ILLINOIS POLLUTION CONTROL BOARD
March
 3,
 1977
ENVIRONMENTAL
 PROTECTION AGENCY,
 )
)
Complainant,
v.
 )
 PCB 75—388
CLARK OIL
 AND
 REFINING CORPORATION,
 )
Respondent.
ORDER OF THE BOARD
 (by Mr. Young):
This matter is before the Board on Respondent’s Notion
for Reconsideration
 of our Opinion and Order in
 this
matter.
The Agency
 filed an Objection to the grant of this Motion
and both parties have additionally
 filed certain affidavits
an’d material in response to our Order of December 16,
 1976.
In
 the
 instant
 Notion,
 Respondent
 argues
 three
 reasons
why the Board should reconsider this matter.
 First, Respondent
argues that the Board erred in finding that Respondent had
ootions
 available to it other than ceasinq operations.
 In
explanation why Clark did not choose to file
 a variance oeti-
tion, Clark cites four cases in support of its contention
that such application would have been a useless act.
 Mt.
Carmel Public Utility v.
 EPA, PCB 71-15,
 1 PCB 469; York
Center Comm. Coop v. EPA, PCB 72-7,
 3
 PCJ3 485; EPA v. Holland
 Ice Cream and Custard Co..,
 PCB 71-319,
 3 PCB 587; Loesch
Dairy Co.
 v.
 EPA, PCB 72-93,
 4 PCB 69.
 The Board beff~es,
however,
 that all of the cited cases are readily distinguishable.
In the instant matter,
 unlike any of the cited
 cases,
 the variance
petition would have involved a request to employ new technology.
In each of
 the cited
 cases,
 the netitioner ~imp1y wanted
 a
I iccnse
 Lu
 con Lirtue
 to pollute but was unwillinq
 to enter into
,any proqram to achieve compliance.
 This inaction the Board
will not condone, but petitions involving experimental techno-
logy stand on entirely different grounds.
 As a matter of fact,
it is only through the variance procedure that
 a person can
obtain authorization to utilize such technology if its use is
expected
 to violate existing regulations.
 The Board realizes
full well that advances in both production and control techno-
logy will
continue to occur, but exoects at the same time that
persons employing such technoloqy will do so only under a
variance granted by the Board.
 To allow any other procedure,
such
 as
 emDloyed
 by
 Clark
 in
 this
 matter,
 will
 lead
 to
 general
chaos in the State’s pollution control proqram.
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—
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—2—
In addition to utilizing the
variance
 procedure,
 the
Board
 believes
 Clark
 could
 have
 operated
 within
 the
 law
 by
following
 a
 much
 simpler
 course
 of
 action.
 In
 the
 fall
 of
1972, when Clark decided to install the experimental tech-
nology, Clark could have avoided
all its difficulties
 if it
had
decided
 instead
 to
 install
 a
 carbon
 monoxide
 boiler.
Havinu
deliberately and unilaterally decided to
utilize
untested technology, Clark is not now in
 a position to argue
that
 it
 had
 no
 options
 available.
 Options
 were
 available
to Clark, but they were
rejected.
Respondent
 once
 again
 argues
 in
 this
 Motion
 that
 all
 of
its problems occurred
because the Agency acted arbitrarily
and unreasonably with
its permit application.
 On page three
 of its Reply of December 17,
 1976, Respondent states:
What
 the
 Respondent
 has
 presented
 to
 this
Board
 in
 its
 Motion
 pursuant
 to
 Procedural
Rule
 334
 is
 evidence,
 the
 permit,
 which
conclusively
 demonstrates
 that
 the
 Agency’s
failure
 to
 issue
 a
 permit
 with
 the
 same
 data
before it as was before it when it did issue
the
 permit
 in
 August,
 1976,
 was
 arbitrary,
unreasonable
 and
 contrary
 to
 the
 Illinois
Environmental Protection Act.
 All information
was supplied to the Agency before the hearing
on this cause.
 The facts affied to by
Mr.
Keith J. Conklin are not to the contrary.
