ILLINOIS POLLUTION CONTROL BOARD

August

5, 1971

JOHN CIANCIO AND MARGARET CIANCIO

v.

)

#

71—100

ENVIRONMENTAL

PROTECTION AGENCY

Dissenting Opinion

(by Mr~Currie):

My reasons for dissenting from a series of variance grants

involving the North Shore

sewer ban are given in my separate

opinion in Wachta v~EPA,

#71-77

(July 12,

1971),

In this case,

however, there

are additional considerations as well.

First, we denied a variance

in very similar circumstances

in Wagnon v. EPA

#

71-85

(July 26,

1971),

In neither case had

construction of the house begun at the time of the sewer ban;

in both cases money had been invested in plans,

In Monyek we

said this was insufficient, partly because the money spent is

not lost;

the plans will be there when the ban is lifted,

Today~s

action,

I think, does not overrule Monyek,

since the deciding vote

is based upon

a distinction of

that case,

not

its repudiation.

The distinctions mentioned are that living conditions are crowded

for the Ciancios and

that they will proceed

to construct

a septic

tank and to move into the new house

if the variance

is denied,

at the cost of several oaks that must be cut down

to permit

construction of

the tank,

These hardships are indeed unfortunate,

but it seems to ±nethey are less than those

in Monyek;

for the

Ciancios will have their new house

and Monyek will not~

In both

cases

I think that while

the hardships are unfortunate the over-

riding need is to prevent

a worsening of the pollution of air

and water that is now occurring

in the District,

as further

spelled out in my Wachta dissent,

But there

is another aspect that leads me to

find today~s

decision irreconcilable with precedent,

It was not our March

31 order that suddenly interfered without warning with the connection

of the new house

to the

sewer,

This case involves

the extehsion

of the sewer itself,

an act requiring

a permit from the Environmental

Protection Agency,

In fact

such

a permit was soughtand was

denied by the Agency in February 1971,

before our order was entered,

The Board today apparently reverses

the Agency~sdenial, although

the issue is not discussed in either opinion supporting the grant,

thus setting aside not only our own order but also the Agency~s

long—standing policy

of refusing permits for extensions serving

---

overloaded plants,

It seems to me that

it

is only prudent

for

people to investigate whether

a sewer connection will

be permitted

before making substantial expenditures

on

the

expectation of such~

a permit,

An inquiry here would have

revealed--indeed it did

when the permit was denied——that

a sewer ban was already

in effect

in February,

Moreover,

the denial

of that permit should not have

come as an unfair surprise because this way by no means

the first

time

the Agency had denied

a permit on the basis

of

a plant over-

load,

I think people can reasonably be expected

to make them-

selves aware of important government policies

and precedents

governing the issuance of

a permit before undertaking expenditures

in reliance

on the absence of

any restriction.

There was no

showing here that the Agency~sdenialcame

as an unfair

surprise,

and therefore

I think even on

the majority~s test this petition

should have been denied,

Finally, with respect to the issue of surprise generally,

it seems to

me

that it

was

quite clear before our March

31 order

that the addition of new waste sources to

an already overloaded

plant will cause

a violation of the relevant effluent standards

and of the statutory prohibition of water pollution,

I think we

said as much

in our March

31 opinion

(League of Women Voters v.

North Shore Sanitary District,

#

70-7).

I

do not think

it

is

unconstitutionally

surprising,

as suggested

in

one

opinion

in the

Wachta case

(#

71-77, July

12,

1971),

to find oneself prohibited

from causing

a violation of the regulations and of the statute,

Our sewer ban order,

in my opinion, merely made clear what the

law

already forbade,

This point becomes clearer if one asks whether

it would have been unconstitutional for this Board

to’ find,

in

an enforcement proceeding

against

a

person about to attach a new

source

to an overloaded facility, that the connection must be

prohibited since

it would cause water pollution,

I think the

answer is that it would not be uncOnstitutional,

any more than is

the application of existing law to any new waste

source.

And

I

think that is the effect of the Board~s decision,

Apart from the constitutional issue, perhaps

it

is time to

expect

people

to

inquire before committing themselves

to substantial expenditures whether or not their sewage will be

adequately treated.

It is time

we

collectively recoghized

that

the problem

of

sewage disposal

is not solved just because we

put

the waste into

a pipe that carries it away from the house,

In this connection it should help

for us to put

our rule

as to

sewer bans into

the regulations,

as we have proposed

(# R

71-14)

so as to make

it better known,

In fact the ban did come

as

a

surprise

to many people,

and

therefore has created considerable hardship,

The Board has responded

by relaxing the ban in part,

and we have also scheduled inquiry

hearings that may result in an entirely revised rule.

But

whatever

comes

of

this particular ban

as

a result of the surprise with which

it

was imposed,

I

think

it clear

that our rule

and policy,

at

least prospectively, must be

that people

are

not to build new

2

—

208

---

waste

sources where there are inadequate treatment facilities.

Anything else

and this Board, which was created to reduce

pollution, will allow pollution

to get worse

stead of better.

I, Regina E.

Ryan, Clerk of the Pollution Control Board, certify

that the above opinion was filed on th~~Augu~,

2

—

209