ILLINOIS POLLUTION CONTROL BOARD
    November 10,
    1977
    CITY OF DECATUR
    & SANITARY
    DISTRICT OF DECATUR,
    )
    Petitioners,
    v.
    )
    PCB 77—218
    ENVIRONMENTAL PROTECTION AGENCY,
    )
    Respondent.
    OPINION AND ORDER OF THE BOARD
    (by Mr. Young):
    A Petition for Variance was filed with the Board on
    August 24,
    1977,
    by the City of Decatur and the Sanitary
    District of Decatur requesting the extension of
    a prior
    variance granted by the Board in PCB 76-2 for the proposed
    modification of their McKinley Avenue Diversion Control
    Facility in Decatur, Illinois.
    On September
    23,
    1977,
    the Environmental Protection
    Agency filed
    a Recommendation adverse to the grant of the
    variance and on October 13,
    1977, the Board ordered a
    hearing on the Petition.
    Since no waiver of the 90-day
    decision period established by Section
    38 of the Environ-
    mental Protection Act was
    filed by Petitioners,
    and finding
    no hearing record before us, the Board has no alternative
    but to dismiss
    the Petition with leave to refile.
    Until
    a
    hearing is held and the evidentiary facts
    in support of the
    Petition and Recommendation become a part of the record,
    the Board is not able to render a decision on the merits.
    In Material Service Corporation v.
    Illinois Environmental
    Protection Agency,
    et al.,
    41 Ill.App.3d
    192,
    354 N.E.2d 37,
    (Third District,
    1976),
    the court held that either Petitioner
    or the Respondent Agency are absolutely entitled
    to a hearing
    on a Variance Petition when the Agency has filed a Recoramenda—
    tion adverse to a grant of the Petition prior to action by
    the Board.
    The foregoing constitutes the Board’s findings of fact
    and conclusions of law in this matter.
    28
    —
    185
    —2—
    ORDER
    The Petition for Variance filed by Petitioners City of
    Decatur
    & Sanitary District of
    Decatur filed 7~ucust24,
    1977,
    is hereby dismissed with leave to refile.
    IT
    IS SO ORDERED.
    I, Christan L. Moffett, Clerk of the Illinois Pollution
    Control Board, hereby certify the above ppinion and Order were
    adopted
    the
    / ~
    ~‘
    day of
    ____,
    1977 by
    a
    ~
    _______
    ~~‘hnistanL. Moffett~)~qlerk
    illinois Pollution ~ntrol
    Board
    28
    -~
    186

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