The opinion
Mr. JUSTICE STENGEL, specially concurring:
I concur in the result reached in this case; however, I believe the import of the majority opinion would require the Illinois Pollution Control Board to grant a variance if petitioner proves the allegations of its petition. In other words, this court has gone beyond the question of whether a hearing was required and has determined the sufficiency of the petition. I would not go so far.
Two points will illustrate my concern. Rule 401, part IV, of the Illinois Pollution Control Board Procedural Rules sets out the requirements for a petition for variance. In addition to showing that compliance would impose an arbitrary or unreasonable hardship, petitioner is required to show details of past efforts to achieve compliance and reasons for delay in complying. The petition before us is totally silent as to past efforts to comply and as to reasons for the delay being sought. If enforcement of pollution control standards is not to be thwarted, the Board, in exercise of its discretion, can surely deny a temporary variance and impose penalties for noncompliance where emission standards have been ignored for two years without good cause. Unlike the majority, I believe the Board would be fully justified in presuming that petitioner had done nothing to control emissions at its plant on the basis of the facts alleged in the petition.
Secondly, I am not persuaded that the facts alleged in the petition, if proved, would establish an unreasonable hardship as a matter of law. Rather the allegations would present, at best, a question of fact to be determined by the Board.
In Nilles v. Pollution Control Board (2d Dist. 1974), 17 Ill. App. 3d 890, 892 , 308 N.E.2d 640, 642 , which held that the Board abused its discretion in denying a variance from a sewer connection ban without a hearing, the reviewing court expressly found that “the amended petition states in clear and convincing language that large sums of money already spent will be lost and the anticipated future income for the [subdivision] venture will not be realized.”
The petition here does not allege that petitioner has expended substantial sums or incurred continuing liabilities in reliance upon Board actions. (See First National Bank v. Pollution Control Board (4th Dist. 1976), 37 Ill. App. 3d 383 , 346 N.E.2d 181 ; Wachta v. Pollution Control Board (2d Dist. 1972), 8 Ill. App. 3d 436 , 289 N.E.2d 484 ). Implicit in the petition, of course, is the threat of a monetary penalty or a plant closing order if the variance is denied. However, a self-imposed hardship cannot serve as the basis for relief. Nilles v. Pollution Control Board (2d Dist. 1974), 17 Ill. App. 3d 890 , 308 N.E.2d 640 .
According to Nilles, the Board is required to balance petitioner’s hardships from denial of a variance against those the public would suffer if the variance is granted. The majority opinion states that application of that test indicates an unreasonable hardship resulting from a denial of the variance. However, that is precisely the question to be decided at the hearing, and should not be predetermined here.
In summary, I agree that petitioner was entitled to a hearing on its request for variance, but I cannot agree that the facts alleged in the complaint, if proved, would be sufficient to compel the Board to grant a variance. That determination is properly a matter for the Board at the conclusion of the hearing, and I would limit this court’s opinion accordingly. However, I concur in the decision to reverse and remand.