 In
fact,
 the Agency does not contest that it had
all the pertinent information before it prior
to the hearing on this cause.
 (Objection,
Para.
 3.)
 What the Agency did was to wait
until long after the hearing on this matter
to do what it was required by law to have done
prior
 to the hearing:
 issue a permit.
The
 Board
 finds
 this
 statement
 at
 variance
 with
 the
 facts;
Respondent’s
 own
 Memorandum
 of
 January
 24,
 1977,
 I~xhihit
 #3,
indicates
 thai.:
 not
 only
 stack
 testing
 data,
 hut
 other
 information
as
 well,
 was
 submitted
 to
 the
 T\qoflcy
 after
 the hear
 i nt
 i n t~is
matter.
 In addition
 to
 this,
 Clark’s
 correspondence
 to
 the
Agency
 dated
 August
 20,
 1976,
 indicates
 there
 has
 been
 a
 change
in
 Clark’s
 operating
 conditions.
 (Aqency
 Affidavit
 of
 January
25,
 1977,
 Exh.
 A.)
 The
 permit
 finally
 issued
 by
 the
 Agency
reflects
 this
 change
 as
 the
 permit
 was
 conditioned
 upon
 the
 FCC
unit operating with a generator bed level not exceeding
 90 inches
of water.
As
 in our Opinion, the Board is once again unable
 to find
that the Agency acted either arbitrarily or unreasonably with
this December 1975 permit application.
 Whatever the case,
 the
25
—
 14
—3—
Board reminds Clark that the operating permit was required by
February
 1,
 1973, not December of 1975 when
the apnlication was
filed.
Thirdly, Respondent
argues
that
 the
 Board
 should
 reconsider
and reverse
 its assessment of a penalty.
 In support of this,
Respondent sets
 forth the two issues discussed above and,
 in
addition to this, Respondent submits
 no penalty should be
assessed because compliance with the regulations has finally
been achieved some 30 months after it was required.
 Although
no authority for this position was cited,
 the decision of the
Supreme Court in I~ystikTaoe v. PCB
 (1975)
 61)
 Ill.
 2d 330
does lend some guidance.
 In that case,
 the Court upheld a
$3,500.00 oenalty which was assessed because Mystik installed
and ouerated certain
 equipment
 despite
 Agency
 denial
 of
 permits
for the equipment.
 The Board sees no
 reason
 why
 Clark
 should
stand on any
better ground than Mystik.
 Clark’s violation
resulted directly from its own unilateral and deliberate decision
not
 to install the approved and existing technology or to seek
a variance to utilize experimental technology.
 An additional
aggravating factor in this matter, not present
 in Mystik,
 is
that the violation was for a very extended period of time.
The Board has consistently held that the permit system is
a cornerstone of the environmental protection effort.
 See, e.g.,
In the Matter of Emission Standards,
 R7l—23,
 4 PCB 298,
 303
(4/3/72); EPA v. Hoffman
 & Sons, PCB 71—300,
 12 PCB 413,
 414
(1974); Borg-Warner
 v. EPA,
 PCB 74-115,
 12 PCB 585
 (1974).
 Cf.,
EPA v. E
 & E Hauling, PCB 74-473
 (3/26/75)
 (Solid Waste Permits).
The use of the penalty power as an economic incentive for com-
pliance with the permit requirement has been upheld in Mystik
Tape, su~ra, and other cases;
 e.g., Baker
 v.
 PCB,
 32 Ill.App.3d
660,
 336N.E.2d 325,
 328
 (5th Dist.,
 1975), aff’g.
 PCB 72—23
(Sept.
 12,
 1972).
 Without the availability of that incentive,
a recalcitrant offender is left in a position superior to
similarly situated emitters who have complied.
 In light of
the length of the violation, the penalty here is minimal.
For the reasons set forth herein, Respondent’s Motion for
Reconsideration
 is denied.
IT
 IS SO ORDERED.
I,
 Christan L. Moffett, Clerk of the Illinois Pollution
Control ~8ard,
 hereby certify the above Order was adopted on
3
 day of
__________________,
 1977 by
 a vote of
trol Board
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