ILLINOIS POLLUTION CONTROL BOARD
November
8,
1972
INCINERATOR,INC.
V.
)
#72—416
ENVIRONMENTAL PROTECTION AGENCY
Opinion of the Board on Motion for Temporary Extension
(by Mr. Currie)
On October 31,
1972, we denied the company’s request
for temporary extension. of a variance pending decision on
a
petition for extension on the merits.
This opinion states
our reasons.
Our order of September 30,
1971
(EPA
V.
Incinerator,
Inc.,
#71-69,
2 PCB 505)
found the company in violation of
particulate emission regulations and of the statutory prohibi-
tion
of air pollution,
imposed
a penalty, and ordered the
facility shut down until
filing of an adequate control program
and institution of interim measures
to reduce pollution.
On
receipt of
the program and representations that adequate in-
terim measures had been established, we stayed the shut-
down order pending
a hearing on
the program and interim im-
provements.
2 PCB 607
(Oct.
14,
1971)
.
After hearing
we
ordered the company to complete the construction of scrubbers
to eliminate violations of the emission regulations in eleven
months, accordinq to the timetable submitted by the company
(#71—324,
3 PCB 167
(Nov.
23, 1971)).
The program was thus
to be completed in late October 1972.
The present variance petition seeks
a brief extension
of
the period for compliance,
to January 31,
1973, alleging
that unforeseen complications
in arranging for electrical
service
for the scrubbers
and damage to the equipment during
delivery have caused delays beyond the company’s control.
Deeming the extension minor and the alleged reasons
for de-
lay reasonable unless rebutted, we indicated at our meeting
of October
24 we would decide the case without hearing on
the basis of the Agency’s recommendation.
The company thereupon filed an emergency motion asking
us
to grant a temporary extension of
the variance on the basis
of
the petition alone, pending receipt of the Agency’s views
and
final decision of the case.
The reason for this request
6— 191
the exist1r~ varisrxcc
,
as
tue
ccnu:inv comnu
~es
the
eleven
months
exaired
on
Cotoher
24
and
that
con—
tinned
oreration there2ore
subjects
it
to
frhe
risk
of
orosecution nnti
final
Eoa
action
os
taken
on
the
netitlon
itsei~:.
he
denied
the
renuest
for
an
interim
extension
tend—
roe
cecrsioo
on
the
petition.
~e nave
ciranted such
extra—
ordinary
relief
three
times
in
special
situations
not
duplicated
here.
The
first
was
GAP
Corp.
v.
EPA,
~7l—ll
2
POP
17
(June
23,
1971)
,
in
which
our
earlier
order
had
expressly
orovided
for
an
interim
extension
upon
timely
filine
of
a
cootrcl
program.
The
other
two
were
Commonwealth
Edison
Co.
v.
EPA,
~72—295,
5
POP
~Oct.
3,
1972),
and
Commonwealth
Edison
Co.
v.
EPA,
#72—350,
5 POP
—
(Oct.
10,
1972)
.
in both those cases
the company
had
filed
a re-
newal petition more than
90 days before expiration
of an
existing variance,
giving assurance
of
a decision before
the variance expired because
the
statute requires us
to
decide within
90 days.
In
#72-350,
after
an initial de-
cision not
to schedule
a hearing, we concluded
a hearing
should be held
at
a time too late
to permit
us
to decide
within
90 days.
In p72-295,
hearing was postponed beyond
the 90-day period at
the Agency’s request
to permit
the
Agency
to comolete
a system-wide study of Edison’s envir-
onmental
problems.
The
petitioner
in both cases
was under-
standable unwilling
to
waive
its
right
to
a
prompt
decision
in the absence
of assurance
that
it would be protected
from
prosecution during
the period
of litigation.
The extension
was granted because
the comeany had done
all
it could
to
assure
a decision prior
to the expiration
of
the original
variance
and
the delay was
for
the convenience
of
the Board
in ascertaining
the facts.
There
is
no express authorization
of interim variances
in the statute.
The
statute requires
“adequate oroof”
(~
35)
;
it requires public notice and
a 21—day opportunity
for public comment
(~
37);
it requires
the opportunity
for Agency investigation and
the filing
of
a recommendation
(id.)
.
Our procedural rules likewise make no mention of
interim relief
(PCB Regs.,
Ch.
1,
Part
IV).
Indeed Rule
405(c)
expressly
forbids
the granting of
a petition with-
out hearing before
21 days have elapsed,
in recognition of
the importance of Agency and public
comment in assessing
the merits
of
a petition.
