ILLINOIS POLLUTION CONTROL BOARD

November

 13, 1975

CITIZENS FOR A BETTER ENVIRONMENT,

An Illinois Not—for—Profit Corp.,)

Complainant,

v.

)

 PCB 74—318

INTERNATIONAL HARVESTER COMPANY,

)

An Illinois Corporation,

Respondent.

Mr.

 Sherwood

L.

 Levin, appeared for Complainant;

Mr. Alan

I.

 Becker,

 (Kirkland and Ellis)

 appeared for Respondent.

OPINION AND ORDER OF THE BOARD

 (by Mr. Goodman):

This action comes before the Board upon the August 29,

1974 complaint of Citizens for a Better Environment

 (CBE)) an

Illinois Not-for-Profit Corporation,

 against International

Harvester Company, Wisconsin Steel Division

 (Harvester)

CBE alleges that Respondent Harvester in the operation

of their coke ovens, has emitted various air pollutants

since the expiration of their previous variance on July 26,

1973, which constitute violations of the following sections

of the Air Pollution Control Regulations of Illinois:

1.

 Rule 103(b) (2)

2.

 Rule

 104(a)

3.

 Rule 202(b)

4.

 Rule 203(d) (6) (B)

(aa)

5.

 Rule 203(d) (6) (B) (iii)

6.

 Rule 203(d) (6) (B) (iv) (aa)

7.

 Rule

 307(a) (1)

In addition,

 CBE alleges violation of Section 9(a)

of

the Environmental Protection Act.

Harvester has been operating their coke ovens under a

variance granted by the Board in PCB 73—176 and PCB 72-321.

On July 22,

 1974,

 Harvester submitted a petition to the

19— 287

—2—

Board requesting an extension of this previous variance.

CBE filed its complaint based upon the expiration of the

original variance and the alleged lack of an operating

permit by Harvester.

 On June

6,

 1975,

 the Board issued its

opinion in PCB 74-277 which granted an extension of variance

including the time span during which the violations of the

instant complaint allegedly occurred.

 The Board finds that

the extended variance in PCB 74-277 is prima facie evidence

of an effective affirmative defense to the alleged viola-

tions

 in this case with the exception of the alleged vio-

lation of Rule 103(b) (2), operating the coke ovens without

an operating permit issued by the Illinois Environmental

Protection Agency.

 This evidence standing unrebutted by

CBE,

 the Board therefore dismisses, with prejudice,

the

complaint with respect to all allegations with the exception

of the allegation of violation of Rule 103(b) (2).

Respondent Harvester has

 filed an appeal of the denial

of its application for the operating permit for the same

coke ovens and time period of which CBE complains

 in the

instant action.

 Until PCB 73-211 is decided,

 the Board

cannot determine whether Harvester was operating without a

permit.

 Therefore,

 the Board finds that that portion of

CBE’s complaint concerning violation of Rule 103(b) (2)

of

the Air Pollution Regulations should be consolidated with

PCB

 73—211.

This Opinion constitutes the findings of fact and

conclusions of law of the Board in this matter.

ORDER

It is the Order of the Pollution Control Board

 that:

1.

 That portion of the complaint alleging violation of

Air Pollution Control Regulations 104(a),

 202(b),

 203(d) (6) (B) (i) (aa)

203(d) (6) (B) (iii)

 203(d) (6) (B) (iv) (aa)

 307(a) (1)

and

violation of Section 9(a)

 of the Environmental Protection

Act,

 is dismissed.

2.

 That portion of the complaint alleging violation of

Rule 103(b) (2)

 of the Air Pollution Control Regulations be

consolidated for decision with PCB 73-211.

I,

 Christan L. Moffett, Clerk

 of the Illinois Pollution

Control Board, hereby cer~ifythe above Opinion and Order

were adopted on the

~

 day of

l975byavoteof4~

Illinois Pollution

 rol Board

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288