ILLINOIS POLLUTION CONTROL BOARD

September

 15, 1976

INTERNATIONAL HARVESTER,

Petitioner,

v.

)

 PCB 75—271

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

DISSENTING OPINION

 (by Mr. Dumelle):

My dissent in this

case

is on a matter of

 law and not on the

merits of

 this particular case.

 I agree with the majority that

Harvester’s emissions do in fact contribute to the violation of

national primary ambient air quality standards

 for particulate

matter

 in the Chicago area.

 Today’s date

 is long past July 31,

1975 which the Board agreed is the attainment date for these

standards for Illinois

 (See King—Seeley Company v.

 EPA,

 16 PCB 505,

April

24,

 1975).

I read Train v.

 NRDC,

 421 U.S.

60

 (1975)

 as prohibiting

the instant variance.

 The ending portion of opinion by Justice

Rehnquist states

The Agency

 (U.S.

 Environmental Protection

Agency)

 had properly concluded that the

revision mechanism of Section 110(a) (3)

(of the Clean Air Act)

 is available for

the approval

 of those variances which

do

 not.

:ornprorrii~u

the

bas i.c

s La Lutory

manda

 Lu that

with

carefully

circumscribed

eXcept

ions,

the

national

primary

ambient

air

standards

attained

in

not

than

three

years,

and

maintained thereafter.

 (7 ERC 1748)

(Parenthetical phrases added)

This case does not fit into the exceptions.

 Thus

 I do not

believe this Board can grant this variance as one which would be

allowable under the Clean Air Act.

—451

—2—

The majority opinion tries

 to term this variance as being one

from the State laws only.

 Three points must be discussed in this

regard.

First,

 the fact

 (if it is

 a fact)

 that no previous air variance

to the Board’s knowledge, has been “submitted to or ratified by

U.S. EPA as

 a change in the Illinois State Implementation Plan’1

(opinion,

p.

4).

 The Board’s agent for contact with the United

States Government

 is the Illinois Environmental Protection Agency.

See Section 4(k)

 and 4(m)

 of the Environmental Protection Act.

T?~

failure to submit Board variances for Federal approval does not

 make them of less force and effect.

Second,

 the enactment of a Board variance as

 a wholly exclusive

State variance is poor policy and should not be done.

 It frustrates

the intent of

 the Clean Air Act and may afford a degree of reliance

for a petitioner

 to use as

 a defence from Federal action.

Put

another way,

 a two-tier system can lead to “whip—sawing”.

Third,

 the Board may not be able to enact a wholly exclusive

State variance by merely s~Tng it has done so.

 A Board variance

is a change in the State Implementation Plan if nothing else than

in the physical fact that that source

 is allowed to continue to emit

(and thus violate air standards)

 beyond a Federally-mandated attain-

ment date.

 The question which is harder to answer from a legal stand-

point

 is “Do Board actions have to conform to Federal

 law?”

 Federal

program funds are received by the Illinois Environmental Protection

Agency on the basis of the existence of a Federally approvable

state program for air pollution control.

 This Board action and

similar variances yet

 to come may jeopardize those funds.

In addition to the guidance afforded by Train the effect of

Section 116

 of the Clean Act is also important.

 This Section

states

•

if an emission standard or limitation

is in effect under an applicable implemen-

tation plan or under section

 111 or

l2,

 such

~t~tu

 or poiltical subdivision may not adopt

or enforce any emission standard or limitation

which

less

stringent

than

the

standard

limitation under such plan or section.

(Emphasis added)

The instant variance is by definition an adoption of an

emission standard or limitation

 less stringent than the Illinois

implementation plan and is thus flatly prohibited.

23—452

Thus

 I believe that the majority distinction between

 a purely

State law variance and one that also has Federal effect is wrong.

The decision in this case breeches the intent of the Clean Air

Act in fact and in

 law;

it

 is poor policy;

 it certainly should

not be done because of past failure

 to transmit documents by

the Illinois Environmental Protection Agency and it may result

in Federal funds being

 lost to Illinois.

I respectfully dissent.

Submit

 d by:

Jacob

13.

 Dumelle

I, Christan

 L. Moffett, Clerk of the Illinois Pollution Control

Bo~rd, hereby certify the above Dissenting Opinion was submitted on the

~_day

 of October,

 1976.

~~nL.off~~’

1 ilinois

F’ollijL~.on

~Z~t~rol

Rodr(1

—

453