ILLINOIS POLLUTION CONTROL BOARD
April
9,
1992
WONDER VIEW IMPROVEMENT
)
ASSOCIATION,
)
Complainant,
PEOPLE OF THE STATE OF ILLINOIS
)
and ILLINOIS ENVIRONMENTAL
)
PCB 91-48
PROTECTION AGENCY,
)
(Enforcement)
)
Intervenors,
V.
NORTHERN ILLINOIS
)
UTILITIES,
INC.,
Respondent.
MR. DENNIS
J. PALYS APPEARED ON BEHALF OF COMPLAINANT;
MR.
T.P. MATTHEWS APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by R.
C.
Flemal):
On March 12,
1992,
the Illinois Attorney General filed a
motion to intervene and motion for reconsideration
in this
proceeding on behalf of the People of the State of Illinois and
the Illinois Environmental Protection Agency
(collectively,
“People”).
The Board has received no reply to this motion by
either the complainant or respondent.
The Board grants the People’s motion to intervene.
(See
Pioneer Processing v.
Pollution Control Board
(1984),
102 Ill.2d
119.)
The People request that the Board reconsider
its February
6,
1992 Opinion and Order finding that the respondent’s actions did
not violate35
Ill.
Adm.
Code 602.101.
For the reasons discussed
below, the Board grants reconsideration of this matter and
reverses its prior determination.
This matter came before the Board upon a complaint filed on
April 15, 1991 by Mr. Dennis J.
Palys on behalf of the Wonder
View Improvement Association
(Wonder View).
The complaint
alleged that respondent installed a “water main” without first
13 2—39
—2—
obtaining a construction permit from the Illinois Environmental
Protection Agency (Agency), thereby violating the Board’s
regulations found at
35 Ill. Adm. Code 602.1011.
Hearing was
held October
7,
1991,
in McHenry,
Illinois.
In its prior order,
the Board found that much of what has
been alleged and counteralleged in this matter
is either
irrelevant to the matter or not properly before the Board.
The
Board found that the proper issue before it is solely whether
respondent committed a violation of the Board’s regulations at 35
Ill.
Adm. Code 602.101.
The Board found that the pertinent facts
in this matter are
that in December 1990 respondent laid a piece of pipe,
of
approximately 240 foot length
(Tr. 28), along Hickory Drive
between Balsam and Elmwood Drives in Wonder Lake,
Illinois.
At
the time of placement the pipe was not connected,
and apparently
has never been connected,
to any other piping or to water
distribution facilities.
A permit for construction of the piping
has not been issued by the Agency.
In pertinent part, Section 602.101 prohibits the
“construction of any new public water supply installation” or
“the change or addition to any existing public water supply”
without a construction permit issued by the Agency.
The question
is therefore whether re~spondent’sactions constitute either
construction of a new public water supply installation or a
change or addition to any existing public water supply.
The Board found that “inasmuch as the piping in question has
never been connected to or used in any public water supply
context”,
the Board could not find that “the piping constitutes
either a new public water supply installation or a change or
1 The complaint also alleges violation of unspecified
Illinois Commerce Commission regulations and “guidelines of the
McHenry Township Road District”
(April 15,
1991 response of
complainant).
The Board has no jurisdiction in either of these
arenas,
and hence all such allegations are improperly brought
before this Board.
132—40
—3—
addition to an existing public water supply”2.
(February
6,
1992
opinion at 2.)
Therefore the Board dismissed the matter.
The difficulty the Board had was finding that the pipe in
question was ever intended to be put to any use for which a
construction permit is required.
Indeed, there is no need to
obtain a construction permit for the emplacement of just any
pipe.
The pipe must be one covered by Section 602.101.
Where there is question whether any particular pipe
(or
other installation)
is covered by Section 602.101, there are only
a limited number of ways in which the matter can be tested.
The
most obvious test is that the pipe is actually used in a water
supply context
(e.g., to convey water).
In this circumstance,
a
construction permit is clearly required3.
This test does not apply in the instant case.
Absent a demonstrated use of the pipe in a water supply
context, the only method of affirming that a particular pipe is
covered by Section 602.101 is to ascertain the intent to which
the emplacement of the pipe took place.
This is potentially a
very rocky road.
If the pipelayer declares that the pipe is not
intended for use in a water supply context,
are we to find this
declaration false on principle?
Who can get into the mind of
this pipelayer?
The Bqard
is not prepared to declare that we can
generally find intent,
or that the Agency or any other person is
so endowed.
This is the perspective the Board reached in its February
6,
1992 order.
The “intent or use” concept is embodied in the definition of
public water supply:
2
In its motion, the People object to the alleged
implication derived from the Board’s finding that “a construction
permit is not required until the connection or use of the pipes
takes place.”
(motion at 3).
The People express concern over
whether such a finding indicates a belief that a construction
permit is not required prior to issuance of an operating permit.
