ILLINOIS POLLUTION CONTROL BOARD

September

23,

1983

CITY OF MT.

 OLIVE,

)

Petitioner,

)

 PCB 83—9

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY AND MACOUPIN

)

COUNTY HOUSING AUTHORITY,

Respondent

ORDER OF THE BOARD

J.

 Anderson):

The Board entered its Opinion and Order

 in this matter on

July

26,

 1983,

 denying variance from 35 IlL

 Adm. Code 309.241(a)

to allow for continued operation of an unpermitted sewer

connection to the City of Mt. Olive’s

 (City)

 sewer of six apart-

ments owned by the Macoupin County Housing Authority

 (MCHA).

On

August 29,

 1983 the MCHA moved to vacate this Order.

 The Agency

filed

 its response

 in opposition September 2,

 1983,

On

September

 8, 1983 MCHA moved to file a reply to the Agency

response instanter, which motion

 is hereby granted.

 The City

has made no

filings.

MCHA argues that the Board*s Order should be vacated because

a)

 no hearing was held in this matter,

 b) the Board~sprocedural

rules providing that the 90-day time

clock

 is restarted by the

 filing of an amended petition are void,

as

being beyond its

authority to promulgate, and therefore that,

c)

 the variance has

issued by operation of

 law,

 d) that hardship to MCHA was not

properly considered by the Board,

 Recitation of

 the procedural

history of this action is

 a necessary prelude to disposition of

these arguments.

The City filed

 its variance petition January 24,

 1983.

The

Board entered an order on January

27,

 1983 requiring the City of

Mt.

 Olive to file an amended petition within 45 days or the

petition would be subject

 to dismissal.

 The order for specified

additional information and joinder of the owner of the subject

apartment complex pursuant to

35

 Ill. Adm~Code 103,123.

The City provided additional information

 in a first amended

petition filed March 14,

 1983.

As

 in the original petition,

54-99

2

Petitioner waived a hearing.

 The City included the

 MCI-IA as

a

party respondent

 in the case caption,

 and the proof

 of service

for this amended petition indicated a copy had been sent to the

MCHA.

 An order was entered by the Board on March

24,

 1983 noting

that the first amended petition remained deficient as to

 information on restricted status and did not include evidence of

service on the Authority in the manner prescribed by

 35 Ill. Mm.

Code 103.123.

 The Board again stated that unless an amended

petition curing such defects was filed within 45 days, the

petition would be subject to dismissal.

On May

2,

 1983, the City of Mt.

 Olive

 filed

 a second amended

petition in letter format.

 Therein, the first amended petition

was referenced and an assertion was made that city officials did

not realize the possible ramifications of allowing the sewer

extension.

 Also, a copy of the certified mail receipt for

service of the variance petition upon the Authority was enclosed,

as required by the Board’s March

 24 Order,

The Agency filed its Recommendation,

 urging denial of the

variance requested, on May

31,

 1983.

 A copy of this Recom-

mendation was served upon William Derby,

 attorney for the

Authority,

 by certified mail.

 An opinion and order denying the

variance requested was issued by the Board on July

26,

 1983.

The City did not object to the City’s denomination of it

as

 a respondent or object to the Board’s March

24,

 1983 Order

reflecting this.

 It did not file a response to the Agency’s

Recommendation.

 At no time prior to the Board’s final action on

July 26,

 1983 did the Authority request a hearing or take any

 other action in this proceeding.

The City’s denial of hearing/denial

 of due process argument

is based on the fact that it had been improperly described by

the City as a respondent,

 since the MCHA requires the variance.

MCI-IA asserts that since it was actually a petitioner,

 although

misnamed, that the Board should have held

 a hearing, since the

MCI-IA did not waive hearing pursuant to

35

 Ill. Adm,

 Code 104.124.

Section 37(a)

 of the Environmental Protection Act does not

guarantee a hearing on every petition for variance.

 Hearings are

required to be held if the Agency or any other person files a

written objection within 21 days,

 or if the Board,

 “in its

discretion,

 concludes that a hearing would be advisable”.

No

objection was filed in this case,* and the City waived hearing.

