ILLINOIS POLLUTION CONTROL BOARD
November
8, 1984
CONTINENTAL
GRAIN
COMPANY,
Petitioner,
)
PCB 84—95
through
PCB 84—104
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
ORDER
OF THE BOARD (by J.
D.
Dumelle):
On October 21, 1984 Petitioner in
this matter filed a motion
asking the Board to
reconsider those
parts
of
the orders
requesting
more information which
were issued
in
each of these cases
on
September
20, 1984.
Those
orders, which also denied the Respondent’s
Motions to Dismiss, required
Petitioner to comply with 35 Ill.
Adm, Code 104.121 by October
22, 1984.
The Agency filed
its
Responses to the
Motion for Reconsideration on November 7,
1984.
petitioner argues that
the Petitions for Variance establish
that the requests for
relief are not “frivolous”,
and adequately
give notice to the Board
and the Agency of “the claim for purposes
of discovery and hearing.”
Petitioner also argues that
35
Ill.
Adm. Code 104.180 “is
intended to
protect the
Petitioner by
allowing it
to
avoid
a burdensome adversary hearing where
it is
readily apparent that a variance should
be granted.”
Petitioner
further argues that it is irrelevant
that the Agency have sufficient
information to make a Recommendation,
and that the Agency
may
“decline to make a Recommendation or recommend to deny
the Petitions.~
Continuing,
Petitioner alleges that it is unnecessary to
force
Continental Grain
Company to amend its petitions to include
detailed factual information when “such an action will
have
absolutely no effect whatsoever on the Agency’s obvious
pre~
disposition
to
contest the petitions.”
Finally,
Petitioner
claims that it would be irrational and unduly burdensome
to
require Petitioner to include the detailed information
contained
in
permit applications for each elevator at issue, since
the
Agency already has the same.
First, whether a Petition for Variance is
“frivolous’1
is
irrelevant in a variance proceeding.
When
the Board
initially
reviews petitions filed,
it
is to ascertain whether they
contain
sufficient information for the Board to make a
decision whether
and on what terms to
grant variance from its regulations.
Aided
by the Respondent’s liotions to Dismiss these matters,
it decid~1
that more information was
needed for the Board,
as well
as to~
the Agency,
“to be reasonably informed about
Petitioner’s cir—
61-41
—2—
cumstances...,~and, therefore, on September 20, 1984 issued
the
orders requesting the information required under 35
Ill,
Adm,
Code 104.121 for each of these Petitions.
Secondly, Petitioner states that it need not provide the
entirety of
its case at this time because discovery,
the
hearing
and post—hearing arguments will “flesh out” the details,
Petitions
for Variance are not so that the Petitioner can establish “a
claim” to he elaborated on through discovery and hearing.
The
Board reminds Petitioner that statutorily it must decide
whether
to grant relief within ninety (90) days from the date a
complete
petition is filed,
and any waiver of that time frame
is
at Petitioner’s
discretion only.
There are sufficient difficulties presented
when this Board must make complex decisions on adequate
information
in the 90~daytime period.
To allow Petitioner to withold
relevant
information until
late in the process,
at hearing, would
frustrate
informed decision making by the Board,
For these reasons,
among
others,
the 8oard~sProcedural Rules require that the
“details”
be ~‘fleshedoutu in the Petition,
and if the necessary
information
is not contained
in the original filing,
the Board orders
that
the Petition be amended,
as
it did in these matters,
rather
than
dismissing the petitions
for
lack of information.
Contrary
to
Petitioner~sargument, 35 Ill. Mm. Code 104.180 is
not to protect
Petitioner
from providing sufficient information to substantiate
its request for relief from
the
Board’s regulations, but
to
insure that the Board has sufficient information from the Agency,
as well as from the Petitioner,
to make a decision.
Finally,
without this information it
is not “readily apparent” to
the
Board that Variance should be granted for each of these
petitions,
as alleged by Petitioner in its Motion,
As for Petitioner’s arguments that
it is irrelevant for
the
Agency to have the information requested, the Board
reminds
Petitioner that
it is relevant given Section 37(a)
of
the Act
which provides
in pertinent part that “the
Agency shall make a
recommendation to the Board as to the disposition of the
petition.”
(111.
Rev.
Stat. 1983, ch.
111½, par.
1037).
Section
104.180 of
the Board’s procedural rules requires that the Agency file
the
statutorily mandated Recommendation within thirty
(30)
days after
a complete petition is filed,
This
is to allow Petitioner
the
opportunity to review the same and address any issues
it raises
at hearing, as necessary.
Again, the information requested is
relevant and important to the Board’s decision making,
It does
not matter whether Petitioner believes the Agency predisposed,
or
that the Agency has information not contained
in the
petitions.
The Board does not have this information, and it is the Board
which the Petitioner must persuade that the requested relief
is
necessary.
Petitioner~sarguments indicate that it has confused
the
requests for variance from existing Board regulations
with en-
forcement
proceedings.
For that reason,
the Board has
granted
the motion for reconsideration and delineated the reasons
and
purpose for the more information orders.
However, the
Board
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denies Petitioner’s request to modify its September 20th
order,
except to allow Petitioner until December
7,
1984 to
amend its
petition as already ordered.
IT IS SO ORDERED,
I, Dorothy M.
Gunn, Clerk
of the Illinois Pollution Control
Board, hereby certify that the above Order was adopted
on the
day of
~
1984 by
a
vote of
~
~.
~)‘~,
/
Dorothy
M.
G’unn, Clerk
Illinois Pollution Control Board
61-43