ILLINOIS

POLLUTION

CONTROL

BOARI)

September

29,

1977

ILLINI

BEEF

PACKERS,

INC.,

Petitioner,

v.

)

PCB

76—117

ENVIRONMENTAL

PROTECTION

AGENCY,

Respondent.

CONCURRING

OPINION

(by

Mr.

Young):

I

concur

in

the

grant

of

this

variance

from

Rule

102

of

Chapter

2

for

the reasons

set

forth

in

the Opinion.

I am

much

less

comfortable

with

the

grant

of

a

variance

from

Section

9(a)

of

the

Act,

David

P.

Currie,

Professor

of Law,

University

of

Chicago,

and the first

Chairman of

th~

Pollution Control Board, observed

“that Section

35

(of the Act,

appears

to allow

variances

only

from Board

reoulations

and

orders,

not

from

the statute itself;

ii,

(1) Professor

Currie

suggests

that it may be possible to

ignore the omission

as

a typographical error but points out

the difficulty

in doing so in

light of

the

deleted language in

Section

35

of

the Act

as

proposed which referred separately

to

“any provision of this Act’~ (Currie, Illinois Pollution Law

Enforcement,

(1975)

70 Northwestern L.

Rev,

409, note 95).

The Board has,

however, granted

variances

from

the

pro-

visions of

the Act beginning

as

early as Deere

& Co~

V.

EPA,

1 PCB 129

(1970)

and

as

recently as

Illinois Brick Co.

v. EPA,

16 PCB 561

(1975)

The

reasoning

of

the First District Appellate Court in

W.

F. Hall Printing Company v. Environmental Protection Agency,

(1974)

306 N~E,~2d595,

at 598—99, might be extended

to allow

variance from the statute, particularly in

the

case of a variance

from Section

9(c)

of the

Act given prior to adoption of Board

regulations

(1)

Currie,

David P., Pollution,

Cases and Materials,

(1975) West Publishing Company,

p.

137.

2?~599’

~

---

an

i

~

ied

~

iestion

whether

the pro\lsi

n~’or the ~ct

br

example,

Sect2,.

wouio ne vio’ative of Article

XI,

Section

2

Oc

or if the constitutional Light

is

adequately p’~

by a~p1icatio~of

the cmmon

law

of

nuisance

~4

ti~guishedby the grant

of

tne

variance.

ance from

(a) or 12(a),

~e

Constitution

acted thereafter

is

not ex-

J, Christan

I. MorLe~t, Clerk of

the

Ill

Pollution

Con rol Board, hereby certify the above C9ncur

Opinion was

submitted to me or

the

9”~

day of ~

______,

1977.

~h~nL,ffe1

~

Illinois Polluti

ontrol Board

_Z&—600