ILLINOIS POLLUTION CONTROL BOARD

June

10,

1981

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

Complainant,

PCB 80—105

CITY

OF ABINGDON,

an Illinois municipal corporation,

Respondent.

DISSENTING OPINION

(by J.

Anderson):

I believe that variance proceedings are necessary to addros:~

the circumstances

in this case.

I do not believe that

the

Board can,

or should,

accept ~

stipulation

in an enforcement action that allows a respondent to

continue to violate the Act and Board standards, with full facility

upgrading expected only

if

grant

funds are made available at some

uncertain future time, and where hardship has not been pleaded,

!~.ut:

merely presumed because of the community0s small

size.

The opinion itself,

in part, acknowledges

this proble~iby

requiring Abingdon to apply

for a variance

if

it

is still

in

noncompliance after five years

(Opinion,

p~ 5),

Unlike Rockdale

(see opinion and concurring opinion

in P3

78—136 IEPA v. Village of Rockdale,

May

14,

1981),

there are

no

offsetting circumstances in this case that would tend

to justiiy

an exception to the differing notice,

justification and deliber-

ation requirements for variance proceedings.

Nor do

I

believe that

the “reasonable delay” language of Section 33(b)

of the Act

is

a

substitute for

a variance, especially when the proof

of arhitrarj

or unreasonable hardship, required as an essential component

of~

variance proceedings, has not been supplied.

The conditions included

in an order granting reasonable

compliance time in an enforcement proceeding reflect an

underlyinq

expectation that compliance was,

at the time of the violation,

botli

affordable and “do—able”, but where practical considerations

make

an immediate cease and desist order unrealistic.

In addition,

mitigating circumstances are considered to ameliorate

the sanctions

for the proven non—compliance,

which is not “forgiven”.

In the

event that compliance is uniquely not affordable or

“do—able”,

the

Act provides variance relief

as

the “forgiveness” mechanism for

temporary non—compliance,

and site—specific regulatory power

for

long term non—compliance with

the general

standard.

An

enforcerient

action is not an appropriate vehicle to resolve such

probler~s.

42—25

---

2

To argue otherwise is to acknowledge

a) that the Board’s

Chapter

3 standards do not apply

(at least

for five years)

if 75

federal or state grant funding is not forthcoming and,

b)

the

Board will allow more of

a “pass”

in an enforcement proceeding

than when considering a variance petition.

Imposing a penalty

does not set things right——the Act does not allow payments to

continue noncompliance.

While

I agree that the Board should avoid excessive

“compartmentalizing”,

and while

I suspect that the City of Abingdon

might meet the requirements for a variance,

I do not believe that

the record in this case justifies the “flexible” approach taken

here.

The distinctions in standards of deliberation between

enforcement and variance proceedings should not be so blurred in a

stipulation that ultimately the Board loses

its needed flexibility

to deal with variance requests.

Joan G.

Anderson

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

Control Board, do hereby certify that the above Dissenting Opinion

was filed on the

~

F

day of

______________,

1981.

~

~44~cf

Christan L. Moff~.~±/Clerk

Illinois Pollutii~Control Board

42—26