ILLINOIS POLLUTION CONTRCL BOARD

December

18, 1986

BRAVO-ERNST DEVELOPERS,

Petitioner,

v.

)

PCB 86—10

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY and COUNTY

)

OF DUPAGE,

Respondents.

ORDER OF THE BOARD

(by

B.

Forcade):

On December

4,

1986,

Bravo—Ernst Developers

(“Bravo—Ernst”)

filed

a motion

to withdraw petition for variance.

In its

December

5, 1986, Order, the Board

stated:

“...

as

the

Board

has already

issued

a

final

opinion

and

order

in

this

case,

withdrawal

of

the

petition

for

variance

is

inappropriate.

The

Board

construes Bravo—Ernst’s motion

as

a

motion

to

withdraw

the

September

18,

1986,

motion

for

reconsideration

of

the August

14,

1986,

Opinion

and Order.

The motion

to with-

draw is granted.”

The Board allowed until December

15,

1986,

for appropriate

motions,

if the intentions of any party were misconstrued.

On

December

12,

1986,

Bravo—Ernst

filed

a response reasserting

that

the entire petition for variance should be withdrawn,

not the

motion

for reconsideration.

Bravo—Ernst requests the Board

“clarify” its December

5, 1986, order

to grant withdrawal of the

petition

for variance.

Bravo—Ernst’s December

12,

1986,

filing asserts that “no

party opposed the grant of

...“

the motion

to withdraw

petition.

That

is not totally correct.

On December

5,

1986,

the

Illinois Environmental Protection Agency (“Agency”)

filed

a

motion for reconsideration urging

the

Board

to:

1)

cancel

the

December

19, 1986, hearing;

2) reaffirm the August 14,

1986,

Order denying variance; and

3)

enter

an Order

barring Bravo—Ernst

from filing any future variance petitions

to obtain the same

relief.

The Agency reasserted

its position

in

its December

15,

1986,

filing.

After reviewing the filings, the

Board reaffirms

its December

5,

1986, Order dismissing

the motion

for

reconsideration.

In Illinois,

a plaintiff,

in

a civil proceeding, has an

unqualified right

to dismiss an action without prejudice

up

until

hearing

or trial

on the matter unless

a counter claim has been

74.286

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—2—

pleaded by

a defendant.

110 Ill. Rev.

Stat. 2—1009(a).

In

Village of South Elgin

v. ?~asteManagement,

et a?.,

64

Ill. App.

3d 570, 381 N.E.2d 782

(2nd Dist.,

1978), the court held that

while

the Civil Practice Act was not directly applicable

to

proceedings before

an administrative body, the rules guiding the

courts of Illinois do provide the “outer bounds”

of what an

administrative agency can do regarding motions for voluntary

dismissal.

381 N.E.2c3 at 782—3.

Under

Illinois law,

a motion

for voluntary dismissal

of

a plaintiff’s suit after

trial has

begun

is addressed to

the discretion of the court and

is

reversible only for abuse of discretion.

Newlin v.

Forseman, 103

Ill. App.

3d 1038,

432 N.E.2d 319

(1982).

Under Bauman v.

Advance Aluminum Casting Corporation,

27

Ill. App.

2d

178,

169 N.E.2d

382

(1960), once trial

or hearing

has begun, plaintiff cannot dismiss the suit except by consent or

on motion, specifying grounds

for

the dismissal, supported by

affidavit and then only

on terms

to be fixed by the court.

Even

if compliance with the Civil

Practice Act

is achieved, the

voluntary dismissal by plaintiff is discretionary with the trial

court.

In Bauman, the court denied

a motion for voluntary

dismissal after

trial

as

it would constitute an abandonment of

the proceeding

that would

leave the court without the power

to

enter judgment.

The court

found this result “untenable.”

69

N.E.2d

at

385.

Bauman

can certainly be applied

to the circumstances

here.

Bravo—Ernst filed

a petition for variance

and specifically

waived hearing.

The Board proceeded

to enter

its “judgment,”

a

final

Opinion

and

Order.

