ILLINOIS POLLUTION CONTROL BOARD
August
4,
1988
CITIZENS UTILITIES COMPANY
OF ILLINOIS,
Petitioner,
v.
)
PCB 86—185
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD (by J.
Anderson):
This matter comes before the Board
on
a June
22, 1988 motion
by Citizens Utilities Company of Illinois
(“Citizens’t)
for
rehearing and modification of
the Board’s Supplemental Order
of
May 19,
1988.
On July 20,
1988,
the Illinois Environmental
Protection Agency
(“Agency”)
filed
a motion
to file
instanter,
which
is granted,
and a response
in opposition to Citizen’s
motion.
On July
29,
1988,
Citizens filed
a
request to defer
ruling on its June 22,
1988 motion
in order
to file in three
weeks
a third amended petition requesting
a
five year variance
—
three years to hook on
to a Lake Michigan water supply,
or an
extra two years beyond that to provide treatment such
as ion
exchange.
Citizens also filed a reply
to the Agency’s July
20,
1988 response.
Citizens’
request to defer ruling
is denied.*
Citizens’ second motion
for rehearing and modification
is
denied.
Citizens’ arguments are
in large measure repetitious and
are unpersuasive.
The
instant motion should be viewed
in the context of this
long proceeding.
Citizens initially filed
its petition for
variance on October
23,
1986.
The petition seeks variance from
restricted status imposed for violations of the Board’s radium
standards
in Citizens’ well water supplies at its Chicago
Suburban service area.
*
Citizens
is
free to file
a new petition for variance, but the
Board again cautions Citizens that it will not look with favor on
information “that
is as unenlightening as has occurred throughout
this proceeding”
(See Supplemental Opinion,
p.
7, May
19,
1988).
91—55
—2—
The excess radium was first found
in 1979, nine years ago;
Citizens was granted an earlier variance
in
1982,
which
terminated
in 1984
(PCB 82—63).
In this present proceeding,
after
retreating from
two alternate scenarios, Citizens submitted
the three year compliance plan at issue here,
to secure Lake
Michigan water from Glenview, on April
2,
1987 in
its second
amended petition as well
as
in its January
20,
1988 response.
On March 24,
1988,
the Board adopted
its initial Opinion and
Order,
granting
a two—year variance rather than the three years
requested by Citizens.
On April
27,
1988, Citizens had filed
a
motion for rehearing and modification of
that Order,
requesting
that the variance be granted
for three,
rather than two years.
It was
in response
to that first motion that the Board adopted
its May
19,
1988 Supplemental Opinion and Order, which vacated
the Board’s March 24,
1988 Opinion and Order and denied
the
variance.
For clarity,
Citizens’ April
27,
1988 motion will be
designated as the first motion and Citizens’
instant June
22,
1988 motion will
be designated as the second motion.
The Agency,
in its July
20, 1988 response,
has persuasively
rebutted Citizen’s arguments.
There
are, however, certain
aspects of Citizens’
arguments to which the Board will respond
in
greater detail.
Citizens asserts that the Board misunderstood the intent of
the proposed compliance schedule insofar
as
the schedule states
that compliance actions
in the first
12 months would commence
after
the date of the Board Order,
not before.
The Board did not
~iil
to see that portion of
the schedule, and the compliance
schedule still
is misleading.
Almost
a year earlier, on April
2,
1987, Citizens first proposed the same twelve—month compliance
actions regarding the conditions precedent
in the Glenview
agreement and initiation of engineering design.
At that time,
Citizens moved
for expedited Board decision which motion was
withdrawn at Citizens’
request.
In its January
20,
1988 response, Citizens was still
proposing that the same first year compliance actions commence
after the Board Order.
However, Citizens meanwhile had provided
information showing that the Illinois Commerce Commission
(ICC)
approval,
the only expressly stated condition precedent in the
compliance schedule, had already occurred prior
to its January
response,
and thus prior
to the Board’s March 24,
1988 grant of
variance.
In like manner, Citizens own sworn testimony as far
back
as January 1987 suggested that the initiation of engineering
design steps may also have been satisfied,
even though that
provision,
too,
remained
in the compliance schedule.
As
is
evident
in its March 24,
1988 Opinion,
the Board was concerned
about the terms
of the Northfield Woods connection
fee
litigation,
the only remaining condition precedent.
