ILLINOIS POLLUTION CONTROL BOARD

August 18, 1982

MODINE MANUFACTURING COMPANY,

)

Petitioner,

)

V.

)

PCB 79—112

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

CONCURRING OPINION (by J. Anderson):

While

I voted for the Board~smore conservative approach of

dismissing this variance petition without prejudice,

I am dis-

tressed by what can only be considered an egregious abuse by the

Petitioner of the Act, the Board’s procedures and the underlying

intent of the variance process itself.

The provisions in the Act giving access to variance relief

is not intended to be used simply as a “hold card”

for avoiding

compliance,

or as an attempt to deflect enforcement.

This proceeding was initiated almost three and one-half

years ago.

The 90—day decision limits do not exist solely for

the benefit of petitioners.

They provide for timely decisions on

effective compliance programs so as to minimize environmental harm.

In addition, by delaying pursuit of this case, the petitioner has

managed to potentially get access to (though not necessarily Board

approval of) the equivalent of well over an eight year variance

rather than the five year limit contained in the Act.

Incidentally, any attempt to argue that lack of enforcement

action “proves” lack of environmental harm during a pending

variance proceeding is obviously incorrect.

And

I trust that the

Agency will not develop a non—enforcement “mindset” regarding

pending variances so as to lead others to believe such an argument

has merit.

Anyone has a right to seek a variance.

However, there is

a

point at which the right can be forfeited if procedures are grossly

abused.

.2

7

Aoan

G. Anderson, Board Member

I, Christan L. Moffett,

Clerk of the Illinois Pollution

Control Board,

hereby certify that

Concurring Opinion

was filed on the

~C’~

day of

1982.

Illinois Polluti~