Bravo—Ernst’s

right

to

a

voluntary

dismissal

ended

when

the

matter

proceeded

to

judgment.

This

issue

is now within the discretion of the Board.

To grant Bravo—

Ernst’s motion

to withdraw after

judgment would render

the

Board’s judgment

in this matter meaningless.

The Board denied

the motion

to withdraw as inappropriate, since

a final action had

already been taken.

That action

is reaffirmed

today.

Since

all parties are

in agreement that the December

19,

1986, hearing should be cancelled,

the hearing

is cancelled.

Bravo—Ernst asserts this matter

should remain open with the

possibility of

a hearing

in April,

1987.

The Agency argues the

December

5,

1986, Order dismissing reconsideration should

be

affirmed and Bravo—Ernst should be barred from filing future

variance petitions for the same relief.

As Bravo—Ernst

is not

presently prepared

to go

to hearing,

the Board believes the

appropriate action

is to dismiss the motion

for reconsideration

and close the docket.

The Board will

not address

in this

proceeding any future variance petitions that Bravo—Ernst might

file.

A second matter of concern

in today’s order

is Bravo—Ernst’s

assertion that “by grant of reconsideration,

the acceptance of

additional comments and

the scheduling

of

a

further

hearing, the

Board

has implicitly recognized that its order of August 14,

1986

74-287

---

—3—

may lack support

in the record or

at least should be based

on

a

record developed by hearing.”

This

is simply not true.

Bravo—

Ernst

filed this variance request and was free

to include all the

factual

information

it wanted.

On January

23,

1986, the Board

ordered additional

information

to be

filed.

Bravo—Ernst was also

free in its original filings

to request

a hearing, at which

it

could present additional

factual

information.

Bravo—Ernst

specifically waived hearing.

If Bravo—Ernst now feels that there

should have been

more facts

in

the record,

or that the record

should have been developed

at hearing,

it cannot place the blame

on this Board.

Further, the Board disputes the assertion that

the August

14,

1986,

Opinion and Order

lacks support

in the

record.

In the August 14,

1986, Opinion and Order

the Board made

the following findings:

In

summary,

the

record

discloses

and

the

Board

finds that basement back—ups and manhole

surcharging

in

the

Meadows

Subdivision

are

pervasive

and

severe,

that

these

problems

continued

as recently as two months before the

present

petition

for

variance

was

filed,

and

that Bravo—Ernst’s proposed

development

would

be directly tributary

to

the problem area and

would

exacerbate

the

problem.

Further,

the

Board

finds

that

the

back—ups

and

surcharge

problems

are

certain

to

continue

as

long

as

DUC fails

to

identify

and correct the

illegal

sewer

connections

(sump

pumps

and

drains)

which

cause

the

problem.

The

Board

is

aware

that raw sewage back—up

in

a basement presents

problems

of

the

spread

of

disease

and

electrocution,

as

well

as

property

damage.

Regardless

of

the

economic

hardship

suffered

by

Bravo—Ernst,

the

Board

finds

that

its

hardship

is

not sufficient

to be arbitrary or

unreasonable

in

light

of

the

increase

in

the

health

and

safety

risk

to

the

people

in

the

Meadows

Subdivision.

Consequently, the Board,

on balance, denies the petition for variance.”

There

is

a substantial quantity of information

in the record

to support the conclusion that additional

flows from Bravo—

Ernst’s proposed development would exacerbate

the already severe

basement back—ups

in the Meadows subdivision.

Bravo—Ernst has

never

introduced facts or argument to dispute that conclusion.

It was

an appropriate conclusion as the record existed August 14,

1986,

and

it

is

an

appropriate conclusion

as the

record exists

today.

IT

IS

SC ORDERED.

74.288

---

—4—

I,

Dorothy

M.

Gunn,

Clerk of the

Illinois Pollution Control

Board, hereby certi,y that the above Order was adopted on

the

/,~c~~’day

of

L~~i_i

,

1986, by

a vote of

__________

~

Dorothy

N. ~inn, Clerk

Illinois Pollution Control Board

74.289