ILLINOIS POLLUTION CONTROL BOARD

April

8,

1976

CATERPILLAR TRACTOR COMPANY,

)

Petitioner,

)

V.

)

PCB 75—499

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

CONCURRING OPINION

(by Mr.

Young):

I concur in the denial of this variance petition for

the reasons set forth in the Opinion.

Additionally, Section 35 of the Act provides that the

Board may grant variances after a findinq,

based on adequate

proof, that compliance with any rule or regulation of the

Board would impose an arbitrary or unreasonable hardship to

the extent consistent with applicable provisions

of the

Federal Water Pollution Control Act Amendments of 1972

(P.L.

92-500),

and regulations pursuant thereto

Emphasis

added.

P.L.

92-500 Section 301(b) (1) (A) requires that not later than

July

1,

1977, effluent limitations shall be achieved for point

sources which

shall require the application of the best practi-

cable control

technology currently available

as defined by

the Administrator of the USEPA pursuant to Section

304(b)

of

P.L.

92-500.

The petition before us

is totally void of any

proof that grant of the requested variance would be consistent

with the provisions of P,L.

92-500

arid the applicable

federal

regulations and

I could not grant

it on that basis alone.

In my opinion,

it is no longer sufficient for a variance

petitioner

to address his proof only

to the various elements

set forth in Chapter

3 of the Boardts Rules and Regulations,

the Procedural

Rules, prior Board decisions and the Environ-

mental Protection Act as in the past.

It seems

to me that the

Board is now constrained,

by legislative amendment to Section

35 of the Act

(P.A.

78-862),

to determine that a grant of

a

variance would be consistent with the provisions of P.L.

92-500

and the applicable federal regulations and that the petitioner

has the burden of establishing such consistency.

c.f.

Currie,

Enforcement Under Illinois Pollution Law,

70 Northwestern

U.

L.

Rev.

389,

411

(1975).

21—111

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—2—

I would also note that all Illinois dischargers are

required by Section 402 of P.L.

92—500

to obtain a National

Pollutant Discharge Elimination System Permit

(NPDES Permit)

for any point source discharge of pollutants

to the waters

of the United States which includes all Illinois waters.

Each NPDES permit is conditioned upon such discharge meeting

all applicable requirements

of Sections

301,

302,

306,

307,

308, and 403 of P.L.

92-500 and such other conditions

as the

Administrator of the USEPA has prescribed to carry out the

provisions of the Federal Water Pollution Control Act,

as

amended,

and the federal regulations adopted pursuant thereto.

A grant of variance by the Board from a state rule or regu-

lation does not amount to an amendment to a petitioner’s

federal NPDES discharge permit and,

in my opinion,

a variance

would not provide

a shield from any federal prosecution for

an NPDES permit violation which might be initiated by any

person under Section

505 of the Federal Water Pollution Control

Act or by action of the federal enforcement agencies.

While

I do not believe that appropriate amendment to an

NPDES permit by federal

authorities is

a condition precedent

to the grant of

a variance from the Water Pollution Rules and

Regulations,

I believe petitioner must provide proof that the

proposed variance

is consistent with applicable federal law

and regulations before the Board could grant the petition in

addition to petitioner providing proof sufficient to establish

the arbitrary and unreasonable burden of compliance required

by Section 35 of

the Act.

If either is missing the variance

cannot be granted in my opinion.

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J4nes L. Young

~T

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control Board, hereby

c ~~fy

the above Conqu ring Opinion

was submitted on the

________

day of

______________________

Illinois Pollution

1 Board