ILLINOIS POLLUTION CONTROL BOARD

May 4,

1982

SCA CHEMICAL, SERVICES, INC.,

)

Petitioner,

)

v.

)

PCB 82—60

)

ILLLINOIS ENVIRONMENTAL PROTECTION AGENCY,

)

Respondent.

ORDER OF THE BOARD

(by

I.

Goodman):

On

April

13,

1982,

SCA Chemical Services, Inc.

(SCA) filed

a

r~questfor provisional variance with the Illinois Environmental

Protection Agency (Agency).

On

May

3, 1982 the Agency, pursuant

to Sections 35(b)

and 37(b) of the Environmental Protection Act

(Act),

filed its Recommendation for provisional variance before

the Board.

Pursuant to Section 35(b) of the Act the Board must

take action within two days of receipt of this notification from

the Agency.

This provisional variance is identical to a petition for

variance filed by SCA Chemical Services, Inc.

(SCA) before the

Board on April

8,

1982 in PCB 82-39 pursuant to Section 35(a) of

the Act.

A careful reading of Sections 35,

36,

and 37 of the Act will

show the distinction between a provisional variance and a regular

variance.

The regular variance of Section 35(a) was designed

to give long—term relief for a party under an arbitrary or

unreasonable hardship caused by limitations prescribed pursuant

to the Act.

Since such a variance can extend for as long as five

years

the procedures developed to consider its merits are neces-

sarily carefully and precisely drawn.

The Agency must file Lts

recommendation after careful study of the proposed variance, the

public is notified, and there is opportunity for a public hearing

and careful Board review.

This procedure frequently interfaces

with federal rules and regulations and is designed to meet federal

procedural requirements as well.

The prOvisional variance on the other hand allows for short—

term relief of 45 days, extendable one time only for an additional

45 days,

for a maximum duration of only ninety days.

tts purpose

is to provide immediate and short-term relief so an uncomplicated

and relatively simple situation can be corrected within that time

by allowing brief excursions from environmental limitations.

47-01

---

Because of the very limited duration of the provisional variance

the procedures developed to obtain it are simple and designed to

expedite its consideration.

It is clearly inconsistent for a petitioner to request both a

provisional variance and a regular variance at the

same time.

On

the one hand he is proposing to correct the situation within 45

days while at the same time stating that he requires much longer

than that to solve the problem.

The provisional variance was never intended to protect the

petitioner while his regular variance was being processed.

Apart

from the obvious absurdity of the situation, certain legal

difficulties arise.

If the Agency were to recommend a provisional

variance and then discover upon further investigation in the

regular variance that it should not be granted, what is the status

of the petitioner who has changed his position in reliance upon

the provisional variance and then finds himself prejudiced by a

different recommendation in the regular variance?

If the Board

allows issuance of the provisional variance, how can the Board

later be heard to deny a variance based upon the very same set

of facts?

It

is clear that the two variance procedures are designed to

consider two totally inconsistent situations and therefore may not

be brought before this Board at the same time.

As the Board

accepted the petition for the regular variance on April 15,

1982,

the Board therefore denies the provisional variance recommended

by the Agency in PCB 82—60.

The Board is always ready, willing and

able to respond to

reasonable and legitimate requests for expedited consideration

in a regular variance petition.

Assuming no objections are

received by the Board which would trigger a public hearing,

the

Board can, and shall if so requested, proceed with the petition

in PCB 82-39 as soon as it receives the Agency’s recommendation

in that case.

IT IS SO ORDERED.

I,

Christan L.

Moffett, Clerk of the Illinois Pollution

Contro~lBoard, hereby certify that the above Order was adopted on

the

~

day of

__________________,

Illinois Pollution~-~o!ntrolBoard