its petition. However, the petition does not meet the
    content requirements of 35 Ill. Adm. Code 104.204. Specifically, regarding the requirement in
    Section 104.204(f), the petition states that the requirement for a compliance plan is not
    applicable to petitioner. Pet. at 14. The petition further states:
    It is undisputed that the results from the KSU [Kansas State University] Efficacy
    Test completely satisfy Illinois’ IET [Initial Efficacy Test] requirements in every
    way if the Board were to accept the use of a Certified Indicator. Instead, BMTS
    would rather seek to change the current regulatory requirements.
    Id
    .
    Further, BMTS has requested a variance “for the maximum allowable period under the Board’s
    regulations.” Pet. at 18.
    The Board has consistently found that a variance request, which includes as the
    compliance plan an intent to seek a change in the regulation, does not meet the requirements of
    Section 104.204.
    See
    ,
    e.g.
    , City of Salem v. IEPA
    , PCB 98-1 (July 8, 1998) and Waste
    Professionals, Inc. v. IEPA, PCB 97-228 (Sept. 18, 1997). In Salem, the Board rejected the
    variance because the variance did not include a compliance plan. Salem, PCB 98-1 slip op. at 3-
    4. However, in Waste Professionals
    , the Board enunciated an exception to the general rule
    noting that petitioner was concurrently seeking an adjusted standard that would give permanent
    relief to the petitioner. Waste Professionals
    , PCB 97-228 slip op. at 7-10, 13-14.
    2
    In this instance, BMTS appears to be seeking more permanent relief more generally
    provided by an adjusted standard under Section 28.1 of the Environmental Protection Act (415
    ILCS 5/28.1 (2006)). However, even if BMTS is seeking the temporary relief a variance
    provides, BMTS must provide a compliance plan that indicates how BMTS will comply with the
    rule of general applicability when the variance expires. Therefore, the Board finds that the
    petition fails to meet the requirements of 35 Ill. Adm. Code 104.204 and directs BMTS to file an
    amended petition by August 27, 2007. The filing of an amended petition restarts the Board’s
    decision deadline.
    See
    35 Ill. Adm. Code 104.226(a). If BMTS fails to file an amended petition
    curing the noted deficiencies, the petition will be dismissed.
    IT IS SO ORDERED.
    I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
    the Board adopted the above order on July 26, 2007, by a vote of 4-0.
    ___________________________________
    John T. Therriault, Assistant Clerk
    Illinois Pollution Control Board

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