ILLINOIS POLLUTION CONTROL BOARD
    May 15, 1997
    FOX WATERWAY AGENCY,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 97-201
    (Provisional Variance - Water)
    ORDER OF THE BOARD (by C.A. Manning):
    Pursuant to Section 35(b) of the Environmental Protection Act (Act) (415 ILCS 5/35(b)
    (1994)), the Fox Waterway Agency (petitioner) has requested that the Illinois Environmental
    Protection Agency (Agency) recommend that the Board grant a provisional variance to the
    petitioner. Such request for a provisional variance and the notification of recommendation
    were filed with the Board by the Agency on May 14, 1997. Pursuant to Section 35(b) of the
    Act, the Board must issue the variance within two (2) days of this filing.
    The Agency, by and through its director, Mary A. Gade, seeks a provisional variance
    to allow petitioner to continue to operate its Ackerman Island Sediment Disposal Facility while
    conducting dredging operations near Ackerman Island (near the confluence of the Nippersink,
    Fox and Grass Lakes).
    Specifically, the Agency recommends that we grant petitioner a 45-day provisional
    variance for its McHenry County facility from the total suspended solids, un-ionized ammonia,
    and phosphorus discharge requirements, as set forth in 35 Ill. Adm. Code 304.105, 304.106,
    304.123(b), and 304.124 and imposed by Operating Permit No. 1993-EA-3060, for effluent
    discharged from Project One Ackerman Island, Fox Lake, Illinois. This variance period is
    recommended to commence during 1997 when dredging operations for Project One Ackerman
    Island begin, and shall continue for 45 days, or until the Board takes final action on PCB 97-
    151.
    The Agency recommends that the Board grant the requested provisional variance with
    specified conditions and agrees that the repairs are necessary. The Agency anticipates that the
    requested provisional variance would have minimal environmental impact on the receiving
    stream. The Agency is unaware of any public water supplies that the requested provisional
    variance would adversely impact. According to the Agency, no federal laws would be violated if
    the provisional variance is granted by the Board. The Agency believes that a denial of the
    requested provisional variance would create an arbitrary or unreasonable hardship on the
    petitioner.
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    Provisional variances are by their very nature temporary. The responsibilities of the
    Agency and the Board in these short-term provisional variances are different from the
    responsibilities in standard variances. (See 415 ILCS 5/35(b) and 5/36(c) (1994)). In
    provisional variances, it is the responsibility of the Agency to make the technical
    determinations and finding of arbitrary or unreasonable hardship. The Board’s responsibility
    is to adopt a formal order, to assure the formal maintenance of the record, to assure the
    enforceability of the variance, and to provide notification of the action by a press release.
    Having received the Agency recommendation that a denial of the requested relief would
    impose an arbitrary or unreasonable hardship, the Board hereby grants the petitioner a
    provisional variance from 35 Ill. Adm. Code 304.105, 304.106, 304.123(b), and 304.124 and
    imposed by Operating Permit No. 1993-EA-3060, on the following conditions:
    1.
    The term of this provisional variance shall commence during 1997 when
    dredging operations for Project One Ackerman Island begin and shall continue
    for 45 days, or until the Board takes final action on PCB 97-151.
    2.
    Petitioner shall operate its plant during the term of this provisional variance in a
    manner that assures the best effluent practicable, however, in no case shall
    petitioner exceed an 80 mg/l total suspended solids limit.
    3.
    The petitioner shall notify Chris Kallis at the Agency’s Maywood regional office
    by telephone, at 708/338-7900, when dredging operations begin. Petitioner
    shall confirm this notice in writing within five (5) days, addressed as follows:
    Illinois Environmental Protection Agency
    ATTN: Mark T. Books
    Bureau of Water, Compliance Assurance Section
    2200 Churchill Road
    P.O. Box 19276
    Springfield, Illinois 62794-9276
    The petitioner shall execute a copy of a certificate of acceptance of this provisional
    variance and forward that copy to the Agency addressed as is the written notice required in the
    above condition; the petitioner shall forward that copy within ten (10) days of the date of this
    order of the Board, and the certificate of acceptance shall take the following form:
    CERTIFICATION
    3
    I (We), _________________________________, hereby accept
    and agree to be bound by all terms and conditions of the order of
    the Pollution Control Board in PCB 97-201, May 15, 1997.
    ______________________________________
    Petitioner
    ______________________________________
    Authorized Agent
    ______________________________________
    Title
    ______________________________________
    Date
    IT IS SO ORDERED.
    Board Member K.M. Hennessey abstained.
    Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1994)) provides for
    the appeal of final Board orders to the Illinois Appellate Court within 35 days of the date of
    service of this order. The Rules of the Supreme Court of Illinois establish filing requirements.
    (See also 35 Ill. Adm. Code 101.246 “Motions for Reconsideration.”)
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above order was adopted on the 15th day of May, 1997, by a vote of 5-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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