ILLINOIS POLLUTION CONTROL AGENCY
    August
    18,
    1982
    MODINE MANUFACTURING COMPANY,
    )
    Petitioner,
    PCB 79—112
    ILLINOIS ENVIRONMENTAL PROTECTION
    )
    AGENCY,
    Respondent.
    ORDER OF THE BOARD (by
    I.
    G.
    Goodman):
    On July 12,
    1982 the
    Illinois Environmental Protection
    Agency (Agency)
    filed a Motion to Dismiss this variance petition
    —-
    its third such Motion within a year.
    On July 20,
    1982 Modine
    Manufacturing Company (Modine)
    filed a Response and Motion for
    Additional
    Time.
    The Agency filed a Response to Modine’s Motion
    for Additional Time on July
    30,
    1982, to which Modine filed
    a
    Reply on August
    3,
    1982,
    No pre—hearing conferences or public
    hearings are scheduled at this time.
    This proceeding was initiated with the variance petition
    filed by Modine on May 21,
    1979.
    The Agency’s recommendation
    to deny was filed on June
    25,
    1979.
    Two hearings were scheduled
    in
    1979, but both were continued.
    Aside from waivers of the
    ninety—day decision period and limited discovery, there is no
    record of this matter progressing during 1980.
    Two hearings
    were scheduled in the first half of 1981, but both were again
    continued.
    On August 13, 1981 the Agency moved to dismiss this matter.
    On August 20,
    1981 the motion was denied on the representation
    that Modine was preparing an amended variance petition.
    Modine
    was allowed until September 28,
    1981 to file,
    or be suject to
    dismissal.
    A first Amended Petition for Variance was filed on
    September 24,
    1981.
    Modine alleged therein that
    it knew of no
    available treatment process to relieve its need for variance,
    that Rule 4l0(c)(iii)
    of Chapter 3:
    Water Pollution provided
    it an exemption, that variance was sought only until such time
    as its site-specific rule change, R79—8,
    was finalized,
    which
    it anticipated would provide permanent relief, and that denial
    of the variance requested may result in Modine closing its
    facility.
    Again, the Agency recommended denial
    in its Recom-
    mendation filed November
    2,
    1981.
    47-519
    2
    No further progress is indicated in the Board’s record in
    this matter, until the Agency again moved to dismiss on April
    9,
    1982.
    On April 2l~ 1982 Modine responded that it intended to
    file a Second Amended
    Variance
    Petition circumstances having
    changed since the First Amended version was filed on September
    24,
    1981.
    Modine alleged that it had proceeded to retain a con-
    sultant to study the problem and propose a compliance plan; that
    it no longer intended to close its plant due to financial diffi—
    culties;
    and that it would withdraw~7~~In addition, Modine
    stated that additional discharge problems had since been identified
    which necessitate additional variance relief,
    This Second Amended
    version was filed on ?~pri1
    27,
    1982.
    Recognizing that this was the second time Modine had re-
    sponded to Agency motions to dismiss with an amended petition,
    the Board ordered hearing
    in this matter take place no later than
    forty-five days after the Agency filed its Recommendation on the
    Second Amended version~
    The Agency filed a Recommendation to deny
    on May 28,
    1982.
    A pre—hearing conference was scheduled for June
    11,
    1982 but was cancelled.
    Pursuant to the Board Order,
    hearing
    should have taken place no later than July
    12,
    1982.
    None having
    been scheduled,
    the Agency again moved to dismiss on July 12,
    1982.
    The pleadings subsequent to that motion are listed above.
    The Second Amended Petition alleges that Modine was develop-
    ing a compliance plan with its consultant,
    Dr. Patterson, which
    will not reach fruition until approximately September,
    1983 or
    later.
    According to Modin&s July 20,
    1982 Response to the Motion
    to Dismiss,
    it is ~foi:Lowinga compliance program involving a
    review by Dr. Patterson to develop a compliance program.”
    Petitioner Modine apparently misunderstands the purpose and pro-
    ceedings
    for Variance pursuant to Title IX of the Environmental
    Protection Act,
    Compliance plans are to be developed prior to
    and included
    in the variance petitioned, not during its pendency.
    This is not to say that
    if no solution to the problem is apparent,
    the variance requested cannot include a time schedule and com-
    pliance plan designed to study and resolve the problem.
    Further-
    more,
    the ninety—day decision period provided in Title
    IX is
    intended to provide an expeditious evaluation of whether peti-
    tioner’s activity harms the environment, as well
    as provide
    petitioner timely relief.
    The Board finds that the variance proceeding,
    as
    set out
    in the Act and Board Procedural Rules, has been misused
    in this
    case, and that Modine has acted contrary to the April
    29,
    1982
    Board Order.
    Modin&s Motion for Additional Time,
    filed eight
    days after the last possible date for hearing,
    is denied and
    this matter is dismissed without prejudice.
    Petitioner
    is
    granted leave to refile a variance petition which complies with
    Section 104.121 of Chapter
    I,
    Part
    104, Variances (Former
    Rule 401) and contains current information and an appropriate
    compliance plan.
    47-520
    3
    IT IS SO ORDERED.
    Board Member J, Anderson concurred.
    I, Christan
    L,
    Moffett, Clerk of the Illinois Pollution
    Control Boa~d,hereby certify that the above Order was ad,qpted
    on the
    i8”~’
    day of
    i~-~-
    ,
    1982 by a vote of
    ~--c~
    stan L.
    Illinois Pollutio:
    Board
    47-521

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