ILLINOIS POLLUTION CONTROL BOARD
    June
    12,
    1980
    MISSISSIPPI RIVER GRAIN ELEVATOR,
    INC.,
    Petitioner,
    v.
    )
    PCB 80—19
    ENVIRONMENTAL PROTECTIO~T AGENCY,
    Respondent.
    CONCURRING OPINION
    (by
    J.
    Anderson):
    The
    Agency
    argues
    that
    the
    Board’s
    grant
    of
    variance
    in
    this
    matter was procedurally
    improper.
    The Agency contends that,
    pursuant to Sec.
    37 of the Environmental Protection Act and Board
    Procedural Rule 407(c)(2),
    a hearing should have been held before
    decision was rendered.
    Both Sec.
    37 and Rule 407(c) (2) mandate the Board to hold
    a
    variance hearing when a written objection is filed within 21
    days. Rule
    404 establishes the
    21 day filing period for objections
    by the Agency or any other person, while Rule 405 establishes a
    30—day schedule in which the Agency is
    to file any Recommendation.
    The March
    28,
    1980,
    filing of the Agency in this matter was
    titled a “Recommendation”,
    and was considered by the agency to be
    such.
    By affidavit the Agency
    indicated that the Recommendation
    was being filed 13 days after
    the
    30 day limit established by
    Rule 405 had run
    (A~ffidavitStephen B.
    Cherry,
    P.
    9 of Rec.
    filed
    March 28,
    1980).
    A negative or conditional recommendation by the Agency
    is
    not the objection contemplated by Rule 407(c)(2),
    Rule 404 or
    Sec.
    37 of the Act which triggers a mandatory hearing.
    If the
    Agency desires that hearing be held,
    it,
    as any other person,
    must file an objection,
    so titled,
    within the 21—day period of
    Rule 404.
    The Board’s determination that an Agency recommendation
    pursuant to Rule 405
    is not the objection contemplated by Rule
    404
    is buttressed by Rule 407(c)
    3, which triggers a hearing when
    the petitioner
    so requests by an amended petition within
    7 days
    after receipt of the Agency recommendation.
    The Agency’s reliance on Material Service Corp.
    v.
    Pollution
    Control Board,
    41
    Ill. App.
    3d 192,
    345 N.E.
    2d
    37
    (3rd Dist.,
    1976)
    in support of its contention that a Rule 405
    recommendation
    is the equivalent of
    a Rule 404 objection is misplaced.
    While
    the court did
    so find, the decision was made
    in the context
    of
    petitioner’s appeal
    for review
    of Board dismissal without hearing
    2
    of its petition for variance.
    Consequently, the case must he
    restricted
    to its facts,
    and to the equity considerations which
    underlay
    the
    Court’s
    decision
    to
    remand
    the
    case
    to
    the
    Board
    for
    further
    proceedings
    to
    provide
    evidentiary
    support
    for
    the
    allegations
    of
    the
    petitioner.
    The
    Agency’s
    remaining
    arguments
    seek
    to
    bring
    before
    the
    Board
    facts
    which
    should
    have
    been
    included
    in
    the
    recommendation.
    /
    ~
    ~
    ~L
    //J/
    •1•
    Joan G. Anderson
    /
    I,
    Christan
    L.
    Moffett,
    Clerk
    of
    the
    Illinois
    Pollution
    Control
    Board,
    hereby
    certify
    that
    t~
    above Concurring Opinion
    was
    submitted
    on
    the
    j3~
    day
    of
    Christan
    L. Moff~*J)Clerk
    Illinois Pollution Control Board

    Back to top