ILLINOIS

POLLUTION

CONTROL

BOARD

January

24,

1985

ANDERSON CLAYTON FOODS,

INC.,

Petitioner,

v.

)

PCB

84—147

)

ILLINOIS ENVIRONMENTAL

Respondent.

CONCURRING OPINION

(by

J.

Anderson):

While this grant of

variance

for

only

three

years is not

an unacceptable option,

I

believe

a

grant

of

variance

for

five

years, with the Board retaining

jurisdiction,

and with an added

condition,

is much more

suitable

in

this

case,

The added condition

would

have

read

as follows:

ACF

must

file with

the

Board,

within

three

years from the

grant of variance, either

a

plan

to

ultimately comply with

35

III.

Adm. Code 216.121,

or

a petition for site—specific

relief

from

35

Ill,

Adm,

Code

216.121,

unless

a

generic

regulatory

proceeding

for

CO

that

would

apply

to

ACF~s

Wormser FBC system is

docketed

before

the Board.

I believe ACF

convincingly argued that it

needs as long

a

variance term as possible

to facilitate

long-term planning.

The

added condition balances

this consideration

with the requirements

imposed by the Environmental

Protection

Act (Act).

Implicit

in

the concept of variance

is

the

requirement

of

compliance.

35

Ill.

Adm.

Code 104,121(1).

However,

a

plan

for

compliance,

whether

it

entails

a

concrete

schedule

for

compliance

or

the

docketing

of

some

form

of

regulatory

change,

would

not be

re~~

cjuired

until

nearly

three years

after

such a

five

year

variance

had

elapsed.

Because

the

Board

would

retain

jurisdiction

in

this

matter,

the

parties

wculd

have

been

free to submit motions

for

modification,

including

extending

the

three

year

deadline,

thr

ou

ghout

the

ful

1

five

years

By

granting

only

a

three

year

~experimental”

variance,

the

Board

is

requiring

the

parties

to

initiate

a

piecemeal

variance

petition

process

before

the

three

years

have

elapsed,

and

still

address

the

same

compliance

options as

enunciated

in

the

added

condition.

On

the

other

hand,

had

the

five

year

conditional

---

variance been granted,

the Board,

ACF,

and the Agency would

have

had a longer,

far simpler,

and more flexible process for dealing

with this developing

technology.

For

these

reasons,

I

concur.

~

____

Joan G.

Anderson

I,

Dorothy M,

Guun, Clerk of the Illinois Pollution

Control

Board,

hereby

certify

that the above Concurring Opinion

was

submitted

on

the

i~day

~

1985

Illinois Pollution Control Bourd