ILLINOIS

POtJ~UTIONTCONTROL BOARD

May

1~,

1980

PLJLTE ROME

CORPORATION,

ILLINOIS

D~VLS~ON,

)

Petitioner,

V.

)

PCB 80—50

Ir~LI!4oIs

ENVIRONMENTAL

PROTECTION

AGE

Respondent.

ORDER OF

THE BOARD

(by Mr.

Goodman):

The Agency’s April

23,

1980 Motion to Dismiss

is granted.

Although Special Condition

1 to Petitioner’s October 12,

1979 construction permit purports

to allow Petitioner no remedy

against

the

Agency

should

a later

permit

to operate

the sewer

cXLcflsLOn

not

be

torthcominq,

this

is

not

dispositive

of

the

motion.

The

facts

alleged

are

that

Petitioner

knew

four

months

before applying

for a construction

only

permit that the

treatment plant it intended to utilize upon connection was

then on restricted status.

“Restricted status”

is

so defined

in Rule 604(b)

of the Board’s Water Pollution Regulations as

to put Petitioner on notice that

no connection permit may

issue to

it without subjecting

it and others

to liability for

causing or contributing

to violations of the Illinois Environ-

mental Protection Act

(Act)

or Board regulations.

The relief requested in Petitioner’s petition is for

variance from the Agency’s determination of the restricted

status of the Marionbrook Sewage Treatment Plant

(in order

to allow the Agency’s acceptance of an operating permit

application to connect

to this plant).

This motion,

however,

raises the issue of whether the Board can find as a matter of

law that Petitioner

is entitled to relief.

The Agency’s determinations

of various

statuses of

sewage and sewage treatment systems are not made without a

considerable amount

of

experience and expertise.

The Agency

is not

to be overturned

in

the valid exercise of its powers

delegated pursuant

to Section

13(a) by Rule

604.

No

facts were

pleaded alleging that the Agency’s determination was wrongful.

The Board,

therefore, dismisses the petition.

---

—2—

The Board agrees with the Agency that the proper remedy is

appear

of

the

denied permit.

However,

this petition does not

allege

facts sufficient to raise the issue of wrongful denial of

the operating permit.

Neither

the fact that Petitioner relied on

statements

of opinion of the Agency and others nor the fact that

Petitioner may have been “an innocent victim of fraudulent

activity by third parties, miscalculations,

or other factors

beyond its knowledge or control”

is

sufficient to plead a prima

facie case of a wrongful permit denial.

Furthermore,

if the Board were

to entertain one petition

praying

for the right to connect to a system

found by the Agency

to be

so burdened that additions

to it could cause violations of

the Act,

it would have to entertain all petitions praying

for

that relief.

This would put the Board in the position of

administering the permit system as

it pertains to these matters,

a concept clearly

not contemplated by the Legislature

in Section

39 of

the

Act.

ORDER

It is the Order of the Illinois Pollution Control Board that

the petition for variance be dismissed with prejudice.

Mr. Nels

E. Werner abstains.

I, Christan L.

Moffett, Clerk of the Illinois Pollution

Control Board,

hereby certify that the above Order was adopted on

the

J~

day of

1980 by a vote of

.~(f_O

_________*__

Christan

L. Moi~y~t,Clerk

Illinois Pollution Control Board