ILLINOIS POLLUTION CONTROL BOARD
April 3, 2003
THE ENSIGN-BICKFORD COMPANY,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 02-159
(Variance - Air)
ORDER OF THE BOARD (by W.A. Marovitz):
This matter is before the Board on the Ensign-Bickford Company’s (EBCo) motion to
transfer variance (motion) filed on March 19, 2003. The motion represents that the
Environmental Protection Agency (Agency) agrees with the request. Mot. at 2. For the reasons
explained below, the Board denies the motion.
BACKGROUND
On June 20, 2002, the Board granted EBCo a variance pursuant to 35 Ill. Adm. Code
237.103, to open burn explosive waste and explosive-contaminated waste at its 456-acre facility
near Wolf Lake in Union County. The Ensign-Bickford Company v. IEPA, PCB 02-159
(June 20, 2002). The variance lasts until June 20, 2003, or six month after the Board rules on
EBCo’s adjusted standard in AS 00-5. On March 20, 2003, the Board granted EBCo an adjusted
standard for a term of ten years.
In re
Petition of the Ensign-Bickford Company for an Adjusted
Standard from 35 Ill. Adm. Code 237.102, AS 00-5 (Mar. 20, 2003). The adjusted standard
takes effect when the variance expires on June 20, 2003.
MOTION
In the motion, EBCo asks the Board to transfer the variance granted in June 20, 2002 to
Dyno Nobel Inc.. The motion asserts Dyno Nobel will be the new operator of the Wolf Lake
facility, if the May 3, 2003 closing occurs. Mot. 1-2. EBCo asks that the transfer of the variance
be effective on May 3, 2003. Mot. at 1.
EBCo explains that the pending transaction is a “purchase of certain assets by Dyno
Nobel Inc..” Mot. at 1. Pursuant to the terms of the acquisition, the ownership of the facility
will transfer to Tech Real Estate Holdings L.L.C., and the operational assets of the facility will
transfer to Dyno Nobel Inc. Mot. at 2.
EBCo states that EBCo has conferred with the Agency and both parties agree that transfer
of the variance can be accomplished by Board order. Mot. at 2.
2
ANALYSIS
The filing requirements for a variance are set forth at 35 Ill. Adm. Code 104.202. Among
those requirements is Section 104.202(a), which states:
Any person seeking a variance from any rule or regulation, requirement or order
of the Board that would otherwise be applicable to that person may file a variance
petition. 35 Ill. Adm. Code 202.
Neither the Environmental Protection Act (Act) 415 ILCS 5
et seq.
nor the Board’s procedural
rules address the specific type of relief EBCo seeks.
The Board has previously granted a joint motion to substitute a petitioner and holder for a
previously granted adjusted standard,
see e.g.
In re
Petition of Commonwealth Edison Company
for an Adjusted Standard from 35 Ill. Adm. Code 302.211(d) and (e), AS 96-10 (Mar. 16, 2000).
In Commonwealth Edison the Board granted a joint motion filed by Commonwealth Edison
(ComEd) and Midwest Generation, LLC (Midwest). The Board had previously granted ComEd
an adjusted standard from the thermal standards for discharges of cooling water from some of
ComEd’s generating stations.
Id.
Title to the generating stations was transferred from ComEd to
Midwest on December 15, 1999.
Id.
The parties filed the joint motion on February 25, 2000,
stating that the operations of the generating stations would not change as a result of the transfer,
and the transfer of the facility did not affect the relevant factors that justified the grant of the
adjusted standard.
Id.
Additionally, Midwest retained almost the entire workforce previously
employed by ComEd.
Id.
Although EBCo asks that the variance be transferred to Dyno Nobel Inc., Dyno Nobel is
not a party to the motion. The Board’s procedural rules do not provide for a third party to seek a
variance or have a variance transferred on Dyno Nobel’s behalf. If in fact the May 3, 2003
closing occurs, consistent with Section 104.202(a), Dyno Nobel may file a variance petition or
other appropriate filing concerning this facility. For these reasons, the motion to transfer the
variance is denied.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on April 3, 2003, by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board