ILLINOIS POLLUTION CONTROL BOARD
    January 17,
    1972
    In The Matter of
    R71—21
    ADMISSIONS AND TRANSCRIPTS
    Supplemental Opinion by Jacob
    D. Dumelle
    On March
    14
    I
    asked the Board to reconsider its vote of
    January
    17,
    1972
    in the matter of placing the cost burden of trans-
    cripts on the petitioner and applicant in variance
    and permit cases.
    The
    motion
    for reconsideration lost for want of
    a second but its
    purpose
    was to place me on record as now reversing my
    “yes” vote
    of January
    17.
    On March 15
    I filed
    a dissent in the related proceeding R72—l,
    decided March
    2,
    1972 which required parties to an enforcement action
    to pay the cost of a transcript of proceedings.
    For similar reasons,
    which
    I sketch out below,
    I am now dissenting in this earlier matter.
    I believe that the Board in passing on
    the transcript costs in
    variance and permit proceedings
    has changed the intent of the
    Environmental Protection Act and has acted beyond its powers.
    The Act,
    in the wisdom of
    the General Assembly,
    and as proposed and approved by
    the Governor, provided
    for
    a
    free pollution forum.
    The Board
    has no
    warrant in the Act to impose transcript costs which may run up
    to
    $1,000 per day on the parties.
    Thus
    a desirable
    publi’c policy has
    been suspended and
    an action for which there
    is no legal basis
    taken by the January
    17 vote.
    The usual argument for passing variance costs to the petitioner
    is that he
    is asking for a “license
    to pollut&’
    and ought to pay.
    That
    I feel
    is
    a loaded phrase and
    a wrong conclusion.
    When regulations
    are enacted no one can forsee all the myriad ramifications
    and that
    is why variance proceedings
    are provided for by the statute.
    A
    petitioner may need more time
    to develop
    a better pollution control
    system which may benefit an entire industry or he may need more time
    because his consulting engineering
    is ill
    or he may conceivably
    need more time because the life of his plant
    is of
    a marginal nature
    and strict compliance with regulations would shut him down
    and elimi-
    nate the
    jobs associated with the operation.
    The Board must balance
    and weigh the effects on the environment and
    the public and the
    petitioner and it is in the best interests of the whole State
    of
    Illinois that this be
    done.
    A small industry or
    a potential home
    owner desiring relief from a sewer ban can ill afford heavy transcript
    costs on top of attorney’s fees
    on top of consulting engineer’s
    fees
    on top of loss of time from work,
    etc.
    3—
    489
    For permit proceedings one cannot say
    that the large utilities
    cannot afford these costs as they seek
    a nuclear plant permit.
    But
    the Act does
    not impose these costs upon permit applicants
    and
    I do
    not
    feel that the Board
    can or should do so.
    As
    I stated in my dissent on R72—l
    the Board could have pursued
    other alternatives.
    It could have sought an opinion from the Attorney~-
    General on the legality of not stopping its hearings and
    thus incurring
    a deficit and it could have tried to precisely gauge the area of
    agreement on
    a deficiency appropriation among the legislative leaders.
    It
    has
    not done this.
    And even if pursuit of these alternatives
    proved fruitless it does not then follow that the state~s pollution
    control program would close down.
    Cases could continue
    to be
    filed,
    discovery could proceed and necessary document exchanging and de-
    positions
    could be completed in the few months until May when
    additional
    funds may be made available.
    If the 90-day variance
    period was ending and no waiver was forthcoming
    from a petitioner
    the Board could simply act without hearing using
    the Agency recornmen-
    dation as
    a guide or dismiss without prejudice on the grounds that
    it could not
    incur
    a deficit to hold
    a hearing.
    Crisis situations cry for immediate action.
    Often govern-
    ment has cause to regret its response to such emergencies since
    the luxury of contemplation and hindsight show that
    the action was
    unnecessary or wrong.
    The internment of the Nisei
    in 1942 was
    such
    a crisis response.
    The Board’s action of January 17 and my ori-
    ginal
    “yes” vote were
    in error.
    Jacob D. Dumelle
    I, Christan
    L. Moffett, Clerk of the Illinois Pollution Control
    Board, hereby certify the above Supplementary Opinion was filed on
    the 20th day of March,
    1972.
    Illinois
    Pollution
    3—490

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