ILLINOIS POLLUTION CONTROL BOARD

October 10,

1991

R. LAVIN

& SONS,

INC.,

Petitioner,

PCB 90—31

v.

)

(Va.riance)

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

ORDER OF THE BOARD

(by 3.

C. Marlin):

On September 11,

1991 the Illinois Environmental Protection

Agency

(“Agency”)

filed a Motion to

Dismiss

or in the alternative

a Motion for Summary Judgement.

On September 18,

1991,

the Board

received a response to the Motion fron~R. Lavin and Sons (“Lavin”).

The Agency states that the Lake County Circuit Court entered

a consent order on October 12,

1990,

which sets forth interim and

final compliance limits.

Therefore,

the Agency asserts that the

need

for

the

variance

has

been

mooted.

The

Agency

further

maintains that the court has retained jurisdiction and the court

is the proper venue for determining temporary relief for Lavin.

Lavin correctly points out in its response that the Board’s

procedural rules do not provide for summary judgement in variance

proceedings.

The

Board’s

rules

at

35

Ill.

Adm.

Code

101.244

specifically allow

for summary judgement motions only

in

permit

appeals and enforcement proceedings.

Therefore,

the Motion

for

Summary Judgement is denied.

With regard to the Motion to Dismiss, Lavin asserts that the

scope of relief sought in this Petition is beyond the scope of the

relief granted

in

the consent decree.

Lavin cites

to

specific

paragraphs of its petition which seek relief not discussed in the

consent decree.

In addition, Lavin argues that the Board can grant

relief

to

Lavin

for

up to

five years

while

the

relief

in

the

consent decree expires

on May

4,

1992.

Lavin also asserts that

the jurisdictional argument by the Agency is untimely.

The Board does

not dispute that the Circuit Court has

sole

jurisdiction over the terms

of the consent decree.

However,

the

relief sought in the petition for variance is beyond the scope of

the

consent

decree.

Further,

“the

Circuit

Courts

have

no

jurisdiction to grant variances; that power is reserved by law to

this Board pursuant to Title IX of the Environmental Protection

Act.”

Container Corporation of America v. IEPA, PCB 87-183,

98 PCB

25

(April

6,

1989).

The filings received by the Board on the alternative Motions

126—423

---

make clear that there are questions of material fact and questions

of law to be resolved in this proceeding.

Therefore, the Motions

are denied.

IT IS SO ORDERED.

B. Forcade dissented.

I, Dorothy M.

Gunn,

Clerk of the Illinois Pollution Control

Board,

do hereby ce~if,that the above Order was adopted on the

~

day of _____________________________,

1991, by a vote of

~

~

Dorothy M.,,~inn,Clerk

Illinois ~‘oZlutionControl Board

126—4 24