ILLINOIS POLLUTION CONTROL BOARD

July 3, 1990

DEL MONTE FOODS, USA,

Petitioner,

v.

)

PCB 90—121

(Provisional Variance)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

ORDER OF THE BOARD (by J. Marlin)

This matter comes before the Board on the Agency’s June 28,

1990 Recommendation that a provisional variance sought by Del

Monte Foods, USA be denied on the grounds that it seeks

retroactive relief.

The Board observes that this case involves its first receipt

of an Agency Recomniendation denying a provisional variance

request pursuant to Sections 35(b) and Section 37(b) of the

Act. These Sections provide:

Section 35(b)

The Board shall grant provisional variances,

only upon notification from the Agency that

compliance on a short term basis with any rule

or regulation, requirement or order of the

Board, or with any permit requirement would

impose an arbritrary or unreasonaible

hardship. Such provisional variances shall be

issued within 2 workings days of notification

from the Agency.

Section 37(b)

Any person seeking a provisional variance

pursuant to subsection (b) of Section 35 shall

make a request to the agency. The Agency

shall oromptly investigate and consider the

merits of the recuest. The Agency may notify

the Board of its recommendation. If ~ne

Agency fails to take final action within 30

113~95

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days after receipt of the request, the person

may initiate a proceeding under subsection (a)

of Section 35. The Board shall give prompt

notice of its action to the public by issuing

a press release for distribution to newspapers

of general circulation in the county.

The Board notes that Section 37(b) makes Agency notification

to the Board a discretionary act. The Board further notes that,

while Section 35(b) requires that the Board take action within

two days of receipt of an Acencv notification that short term

compliance would impose an arbitrary or unreasonable hardship,

Section 35(b) does not require any Board action if the Agency

notifies the Board of a contrary finding.

In order to clear the Board’s docket,

the

Board hereby

dismisses this matter and closes this docket. :n the interests

of administrative economy ior oath agencies, the Board requests

that when the Agency recommends that a provisional variance be

denied, that the petition not be forwarded to the Board.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify hat the above Order was adopted on

the ~

day of

_______________

,

1990, by a vote of

7—0.

1111

5

ution Control Board

113—9~