ILLINOIS POLLUTION CONTROL BOARD

January 30, 1973

ARMAK COMPANY

vs.

)

PCB 72—414

72—415

ENVIRONMENTAL PROTECTION AGENCY

)

(Consolidated)

Leo Wykell and Lawrence Gunnels, Attorneys for Petitioner

Steven C.

Bonaquidi,

Assistant Attorney General for the EPA

CONCURRING OPINION OF MR. HENSS AND MR. DUMELLE:

I concur in the denial of the variances requested by Petitioner

but do not agree with the language used by the other two Board

Members,

We

should recognize that

a certain amount of confusion

and misunderstanding accompanied the development of the new permit

program.

Citizens were uncertain of the requirements of the new

regulation.

Workshops and educational programs conducted by the

EPA were of considerable assistance

in educating the public, but

the forms still seemed rather formidable

to many people.

I believe

that some of the forms should be simplified, and that such revision,

as well

as workshop programs, will aid the public in understanding

the

Regulations and in complying with them.

In our progress toward

a cleaner environment we must take care not to impose

a

different

burden on the public——the burden of excessive and unsympathetic

bureaucracy.

Recognizing the

fact that the time schedule is rather tight

and that some persons might not be able to comply with it,

I

would avoid giving the impression that there will be a virtually

unyielding adherence to the deadlines.

In this case Petitioner Armak simply failed to meet its burden

of proof.

Armak claimed that a hardship would be created if the

Company were required to meet the deadline for submission of the

permit application, but the Company did not at any time give us

specific information regarding the data it needed to submit or the

amount of work and time required to produce the data.

There

is no

description of the Armak equipment or the type of testing which will

be conducted.

1n

November 1972 Armak entered into

a contract with

a firm dealing in technology research to aonduct “efficiency testing”

on its emission control equipment.

Armak said this may “take four

monthsT’.

Why?

What

is involved in the study?

How much equipment?

What type?

How much effort is required?

There is no showing that

there are two pieces of equipment or 2,000. Armak has simply

failed

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to submit any detail whatsoever from which we could conclude

that the deadline does impose an unreasonable hardship on the

Company.

The final paragraph of the Majority Opinion includes

language which could be construed as an open invitation to the

Agency “or anyone else”

to prosecute Armak.

I

feel

that it

is

wrong for the Board to make this suggestion.

Armak may still

make proof of its hardship in a subsequent proceeding.

Our

suggestion that prosecution be initiated may compromise our

fairness in deciding the issue.

This Board does not have the

right to initiate enforcement cases and should not invite a

prosecution against any person or company.

bonald

A. Henss, Member

I

concur in Mr. Henss’

sentiments as

to the need for educa-

tion on the new permit program and a recognition of

the problems

of its start-up.

And while I agree with him on the failure to

meet the burden of proof

I also feel that

Armak

did not assign

sufficient manpower to the task and this was a factor in my

decision.

/

Jacob

D.

Dunielle, Member

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

Board, certify that the

above concurring opinion of Mr. Henss

r.

Dumelie was filed by them

on the

L’4~

day of

~

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