ILLINOIS POLLUTION CONTROL

BOARD

November

3,

1983

MIDWEST SOLVENTS COMPANY OF

ILLINOIS,

Petitioner,

V.

PCB

83—:L59

ILLINOIS ENVIRONMENTAL

PROTECTION

AGENCY,

Respondent

DISSENTING

OPINION

(by J.

Anderson):

I dissent because

I

believe

that

the

use

of

the

provisional

variance mechanism

in this case was

improper

in

that

it

renders

meaningless the two~staged

time

limits,

of

45

days

each,

in

Section

36(c) of the Act.

Section 36(c)

states,

in

part:

“Any provisional variance

granted

by

the

Board

pursuant

to

subsection

(b)

of

Section

35

shall

be

for

a

period

of

time

not

to

exceed

45

days..

Upon

receipt.

of

a

recommendation

from

the

Agency

to

extend

this

time

period,

the

Board

shall

grant up to an additional

45

days.”

In the Agency Recommendation, p.4,

lines

7~1O, the

Agency

states,

“Petitioner estimates

this

construction

to

take

approxi~

mately

8

weeks

during

which

time

Petitioner

estimates

its

effluent

will

exceed

its

BOD

and

Suspended

Solids

limitations.”

(Emphasis

added).

Eight

weeks

is

longer

than

45

days0

~t.

no

point

in

the

Recommendation

does

the

Agency

disagree

with

this

eight

week

time

frame.

To

acknowledge

~up

front”

that

the

project

is

likely

to

exceed

45

days

is,

in

effect,

a

precomrnit:ment

to

an

extension

into

the

second

45

day

stage~

The

obvious

purpose

of

Section

36(c)

is

to

provide

for

problems

that

best

estimates

show

can

be

remedied

within

a

45

day

time

period,

with

up

to

45

more

days

of

“spiliover”

time

for

justifiable

and unanticipated

delays.

To

argue

that

the

Agency is not precommitting because this variance does not

exceed 45 days

is to leave the

Petitioner

“hang:Lng out to dry”,

since the hardship and environmental impact questions

have

54-311

---

-2—

already addressed the 8 week time frame.

The first 45 day

statutory limitation

becomes

meaningless and the Agency’s

subsequent review of the second petition for time to complete

the

project

is

a

pretense.

The

statutory

language

should

not

be

stretched

out

of

shape

this

way.

The

provisional

variance

process bypasses prior public

notice, provides no opportunity for public objection or public

hearing and escapes the usual

Board

deliberation

of

the

merits

of

the

hardship

and

environmental impact issues.

Finally, I fail to understand

why

a

regular

variance,

with

its short decision period, could not have been sought instead.

Paragraph

7 on p.3 of the Recommendation indicates that this

variance is needed because increased production at the facility

is expected ‘within the next

few

years.’

There was no showing

in

the

record

that

a

regular

variance

proceeding,

with

its

associated

public

participation

mechanisms,

could

not

have

been

used.

—

Joan G. Anderson

c-

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

Control Board, herq)~ycertify that the above

issenting Opinion

was filed on the_________ day of

TV)

,

Christan L. Moffet~

Illinois Pollution Con rol Board