ILL iNOi~ POLLUTION CONTROL BOARD

Nc~Tember10,

1977

C. A. HEMPHILL & ASSOCIATES,

Petitioner,

v.

)

PCB 77~204

ILLINOIS ENVIRONMENTAL PROTECTION

)

AGENCY,

Respondent.

MR. GEORGE BULLWINKEL &

MS.

SUSAN

W~

MCMILLAN

OF

NECK, CUSHMAN,

MAHIN & CATE, APPEARED ON BEHALF OP PETITIONER;

MS. CAROL PEARCE

& MS. LORETTA WEBE~. ASSISTANT

ATTORNEYS

GENERAL,

APPEARED ON

BEHALF OF RESPONDENT.

OPINION AND ORDER OF

THE BOARD (by

Mr

Goodman):

On July 29, 1977 C.A, Hemphili

and Associates~

(Hemphill)

filed an appeal from a permit denial by the Illinois Environmental

Protection Agency (Agency). A hearing was held on

October 14,

1977,

briefs were waived by both

parties, and Petitioner requested

expedited consideration and decision by the Board.

The Board will

first consider some procedural

issues which

arose in this case.

On

October

11, 1977 Hemphill filed

Petitioner’s

first amended appeal from a

permit denial. The Board

holds that

this action starts anew the

90 day period within which

the Board

must act on a permit denial

petition. Hemphill disagrees, noting

that there is no provision in the Procedural Rules

governing

permit appeals such as exists

for variances with respect to

this

issue. It appears obvious

to the Board that a voluntary

amendment

to a petition before

this Board effectively waives the

Petitioner’s

rights with regard to the time period

established by

the original

petition, and re~starts

the 90 day

period. Unlike

a permit denial

petition, a variance

petition will frequently

be amended by

Petitioner on an involuntar~

basis, under a Board

Order requesting

additional information.

Since it is not obvious that

an involuntary

28 175

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amendment of a variance

tition stdrts the

90

\

thme period anew,

the Board found it

expe~~ent

to promulgate

a Ru~

concuroing that

specific situation. The

Board therefore finds ~s due date for

this

case to be 90 days from

the da~ ml the filing ~ne amendment

or

January 5, 1978.

The Hearing Officer herein

~c. pted an opec wc~iverby one

of

Hemphill’s attorneys at a

pre~heari:~g conference

(R.85). At the

hearing, Hemphill’s attorney

questa~ned

whether this original

waiver

was actually an open waiver,

and on October 24 l~977 filed

with the

Board a waiver of the 90

day Rule a~ti1Novembe::

Y7,

1977,

purporting,

in addition, to revoke any

and all ~revious wal ers. The

Board

rejects the notion that a waiver

occe given car subsequently

revoked. A waiver once given is

relied upon hI

t~

Poard and

the

other parties with regard to work

flow and times for Qec~lon.

To

allow revocation of this

waiver without leave c~the Board

would

prejudice the rights of the

other parties and the Board.

A considerable amount

of evidence was adduced at the hearing

concerning hardships visited

upon H~mphill due co the permit

denial

by the Agency. The Board

agrees ~h the Agency~s attorney with

respect to the admission

of suml vidence that this evidence

is not

relevant to the narrow

issue of ~~ther the Age: cy was correct

in

denying the permit applicatthn.

insofar as thth evidence goes

tc

the issue of reliance by

Hemphili on Agency actions however, the

Board accepts the evidence as

relevant to this proceeding,

The appeal itself concerns a

permit for a sewer extension

to

serve twelve single family homes

in The

Oaks ot Lake Bluff Sub~

division. The permit application

was denied bp she Agency due

to

sewer surcharging and resultant

basement floodiug during

periods of

heavy rains. Hemphill admits the

surcharginc and basement

flooding

but contends that the problem is

caused by rnfiltration and that

the addition to the waste flow would be de

minimus, even to

the

point of being unmeasurable. The

Agency, on the other hand,

relies

on their duty to refrain from issuing

permits wuich would, as

stated

in Section 12(a) of the Environmental

Protection Act, cause or

threaten or allow the discharge of

any contaminants into the

environ-

ment so as to cause water pollution

either alone or in combination

with matter from other sources.

The Board finds that Hemphill’s

contention with respect

to the

alleged lack of potential, measurable

environmental damage, even

if

true, does not address the problem. If

the Agency were to allow

“variance” from the Act

and the Regulations based upon the fact

that

the individual increments )f

pollution

would do no practical

environ-

mental damage, where could it logically

draw the line? How

large an

increment results in no damage

tc the

environment?

How

many

of

these

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176

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increments do you allow before the environment is damaged by the

total? How do you finally deny a permit when the final increment

is no greater than the original increment? And finally, where is

the incentive for the City to solve their environmental problems?

The Board finds that the Agency correctly denied

Hemphill’s

permit

application based upon the admitted facts in this record. Whether

or not Hemphill is entitled to a variance based upon the equities,

potential harm, and period of time involved is a matter for the

Board to decide in a variance proceeding. The Agency, as the

permitting arm of the environmental protection scheme in the State

of Illinois, cannot and should not make these decisions.

As a final issue, Hemphill alleges reliance upon an Agency

publication known as the Restricted Status List. This list contains

the statement “those facilities not listed may be assumed to be

satisfactory for permit to extend this system. However please note

that these lists are continually being revised to reflect the

current situation. This listing reflects the status as of May 16,

1977.” It is apparent that in an ongoing situation such as the

restricted status list, any particular list is obsolete at the

moment that it is printed. That fact plus the proviso contained in

the second sentence quoted above convinces the Board that reliance

upon the list for purpose of entering contracts or starting construc-

tion is, at best, ill advised. In addition, as this case illustrates,

the list could not hope to cover all potential problem areas in the

State; the prudent man would therefore not consider himself in a

permitted condition until after the Agency had reviewed his permit

application.

This Opinion constitutes the finding of fact and conclusions

of law of the Board in this matter.

ORDER

It is the Order of the Pollution Control Board that the June

22, 1977 denial by the Illinois

EnvironmcnLai Protection Agency of

a permit for

the Village of Lake Bluff to construct and connect a

SeWer

extension to a development known as Oaks of Lake Bluff was

correct and that decision be and is hereby affirmed.

Mr. Young concurs.

I, Christan L. Moffe:t, Clerk of the Illinois Pollution Control

Board, hereby certify the above Opinion and Order were adopte~on

_____________day of)) a-_~~-~

,

1977 by a vote of

~- O

/fl

~

Christan L. Moffe’,/)llerk

Illinois Pollution~ontrol Board

28

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