The Board underscores that it does not now find, nor has
it
ever found,
that construction permits are unnecessary prior to
issuance of operating permits.
The requirement for construction
permits is a Board regulation,
and there is nothing in the case
at bar that would lead the Board to repudiate its own regulation.
~ This permit is required prior to construction, else
enforcement may bs brought against the operator.
132—41
—4—
“PUBLIC WATER SUPPLY” means all mains
* *
*
through
which water is obtained and distributed to the public
*
*
*
actually used or intended for use for the purpose
of furnishing water for drinking or general domestic
use
*
*
*.
(Ill. Rev.
Stat.
1991,
ch.
111½,
par.
1003.28
(Act), emphasis added.)
Intent can be determined in the circumstance when the
pipelayer himself attests. to the intent.
The Board finds that
the respondent in this case admitted its intent to connect the
pipe foç publi~water supply purposes at a future time after
permits were obtained
(Tr.
7,
42).
Since the respondent’s intent
to use the pipe as a water main at a future time is apparent from
the record, the Board finds that respondent failed to obtain
a
construction permit prior to installing the main in violation of
Section 602.101 of the Board’s regulations.
The need to obtain
a
construction permit prior to the laying of this water main in
this case is also apparent when reading Section 602.101
in
conjunction with Section 15 of the Act, which requires approval
of plans and specifications by the Agency before construction
starts.
Therefore,
the Board grants the People’s motion for
reconsideration,
changes its determination, and finds the
Northern Illinois Utilities,
Inc., violated Section 602.101 of
the Board’s regulations.
In making its determination, the Board proceeds to consider
“all facts and circumstances bearing upon the reasonableness of
the emissions, discharges,
or deposits involved.”
(Section 33(c)
of the Act.)
Although there are no emissions, discharges,
or
deposits involved in this case, the Board will consider the
factors set forth is Section 33(c)
of the Act, to the degree that
the factors are applicable.
1.
The character and degree of injury to,
or interference
with the protection of the health, general welfare and
physical property of the people.
The record does not disclose the degree of any harm to the
physical property of the people at this time.
Interference with
the use of the road along which the water main was laid has been
alleged by the complainant, but there is no evidence that the
laying of the main actually interfered with the physical property
of the people as a result of a violation of the Act or Board
regulations.
Had the respondent applied for a construction
permit, more information pertaining to this factor may have been
ascertained.
2.
The social and economic value of the pollution source.
132—42
—5—
The water main may have social and economic value
if
it is
connected to a water supply system and supplies water to
customers.
3.
The suitability or unsuitability of the pollution source to
the area in which it is located, including the question of
priority of location in the area involved.
The complainant has made allegations that the placement of
the water main is unsuitable in its present location.
However,
these allegations pertain to Illinois Commerce Commission rules
over which, as noted earlier, the Board has no jurisdiction.
Had
the respondent applied for a permit, information on whether the
main is properly placed under Board regulations would be
ascertainable.
Wonder View has priority of location.
4.
The technical practicability and economic reasonableness of
reducing or eliminating the emissions,
discharges or
deposits resulting from such pollution source.
Although the instant matter does not deal with a “pollution
source”,
it is clear that the respondent could cease violations
by applying for and receiving a construction permit.
5.
Any subsequent compliance.
The record discloses that the respondent has never applied
for nor received a construction permit for the placement of the
water main.
The complainant has asked that the Board either declare the
pipe abandoned (complaint at 3), or that the Board issue a cease
and desist order that would prohibit the respondent from using
the pipe or installing new sections of main already in the ground
(April
15,
1991 response of complainant).
The People do not ask
for any specific remedy, but solely for a finding that the
respondent’s actions required a construction permit, and that
respondent therefore violated Section 602.101.
After
consideration of the record and Section 33(c)
factors, the Board
believes that a cease and desist order is appropriate in this
matter, and will so order.
Accordingly, the respondent must
obtain a construction permit and otherwise comply with 35 Ill.
Adin.
Code 602.101.
The respondent continues to be prohibited
under the Act and Board regulations from using the pipe or
installing new sections of main without first obtaining the
requisite construction and operating permits.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
132—43
—6—
ORDER
1.
The respondent, Northern Illinois Utilities,
Inc., has
violated
35
Ill. Adm. Code 602.101 of the Board’s
regulations.
2.
Northern Illinois Utilities,
Inc.,
is hereby ordered to
cease and desist from all violations of the Board’s
regulations.
Section 41 of the Environmental Protection Act,
Ill. Rev.
Stat.
1991
ch.
111 1/2 par.
1041,
provides for appeal of final
orders of the Board within 35 days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
IT IS SO ORDERED.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certi~ythatthe abov~opi~,nionand order was
adopted on the
~-‘~
day of
~-~A~L
,
1992,
by
a vote of
“7—0
.
~
)~
Dorothy M. p~n, Clerk
Illinois Pd1~4utionControl Board
132—44