ILLINOIS POLLUTION CONTROL BOARD

November 10, 1976

INCINERATOR, INC.,

Petitioner,

v.

)

PCB 76—237

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

DISSENTING OPINION (by Mr. Dumelle):

Because of the import of Train v. NRDC, 421 U.S. 60 (1975)

and Section 116 of the Clean Air Act it: is my feeling that this

variance cannot be granted. (See International Harvester v.

Environmental Protection Agency, Dissenting Opinion, PCB 75-271,

September 1976).

In Harvester the Board majority specifically stated that

the variance “does not purport to grant variance from federal

legislation or regulation” (p.4). No such statement appears in

the majority opinion in this cause. In its absence, one must

conclude that the instant variance is meant to be one from the

Federally-approved State implementation plan. Thus the rationale

advanced by the Board in Harvester evidently is not meant to apply

here.

Even

were

the

disc

atmer of i n nt:

t~o zmend the

St~iLu imple-

mentation plan placed in the majority opinion, my own feeling is

that air variances, where air quality has not been attained, cannot

be granted.

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273

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I, Christan L. Moffett, CLerk of the Illinois Pollution Control

Board, hereby certify the ab ye Dissenting Opinion was submitted on

the

1~4~’

day of

()

,

1976.

C~&nL.Mo~

Illinois Pollution ntrol Board

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