ILLINOIS POLLUTION CONTROL BOARD
September 27,
1990
CITY OF BATAVIA,
)
Petitioner,
v.
)
PCB 89—183
(Variance)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD
(by J.
Theodore Meyer):
This matter is before the Board on t’~omotions.
On September
10,
1990,
the Miliview Company and the Old Second National Bank of
Aurora as Trustee of Trust 2837 of Aurora,
Illinois
(collectively
Miliview)
filed
a motion for modification
of this Board’s August
9,
1990 order in this variance proceeding.
On September
13,
1990,
the City of Batavia
(Batavia)
filed its motion for reconsideration
of that same August 9 order.
The Illinois Environmental Protection
Agency (Agency) has indicated that
it will not file a response.
In
essence, both motions
ask that the Board
reconsider
its
decision
to
impose two conditions
on
its August
9
grant
of
a
variance from restricted status as
it relates to combined radium-
226 and radium—228.
(See 35 Ill.Adin.Code 602.105(a),
602.106(b),
and 604.301(a).)
Those
two conditions
are:
1)
that
only
those
projects which had been approved by Batavia or received building
permits by August
9,
1990 may connect
to
any extension
of water
mains under
the variance;
and
2)
that
no permits
for water
main
extensions
for the covered
projects may be issued by
the Agency
until Batavia actually awards the contracts for construction of the
“west side”
compliance
plan.
Batavia
and Millview assert
that
those conditions impose an arbitrary and unreasonable hardship, and
ask that the Board remove those conditions.
Initially,
the Board notes
that
there
is
a question as
to
whether Miliview has standing to bring
a motion for modification.
Nillview was not a party to the underlying variance proceeding, and
thus
it
would
be
unusual
to
allow
a
non-party
to
request
reconsideration of an order to which it was not a party.
However,
because the Board denies Batavia’s motion for reconsideration,
and
both motions contain basically the same information
and requests
for relief, the Board will not rule upon the question of Millview’s
standing to bring a motion for modification.
After
reviewing
Batavia’s
motion
for
reconsideration,
the
115—89
2
Board denies the motion.
Batavia has not presented any new facts
nor pointed
to
any errors
in
the
Board’s
August
9
decision
to
impose the two conditions.
The
Board carefully
considered
all
circumstances in this case before imposing the conditions, and sees
no reason to
find that
its decision was wrong.1
Therefore,
the
motions
for modification and reconsideration are denied.
Finally,
the Board notes that Exhibit A to Batavia’s motion
for reconsideration
is entitled “List of Approved Developments
in
Batavia,
August
9,
1990”,
and
includes
22
separate
projects.
Batavia has not asked this Board to “approve” this list, and based
upon the information in this record, the Board finds that it cannot
make a determination as to whether all properties on the list are
covered by tne variance.
The Agency will make that determination
on
a case—by—case basis,
as permits are applied
for.
IT IS SO ORDERED.
R.
Flemal dissented.
I,
Dorothy
N.
Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby
certify
that
the
above
Order
was
adopted
on
the
______
day of
_______________,
1990,
by a vote of
/
Dorothy M.
Gunn,
Clerk
Illinois Pollution Control Board
1
The Board
is puzzled
by Batavia’s assertion
in
its motion
that the conditions will make it impossible to provide a new junior
high, approved by voters on March
6,
1990, with water
in a timely
manner.
(Batavia’s motion at 4.)
The new junior high is covered
by the variance,
and there is no indication in the record that the
school will require water before April 1991, when Batavia indicates
that it will let the contracts for the west side compliance plan.
Therefore,
the
Board
cannot
see
that
the
variance
conditions
adversely impact upon the new school.
115—9r)