ILLINOIS
    POLLUTION
    CONTROL
    BOARD
    June
    12,
    1980
    MISSISSIPPI
    RIVER GRAIN ELEVATOR,
    INC.,
    )
    )
    Petitioner,
    v.
    )
    PCB
    80-19
    ENVIRONMENTAL
    PROTECTION
    AGENCY,
    Respondent.
    ORDER
    OF
    THE
    BOARD
    (by
    D.
    Satchell):
    On
    May
    29,
    1980
    the
    Environmental
    Protection
    Agency
    (Agency)
    filed, apparently pursuant to Procedural Rule 333,
    a motion for
    reconsideration of the Board’s Opinion and Order of May 1,
    1980
    which granted Mississippi River Grain Elevator, Inc.
    (Petitioner)
    a variance.
    The Agency recommended denial of the petition but
    did not request a hearing.
    It now contends that the Board erred
    by failing to set a hearing upon receipt of the recommendation
    to deny.
    However,
    the Agency had ample opportunity under Pro—
    cedural Rules 404 and 407
    to file, within twenty—one days of
    tue filing of the petition,
    an objection and request for hearing.
    Where
    no
    hearing
    is
    requested
    it is the Board’s long established
    practice
    to decide variances on the basis of
    the
    facts
    alleged
    in the pleadings.
    On page three of the recommendation of March 28,
    1980 the
    Agency discusses air quality.
    Nine numbers are given,
    apparently
    total
    suspended
    particulate
    (TSP)
    concentrations,
    although
    this
    is not stated.
    Four numbers are given for 1978 and four for 1979.
    It is not clear what these numbers represent.
    They could be
    quarterly averages, annual means from four sampling machines or
    four representative 24—hour averages.
    The mean of the 1978 num-
    bers
    is obviously not the average of the four numbers given.
    The
    mean for 1979 is “N.A.”
    Assuming this means “not applicable,”
    there is no explanation of why it is not.
    The Board assumes the
    standards given are in micrograms per cubic meter, although this
    is again not stated.
    The recommendation gives no indication of
    whether the primary or secondary TSP standard is applicable or
    whether the data given show air quality violations.
    It is not
    possible for the Board to determine this, based on the information
    in the recommendation.
    Assuming the data are representative 24—
    hour samples, they are well within the primary standard and in
    the neighborhood of the secondary.
    The Agency offered no basis
    for its estimate of Petitioner’s emissions.
    In the absence of
    any evidence to the contrary, the Board was forced to accept
    —2—
    Petitioner’s conclusion that the facility was not
    causing
    any
    air quality problems.
    Tne Agency argues that the grant of
    the
    variance was incon-
    sistent with the Clean Air Act.
    It had an ample opportunity to
    establish this prior to expiration of the ninety day decision
    period provided by Section 38 of the Environmental Protection
    Act.
    The motion
    to reconsider is denied.
    On Nay 30,
    1980 Petitioner in
    a letter asked the Board to
    striKe from its Order language
    to the effect that it not remix
    grain dust with grain.
    Petitioner’s motion
    is granted and No.
    2 of
    the
    Order of May
    1,
    1980 shall now read:
    “Petitioner
    shall take all reasonable measures with its existing equipment
    to minimize its particulate emissions.”
    IT IS SO ORDERED.
    Mrs. Anderson and Mr. Goodman concur.
    I,
    Christan
    L.
    r4offett, Clerk of the Illinois Pollution
    Control Board,
    hereby certify that the above Order was adopted
    on the
    ~
    day of
    _______________,
    1980 by a vote of
    _____
    Th ~
    jiristan L. Moffe~t/~9lerk
    Illinois Pollution Control Board

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