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Epa v. Pollution Control Bd.





PETITION for review of order of Pollution Control Board.


The Environmental Protection Agency (hereinafter EPA) appeals from the decision and order of the Pollution Control Board (hereinafter PCB), wherein the PCB granted a variance to Mississippi River Grain Elevator, Inc. (hereinafter MRGE) from the PCB's Rules and Regulations governing grain handling facilities. MRGE had filed a petition (Ill. Rev. Stat. 1979, ch. 111 1/2, pars. 1035, 1037) asking a variance from Rules 103(b), 203(d) (8) (B) (ii) and 203(d) (8) (B) (iv).

MRGE operates a grain storage and handling facility in Pekin, on the Illinois River. Rule 103(b) requires it to obtain an operating permit for the facility, while Rule 203 requires MRGE to install equipment to control particulate emissions at the truck-dump area and barge-loading area of their Pekin facility. MRGE was having design and cost difficulties in obtaining the necessary pollution control equipment to be in compliance, and it sought a variance because of an alleged unreasonable hardship in meeting compliance requirements.

In its petition, MRGE indicated its problems with obtaining good, workable equipment that would satisfy applicable requirements and also its commitment to obtaining such equipment at the earliest possible time. It sought a variance until January 15, 1981, at which time it felt the installation of the conforming equipment would be completed. The petition detailed the problems encountered with obtaining suitable equipment, due to the unique design of MRGE's barge loadout system, and it contained supporting documents from an equipment designer indicating the design and costs specifics with respect to the equipment MRGE intended to install. MRGE stated in its petition that installation of more common, standard pollution control equipment would give only sub-standard results at its facility. By amendment to its petition, MRGE waived a hearing on the variance request, pursuant to Rule 401(b) of the Board's Rules and Regulations, Chapter I (Procedural Rules).

The EPA, pursuant to statutory mandate, conducted an investigation into the petition, interviewed nearby residents of the facility and made a recommendation to the PCB. (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 1037.) The recommendation was that the variance petition, in its entirety, should be denied. The recommendation stated that the MRGE was not in compliance with PCB rules because it had not obtained an operating permit, nor had it installed air pollution control equipment. The EPA indicated that the MRGE facility in Pekin is in a nonattainment area for particulate emissions, as measured by applicable ambient air quality standards, and the Agency's data indicated that the particulate emissions from the facility would exceed allowable particulate emissions by a large amount. The recommendation concluded by stating to the PCB that it, the PCB, could not grant a variance, because a variance was not shown to be consistent with the Clean Air Act and the State Implementation Plan adopted thereunder. The EPA recommendation also denied that MRGE would suffer any unreasonable hardship if it were forced to comply with applicable requirements immediately.

On May 1, 1980, the PCB entered its opinion and order granting to MRGE a variance from the applicable provisions of Rule 203, but denying the variance request as to Rule 103(b)'s operating permit requirement. As noted in a supplemental statement by the PCB's chairman, failure to grant the variance would have prevented MRGE from obtaining the construction permits necessary in order to come into compliance with other Board regulations. In its principal opinion, the PCB found that MRGE had met its burden of proof for the variance and that immediate compliance would impose an arbitrary and unreasonable hardship upon MRGE. The Board's opinion also stated that it was not clear whether their grant of the variance would prevent attainment of ambient air quality standards for particulate emissions in the Pekin area, and the opinion faulted the EPA for its failure to establish that violations would result if the variance were granted. The PCB's order, in pertinent part, required MRGE to take all reasonable steps to minimize particulate emissions with its existing equipment, and it set a January 15, 1981, limit on the effectiveness of the variance.

The EPA filed the instant appeal from the decision and order of the PCB. The EPA argues that the PCB erred in its grant of the variance. It argues that MRGE failed to meet its burden of proof in support of the variance petition. Specifically, the EPA argues that the petition was deficient (1) in that no showing was made that the variance would not prevent timely attainment and maintenance of applicable ambient air quality standards imposed by the Federal act and the State implementation plan; (2) in that no adequate showing was made of the (a) environmental impact of the variance, (b) the problems with past efforts at compliance, or (c) the intended measures to minimize impact of the variance; and (3) in that no sufficient showing was made establishing an arbitrary and unreasonable hardship upon MRGE in meeting compliance without the variance. The EPA argues that the PCB violated section 35 of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 1035) when it granted the variance without determining that the variance was consistent with the Clean Air Act's ambient air quality requirements and the enforcement of those requirements under and through the State implementation plan. The PCB, as appellee, argues that the petition filed by MRGE satisfied the relevant statutory and regulatory requirements that are imposed upon variance petitions and petitioners. It also contends that MRGE's petition satisfied the company's burden of proof in the variance proceeding. Finally, the PCB asserts that there was no violation of section 35 of the Act where it was not established by the EPA that granting the variance would be inconsistent with ambient air quality requirements.

Petitioner MRGE does not argue the issues on this appeal. Their only submission is a letter to this court, from their manager of river operations, in which he correctly notes that the real dispute in this case is between the EPA and the PCB, with MRGE caught in the middle. The letter goes on to plead MRGE's good faith in the matter and the hardship it has suffered. It then commends the PCB's "common sense approach" to the problems in issue. After stating that MRGE feels victimized by the "intra-bureaucratic conflicts," the letter concludes by requesting that we dismiss the appeal.

• 1 With this background in mind, we proceed to the issues raised on appeal. Section 35 of the Act (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 1035) states:

"To the extent consistent with applicable provisions of * * *, the Clean Air Act as amended in 1977 (P.L. 95-95) * * *, and regulations pursuant thereto, * * *, the Board may grant individual variances beyond the limitations prescribed in this Act, whenever it is found, upon presentation of adequate proof, that compliance with any rule or regulation, requirement or order of the Board would impose an arbitrary or unreasonable hardship. In granting or denying a variance the Board shall file and publish a written opinion stating the facts and reasons leading to its decision."

Rule 401(d) of the PCB's Procedural Rules states:

"All petitions for variance from Title II of the Act or from Chapter 2, Air Pollution, of the Board's regulations shall include an analysis showing that the Board may grant the requested relief consistent with the Clean Air Act (42 U.S.C. § 4701, et seq.) and the Federal regulations adopted pursuant thereto . . . If granting a variance would require revision of the State Implementation Plan, the petition shall show how the requirements of Section 110(a) of the Clean Air Act (42 U.S.C. § 4701(a)) and 40 C.F.R. Part 51 will be satisfied." (Emphasis added.)

By virtue of section 37 of the Illinois Act (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 1037) the burden of proof in variance proceedings is placed upon the petitioning party. (See Caterpillar Tractor Co. v. Pollution Control Board (1977), 48 Ill. App.3d 655, 658-59, 363 N.E.2d 419.) This is reflected as well in the above-emphasized language of Rule 401(d) of the Board's Rules.

• 2 Rule 401(b) of the Procedural Rules requires that if a petitioner waives the right to a hearing and the Board decides not to hold a hearing, as was the case in this proceeding, then the petition must be "accompanied by such affidavits and other proof in support of the material facts alleged in the petition as the petitioner may submit, ...

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