Ex parte relief
is clearly not
favored,
and the
entire statutory
scheme evinces
an elaborate
effort to assure that the Board does not grant permission
to do what the
law forbids without the opportunity for
public and Agency participation.
GAF was based on our interpretation of our authority
to
impose reasonable conditions
on the grant
of
a variance,
6
—
192
which
we
read
to
allow
automatic
extens
fin,
es
thin
the one
year
limitation
of
the
statute
for
the oricinel variance,
upon
the
occurrence
of
a
stated
condition;
this
is
the
equivalent
of
a
lonqer
variance
that
terminates
if Lh~ stated
condition
does
not
occur.
In
both Edison cases
the
reouisite
public
notice
had
been
published,
ampJe
time
For
ublic
and Agency comment allowed,
and
in one case
the Agency
re~
commendation
received.
Moreover,
iii
both cases
tfi icterim
relief
sought
was within the oeriod contemplated
h’~ the
original
order
for
completion
of
the
pronram.
In
iicnit
oF
the
equities
favoring
interim
relief
and
the
unrchutte:l
rce
presentations
in
the petitions,
we
found
adequate
proot
to
justify
a
brief
extension
to
enable
us
to
determine
the
facts
necessary
to
an
informed
decision
as
to
Further
rcn
lief,
where
the
alternative
was
to
take
final
action
without
adequate
information
because
of
the
90-day
decision
rule.
These
cases
are
analogous
to
many
in
which
we
have
granted
brief
variances
contemplating
further
extension
uoon
sub-
mission
of
further
information
such
as
a
control
program
for
Board evaluation.
See,
e.g.,
OAF Corp.
v.
EPA,
#71—Il,
1 PCB
481
(April
19,
1971)
;
Southern Illinois Power Coo era~
•tive
v.
EPA,
#72—238,
5
P013
—
(Oct.
17,
1972)
The present case
is wholly different.
The required time
for public and Agency comment has not expired.
No provislon
of
a prior order purported
to authorize interim relief without
compliance with
the usual statutory renuirements.
The period
contemplated
in the original order for completing
the entire
program has expired.
We lack authority to grant
the relief
requested,
as we are specifically
forbidden by our
own
rule,
noted above,
to grant any variance without waiting
21
days for comments.
To grant the same relief under
some other
name would undermine
the purpose of
the statute and rules
to
assure public participation.
In the present case
to grant
interim relief would
to
a very large extent moot
the
entire
case,
since
the new compliance date we are asked
to approve
is
so near at hand.
As for
the equities,
even
if we had
power
to grant
the request we would not be inclined
to do
so;
for here,
in contrast
to the Edison cases,
the petition
for
extension was
filed at the very end of
the original variance
period
(filing date October
19,
1972)
,
giving
us no possible
opportunity
to make
a decision on
the merits before the
variance expired.
Any hardship created by
the risk of pro-
secution prior
to our decision on
the extension request was
brought
about
by
the
petitioner’s
own
delay
in
filing
the
petition.
A
petitioner
may
not
bootstrap
himself
into
0b-
taming
the relief he seeks simply by filing
for it at
the
last minute.
We note that
the absence
of
a variance
does not require
the
incinerator
to be
shut down~ it simply leaves
the company
6
—
193
subject to
the risk of prosecution, with whatever penalties
the Board or court might find appropriate
if
a complaint were
filed and proof made.
The same facts demonstrating arbitrary
or unreasonable hardship
in
a variance proceeding would con-
stitute
a defense
to
a complaint under
§
31(c)
of the statute,
and
a variance
if ultimately granted would wipe
the slate clean.
If the variance
is one that ought
to be granted
the petition-
er need have
no fear
of operation
in
the interim.
The issue here presented was
fully litigated and decided
adversely
to interim relief
in Lipsett Steel Products,
Er
v.
EPA,
#70—50,
1 PCB
345
(March
22,
1971) (see record
in
tlidt
case
for argument and decision
on motion
for temporary
re--
lief,
and see the description of that proceeding
in EPA v.
Lipsett Steel Products,
Inc.,
#71-43,
2 PCB
81,
83
(July
8,
1971)).
For
all
the
above
reasons,
without
prejudice
to
our
future decision on the petition for extension itself,
the
motion for interim extension pending decision on
the petition
in
the present case was denied.
I,
Christan Moffett,
Clerk of
the Pollution Control Board,
certify that the Board adopted
the above Opinion
on Motion
for Temporary Extension this
day
of
..
1972, by
a vote of_____________
6
194