ILLINOIS POLLUTION CONTROL BOARD

July

25,

1972

CITY OF CANTON

V.

#72—36

ENVIRONMENTAL PROTECTION AGENCY

Opinion & Order of the Board on Petition for Modification

(by Mr~ Currie):

On January 31, 1972, Canton filed, a

petition seeking

extension of the then deadline of

July, 1972 fo~ providing

advanced sewage treatment facilities.

Although our revised

regulations of March 7, 1972 (#R 71—14) generally extended the

date

to

a point beyond that at which Canton advised it

would be in compliance, the Agency~s recommendation was

that

we grant the petition subject

to

certain conditions,

and we

did so, City of Canton v. EPA, #72—36 (April 25,

1972).

Canton now asks that we modify those conditions, alleging

that it never

received a copy

of

the Agency s recommendation,

as our rules require, and arguing that

it is discriminatory

to

require it alone to post a bond

to

meet the new regulation

applicable to everyone~ that the order is subject to a dis-

criminatory interpretation requiring it to complete

the

facilities in advance of the date applicable to

others

under

the new regulation; and that there is no way it can comply

with the condition requiring it to cease all bypassing of raw

sewage immediately, as that is one element of the project

under construction. The Agency~s response is generally

sympathetic and does not deny that the initial recommendation

was not received by Canton.

In agreement with judicial practice and with the sound

policy that what is once decided should stay decided,

we do

riot upset our final decisions in the absence of unusual cir-

cumstances, Without such a policy nothing would ever he settled~

But we think the requirement of unusual circumstances is met

here

by

the fact that the City apparently never had an opportunity

to respond to the Agency~soriginal recommendation on which our

decision was based. The absence of notice invalidates our prior

order, and we are free to reconsider the matterS

---

—2—

It seems clear from today’s perspective that the original

decision was in error. It was sharply at variance with other

decisions made at the same time on the same subject, which held

that the request for more time to meet a regulation had become

moot because the regulation had been revised to allow the time

requested.

E.g.,

City

of Elnihurst v. EPA, 171-389 (March 14,

1972). In the

present case the Agency’s recoimnendation was for

a grant on conditions rather than for a dismissal as moot,

and

we assumed this was because some aspect of the plant’s operation

unaffected by the extension of time for advanced treatment might

still require a variance. But the danger of pursuing such a

speculative course has been made apparent by the City’s subsequent

petition for modification, which demonstrated that it is not

clear what variance was granted from what provisions

and

that

the original order on its face appears discriminatory in that

Canton

is singled out for-special requirements to meet the

generally applicable standard. We think the better course would

have been, as in the Elmhurst case, to have dismissed the initial

variance request as mooted

by

the

adoption of the

new

regulation,

leaving

it to the City to file a new petition specifically

indicating the nature of the relief, if any, sought from the re-

vised regulations. From what is before us

now

we do not see that

Canton is asking any relief from the revised regulations. It

is on schedule as to the advanced facilities, and it does not

contest the provision of the first order requiring disinfection

according to the regulation schedule. If the City does request

relief, it can let us know hereafter with specific reference to

the

new regulations.

The order of April 25, 1972 in this case is hereby vacated

and the petition for variance dismissed as moot.

I, Christan Moffett, Clerk of the Pollution Control Board, certify

that the Board adoptçd4 the above Opinion & Order

on Petition for

Modification

this

.)~5

“day of July,

1972, by a vote of

9-c’

~

~~9/ ~

C’i•

5—40