ILLINOIS POLLUTION CONTROL BOARD
    April
    20,
    1995
    BTL SPECIALTY RESINS CORPORATION,
    )
    Complainant
    )
    V.
    )
    PCB 95—98
    )
    (Variance
    —
    RCRA)
    ILLINOIS ENVIRONMENTAL PROTECTION
    )
    AGENCY
    )
    Respondent
    )
    ORDER OF THE BOARD
    (by E. Dunham):
    Petitioner, BTL Specialty Resins
    (BTL), filed a petition on
    March 14,
    1995 for a determination that the material produced by
    its facility was not properly characterized by the Illinois
    Environmental Protection Agency
    (Agency)
    as K022 waste,
    or in the
    alternative,
    a variance from regulations applied to that waste.
    The Board accepted the matter for hearing on March 16,
    1995.
    The
    Agency filed a motion to dismiss on April 13,
    1995; and BTL filed
    a response to the motion on April
    17,
    1995.
    A motion to dismiss,
    like a motion for summary judgment, can
    succeed where the facts,
    taken in a light most favorable to the
    party opposing the motion, prove that the movant is entitled to
    dismissal as a matter of law.
    The Agency claims that the
    petition of BTL is inconsistent with Federal law,
    and should be
    dismissed.
    To dismiss, there can be no material facts in dispute
    that could reasonably support BTL’s proposition that the material
    formed in its process is not K022 waste.
    The Board holds that
    the facts
    in this case are not so clearly slanted as to admit
    only one possible outcome to the threshold determination that the
    material
    is not K022 waste.
    Further, the Agency argues that a variance can not properly
    issue
    in a case such as this.
    BTL quotes a law review article by
    Professor Currie and the case of R.R. Donnelley
    & Sons Co.
    v.
    IEPA (February 23,
    1989), PCB 88-79
    for the proposition that
    variance was specifically envisioned by the drafters of the
    Environmental Protection Act as an appropriate means of deciding
    whether a determination of the Agency was correct in the first
    instance,
    or in the alternative, granting a limited time to
    achieve full compliance with the regulation.
    The Board notes
    that this method of review has been in accepted use for some
    time.
    (c.f.
    Village of Cary v.
    IPCB
    (1980),
    82 Ill.App.3d 793,
    403 N.E.2d 83,
    38 Ill.Dec.
    68 and Container Corporation of
    America
    v. IEPA (June
    2,
    1988), PCB 87—183,
    90 PCB 052.)
    Lastly, the Agency states that the variance petition is
    insufficient for failing to state an adequate compliance plan.
    The Board notes that the compliance plan submitted may be less
    2
    detailed than the Board requires in order to grant the variance,
    but the outline of a compliance plan is present and the details
    can be elucidated at hearing.
    The petition is not deficient on
    its face.
    The Agency’s motion to dismiss is therefore denied.
    This
    matter will proceed to hearing as expeditiously as possible.
    IT IS SO ORDERED.
    M. McFawn dissented.
    I, Dorothy H. Gunn,
    Clerk of the Pollution Control Board,
    hereby certify that the above order was adopted on the
    ____________________
    day of
    ~c~-7.L~/
    ,
    1995, by a vote of
    /h
    7’
    (u~~~’i
    /)L
    Dorothy M. G~nn,Clerk
    Illinois Pol’lution Control Board

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