ILLINOIS POLLUTION CONTROL BOARD
    November 5, 1981
    WESTOWN
    LANDS
    WEST
    SUBDIVISION AND STELLA
    ANNES,
    )
    Petitioner,
    )
    v.
    )
    PCB 81—43
    )
    ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
    )
    Respondent.
    DISSENTING OPINION
    (by D. Anderson):
    t dissent from the Board’s Opinion
    and
    Order of November 5,
    1981 for several reasons.
    The Opinion indicates that Lombard is
    a necessary party
    to this action
    and
    orders it joined pursuant to Procedural
    Rule 303 (c).
    However, the opinion is silent
    as to whether
    service of process has been made on Lombard.
    The Board’s variance could be construed as an order
    compelling Lombard to allow these connections.
    The order is
    unclear as to whether it can refuse to allow these based on
    its
    own
    ordinances or determinations as to the capacity of
    its sewer.
    The
    named
    petitioners
    are
    Westown Lands West Subdivision
    and
    Stella Annes, although variances are requested for nine of
    the thirty-seven lots.
    The legal character of Westown is not
    indicated so it is not clear whether it has legal capacity to
    request a variance.
    Assuming capacity, it is not clear who
    has authority to represent it.
    Assuming Stella Annes is one
    of the nine requesting a variance,
    a fact which is not clear,
    the other eight are not named as petitioners.
    Section 37 of
    the Illinois Environmental Protection Act
    (Act)
    requires that
    any
    person seeking a variance do so by filing a petition.
    This
    statutory condition precedent has not been met.
    Variance authority is restricted to the grant of individual
    variances
    Section
    35(a).
    It is well settled that the Board
    cannot
    grant
    a class variance, but must utilize rulemaking to
    deal with unnamed classes of people
    (Section 27; Mercy Hospital
    and
    Illinois HOspital Association
    v.
    IEPA, PCB 80-218).
    Although it may not be necessary that these persons be listed
    in the caption, they should be required to join as petitioners
    and be identified in the opinion.
    44—35
    —2—
    The Act authorizes the grant of a variance only upon a
    showing of arbitrary or unreasonable hardship.
    How is it possible
    to find this where the identity of the persons suffering the
    hardship is not revealed?
    The Board’s opinion grants
    a variance to eight
    unnamed
    individuals who are supposedly identified in a public health
    report which has not even been introduced into the record in
    this proceeding.
    The Board has thus granted a variance for
    eight lots, denied it for one
    and
    not passed on the rights of
    twenty-eight.
    The Board has failed to
    make
    a
    finding on the
    most elementary fact:
    who gets the variances and who is denied
    a variance?
    Lastly, the Order
    does
    not specify who is to sign the
    certificate of acceptance.
    Is it Westown,
    Stella Annes or
    each of the eight who are granted variances?
    -—
    Donald
    .
    Anderson, Board Member
    I., Christan L. Moffett, Clerk of the Illinois Pollution
    Control Board,
    do hereby certify that the above Dissenting Opinion
    was filed on
    the
    /~~Pday of
    7)
    ~
    ,
    1981.
    Illinois Pollution
    Ltrol Board
    44—36

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