ILLINOIS POLLUTION CONTROL BOARD
    July 10, 1997
    FOX WATERWAY AGENCY,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 98-13
    (Provisional Variance - Water)
    ORDER OF THE BOARD (by C.A. Manning):
    Pursuant to Section 35(b) of the Environmental Protection Act (Act) (415 ILCS 5/35(b)
    (1996)), the Fox Waterway Agency (petitioner) has requested that the Board grant a
    provisional variance from 35 Ill. Adm. Code 304.105, 304.106, 304.123(b), and 304.124 as
    they apply to the total suspended solids, un-ionized ammonia, and phosphorus limits from its
    Ackerman Island Sediment Disposal Facility (facility) (near the confluence of the Nippersink,
    Fox, and Grass Lakes) in Fox Lake, McHenry County, Illinois. Such request for a provisional
    variance and the notification of recommendation were filed with the Board by the Illinois
    Environmental Protection Agency (Agency) on July 8, 1997. Pursuant to Section 35(b) of the
    Act, the Board must issue the variance within two (2) days of this filing.
    Pursuant to Section 35(b) of the Act, the Agency, by and through its Director, Mary A.
    Gade, seeks a provisional variance to allow petitioner to continue to operate its facility while
    conducting dredging operations near Ackerman Island. Specifically, the Agency recommends
    that we grant petitioner a 21-day provisional variance for its McHenry County facility from 35
    Ill. Adm. Code 304.105, 304.106, 304.123(b), and 304.124 and imposed by Agency
    Operating Permit No. 1993-EA-3060. This variance period shall commence on July 3, 1997,
    and continue until July 24, 1997.
    This recommendation is essentially that the Board extend a previously-granted
    provisional variance that expired July 3, 1997. The docket number of the provisional variance
    was PCB 97-201, granted on May 15, 1997.
    The Agency recommends that the Board grant the requested provisional variance with
    specified conditions. The Agency agrees that the dredging operations are necessary. The
    Agency anticipates that the requested provisional variance would have minimal environmental
    impact on the receiving stream and is unaware of any public water supplies that the requested
    provisional variance would adversely impact. The Agency maintains that a grant of a
    provisional variance would violate no federal laws. The Agency believes that a denial of the
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    requested provisional variance would create an arbitrary or unreasonable hardship on the
    petitioner.
    Provisional variances are by their very nature temporary. The responsibilities of the
    Agency and the Board in these short-term provisional variances are different from the
    responsibilities in standard variances. See 415 ILCS 5/35(b), 36(c) (1996). In provisional
    variances it is the responsibility of the Agency to make the technical determinations and
    finding of arbitrary or unreasonable hardship. The Board’s responsibility is to adopt a formal
    order, to assure the formal maintenance of the record, to assure the enforceability of the
    variance, and to provide notification of the action by a press release.
    Having received the Agency recommendation that a denial of the requested relief would
    impose an arbitrary or unreasonable hardship, the Board hereby grants the petitioner a
    provisional variance from 35 Ill. Adm. Code 304.105, 304.106, 304.123(b), and 304.124 and
    imposed by Agency Operating Permit No. 1993-EA-3060, on the following conditions:
    1.
    The term of this provisional variance shall commence on July 3, 1997 and
    continue until July 24, 1997.
    2.
    Petitioner shall operate its plant during the term of this provisional variance in a
    manner that assures the best effluent practicable, however, in no case shall
    petitioner exceed an 80 mg/l total suspended solids limit.
    3.
    Petitioner shall notify Chris Kallis at the Agency’s Maywood regional office by
    telephone, 708/338-7900, when dredging operations begin. Petitioner shall
    confirm this notice in writing within five (5) days, addressed as follows:
    Illinois Environmental Protection Agency
    Bureau of Water, Compliance Assurance Section
    Attention Mr. Mark T. Books
    2200 Churchill Road
    P.O. Box 19276
    Springfield, Illinois 62794-9276
    Petitioner shall execute a copy of a certificate of acceptance of this provisional variance
    and forward that copy to the Agency addressed as in the written notice required in the above
    condition; petitioner shall forward that copy within ten (10) days of the date of this order of
    the Board, and the certificate of acceptance shall take the following form:
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    CERTIFICATION
    I (We), _________________________________, hereby accept
    and agree to be bound by all terms and conditions of the order of
    the Pollution Control Board in PCB 98-13, July 10, 1997.
    _____________________________________
    Petitioner
    _____________________________________
    Authorized Agent
    _____________________________________
    Title
    _____________________________________
    Date
    IT IS SO ORDERED.
    Board Member K.M. Hennessey abstained.
    Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1996)) provides for
    the appeal of final Board orders to the Illinois Appellate Court within 35 days of service of this
    order. Illinois Supreme Court Rule 335 establishes such filing requirements. See 145 Ill. 2d
    R. 335; see also 35 Ill. Adm. Code 101.246, Motions for Reconsideration.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above order was adopted on the 10th day of July 1997, by a vote of 5-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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