ILLINOIS POLLUTION CONTROL BOARD

April 15, 1982

AURORA METALS DIVISION,

)

AURORA INDUSTRIES, INC.,

Petitioner,

v.

)

PCB 82—12

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, )

Respondent.

DISSENTING OPINION (by J. Anderson):

I dissent because I believe the Board in this case should

have denied outright the alternative motion to dismiss and

explained why, i.e. that a variance (or site specific regalation)

is necessary for the relief sought.

Core sands are specifically listed as an industrial

process waste, a special waste. The merits of the petitioner~s

assertions, including the assertion that their core sands art~

not

environmentally harmful, are a matter for Board determination.

The Agency’s assessment is properly contained in an Agency

Recommendation, not in a motion to dismiss.

The Agency’s interpretation of the general language in one

part of this statewide rule in a manner that selectively voids

the applicability of a specific “laundry list” that is included

in the same rule is not correct. The mechanisms of variance or

site specific petitions were included in the Act precisely because

it was anticipated at the outset that individual circumstances

might need a distinctive approach.

It should also be noted that the “general present or

potential threat.. language in the “industrial process waste”

definition recognizes that the listings were not intended to be

all—encompassing. That is why the rule also contains “includes

but is not limited tofl..” before the specific listings.

By delaying the ruling and allowing the case to proceed on

its merits, the Board appears to he implying that a determination

of the merits of the petition is necessary before deciding the

procedu~e to be used. This is backwards. If the Board ultimately

agrees with the Agency’s assessment, it would express its findings

through a grant of variance, not a dismissal of the petition.

46~-99

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2

To further delay such a ruling risks continuing the confuston

that started with the Agency~sMotion to Dismiss.

I believe the Agency is correct in its expectation that the

Board would initially rule on its Motion to Dismiss. By denying

that motion, both the petitioner and the Agency would have fully

understood that there needs to be sufficient information for the

Board to rule on the merits of the petitioner’s particular

core

sand problem, and not on the question of whether the Board need

deal with the problem at all.

/

:‘/~14&”

Joan G. Anderson

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control Board, hereby certify that the above Dissenting Opinion

was filed on the

ç~3~’~

day of

_______________,

1982.

Christan L. Mo y~tJt, L7lerk

Illinois PollutTh~fiControl Board

46—100