*The Second District Appellate Court has ruled that a

recommendation by the Agency to deny a variance

 is not an

“objector” which triggers hearing Village

 of Wauconda v. IPCB

and IEPA,

No,

 81—658

 (January 26,

 1982),

54-100

s~oierof a party

a

b

iie

 as a party

pursuant

nc MCHA fa led ~o petitioi the Board

to

Given !&HB

Board

had no r~

argument

a

The arcu

a

‘

q

~

inc

e

 y ~peration

of

Section

 38 du

tc

 ti’s

Board

 Th~e

LO

taka action within

90

days of March

~4

9

3 ~

 also re ect~d

 The basis of this

argument

 is tha

i

y

:9

3

g

 ~ot an

 vamended

petitior

hut

ai

 ~r rreit

~o

pa

 ~t1Oi~,

 sin~’e

it

only

added

 r’~

—

pleading

 ~-rI

1.

assertior

fl

this dist

~

bythehax

~

c

March

8

~J

~i:~-

 by the

filing o

ii

i

a

a

co

at

u~dthe

 City’s

Ma

2

1

deficienci~sa

a

The

MCi-IA~sargument tnar rae Board may not provide that

an

amended

petitioi restarts the

 90 day tIme clock becaase such

would

be

 ‘ar

It

i~

a

iat

er

 L1an a ~‘regulatory

function”

 ~isa

u~I

 In VoL

e

lB

 0 111.

 App.3d

498

 (1976), the

p

-‘

 a Co r~ o

 tie e~r~

 i tri~tfourd

that

in a var

p

a

n

h

IL

d

tI

 r ty to hld a

reheariro

aid

a

e

1,3/

e

 r tionale

of

the co

C

a

6

1

~

p

t

ten

read

together r~ovd

 tie n re~aay

 thority for the

 Board

to

hold reheari~ a

-is

 a pr cc

 ~e ~o crrec

r

 a ~or

 omission,

or

 overs~h~

i~”

a

dt

‘~

~jy

the

Board

bel~vcs L

 eac sa

c

io

~

cc

it

 Ttith necessary

authority

to

ci

 atC a

 ~~aduiaJ c~harisr to a11o~’a petitioner

to

 correct

its o~r orissioic-

b

 th~ f lirg o

 an amended petition

which

restar

a

9

dat

i

do

 as ~r

 ;riative to having

a defective pet~tio~\

iaai

aad

 y tIe Boarc~

 ~xercise

 of its

duty to

prevert

ass

.c

£

a

 arce

 by d~a

MCHA’s tins

as

 ~‘r

r

is

J~

th

consider

har ~

p t

it

i

it

i

r

Section

3~p..a~es

those

request

g

or

the Board

t

*Itis

 to cc rotEa

t~

at

 it~day

 198:

iii

ng,

p.

 2, the

City

itself reques~edadditioral

 time to coriecL any additional

omissions.

35

Ill.

 Ada.

C

Ia

may

be

co re~tc

to

 Sectior

10

1

correct

its des g ation

i~s

‘~r

I

 h-ia ing,

the

IICFI s hearing

r e ~1arch 14

I

~Is

o~s ‘ourts,

adopted

d

a

t

td

ac~

t

~

IL

g

ard

 ~-drot properly

tric a

 status,

“~

ar

 a ~et1~io~

on

iii

 the Agency

Having rema~ed a tent throughout

 the course of these

proceedings,

MCHA is essentially requesting that,

 since the City

was

 unable

to obtain a variance on MCHA’s behalf,

 that MCHA

now

be

 allowed

an opportratv

 to 5?

so.

 Nthing

 ir the Board’s

rules

would

preclude MChA from iritiatino

 arother variance proceeding.

MCHA’s motion to vacate

 is denied.

IT IS SO ORDER~’I

I,

 Christan L

 oftett,

 Clerk of the Illinois Pollution

Control

Bo~d, hereby certify that tie above Order was a~opted

on the~~~

day of

 1983 by a vote of ~-t~I-t~

(1~

Ctris~anL. Moffe~/ Clerk

is~

P01

u~ior~~ntrol

Board

54402