ILLINOIS POLLUTION CONTROL BOARD
April 17, 1997
PEKIN ENERGY COMPANY,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 97-145
(Variance - Water)
ORDER OF THE BOARD (by R.C. Flemal):
On February 26, 1997 Pekin Energy Company (PEC) filed a petition for variance from
35 Ill. Adm. Code 309, or in the alternative, a ruling that a variance is not necessary because
no permit is needed for its ash settling pond. On March 21, 1997 the Illinois Environmental
Protection Agency (Agency) filed a motion to dismiss the variance petition. PEC filed an
initial response to the motion on March 28, 1997.
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The Agency contends that PEC is requesting a directed verdict under the guise of a
variance proceeding, and that the Board lacks jurisdiction over such issues. The Agency
contends as well that a declaration of nonliability for past conduct is improper, the instant
issues should be resolved in an enforcement action, PEC has alternative relief routes, and the
variance petition is insufficient.
PEC responds that it is indeed seeking a variance, not declaratory judgment, and that
the petition as submitted is sufficient as to the requirements in 35 Ill. Adm. Code 104.121.
PEC argues that the Board has the jurisdiction, which it has exercised in the past, to
“determine what law applies in order to establish eligibility for a permit, adjusted standard or
variance”, citing Illinois Power Company v. Illinois Environmental Protection Agency
(January 23, 1997), PCB 97-35 and Frederick Cooper Lamps, Inc. v. Illinois Environmental
Protection Agency (August 15, 1996), PCB 96-158. (Resp. at 4.)
PEC is correct that in the past the Board has found it necessary to make determinations,
in a variance context, regarding the applicability of regulations when petitioner claims the
regulations are arbitrary, unreasonable or capricious as applied to them. This determination
must be made by the Board prior to ascertaining the appropriate or necessary relief. When
squarely faced with the issue, the Appellate Court supported this reasoning in Village of Cary
v. IPCB
et.al
. and found:
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On March 25, 1997 PEC filed a motion for extension of time to file a response, that motion
is hereby denied.
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In our view it is manifestly appropriate that a regulation which is asserted to
be arbitrary, unreasonable or capricious as applied to a party be first
considered by the Pollution Control Board when raised in a variance
proceeding (see Monsanto v. Pollution Control Board, 67 Ill.2d 276, 288-91,
10 Ill. Dec. 231, 367 N.E.2d 684, 689-90 (1977)), and no section of the
Environmental Protection Act provides otherwise. We conclude that the
validity of a Board regulation as applied to a party may be raised in a variance
proceeding and that direct review of the order thereafter entered may be
sought pursuant to sections 29 and 41 of the Act.
(403 N.E.2d 83, 89, 82 Ill. App.2d 793 (2
nd
Dist. 1980).)
The Board has often found it necessary to approach variance requests in this manner.
In Amerock Corporation v. IEPA (September 20, 1985), PCB 84-62 the Board initially had to
determine that Amerock needed an NPDES permit for its stormwater discharges, before it was
able to go on to consider variance relief. In Precision Coatings, Inc. v. IEPA (February 20,
1985), PCB 84-117, the Board stated that petitioner had “clearly chosen to request variance to
avoid a possible enforcement action but has not agreed that the rule from which variance has
been requested is applicable to it. This is a proper procedural mechanism which results in the
question of applicability of the rule becoming the threshold issue. If the rule is inapplicable,
no variance is necessary and no inquiry into arbitrary or unreasonable hardship need be
made”.
The Board further enunciated its reasons for accepting variances in these circumstances
when, quoting comments made by the author of what was ultimately to become the Illinois
Environmental Protection Act, Professor D. Currie, it stated that the “elimination of the Board
remedy for determining the applicability of a regulation seems to have created a gap in the
statute… Uncertainty as to the meaning of a regulation can often be clarified by filing a
petition for variance; if there is no need for a variance because the regulation is inapplicable,
the Board can say so in its opinion”. (Container Corporation of America v. Environmental
Protection Agency (June 2, 1988), PCB 87-183.)
More recently in JLM Chemicals, Inc. (formerly BTL Specialty Resins Corporation) v.
Illinois Environmental Protection Agency (September 7, 1995), PCB 95-98 the Board was
faced with facts similar to the case at hand. In JLM Chemicals the Agency determined that the
byproduct from JLM/BTL’s phenol production unit was a K022 waste and accordingly was
required to be treated as a hazardous waste. The Board was asked to make a determination
that the byproduct was not a K022 hazardous waste, and if the Board determined it was, to
grant a variance. The Board found that the T105 bottoms material produced by JLM/BTL was
a K022 listed hazardous waste, and only then was it able to reasonably analyze the sufficiency
of the petition for variance. After considering the record as a whole, including the evidence
presented at hearing, the Board denied the variance request.
A motion to dismiss, like a motion for summary judgment, can succeed where the facts,
taken in a light most favorable to the party opposing the motion, prove that the movant is entitled
to dismissal as a matter of law. To dismiss in this instance, there can be no material facts in
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dispute that could reasonably support PEC’s position that its ash pond does not require a permit
pursuant to 35 Ill. Adm. Code 309.204. The Board finds that this determination cannot be made
at this time, without the benefit of a complete record established at hearing. Consistent with prior
case law, the Agency’s motion to dismiss is hereby denied. This matter will proceed to hearing as
expeditiously as possible to accumulate the information necessary for the Board to make a
decision in this matter.
The hearing must be scheduled and completed in a timely manner, consistent with
Board practices and the applicable decision deadline. The Board will assign a hearing officer
to conduct hearings consistent with this order, and the Clerk of the Board shall promptly issue
appropriate directions to that assigned hearing officer.
The assigned hearing officer shall inform the Clerk of the Board of the time and
location of the hearing at least 40 days in advance of hearing so that public notice of hearing
may be published. After hearing, the hearing officer shall submit an exhibit list, a statement
regarding credibility of witnesses, and all actual exhibits to the Board within five days of the
hearing.
Any briefing schedule shall provide for final filings as expeditiously as possible and, in
time-limited cases, no later than 30 days prior to the decision due date, which is the final
regularly scheduled Board meeting date on or before the statutory or deferred decision
deadline. Absent any future waivers of the decision deadline, the statutory decision deadline is
September 26, 1997; the Board meeting immediately preceding the decision deadline is
scheduled for September 18, 1997.
If after appropriate consultation with the parties, the parties fail to provide an
acceptable hearing date or if after an attempt the hearing officer is unable to consult with the
parties, the hearing officer shall unilaterally set a hearing date in conformance with the
schedule above. The hearing officer and the parties are encouraged to expedite this proceeding
as much as possible.
IT IS SO ORDERED.
Board Member Kathleen M. Hennessey abstained.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above order was adopted on the _____ day of ___________, 1997, by a vote of
______________.
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Dorothy M. Gunn, Clerk
Illinois Pollution Control Board