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Illinois EPA v. Pollution Control Bd.

Citation: 12 ELR 20249
No. No. 80-368, 420 N.E.2d 245/16 ERC 1967/(Ill. Ct. App., 04/28/1981)

The court grants in part an appeal by the Illinois Environmental Protection Agency challenging a variance issued to Mississippi River Grain Elevator, Inc. (MRGE) by the state Pollution Control Board (PCB), because of the failure of MRGE's petition to demonstrate that the requested variance was consistent with the air quality requirements of the Clean Air Act. The court notes that § 35 of the Illinois air pollution control statute, which authorizes the PCB to grantvariances from pollution control requirements imposing arbitrary or unreasonable hardships, also requires that such variances be consistent with the federal Clean Air Act and related regulations. The Illinois statute places the burden of proof in variance proceedings on the petitioning party, while Rule 401 of the PCB's Procedural Rules requires the petitioner to present sufficient factual data and analysis to enable the PCB to determine that the variance would not cause unacceptable environmental impacts or violations of the Clean Air Act. Finding that although MRGE had demonstrated that it qualified for a variance, it had failed to carry its burden of proof regarding Clean Air Act compliance, the court reverses the Board's decision to grant a variance. However, noting that the antagonistic posture of the two agencies effectively precluded MRGE from amending its petition in timely fashion, it remands the matter to the PCB to allow the company to do so and states that an enforcement action based on MRGE's interim failure to comply with the applicable emission limitations would be inappropriate.

Counsel for Petitioner
George W. Wolff, Philip L. Willman; Tyrone C. Fahner, Attorney General
160 N. La Salle St., Chicago IL 60601
(312) 793-7086

Counsel for Respondents
David M. Strawn, Manager
Mississippi River Grain Elevator, Inc.
P.O. Box 4379, Davenport IA 52808
(319) 324-5214

Morton F. Dorothy
Pollution Control Bd.
908 S. Elizabeth St., Carbondale IL 62901
(618) 549-7384

ALLOY, Justice, STOUDER and BARRY, JJ., concur.