ILLINOIS POLLUTION CONTROL BOARD
    October 17, 1972
    GENERAL IRON INDUSTRIES,
    INC. et al.
    v.
    )
    #
    72—308
    ENVIRONMENTAL PROTECTION AGENCY
    Opinion & Order of the Board
    (by Mr. Currie):
    Our order of March
    7, 1972 directed General Iron,
    among
    other things,
    to complete installation of a baghouse at
    its secondary metals reclaiming facility in Chicago by
    July 31,
    1972,
    and granted a variance on strict conditions
    until that date
    (##
    71—297, 71-335,
    3 PCB 739).
    General
    Iron filed the present petition July 25,
    1972,
    less than
    a week before expiration of the variance, asking that it
    be extended
    to November 15 because of
    a two—month delay in
    delivery of the baghouse.
    As the Agency’s recommendation
    says,
    a 60—day delay in delivery,
    no matter how excusable,
    does not justify a 105-day extension of time in which to
    comply.
    There is no allegation that more than
    60 days’
    delay can be justified;
    indeed it
    is alleged that “It
    is not anticipated that any further delay will be encounter-
    ed in delivery or installation.”
    Thus the allegations, even
    if proved, are insufficient to support the grant of any
    variance beyond September 30, 1972.
    That date has passed,
    and there
    is therefore no need for us to decide at this
    point whether the variance should be extended to September
    30.
    The company’s future conduct does not depend upon
    whether it is absolved of liability for past activities,
    and the defense of justification will be available in the
    event a complaint
    is filed.
    Natibnal Gypsum Co. v.
    EPA,
    4~7l—98, 2 PCB 185 (August
    2,
    1971)
    The Agency’s recommendation makes grave allegations
    that conditions
    of
    the variance have been violated by the
    burning of insulated wire and by operation at production
    rates greatly exceeding those prescribed and agreed to by
    the company.
    There is no time for proof of such allegations
    before expiration of the 90 days in which the case must be
    decided, and we do not consider them today.
    If established
    they would bear upon the propriety of extending the variance
    as well as raising the question of affirmative sanctions.
    A complaint should be filed if the Agency wishes to press
    the matter.
    5
    —
    707
    —2—
    Insofar as the petition seeks relief beyond September
    30,
    1972,
    it is dismissed for failure to state a claim
    on which relief could be granted
    (PCB Regs., Ch.
    1,
    Rule
    405(b) (1)
    .
    Insofar as it seeks a declaration of non—lia-
    bility for actions before September 30,
    it is dismissed
    on the ground that the controversy is moot unless and until
    a complaint is filed, at which time a defense based on the
    same allegations wIll constitute an adequate remedy.
    I, Christan Moffett, Clerk of the Pollution Control Board,
    certify that the Board adopted the above Opinion
    & Order
    of the Board this
    17 day of October,
    1972, by a vote of
    5
    —
    708

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