ILLINOIS POLLUTION CONTROL BOARD
    May
    5,
    1988
    IN THE MATTER OF:
    JOINT PETITION FOR THE CITY OF
    )
    MORTON AND THE ILLINOIS
    )
    PCB 85-212
    ENVIRONMENTAL PROTECTION AGENCY
    FOR EXCEPTION TO THE COMBINED
    SEWER OVERFLOW REGULATIONS
    CONCURRING OPINION
    (by J.D.
    Dumelle):
    My reason for concurring
    lies
    in the manner
    of decision and
    not
    in its outcome.
    I
    feel
    the public was never informed of this
    action and
    thus had
    no opportunity
    to comment.
    The instant action
    is based
    upon an April
    11,
    1988 motion
    filed almost two years
    after
    the Board’s Order
    of May
    9,
    1986.
    Who would ever
    know of
    this motion except those served?
    The Board’s Procedural Rule 103.241(c)2 provides
    that
    motions
    for relief from final orders (which this
    is,
    of course)
    be filed within
    12 months
    of the May 9,
    1986 decision.
    This
    motion
    is thus 11 months too late.
    The motion should have been docketed
    as
    a “variance from a
    Board order”.
    If that had been done,
    then legal notice would
    have been published
    in the local
    area affected.
    And the new
    variance case, would have also been noted
    in the Board’s bi-
    weekly Environmental Register.
    The public would have been
    informed.
    The counter—argument
    to
    this procedure
    is that
    a “variance
    from
    a Board order” would have
    to be decided by the Board within
    120 days or
    be granted
    by operation of
    law.
    But since
    the
    initial proceeding,
    PCB 85—212,
    itself did not have
    a statutory
    due date
    (being
    a rulemaking)
    then
    a variance from a Board order
    would also not have
    a due date.
    One must separate the semantics
    of “variance”
    and “variance
    from a Board order
    in
    a rulemaking”.
    Because
    the public was excluded from knowing about this
    motion
    for relief from final
    order
    and tht~scould not even
    T
    /
    \
    ~.
    commenL,
    concur.
    -~
    ~
    ~
    ____________
    ike,
    P.E.
    irman
    89—45

    —2—
    I,
    Dorothy M.
    Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify
    that the above Concurring Opinion was filed
    on
    the
    ~2/~
    day of
    ______________,
    1988.
    ~
    Dorothy M.,”Gunn, Clerk
    Illinois ?ollutiori Control Board
    89—46

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