However,
vague and contradictory
as the record was,
it could be construed
91—56
—3—
that
the connection
fee litigation was
no bar
to initiation
of
design,
that design had already been initiated and thus
completion of design
and construction would timely follow.
In
any event,
this “before or after”
issue skirts
the fundamental
problem.
Not until Citizens filed
its first motion, with
its attached
affidavit, was
it ever explicitly made clear
that Citizens had no
intention of ever initiating
the design of the facilities until
the condition precedent regarding
the Northfield Woods connection
fee litigation was resolved,
including any appeals,
and even then
only
if Citizens won the litigation.
The compliance plan never
mentioned the Northfield Woods litigation specifically,
as
it did
ICC approval.
And the compliance plan gives
no indication of
this sequential linkage;
in fact,
the compliance plan
on its face
indicates otherwise.
And the Glenview agreement did not preclude
Citizen’s from initiating engineering design before
the
connection
fee issue was resolved.
For Citizens to suggest that,
because the content of
its
first year compliance schedule
remained unchanged since
its second amended petition of April
2,
1987, Citizens has not been confusing or misleading
in its
intent
is disingenuous and totally unacceptable.*
The facts contained
in the affidavit constitute
the only evidence that is not
confusing or misleading
about
this point, except insofar as the
affidavit states,
the compliance plan notwithstanding,
that the
first year
is set aside solely
to resolve the litigation.
Had
these explicit facts been made part of
the record prior
to the
Board’s March 24,
1988 decision,
the Board would have gleaned
Citizens’
true
intent earlier, and the result would have been
that the Board would have denied the variance at the outset
for
being unacceptably speculative.
The fundamental
issue is not whether or not the Board was
correct
in
its assumption that engineering design had been
initiated,
or whether
or not the Board was correct
in
its
construction of the record concerning
the linkage.
The issue
is
when compliance with
the Board’s radium standard will be
achieved.
Citizens
in essence does not agree
to invest in
designing and constructing the delivery system before Citizens
is
certain that
it will not have to pay the cost of the ultimate
hook—on.
Citizens,
albeit belatedly,
specifies that its
Northfield Woods litigation
is one of
those occurrences that are
out
of
its control, but has yet
to explain why.
Citizens has yet
to explain how
the condition precedent
is
to be satisfied if
*
Contrary
to Citizens assertions, Citizens changed one aspect of
its proposed compliance schedule in
its April
27,
1988 motion and
then changed back again in
its June
22, 1988 motion regarding
permits.
See the schedules attached to Citizens’
first
and
second motions and the Board’s May
19,
1988 Supplemental Opinion,
p.
2 noting the initial change.
91—57
—4--
Citizens loses
the connection fee dispute.
Citizens has yet
to
give evidence from Glenview that Glenview will not,
and explain
why Citizens cannot,
initiate engineering design promptly.
These
questions were posed earlier by the Agency.
Citizens has not
responded to the Board’s conclusions that “There is
no longer
factual basis for
the Board
to reach
a conclusion that compliance
can be reached
in two years,
three years,
five years
or any
number
of years.”
(Supplemental Opinion,
p.
2,3)
The Board agrees with
the Agency
that:
the
new
facts
to
be
presented
by
the Company
at
the
requested
rehearing,
even
if
true,
provide
reasons
to
deny
the
variance,
not
to
extend
it.
These
facts
were
provided
as
Exhibit
A
to
the
Company’s
first
Motion
for
Rehearing.”
(Agency Rec.,
p.
18)
The Board again
states:
The
compliance
plan
is completely
speculative
as
long
as
the
connection
fee
issue
both
remains
a
condition
precedent
and
as
an
essential
element
of
the
timing
of
the
compliance
plan.
(Supplemental Opinion,
p.
7,
May 19,
1988)
In conclusion,
it
is for all of the foregoing reasons that
Citizens second motion for rehearing and modification
is hereby
denied.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk
of the Illinois Pollution Control
Board,
hereby certif
that the above Order was adopted on
the
.~~&iV
day of
_____________,
1988,
by
a vote of
7-~O
~
~L-~-~
Dorothy M.4unn, Clerk
Illinois P~’llutionControl Board
91—58