ILLINOIS POLLUTION CONTROL BOARD
    January
    5,
    1989
    THE EUREKA
    COMPANY,
    )
    Petitioner,
    v.
    )
    PCB
    88—85
    ILLINOIS ENVIRONMENTAL PROTECTION
    AGENCY,
    )
    Respondent.
    )
    CONCURRING OPINION (by J.D. Dumelle):
    My reason for concurring
    is
    that the majority’s grant
    of variance begins
    on January
    5’,
    1989, and leaves
    the Eureka
    Company liable to
    an enforcement
    action by anyone for the period
    from
    January
    1,
    1988 through January 4,
    1989.
    The
    rule from which variance was
    granted
    is
    a part of the
    State
    Implementation
    Plan
    and when approved by the U.S.
    Environmental
    Protection
    Agency
    would presumably
    be enforceable under the U.S. Clean
    Air Act.
    At the
    very least, the
    “gap”
    in protection
    is now enforceable under the Illinois
    Environmental
    Protection
    Act.
    The arguments counter
    to this are that the Erueka
    Company filed
    late
    (on
    May 10.
    1988) and amended
    its petition on August
    17,
    1988.
    On August 21, 1988
    it
    waived the due date
    for 120 additional days
    (most
    of which had already
    occurred
    because
    of
    the
    amendment
    to
    the
    petition).
    This
    is
    a
    company
    which
    has
    not
    often
    appeared
    before
    the
    Board.
    Why
    they
    filed
    in
    May
    of
    1988
    instead
    of
    in September 1987
    is
    unknown.
    It may
    have
    been
    oversight
    or
    perhaps
    they
    were
    hoping
    for
    success
    in
    paint
    refomati on.
    If
    the
    Board
    is
    to
    grant
    variance
    I
    feel
    it
    should
    give
    full
    protection
    against
    future
    enforcement
    actions
    unless
    bad
    faith
    is
    shown.
    Bad
    faith
    was
    not
    shown
    here.
    In
    this
    case
    I
    would
    have
    granted
    the
    variance
    to
    cover
    the
    370
    calendar
    days
    for
    which
    the
    Eureka
    Company
    remains
    liable
    to
    prosecution.
    Board
    Member
    95—33
    —2-
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby
    certify that the above
    Concurring Opinion was submitted on the
    //~
    day
    ____________,
    1989.
    Ill
    S
    on
    Control
    Board
    n5—34

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