ILLINOIS POLLUTION CONTROL BOARD

August

18, 1983

CPC INTERNATIONAL,

INC.

Petitioner,

V.

)

PCB

83~11

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY

)

Respondent.

CONCURRING OPINION (by J.

D.

Dumelle):

While

I agree with the

denial

decision

I do

not agree with

some of the reasoning set forth on p.

3 of the majority opinion.

The sentence,

“However, CPC did not demonstrate that it is

now out of compliance”

is a new holding for this Board.

Where in the Environmental Protection Act does

it state

that a source must be “out of compliance” in order to obtain

a variance?

Suppose a firm is emitting particulate from an

electrostatic precipitator which is at the end of its useful

life,

The firm is now in compliance but might save vast

amounts of money if it were allowed by variance to install

a less expensive cyclone pending a permanent site~specific

rule change.

Since equipment replacement is not the issue here one

might argue that the instant situation is not comparable.

But the majority opinion makes no distinction.

The sentence

requires that a source be “out of compliance”

in order to

obtain a variance.

The real issue

is whether or not CPC will

suffer an

arbitrary or unreasonable hardship through spending about

$3,000,000 per year that might be avoided.

This record does

not give CPC~sfinancial condition.

Thus the hardship has

not been proven.

Let us not develop new precedents such as an “out of

compliance”

requirement for variances.

That holding

is not

even prefaced by an “in this case only” qualification.

53-221

---

2

I would have denied the variance on the technical defi—

ciences mentioned in the Interim Order in PCB 82—153 of this

date and for the failure to prove hardship as mentioned above.

I,

Christan L. Moffett, Clerk of the Illinois Pollution

Control Board, do hereby cer~fythat the above Concurring

Opinion was filed on the

~3

day of

1983.

RespectfuiA-~submitted,

Illinois Pol

Control Board

53-222