dissenting:
I cannot agree with the majority’s conclusion that the Board erred in including in the variance order a provision requiring a certification of acceptance of the variance. The requirement is part of the Board’s established procedure governing variance proceedings and thus represents an exercise of its rule-making authority under the Environmental Protection Act. This court is without the power to invalidate the Board’s requirement of a certification of acceptance unless the rule is found to be clearly arbitrary, unreasonable or capricious. (Monsanto v. Pollution Control Board, 67 Ill. 2d 276; Illinois Coal Operators Association v. Pollution Control Board, 59 Ill. 2d 305, 319 N.E.2d 782.) The majority apparently believes that the requirement is an abuse of discretion because it places a variance petitioner in the untenable position of having to sign an agreement in order to perfect an appellate review of the Board’s order that would, in effect, defeat the petitioner’s case on review. This conclusion is grounded on the proposition that the Board’s grant of a variance on the conditions requested or a grant modified by new conditions is not a final and appealable order unless the petitioner accept the variance by signing the certification of acceptance. If the majority is correct, by what authority do we review this case since petitioner has not. signed the certificate in question?
The provisions of the Environmental Protection Act concerning judicial review of Pollution Control Board orders and decisions specifically require such review to be consistent with the Administrative Review Act (Ill. Rev. Stat. 1975, ch. 111½, par. 1041; See Lake County Contractors Association v. Pollution Control Board, 54 Ill. 2d 16, 294 N.E.2d 259.) Section 1 of the Administrative Review Act provides in pertinent part that an administrative decision is “* * * any decision, order or determination of any administrative agency rendered in a particular case, which affects the legal rights, duties or privileges of parties and which terminates the proceedings before the administrative agency.” (Ill. Rev. Stat. 1975, ch. 110, par. 264.) A Pollution Control Board order granting a variance on the terms requested or granting a variance with certain conditions establishes the rights and liabilities of the petitioner under the Environmental Protection Act and terminates the variance proceedings on the merits of petitioner’s application. As a consummation of the administrative process, such an order exhausts the jurisdiction of the Board and is final and appealable. This conclusion is mandated by the express language of section 1 of the Administrative Review Act which provides that an administrative decision is final unless an agency rule permits an application for rehearing to be filed and such an application is actually filed. Ill. Rev. Stat. 1975, ch. 110, par. 264.
The Board’s requirement of a certification of acceptance on a grant of a variance is not a precondition to appelláte review, but rather a sound administrative practice designed to insure the maintenance of an effective program of compliance with the Board’s minimum environmental quality standards. The supreme court has recently noted that “[c]ompliance by all polluters with Board regulations is an ultimate goal,” but that “[t]he variance provisions afford some flexibility in regulating the speed of compliance.” (Monsanto v. Pollution Control Board, 67 Ill. 2d 276, 287.) The variance provisions of the Environmental Protection Act constitute a legislative program of special individual compliance designed to avoid undue hardship and at the same time insure long-term compliance with the Act. I agree with the Second District Appellate Court that a variance is not “binding until the petitioner accepts the variance upon the terms imposed” and that a petitioner may decide not to proceed with the variance granted by the Board if, for example, petitioner considers the conditions imposed to be an undue burden on its operations. (Citizens Utility Company v. Pollution Control Board, 9 Ill. App. 3d 158, 163-64, 289 N.E.2d 642.) In the event a petitioner declines to operate under the terms of a variance he is in effect refusing to accept the grant of a variance and is therefore subject to enforcement proceedings for noncompliance with the Board’s general environmental quality standards. The Board’s requirement for a certified acceptance of a variance grant protects both the public and the individual polluter. If variances were not expressly accepted by individual petitioners, substantial doubt would exist as to whether the Board’s variance could be enforced under section 42 of the Act. (Ill. Rev. Stat. 1975, ch. 111½, par. 1042.) As a result, the efficacy of the individual compliance program contemplated by the variance scheme of the Act would be threatened and the individual petitioner would not know whether to comply with the terms of the variance or the Board’s general environmental quality standards.
The Board’s requirement of an express acceptance of its variance grant, therefore, is consistent with the Environmental Protection Act’s objectives and necessary to effectuate the General Assembly’s intent “° * * to establish a unified, state-wide program * * * to restore, protect and enhance the quality of the environment.” (Ill. Rev. Stat. 1975, ch. 111½, par. 1002(b).) If at the conclusion of a variance proceeding a petitioner wishes to challenge the Board’s grant of a variance, the petitioner may refuse to accept the variance and may seek review of the Board’s order pursuant to section 42 of the Act. (Ill. Rev. Stat. 1975, ch. 111½, par. 1042.) A successful petitioner wishing to proceed with the Board’s grant of a variance must formally accept the variance and will be obligated to comply with the conditions therein. If, however, a petitioner refuses to accept the variance and declines to appeal the Board’s order under section 42 or fails to comply with the requirements of that section, the petitioner will be held to the Board’s general environmental quality standards. This interpretation of the Board’s variance acceptance rule is mandated by the broad objectives of the Environmental Protection Act and by our duty as a reviewing court to uphold reasonable exercises of discretion by the Pollution Control Board.