ILLINO~ POLLUTION CONTROL BOAH~.

October

13, 1977

CITY OF DECATUR

& SANITARY

DISTRICT OF DECATUR,

Petitioners,

v.

)

PCB 77—218

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

ORDER OF THE BOARD

(by Mr.

Young):

In the Petition for Variance filed August 24,

1977,

the

Petitioners requested that the record of the Board proceedings

in a prior case,

PCB 76—2,

23

P013 127,

be incorporated

as a

part of the petition herein and further requested that the

variance be granted without hearing on the record made

in

PCB 76-2.

On September

23,

1977,

the Environmental Protection Agency

filed with the Board, pursuant to Section

37 of

the Environmental

Protection Act and Rule 405 of the Boardts Procedural

Rules, a

Recommendation that the variance requested be denied.

In Material Service Corporation v.

Illinois Environmental

Protection Agency et al.

41 I11.App.3d 192,

354 N.E.2d 37,

(3rd

Dist.

1976)

,

the court held that the Environmental Protection

Act requires that a hearing be granted to

a variance petitioner

when the Agency has filed an objection in the form of

a recommenda-

tion to deny prior

to final action by the Pollution Control Board.

The

Recommendation

of

the

Agency

makes several

allegations

which,

on

proof,

might

be

dispositive

of

the

issue

and

a

central

issue

relates

to

the

delay

in

making

the

modifications

permitted

by the Order

in PCB 76-2.

Since the record in PCB

76-2 does

not squarely address the issues raised in the Recommendation, the

Board will order a hearing

to allow for the presentation of

evidence in support of the allegations of the petition and the

Agency Recommendation.

The Hearing Officer

is directed to schedule

a hearing on

this petition as soon as possible consistent with the requirements

of the Act and Part IV of the Procedural Rules

of the Board.

28-73

---

—2—

IT IS SO ORDERED~

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control Board, hereby~ce~rtifythe

above

Order

was

adooted

on

the /~1~ day of

________________-,

1977 by

a vote of~3

~ristan

L.

Moffe

,

Clerk

illinois Pollütio

ontrol Board