ILLINOIS POLLUTION CONTROL BOARD
    August 20, 1987
    ALLIED-HASTINGS BARREL AND
    DRUM SERVICE, INC.,
    Petitioner,
    v.
    )
    PCB 86-21
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
    ORDER OF THE BOARD (by J. Anderson):
    On August 12, 1987, the Agency moved for modification of the
    Board’s August 6 Order in this matter. On August 18, petitioner
    filed a
    re~1y in
    op~osition.
    For the reasons expressed below, the Agency’s motion is
    denied. The Board granted petitioner a variance on February 19,
    1987.
    The
    variance order required, among other things, that a
    Certificate of Acceptance be submitted within 45 days, or not
    later than April 6, 1987. Petitioner filed a conditional
    acceptance with the Board on March 30, 1987. This acceptance was
    rejected by the Board on April 1, 1987 and Petitioner was granted
    leave to reflie by April 15, 1987. Petitioner then filed an
    acceptance on April 27, 1987. In its August 6, 1987 Order the
    Board agreed that Petitioner had filed the Certificate of
    Acceptance 12 days late, but went on to state that “(t)he Board
    will accept the late filing”, and that “the variance is in
    effect.” It is this portion of the Order that the Agency
    requests be modified.
    The essence of the Agency’s argument is that the
    enforceability of variance conditions hinges on the ability of
    the Agency to determine when they are applicable. This in turn
    80—32 1
    hinges on the petitioner’s execution of the Certificate of
    Acceptance.
    *
    The A~encyqueries “When is an acceptance too late? Is it
    too late after suit is filed? Could a petitioner, in court as a
    defendant for violating a regulation decide that, some months
    after a variance order, then would be a good time to accept the
    variance after all?” The Agency then goes on to relate that:
    In the case of Nesco Steel Barrel Co. v. IEPA, PCB
    84—81, the Board granted a variance on January 22,
    1987. The Order contained the normal acceptance
    requirement, which would indicate a deadline for
    acceptance of March 9, 1987. On April 27, 1987 the
    Agency referred a request to the Illinois Attorney
    General that suit be filed against Nesco Steel
    Barrel Company for, among other things, violations
    of 35 Ill. Adm. Code Section 215.204(j), the
    subject of the variance. As a matter of courtesy,
    Agency counsel informed Nesco’s counsel that the
    referral had been made. After that, Nesco, by
    counsel, submitted the Certification of Acceptance
    (filed with the Board on May 5, 1987). The
    acceptance was not only submitted to the Board and
    the A~encv, but also to the Chief of the
    Environmental Control Division of the Attorney
    General’s Office in Springfield. When are the
    variance conditions enforceable? The delay mocks
    the Board and Agency and the People.
    In reply, petitioner argues that, as the 45 day period for
    acceptance of a variance is a period determined by the Board and
    not mandated by the Act, that there is no restriction upon the
    Board’s ability to extend that period save for that of common
    sense and the need to avoid real and actual prejudice in a given
    *
    See Citizens Utilities Company v Illinois Pollution Control
    Board
    (1972),
    289 N.E.2d 642, in which the Second District
    Appellate Court said that conditions on the grant of a variance
    are not binding until the petitioner accepts the variance with
    those conditions.
    In reaching that conclusion, the Court
    understood that a petitioner may consider the conditions too
    onerous and decide not to proceed with the variance.
    Id. at
    646. See also Fiintkote Company v. Illinois Pollution Control
    Board (1977), 53 Ill. App. 3d 665, 368 N.E.2c3 984, 11 Ill. Dec.
    376, in which the Board had granted a variance with a condition
    that required a Certificate of Acceptance within 35 days.
    Since
    this was within the time allowed for appeal, the 35—day time for
    acceptance could force a petitioner to accept conditions so as to
    preclude it from effective appeal.
    The Court therefore reversed
    that part of the Order.
    80—322
    situation. In contrast to the specific example cited by the
    Agency, petitioner asserts that the Agency has made no allegation
    or demonstration that the Agency’s enforcement program was
    compromised by petitioner’s late filing and the Board’s
    acceptance thereof.
    The Agency has failed to persuade the Board that the Agency
    will be prejudiced by the Board’s acceptance of the late filing
    in this particular case. It should also be noted that the
    Board’s standard certification of acceptance requires that it be
    filed with the Agency and not the Board. The Agency may
    therefore be aware of problems of which the Board is not. If the
    Agency has experience of a general or systematic abuse of the
    variance acceptance process, this should be brought to the
    Board’s attention in the context of the Board’s ongoing revision
    of its procedural rules, so that a rule of general applicability
    can be considered. The Board additionally notes that where, as
    in the example cited, a late filing has not been affirmatively
    authorized by the Board, that no valid acceptance has been made.
    Acain, th~
    Agency’s motion is denied.
    IT IS SO ORDERED.
    I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify that the above Order was adopted on
    the
    ~‘(‘-
    day of f’-~sr
    ,
    1987, by a vote of ~
    ~
    Dorothy M. G~n, Clerk
    Illinois
    Pollution Control Board
    80—323

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