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

    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
    28
    176

    —3--
    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
    177

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