ILLINOIS POLLUTION CONTROL BOARD
May
5,
1988
IN THE MATTER OF:
JOINT PETITION FOR THE CITY OF
)
MORTON AND THE ILLINOIS
)
PCB 85-212
ENVIRONMENTAL PROTECTION AGENCY
FOR EXCEPTION TO THE COMBINED
SEWER OVERFLOW REGULATIONS
CONCURRING OPINION
(by J.D.
Dumelle):
My reason for concurring
lies
in the manner
of decision and
not
in its outcome.
I
feel
the public was never informed of this
action and
thus had
no opportunity
to comment.
The instant action
is based
upon an April
11,
1988 motion
filed almost two years
after
the Board’s Order
of May
9,
1986.
Who would ever
know of
this motion except those served?
The Board’s Procedural Rule 103.241(c)2 provides
that
motions
for relief from final orders (which this
is,
of course)
be filed within
12 months
of the May 9,
1986 decision.
This
motion
is thus 11 months too late.
The motion should have been docketed
as
a “variance from a
Board order”.
If that had been done,
then legal notice would
have been published
in the local
area affected.
And the new
variance case, would have also been noted
in the Board’s bi-
weekly Environmental Register.
The public would have been
informed.
The counter—argument
to
this procedure
is that
a “variance
from
a Board order” would have
to be decided by the Board within
120 days or
be granted
by operation of
law.
But since
the
initial proceeding,
PCB 85—212,
itself did not have
a statutory
due date
(being
a rulemaking)
then
a variance from a Board order
would also not have
a due date.
One must separate the semantics
of “variance”
and “variance
from a Board order
in
a rulemaking”.
Because
the public was excluded from knowing about this
motion
for relief from final
order
and tht~scould not even
T
/
\
~.
commenL,
concur.
-~
~
~
____________
ike,
P.E.
irman
89—45
—2—
I,
Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify
that the above Concurring Opinion was filed
on
the
~2/~
day of
______________,
1988.
~
Dorothy M.,”Gunn, Clerk
Illinois ?ollutiori Control Board
89—46