ILLINOIS

POLLUTION CONTROL BOARD

October

1,

1987

NESCO STEEL BARREL COMPANY,

Petitioner,

v.

)

PCB 84—81

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

Respondent.

DISSENTING OPINION

(by B. Forcade):

I dissent from today’s action allowing the “late” filing

of

the Certificate of Acceptance

to be bound by conditions

of

variance.

The Board

is allowed

to grant temporary exclusions

(variances) from compliance with environmental laws and

to impose

appropriate conditions which

must

be adhered

to by the variance

petitioner.

However,

the variance conditions are not enforceable

until the variance petitioner

agrees to

be bound

to those

conditions

by signing

and filing

an acceptance

(Citizens

Utilities Co.

v.

IPCB,

289 N.E.2d 642

(1972)).

By accepting

a

certificate

to be bound

after

the process

of enforcement had

begun,

the

Board provides

a profound incentive for variance

petitioners

to wait and see if

they will

“end up

in court”

before

deciding whether

to sign

the certificate.

If

no enforcement

action

is brought,

they have

a variance

but the conditions

of the

variance

are unenforceable.

If enforcement

is brought,

the

variance petitioner

can decide which presents the greater

burden:

complying with the conditions

or defending

the

enforcement action.

To me,

this

is neither good law nor good policy.

The

Illinois Environmental Protection Agency will now have no

reasonable method

to determine who intends

to comply with

variance conditions except by bringing

an enforcement action.

Accordingly,

I dissent

Member

of the Board

82—03

---

I, Dorothy M.

Gunn, Clerk

of the Illinois Pollution Control

Board,

hereby certify

that the above Dissenting Opinion was

submitted on

the

9~Z

day

of

____________________,

1987.

Dorothy

M. Gunn, Clerk

Illinois Pollution Control Board

82—04