ILLINOIS POLLUTION CONTROL BOARD
July 19, 1971
ROBERT H. MONYEK
v.
)
PCB 71—80
ENVIRONMENTAL PROTECTION AGENCY
Opinion and Order of the Board (by Mr. Dumelle)
Petitioner, Mr. Robert H. Monyek, an individual citizen
planning to have a residence constructed in the area served by
the North Shore Sanitary District (District) petitioned for a
variance from part of the Board~sOrder in a previously decided
case entitled ~~f~g~en
Voters, et al v. North Shore Sanitary
District, PCB 70-7,12,13,14 (March 31, 1971). Mr. Monyek was
not a party to that case.
The portion of the order from which the variance was sought
is as follows:
7. The District shall not permit any additions to
present sewer connections, or new sewer connections
to its facilities until the District can demonstrate
to the Board that it can adeauately treat the wastes
from those new sources so as not to violate the En—
vironrnental Protection Act or the Rules and Regula-
tions promulgated thereunder.
Mr. Monyek sought permission from the Board to be allowed to
make a sewer connection sometime after April 1972 (R. 72) so that
he could in the meantime proceed to construct a single family dwelling
on unimproved real estate which he owns in Lake Forest. Mr. Moneyk
purchased the lot in April 1970 but could not build during the subsequent
year because mortgage financing could not be obtained.
Variances are usually requested from regulations or statutory
requirements. However, in this case an individual variance is sought
from the operation of a Board Order. Such a procedure is clearly
provided for by the Environmental Protection Act (Act), Section 35.
The standard to be applied in such cases is likewi~eprovided for
in the Statute and the ~oard~s Rules. In considering whether to
grant the variance the Board must consider all the facts and ultimately
use its best judgment coupled with the expertise it is statutorily
presumed to embody to determine if compliance with the Order from
which exemption is being sought will impose an arbitrary or unreasonable
hardship on the petitioner. This hardship must then be balanced
against the harm done to the environment. Grant of a variance is in
effect a license to pollute and as such is an extraordinary privilege.
To be sure, in this case the license sought is not the expansive grant
asked for in many cases of industrial pollution, nonetheless, it is
2
—
125
one of literally hundreds of units which we are asked to make an
exception of. While we are not unmindful or unsympathetic of the
inconvenience of the present dilemma we are not persuaded that the
instant situation constitutes an arbitrary or unreasonable hard-
ship. The statutory standard does not embrace every hardship, it
speaks of arbitrary or unreasonable hardship. Undeniably petitioner
is confronted with some measure of inconvenience in this case. We.
cannot, however, view petitioner~s plight as singular and therefore
arbitrary nor can we commiserate to such a degree that we grant rather
than deny this request. In cases where a house has been completely
built before the date of the order (March 31, 1971) or where
substantial steps toward completion have been taken we can clearly
judge the hardship of non-connection to be unreasonable. In fact we
have done so in the recently decided case of Wachta and Mota d/b/a
Belle Plaine Subdivision v. EPA, PCB 71-77. There the petitioner had
seven units completely built, and the Board granted a variance to permit
the sewer connections. For the remaining lots in the subdivision
the Board ordered the builders to present a program to the Board
demonstrating the feasibility of alternatives.
Building a house is not simply a matter of dealing with bricks
and mortar. Various other matters such as permissions from govern-
mental bodies and financing from lending institutions are involved.
Mr. Monyek testified regarding financing,”. ..I was told by mortgage
financers not to even bother with the application because there was
no chance” (R. 31). He was saying that during 1970 there was no
chance of getting the necessary money for a mortgage because the prime
loan rate was then 8-1/2 and state law prohibits legal loans at
annual rates in excess of 8. Home mortgage loans were simply not
available, So too is there no chance of making a sewer connection
if doing so in effect results in the passage of ~aw sewage to Lake
Michigan. The Board~s order imposes a sewer connection ban on the
District because allowing new connections is tantomoun~tto condoning
the passage of raw sewage into Lake Michigan. The North Shore
beaches are closed this summer and the operations of the North Shore
Sanitary District are coupled to those closings in a direct cause
and effect relationship. If the District were not discharging into
Lake Michigan or if the District was discharging fully treated sewage
the beaches would be open.
Preliminary to the hearing in this matter, Mr. Monyek presenLed
a motion to the Hearing Officer asking to find the EPA in default
for failing “to proceed as ordered by the Board”1 inasmuch as the
Agency had not made a timely filing of its recommendation at the hearing
held on June 18, 1971.
In his motion Mr. Monyek asked that the EPA, because of their
default, be prohibited from testifying and otherwise participating
in the hearing. The hearing officer reserved ruling on the motion for
3-Pollution Control Board Regulations, Rule 319
2—12k
the Board.
Since the petitioner in every variance oreceeding must anticipate
a recommendation of denial it must 1~arnostuncorinon
situation where
the petitioner can show actual surprise and prejudice due to the late
filing of an Agency recommendation. While we do not condone the
Agency’s late filing we are not prepared to construct an
unnecessary procedural requirement to the resolution of issues on
their merits. Defaults are to be discouraged. We believe the principle
recently reiterated
in ~4j~e~p~e
1k and Western ~
243 N.E. 2d 27
(1968)
is a salutary one which governs the instant
situation,
There the Illinois Appellate Court reversed the trial
court’s imposition of a default ~udgmont for
failure of plaintiff
to precisely comply with the court rule regarding the answering of
interrogatories.
The court said that, “Defaults
are based on a
technique of precedure and should be subject to careful scrutiny.”
(at 31). The court
went
on to say that defaults should he employed
only when necessary to enforce a just demand and
not
when a hearing
on the merits
can be had
without undue burden on the parties.
We
deny petitioner’s
motion for entry of a default.
This opinion
and
order constitutes
the
Board’s findings of fact,
conclusions of law and order in this case.
The requested variance
is denied,
I, Regina F. Ryan, Clerk of the Pollution Control Board certify that
the Board adopted the above
opinion this 19 day ~
1971.
~
2— 12)