ILLINOIS POLLUTION CONTROL BOARD
    August
    1, 1985
    CONTINENTAL GRAIN COMPANY
    )
    (Seneca)
    )
    Petitioner,
    v.
    )
    PCB 84—96
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    Respondent.
    CONTINENTAL GRAIN COMPANY
    )
    (Havana)
    )
    )
    Petitioner,
    V.
    )
    PCB 84—104
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    )
    Respondent.
    ORDER OF THE BOARD
    (by 3.
    Anderson):
    On July 24,
    1985 the Agency moved
    the Board
    to reinstate
    motions to dismiss
    in this matter which had previously been
    considered
    by the Board at
    its April
    18,
    1985 meeting.
    No action
    was taken by the Board
    at that time due
    to
    a deadlock among
    the
    five Board Members present.
    The motion
    to reinstate is granted.
    As
    to the motions to dismiss,
    the pleadings before the Board
    for consideration are the Agency’s motions
    of March
    22,
    1985,
    Continental’s April
    8 responses and the Agency’s April 15 replies
    thereto.
    The parties agree
    that Continental’s Seneca and Havana
    grain handling facilities currently are not subject to the
    Watercraft Loading Rule of
    35 Ill, Adm. Code 212.462(d)
    (3);
    since
    the annual grain through—put at each facility has not
    exceeded
    a 30
    increase over the amount
    for which the facility
    was originally permitted, Continental has an exemption under
    Section 212.461(c).
    Continental nonetheless
    seeks variance from
    the watercraft loading rule on the grounds that
    if its through-
    put should increase by more than 30,
    it will
    lose the exemptions
    65-127
    for these
    two facilities,
    noting
    that
    it has already lost the
    exemptions
    for seven of
    its nine elevators.
    The Agency moves to dismiss
    on the grounds that no variance
    is currently necessary,
    and
    that Continental has not predicted
    when a violation will exist.
    Continental characterizes the
    condition of the grain market as one of “abject unpredictability”
    due
    to various political,
    economic, and weather factors,.and
    asserts that it should not
    be forced
    to lose
    the exemption
    for
    these
    two facilities before seeking variance relief.
    While
    the
    Agency
    is correct that the Board
    has dismissed actions
    for
    failure to prove
    that variance
    is necessary,
    based on
    the history
    of exemption loss
    for the Continental facilities
    the
    Board
    finds
    sufficient possibility of violations
    to allow these actions
    to
    proceed.
    The Agency’s motions
    to dismiss are denied.
    Having determined
    that these
    two actions may proceed,
    the
    Board notes that
    these,
    as well as the other seven
    related year—
    old variance pet!tions (PCB84—95,
    97,
    99,
    100,
    101,
    102,
    103),
    must proceed
    to hearing:
    the Board does not view with pleasure
    the long lingering on
    its docket
    of actions whose conclusion the
    Act contemplates should
    be achieved
    in 90 days.
    The Hearing
    Officer
    is requested
    to expedite the discovery
    in
    these actions
    so that they may proceed
    to hearing
    in the reasonably near
    future.
    IT
    IS SO ORDERED.
    J.
    D. Dumeile,
    B.
    Forcade and 3.
    Marlin dissented.
    I, Dorothy
    M.
    Gunn, Clerk of
    the Illinois Pollution Control
    Board, hereby certify that the above Order was adopted
    on
    the
    ~
    day of ________________________,
    1985, by
    a vote
    of
    ~
    )~.
    Dorothy M. ~3unn,Clerk
    Illinois Pollution Control Board
    65-128

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