ILLINOIS POLLUTION CONTROL BOARD
    April 3, 2003
     
    THE ENSIGN-BICKFORD COMPANY,
     
    Petitioner,
     
    v.
     
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
     
    Respondent.
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    PCB 02-159
    (Variance - Air)
     
    ORDER OF THE BOARD (by W.A. Marovitz):
     
    This matter is before the Board on the Ensign-Bickford Company’s (EBCo) motion to
    transfer variance (motion) filed on March 19, 2003. The motion represents that the
    Environmental Protection Agency (Agency) agrees with the request. Mot. at 2. For the reasons
    explained below, the Board denies the motion.
     
    BACKGROUND
     
    On June 20, 2002, the Board granted EBCo a variance pursuant to 35 Ill. Adm. Code
    237.103, to open burn explosive waste and explosive-contaminated waste at its 456-acre facility
    near Wolf Lake in Union County. The Ensign-Bickford Company v. IEPA, PCB 02-159
    (June 20, 2002). The variance lasts until June 20, 2003, or six month after the Board rules on
    EBCo’s adjusted standard in AS 00-5. On March 20, 2003, the Board granted EBCo an adjusted
    standard for a term of ten years.
    In re
    Petition of the Ensign-Bickford Company for an Adjusted
    Standard from 35 Ill. Adm. Code 237.102, AS 00-5 (Mar. 20, 2003). The adjusted standard
    takes effect when the variance expires on June 20, 2003.
     
    MOTION
     
     
    In the motion, EBCo asks the Board to transfer the variance granted in June 20, 2002 to
    Dyno Nobel Inc.. The motion asserts Dyno Nobel will be the new operator of the Wolf Lake
    facility, if the May 3, 2003 closing occurs. Mot. 1-2. EBCo asks that the transfer of the variance
    be effective on May 3, 2003. Mot. at 1.
     
    EBCo explains that the pending transaction is a “purchase of certain assets by Dyno
    Nobel Inc..” Mot. at 1. Pursuant to the terms of the acquisition, the ownership of the facility
    will transfer to Tech Real Estate Holdings L.L.C., and the operational assets of the facility will
    transfer to Dyno Nobel Inc. Mot. at 2.
     
    EBCo states that EBCo has conferred with the Agency and both parties agree that transfer
    of the variance can be accomplished by Board order. Mot. at 2.
     
    2
     
    ANALYSIS
     
    The filing requirements for a variance are set forth at 35 Ill. Adm. Code 104.202. Among
    those requirements is Section 104.202(a), which states:
     
    Any person seeking a variance from any rule or regulation, requirement or order
    of the Board that would otherwise be applicable to that person may file a variance
    petition. 35 Ill. Adm. Code 202.
     
    Neither the Environmental Protection Act (Act) 415 ILCS 5
    et seq.
    nor the Board’s procedural
    rules address the specific type of relief EBCo seeks.
     
    The Board has previously granted a joint motion to substitute a petitioner and holder for a
    previously granted adjusted standard,
    see e.g.
     
    In re
    Petition of Commonwealth Edison Company
    for an Adjusted Standard from 35 Ill. Adm. Code 302.211(d) and (e), AS 96-10 (Mar. 16, 2000).
    In Commonwealth Edison the Board granted a joint motion filed by Commonwealth Edison
    (ComEd) and Midwest Generation, LLC (Midwest). The Board had previously granted ComEd
    an adjusted standard from the thermal standards for discharges of cooling water from some of
    ComEd’s generating stations.
    Id.
    Title to the generating stations was transferred from ComEd to
    Midwest on December 15, 1999.
    Id.
    The parties filed the joint motion on February 25, 2000,
    stating that the operations of the generating stations would not change as a result of the transfer,
    and the transfer of the facility did not affect the relevant factors that justified the grant of the
    adjusted standard.
    Id.
    Additionally, Midwest retained almost the entire workforce previously
    employed by ComEd.
    Id.
     
    Although EBCo asks that the variance be transferred to Dyno Nobel Inc., Dyno Nobel is
    not a party to the motion. The Board’s procedural rules do not provide for a third party to seek a
    variance or have a variance transferred on Dyno Nobel’s behalf. If in fact the May 3, 2003
    closing occurs, consistent with Section 104.202(a), Dyno Nobel may file a variance petition or
    other appropriate filing concerning this facility. For these reasons, the motion to transfer the
    variance is denied.
     
    IT IS SO ORDERED.
     
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
    adopted the above order on April 3, 2003, by a vote of 7-0.
     
     
      
      
      
      
      
      
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board
     

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