ILLINOIS POLLUTION CONTROL BOARD
September
15, 1976
INTERNATIONAL HARVESTER,
Petitioner,
v.
)
PCB 75—271
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
DISSENTING OPINION
(by Mr. Dumelle):
My dissent in this
case
is on a matter of
law and not on the
merits of
this particular case.
I agree with the majority that
Harvester’s emissions do in fact contribute to the violation of
national primary ambient air quality standards
for particulate
matter
in the Chicago area.
Today’s date
is long past July 31,
1975 which the Board agreed is the attainment date for these
standards for Illinois
(See King—Seeley Company v.
EPA,
16 PCB 505,
April
24,
1975).
I read Train v.
NRDC,
421 U.S.
60
(1975)
as prohibiting
the instant variance.
The ending portion of opinion by Justice
Rehnquist states
The Agency
(U.S.
Environmental Protection
Agency)
had properly concluded that the
revision mechanism of Section 110(a) (3)
(of the Clean Air Act)
is available for
the approval
of those variances which
do
not.
:ornprorrii~u
the
bas i.c
s La Lutory
manda
Lu that
with
carefully
circumscribed
eXcept
ions,
the
national
primary
ambient
air
standards
be
attained
in
not
more
than
three
years,
and
maintained thereafter.
(7 ERC 1748)
(Parenthetical phrases added)
This case does not fit into the exceptions.
Thus
I do not
believe this Board can grant this variance as one which would be
allowable under the Clean Air Act.
23
—451
—2—
The majority opinion tries
to term this variance as being one
from the State laws only.
Three points must be discussed in this
regard.
First,
the fact
(if it is
a fact)
that no previous air variance
to the Board’s knowledge, has been “submitted to or ratified by
U.S. EPA as
a change in the Illinois State Implementation Plan’1
(opinion,
p.
4).
The Board’s agent for contact with the United
States Government
is the Illinois Environmental Protection Agency.
See Section 4(k)
and 4(m)
of the Environmental Protection Act.
T?~
failure to submit Board variances for Federal approval does not
make them of less force and effect.
Second,
the enactment of a Board variance as
a wholly exclusive
State variance is poor policy and should not be done.
It frustrates
the intent of
the Clean Air Act and may afford a degree of reliance
for a petitioner
to use as
a defence from Federal action.
Put
another way,
a two-tier system can lead to “whip—sawing”.
Third,
the Board may not be able to enact a wholly exclusive
State variance by merely s~Tng it has done so.
A Board variance
is a change in the State Implementation Plan if nothing else than
in the physical fact that that source
is allowed to continue to emit
(and thus violate air standards)
beyond a Federally-mandated attain-
ment date.
The question which is harder to answer from a legal stand-
point
is “Do Board actions have to conform to Federal
law?”
Federal
program funds are received by the Illinois Environmental Protection
Agency on the basis of the existence of a Federally approvable
state program for air pollution control.
This Board action and
similar variances yet
to come may jeopardize those funds.
In addition to the guidance afforded by Train the effect of
Section 116
of the Clean Act is also important.
This Section
states
•
.
.
if an emission standard or limitation
is in effect under an applicable implemen-
tation plan or under section
111 or
l2,
such
~t~tu
or poiltical subdivision may not adopt
or enforce any emission standard or limitation
which
is
less
stringent
than
the
standard
or
limitation under such plan or section.
(Emphasis added)
The instant variance is by definition an adoption of an
emission standard or limitation
less stringent than the Illinois
implementation plan and is thus flatly prohibited.
23—452
Thus
I believe that the majority distinction between
a purely
State law variance and one that also has Federal effect is wrong.
The decision in this case breeches the intent of the Clean Air
Act in fact and in
law;
it
is poor policy;
it certainly should
not be done because of past failure
to transmit documents by
the Illinois Environmental Protection Agency and it may result
in Federal funds being
lost to Illinois.
I respectfully dissent.
Submit
d by:
Jacob
13.
Dumelle
I, Christan
L. Moffett, Clerk of the Illinois Pollution Control
Bo~rd, hereby certify the above Dissenting Opinion was submitted on the
~_day
of October,
1976.
~~nL.off~~’
1 ilinois
F’ollijL~.on
~Z~t~rol
Rodr(1
23
—
453