ILLINOIS POLLUTION CONTROL BOARD

March 28,

1991

VILLAGE OF ITASCA,

)

Petitioner,

v.

)

PCB 91—55

(Provisional Variance)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

CONCURRING OPINION (by J.D. Dumelle):

While

I agree with the outcome of this case,

I disagree with

the language contained

in part of the Order.

In paragraph

3,

the

Board states:

In provisional variances

it

is the

responsibility of the Agency to make the

technical determinations and finding of

arbitrary or unreasonable hardship.

The

Board~sresponsibility is to adopt a formal

Order,

to assure the formal maintenance of the

record, to assure the enforceability of the

variance, and to provide notification of the

action by a press release.

(PCB 91—55 at

pg.

1).

I continue to believe that this language

is

in direct

contravention of the plain meaning of Section 36(a) of the Act.

In granting a variance the Board may impose

such conditions as the policies of this Act

require.

Ill.

Rev.

Stat.

1989 chap. lll~36(a).

Although it

is undoubtedly true that the Agency rather than the

Board makes

the determination as

to whether

or not an arbitrary or

unreasonable hardship would befall the petitioner pursuant to

Section 35(b) of the Act,

I believe that section 36(a)

of the Act

grants this Board

the

power

to review the substantive issues

contained within provsional variances.

(See, PCB 90—223,

November

29, 1990 (Dissenting Opinion).

120—313

---

For this reason,

I respectfully concur.

\/~

:1~X~~

/Jacob D. Dumelle, P.E.

Member

I,

Dorothy M. Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify that the above

oncuTring Opinion was

submitted on the

~

day of ______________________,

1991.

~

Dorothy M. Gu~4,Clerk

Illinois Poll~ionControl Board

12 0—3 14