ILLINOIS POLLUTION CONTROL BOARD
    November 2, 1995
    SPECTRULITE CONSORTIUM, INC.,
    )
    )
    Petitioner,
    )
    )
    PCB 96-6
    v.
    )
    (Variance - Air)
    )
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    )
    CONCURRING OPINION (by M. McFawn):
    I concur. While Petitioner demonstrated that variance from
    Section 212.458(b)(25) may be granted without significant impact
    to health or the environment, Petitioner has offered no
    compliance plan and the majority has failed to require any type
    of compliance plan. The majority grants the variance absent a
    compliance plan on the grounds that the Illinois Environmental
    Protection Agency (Agency) will be the proponent of a rulemaking
    wherein Section 212.458 will be amended to allow Petitioner to
    operate two lines, as opposed to the single line to which it is
    currently restricted by rule. The majority finds that the
    speculative nature of this change in law "should not be an
    impediment to a finding of arbitrary or unreasonable hardship".
    While I agree that the lack of a compliance plan would not be an
    impediment to such a finding, I fail to understand why the
    majority addressed the lack of a compliance plan in the context
    of arbitrary and unreasonable hardship. Adequate proof of
    arbitrary or unreasonable hardship is statutorily required to
    obtain a variance, whereas once such a finding has been made
    petitioners are required to commit to a plan that is reasonably
    calculated to achieve compliance due to the nature of variances,
    which is a temporary reprieve from compliance with Board
    regulation. (Monsanto Co. v. IPCB (1977), 67 Ill.2d 276, 367
    N.E.2d 684; City of Mendota v. IPCB (3rd Dist. 1987), 161 Ill.
    App.3d 203, 514 N.E.2d 218.)
    Unlike the majority, I find that Petitioner has demonstrated
    arbitrary and unreasonable hardship because the most recent air
    modeling performed by the Agency, which was based upon recent
    revisions to the air emission source inventory, including
    significant revisions provided by Petitioner, demonstrates that
    Petitioner can be allowed to operate two magnesium pot furnace
    lines without significantly impacting air quality. Given the
    limited nature of the variance and this fact, Petitioner has
    demonstrated arbitrary and unreasonable hardship in the absence
    of the variance.
    2
    As for the majority's apparent suspension of the requirement
    for a variance petitioner to have a compliance plan, I disagree.
    Heretofore, the Board has only granted variance where
    exceptional circumstances are found to exist. The Board has
    found that exceptional circumstances exist in those rare
    instances where a petitioner has proven that compliance
    technology does not yet exist, and additional time is needed to
    research the same. Alternatively, the Board has found exceptional
    circumstances to exist where more time is needed to seek a
    regulatory change, and the grant of variance is conditioned upon
    the establishment of an alternative compliance plan within a
    short timeframe if regulatory relief is not forthcoming. Given
    the speculative nature of rulemaking, the Board has refused to
    prejudge the outcome of the same even when the site-specific
    rulemaking is pending before the Board at the time the variance
    relief is granted. (Illinois Power Company v. IEPA, (June 22,
    1989), PCB 88-97, 100 PCB 177, 180, 181; General Motors Corp. v.
    IEPA, (June 4, 1992), PCB 88-193, 134 PCB-001, 003-004; Borden
    Chemicals and Plastics Operating Limited Partnership v. IEPA,
    (October 25, 1990), PCB 90-130, 115 PCB 453, 456-457.)
    Neither the majority nor Petitioner has provided basis to
    depart from precedent on this issue. I would require a
    compliance plan of Petitioner, and allow it to include a
    "speculative change in law" because the variance requested is for
    a limited duration, the environmental impact is minimal, and
    Petitioner has been and is continuing to investigate
    technological methods to achieve compliance, or at a minimum,
    achieve further reductions in its PM-10 emissions.
    Accordingly, Petitioner should be required to continue its
    investigation into the alternative control technology described
    in its petition and adhere to the schedule likewise contained
    therein. Based upon it, Petitioner would complete installation
    of the newly developed pot covers on or about the expiration of
    this variance if the technology proves feasible. (See Petition
    of July 12, 1995 at pp. 4-5.) Furthermore, Petitioner should be
    required to propose its own site-specific rulemaking in
    sufficient time for the Board to consider the merits of the same
    prior to the expiration of this variance should the Agency fail
    to propose a rule amending Section 212.458(b)(25) sufficiently in
    advance of expiration.
    For these reasons, I respectfully concur.
    Marili McFawn
    Board Member
    3
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, do hereby certify that the above concurring opinion was
    filed on the day of , 1995.
          
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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