ILLINOIS POLLUTION CONTROL BOARD
    October 29,
    1992
    MARSCO MFG. CO.,
    )
    Petitioner,
    PCB 91—235
    v.
    )
    (Variance)
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    Respondent.
    ORDER OF THE BOARD
    (by J.
    Anderson):
    On October 20,
    1992, Marsco Manufacturing Company
    (Marsco)
    filed a motion requesting the Board to dismiss Narsco’s variance
    petition and grant it leave to reinstate the petition in
    accordance with 35
    Ill.
    Adin.
    Code 103.140(e)
    and Section 2-1009
    of the Illinois Code of Civil Procedure.
    In support of its motion, Marsco states that it has been
    negotiating a “settlement of this matter” with the Attorney
    General’s Office
    (AG)
    since February 13,
    1992.1
    More
    specifically, Marsco states that the parties met on February 13,
    1992, May
    20,
    1992,
    September 9,
    1992,
    and September 25,
    1992, to
    discuss Marsco’s plan for “achieving compliance with the
    applicable regulation as well as the procedural manner in which
    the)
    proceeding would be handled”, and that,
    on October 19,
    1992,
    the parties reached a settlement
    in principle.
    On October
    20,
    1992, hearing was held in this matter.
    Marsco states that,
    although no testimony on the merits of Marsco’s variance request
    was presented at hearing, the parties read their settlement into
    the record.
    As part of the settlement agreement,
    Marsco agreed
    to dismiss its variance petition.2
    Finally, Marsco states that
    although settlement agreement remains unsigned, the parties
    expect to reach
    a finalized settlement within the next two
    months.
    Marsco adds that it would be prejudiced if the Board
    1At hearing, the parties discussed a settlement agreement that
    provided,
    in part,
    for Marsco’s payment of
    a
    penalty.
    Neither
    party, however, identified where an enforcement action was pending.
    2On October 26, 1992, the hearing officer filed
    a report of the
    hearing.
    The
    hearing
    officer
    stated
    that
    the
    parties
    read
    a
    proposed
    settlement
    agreement
    into
    the
    record
    and
    agreed
    that
    Marsco
    would
    submit
    a
    motion
    to
    dismiss.
    The hearing
    officer
    added,
    however,
    that
    it was his understanding that the agreement
    provided for dismissal without any stated conditions.
    UI 37-0039
    2
    were to deny its request and if the parties did not reach a final
    settlement.
    The Board will recap the history of this matter.
    Marsco
    filed its variance petition on November 27,
    1991.
    In response to
    a December 6,
    1991 Board order for more information, Marsco filed
    an amended petition on January
    6,
    1992.
    On October 14,
    1992,
    Marsco filed a second amended petition changing the time frame of
    the requested relief as well as a request to the Board to cancel
    the October 20,
    1992 hearing in the case.
    In support of its
    request, Narsco argued,
    in part,
    that the Illinois Environmental
    Protection Agency (Agency) had not yet reviewed the second
    amended petition, nor had it filed a recommendation on the first
    amended petition.
    On October 16,
    1992, the Board issued an order
    directing the parties to go to hearing on October 20,
    1992.
    The Board is disturbed by the fact that the Agency never
    filed a recommendation in response to Marsco’s first amended
    petition,
    filed some nine months ago.
    The Agency is required by
    statute to file a recommendation in variance cases and, by Board
    rule,
    to do so in
    30 days.
    Ill.
    Rev. Stat.
    1991,
    ch.
    111½, par.
    1037(a);
    35 Ill.
    Adin.
    Code 104.180.
    Although the Board
    recognizes that the Agency may be concerned with the time and
    resources needed to prepare documentation for
    a case that might
    be dismissed because of possible settlement in an unidentified
    but presumable related enforcement case, the acceptable procedure
    would have been for the Agency to inform the Board that it wished
    to delay its recommendation by filing either a motion requesting
    an extension of time to file its recommendation or a temporary
    stay of the filing of its recommendation.
    As for Mareco’s motion to dismiss, the Board hereby grants
    the motion.
    However, the Board notes that it need not
    specifically consider whether to grant leave to reinstate a
    petition for variance.
    The Board notes that the right to file a
    variance petition is a right provided for by statute.
    Environmental Protection Act,
    Ill.
    Rev. Stat.
    1991,
    ch.
    111
    ½,
    pars.
    1035,
    1037
    (see also 35 Iii. Adm. Code 104.120).
    As a
    result, the decision to file a variance rests with an individual
    rather than the Board.
    Accordingly,
    for the foregoing reasons,
    the Board grants the motion to dismiss and closes the docket, but
    will not grant Marsco leave to reinstate its variance in that
    such action is unnecessary.
    IT IS SO ORDERED.
    —
    ii
    n ~
    3
    I, Dorothy M.
    Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify that~theabove order wa~adopted on the
    ____________
    day
    of
    /~
    ~
    :C/
    ,
    1992,
    by a vote of
    7
    -
    .
    Dorothy N. ,~nn, Clerk
    Illinois Pojlution Control Board
    U
    37-UO~
    I

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