ILLINOIS POLLUTION CONTROL BOARD
    October
    22,
    1981
    ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
    )
    )
    Complainant,
    )
    PCB 80—22
    v.
    )
    PCB 80—193
    )
    Consolidated
    CATERPILLAR TRACTOR COMPANY,
    )
    Respondent.
    DISSENTING OPINION
    (by ~J.Anderson):
    I dissent because I believe a) the Board should have granted
    the Agency’s motion
    (requesting that the Board modify its original
    Opinion and Order of August 20, 1981)
    and entered separate Opinions
    and Orders addressing the enforcement action and the variance
    petition and b) the reasoning used by the Board regarding the
    conditions
    led to a refusal
    to modify its original Order even to
    rule on the variance, thus leaving Caterpillar and the Agency in
    a confusing limbo
    as
    to whether or not Caterpillar was granted a
    variance.
    The Board states that,
    since it is ordering the same
    corrective action pursuant to the enforcement action as it would
    have in the variance petition,
    it “need not distin~uishsuch a
    plan as a compliance order or a variance condition
    as long as
    “the elements of proof for each proceeding is satisfied by the
    record”.
    I believe this reasoning leads to some unfortunate results.
    First,
    the Board must distinguish between enforcement actions
    and variance petitions, whether or not the plans are the same,
    in order to act upon them.
    In its Order of August 20, the Board
    does nothing about the variance petition even though the Opinion
    acknowledges sufficient future hardship.
    Is variance now granted
    by operation of law?
    Second, the Board should be especially careful not to appear
    to ignore the statutory framework under which quasi—judicial or
    quasi—legislative conditions are imposed, just because the con-
    ditions themselves are the same.
    This
    is especially important
    in light of the Board’s considerable recent efforts to preserve
    these distinctions in the Act, distinctions that have been
    sustained by the Courts, and affect the administrative,
    appeal
    and review focus.
    43—527
    2
    The enforcement Order does not bring Caterpillar into
    compliance with any Board regulations until those conditions
    are fulfilled.
    A variance grant would bring Caterpillar into
    compliance while the conditions are being fulfilled.
    I believe
    that Caterpillar’s petition for variance reflects its appreciation,
    though belated, of the value of giving the conditions the status
    of short term “temporary regulations” in a variance,
    so as to be
    in compliance while it seeks a better solution to its problems
    than its prior hit and miss approach.
    The Board could have made clear, through the separate grant
    of variance, that it did not “forgive” past non—compliance even
    though the “good faith” mitigating factors considered in this
    enforcement action resulted in a fine not being imposed.
    I have expressed similar concern in an earlier dissent in
    IEPA v.
    City of Abingdon,
    PCB 80—105
    (June 10,
    1981).
    The Board’s
    recent separate Opinions and Orders addressing enforcement and
    variance actions concerning Illinois Fruit and Produce Company
    PCB 80—181,
    PCB 81—104
    (October
    8,
    1981) serve to avoid the
    uncertainty created in this case.
    These cases should have been
    handled in a similar fashion.
    ‘7
    Joan G. Anderson
    I,
    Christan L. Moffett, Clerk of the Illinois Pollution
    Control Board, hereby certify that t1~eabove Dissenting Opinion
    was filed on the ~
    day of
    ~
    ,
    1981.
    /
    ~
    ~
    ____
    Christan L. Moffétt,
    Clerk
    Illinois Pollut~ionControl Board
    4
    3—528

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