ILLINOIS POLLUTION CONTROL BOARD
    August
    1,
    1985
    CONTINENTAL GRAIN COMPANY
    )
    (Seneca)
    )
    )
    Petitioner,
    )
    )
    PCB 84-96
    )
    ILLINOIS ENVIRON~1ENTAL
    )
    PROTECTION
    AGENC.:’,
    )
    )
    Respondent.
    CONTINENTAL GRA:E~
    COMPANY
    )
    (Havana)
    )
    )
    Petitioner,
    )
    V.
    )
    PCB 84-104
    )
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    Respondent.
    DISSENTING STATEMENT (by J.D. Dumelle):
    Today’s denial of the IEPA’s Motion to Dismiss by
    a bare 4-3
    vote erases
    15 years of Board precedent.
    The
    Board
    has
    always
    held
    that
    a
    source
    must
    be
    in
    violation
    of
    Board
    rules
    or
    of
    the
    Act
    or
    about
    to
    be
    in
    violation
    because
    of
    necessary
    repair
    work
    or
    other
    certain
    events
    such
    as
    major
    reconstruction or
    a lagoon about to
    overtop.
    Here the Petitioner characterizes its situation as one of
    “abject unpredictability”.
    But are not all other dischargers
    to
    air or water
    or land in a similar situation?
    If
    a transformer
    burns
    out,
    an electrostatic precipitator may not work.
    If a
    chlorine
    shipment
    is
    delayed,
    then
    disinfection
    of
    a
    public
    water
    supply or
    of
    an effluent
    will
    cease,
    If
    a
    bulldozer
    breaks
    down,
    daily
    cover
    on
    a
    landfill cannot
    be spread.
    One
    can
    construct
    all
    sorts
    of
    “what
    ifs”
    and
    seek
    to
    obtain
    variance
    protection
    from
    them.
    But
    the
    Board
    has
    to
    set
    some
    threshold
    cond±~ionof
    eligibility.
    If
    Continental
    Grain
    does
    increase
    its
    t.h~ughput
    so
    as
    to
    be
    in
    violation
    it
    can
    then
    85-129
    -2--
    petition for a variance,
    Until then,
    the situation is highly
    speculative
    and,
    in
    fact,
    eliminates
    the
    statutory need
    to prove
    that
    an arbitrary or unreasonable hardship exists
    or will exist
    shortly.
    See Stein, Hall and Company v.
    IEPA, PCB 73-561,
    January
    3,
    1974, 10PCB579; State~rIllinois
    v,
    IEPA,
    PCB 74-352, December
    19,
    1974,
    14PCB757; Ci~E~
    of
    MascoutTh
    v.
    IEPA,
    PCB 75-295,
    August
    7,
    1975,
    18PCB333;
    and
    CiE~of
    Breese
    ~T
    ~
    PCB 77-200,
    August
    4,
    1977,
    27PCB207, and Septe~er 15,
    1~77,
    27PCB467.
    Administrative agencies and boards
    are not legally bound by
    precedent.
    Each case is unique and may be decided in
    a different
    manner from others,
    But precedent gives guidance to the public
    and enables them to forecast the
    likely
    decision of the Board and
    thus
    be guided
    in
    advance.
    From early on in its existence the
    Board has tried to follow its own precedents.
    Here the majority
    has
    adopted
    “abject
    unpredictability”
    as
    a
    threshold
    standard
    for
    a
    variance.
    That
    is
    a
    standard
    which
    can
    apply
    to
    anyone
    and
    thus
    is
    not
    a
    standard,
    Dissenting
    Statement
    I,
    Dorothy
    M.
    Gunn,
    Clerk
    of
    the
    Illinois
    Pollution
    Control
    Board, hereby certify that
    the
    above
    Dissenting
    Statement
    was
    submitted on the
    L~6’1’
    day of
    ___________________,
    1985.
    lx.
    ~
    Dorothy
    M.
    Gu~,
    Clerk
    Illinois Pollution Control Board
    65-130

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