ILLINOIS
POLLUTION CONTROL BOARD
November
8,
1972
GENERAL IRON INDUSTRIES,
INC.
etal.
v.
)
#72—308
ENVIRONMENTAL PROTECTION AGENCY
Opinion
&
Order of the Board on Motion for Stay
(by Mr. Currie)
General
Iron was ordered to complete an emission con-
trol program by July 31, 1972 and given
a variance until
that time to do
so.
EPA v. General
Iron Industries,
Inc.,
##
71—297,
71—335,
3 PCB 739
(March 7,
1972).
A petition
was filed to extend this variance because of allegedly ex-
cusable delivery delays.
We dismissed this petition
October 17, 1972,
5 PCB
—
(#72—308)
,
and have scheduled
a hearing on a further and more complete petition subsequent-
ly filed
(#72—423)
General Iron now asks us
to stay our order dismissing
the petition in #72-308 and requesting
“leave.
.
.
to re-
sume operations” on stated operating conditions.
We deny
the motion.
A stay of the dismissal of a variance petition has
no significance that we can determine.
Dismissal of
a
petition leaves the company in precisely the same position
it was in prior to the dismissal:
It has no variance, and
it operates at its own risk.
A pending petition for variance
is no defense to an enforcement action,
so nothing is gained
by having one on file;
if
it were, General Iron would already
be protected because it has a pending variance petition,
#72-423, which presents the issues more sharply and more
currently than did the petition we dismissed.
The dismissal
of
a petition does not in itself require General Iron to do
anything, certainly not to shut down,
as
it alleges it has
done.
A stay of an order that imposes no obligations on
anyone is
a pointless act.
In order to obtain
a stay
a
petitioner must make some showing of harm if the order
is
not stayed; no such showing
is made here because it is not
apparent that
a stay would in any way improve General Iron~s
position.
What General Iron really seems
to want
is not a paper
“stay” but an immediate variance to allow operation without
fear
of prosecution.
The statute
is quite explicit as
to the
careful procedures we must follow before granting anyone
permission
to do with impunity what the law forbids.
We had
occasion to spell this out in Incinerator,
Inc.
v.
EPA,
6
175
—2—
#72—416,
5 PCB
(Nov.
8,
1972)
There is no express authorization of interim variances
in the statute.
The statute requires “adequate proof”
(~
35)
;
it requires public notice and a 21-day oppor-
tunity 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 without 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 g:ant permission
to do what the law forbids without the opportunity for
public and Agency participation.
Here,
as in Incinerator,
The required time for public and Agency comment has
not expired.
No provision of a prior order purported
to authorize interim relief without compliance with the
usual statutory requirements.
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 wait-
ing 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.
.
We note that the absence of
a variance does not
require the incinerator to be shut down;
it simply
leaves the company 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 constitute
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 petitioner need have no fear of operation
in the interim.
The issue here presented was fully litigated and de-
cided adversely to interim relief in Lipsett Steel
Products,
Inc.
v.
EPA, *70—50,
1 PCB 345
(March
22,
6
*
176
—3—
1971)
(see record in that case for~argument and decision
on motion for temporary relief, and see the description
of that proceeding in EPA v. Lipsett Steel Products,
Inc.,
#71—43,
2 PCB 81,
83
(July
8,
1971).
Insofar as the equities are concerned,
even if we had power
to grant a variance without following statutory procedure we
would not be inclined to do
so in this case.
General Iron’s
present necessity for operating under the risk of prosecution
is due to
the fact that its first petitioner for extension,
filed only five days before the initial variance expired, did
not contain adequate allegations.
Had General Iron acted
promptly and carefully to p±~otectits own rights, it would
know its position better today.
We cannot allow petitioners
to obtain variances without the opportunity for adversary
input simply by carelessness or dilatoriness
in filing petitions.
Cf. Incinerator,
Inc.
v.
EPA,
cited above.
It goes without saying that in denying emergency relief
we do not in any way pass upon the ultimate issue of whether
the variance requested in *72-423 should be granted or
denied.
That is an issue that we can resolve only after
hearing on the merits.
Consideration of whether the delay
in compliance was justified, much pressed by General Iron
before us,
is simply not the issue on this motion.
General Iron alleges that in dismissing previous
petition (#72—308)
the Board relied upon an Agency
recommendation not served upon the company.
The relevance
of this allegation to the present motion is unclear.
In
any case,
a reading of our order will show that we based
the dismissal upon the failure of the complaint itself to
allege any facts which,
if proved, would entitle the petition-
ers to a variance extending beyond the date of our order.
This was done without prejudice to further proceedings,
such
as the new variance petition now pending.
The motion
is hereby denied.
I, Christan Moffett, Clerk of the Pollution Control Board,
certify that the Board adopted the above Opinion
& Order
on Motion for Stay this 8th day of November,
1972, by
a
vote of 5-0.
6
—
177
.
S