ILLINOIS POLLUTION CONTROL BOARD

March

28,

1991

ETHYL PETROLEUM ADDITIVES,

INC.,

)

)

Petitioner,

V.

)

PCB 91—54

(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’s responsibility

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—54 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. ll1~36(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 provisional variances.

(See, PCB 90—223,

November

29,

1990 (Dissenting Opinion)).

120—307

---

For this reason,

I respectfully concur.

/

~

Jacob

D. ~Dumelle,P.E.

Board Member

I, Dorothy M. Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify that the above C

curring Opinion was

submitted on the

/~44

day of ______________________,

1991.

~ Dorothy M./~unn,Clerk

Illinois P~lutionControl Board

120—308