ILLINOIS POLLUTION CONTROL BOARD
July
3,
1990
CITIZENS UTILITIES COMPANY
OF ILLINOIS,
Petitioner,
v.
)
PCB 88—151
(Variance)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD
(by J.
Anderson):
This matter comes before
the Board on an April
10,
1990
Motion for Reconsideration filed by Citizens Utilities Company of
Illinois
(“Citizens”).
On May 18,
1990,
the Illinois
Environmental Protection Agency
(“Agency”)
filed
a Response
to
Motion for Reconsideration.
On June
1,
1990, Citizens filed a
Reply to Response to Motion for Reconsideration.
On June
13,
1990,
the Agency filed
its Response
to Citizens’
Reply.
On June
19,
1990,
Citizens filed
a Motion
to Strike Agency Response
to
Reply and Verification.
The Board will first address the June
13 and June
19,
1990
filings.
In
its Motion
to Strike,
Citizens states that
the
Agency’s Response
to Citizens’
Reply was filed without
leave of
the Board and that
responses
to replies are not provided for
in
35
Ill.
Adm. Code
101.246.
The Motion
to StriKe also contains
Citizens’
reply
to the Aaencv’s Response to Citizens’
Reply.
At
the outset,
the Board
notes
that
the Agency’s
time
to respond
to
Citizens’
Motion
to
Strike has not yet expired, and that the
Board’s procedural
rules
state that
it will not grant
a motion
before the expiration of
the response period.
35
Ill.
Adm.
Code
101.241(b).
The Board, however,
finds
that deferring ruling on
Citizens’
Motion
to Strike would
result
:n undue delay, and
hereby grants the motion
for
the reasons cited therein.
The
Board, however,
will
not consider Citizens’
other
assertions
in
the Motion
to Strike
in
light of the fact
that
it
is
striking the
Agency’s Response
to Citizens’
Reply.
~7ith regard
to the Motion
for Reconsideration,
Citizens
requests the Board
to reconsider
its Maron
3,
j991)
C)~nt.~nand
Order denying Citizens’
?etit~:n ftr Varianc~.
C:~:~n~
~
numerous arguments to suoport
this motion.
The Board will
address only some of the arnuments
in
light
of
the fact
that
it
113—11
—2—
has adequately responded to many of the same arguments
in its
March
8,
1990 Opinion and Order.
First, Citizens continues
to argue
that, contrary
to the
Agency’s assertions,
the Board
is treating
it differently from
other radium variance petitioners.
In support of this argument,
Citizens cites
to numerous radium variance cases where the Board
granted relief.
First,
the Board notes
that
it
is not persuaded
by Citizens’
attempts
to cast the records and Board statements
in
those cases
in such
a manner.
There are more dissimilarities
between
this case and the other
radium variance cases
than there
are similarities, and the Agency has done
a more accurate
job of
analyzing those decisions
than has Citizens.
For example,
Citizens’asserts
that the Board should give
it
a
23 month
variance because
it gave Gene~aa
23 month variance
in light
of
the anticipated change
in
the federal standards for
radium.
This
assertion,
however,
ignores,
among other
things,
the fact
that
Ceneva asKed
for
relief on t~h~basis
of
a chan~e in the federal
standards,
and Citizens never
did.
City of Geneva
-,.
:EPA,
PCB
89—107, March
22,
1990,
p.
6)
~e aiso note
toat
Citizens
attempts
to compare
itself with other entities i~nores a very
important distinction:
waiting
to see
if
a lawsuit over hook—on
fees can be won
the Northfieid Woods litigation) before
activating compliance
does not fail within the increments of
progress factors
that comprise a compliance plan;
it simply
is a
condition precedent.
The other
cases involve increments
of
progress factors related
to activated compliance
plans.
The
closest comparison
to Citizens
is the City of Minonk, where
the
Board specifically disallowed
the City’s proposal
to suspend
completion
of
its compliance plan
if
it did not get outside
funding.
(ç~~qf
Minonk v.
IEPA,
PCB 89—140, April
26,
1990,
p.5)
Here, Citizens wants to suspend compliance before
it
~
Moreover, Citizens has never even given
a hardship
rationale as
to why the Lake Michigan compliance option has
to be
contingent
on its
not having
to pay a connection
fee.
Citizens
has
failed to enlighten
the Board,
in specific environmental,
technical,
or economic
terms, why
it would
incur
an arbitrary
or
unreasonable hardship
if up—front
time were not given
to
try
to
win the Norti-ifleid Woods connection
fee litigation before
inst:tuting actual compliance with the
LaKe
Michigan option.
Nor
has Citizens explained why Glenview would not agree
to remove the
litigation
issue as
a condition precedent from
its contract with
them so that both the Glenview and Citizens portions
of the
contract can be implemented.
Citizens instead continues
to
baldly assert that
it has
no control.
Citizens next
states
that
its compliance plan
is
firm and
gives several arguments
in support
of
this conclusion.
Most
of
these arguments have been raised before and have been considered,
or are
of insufficient
meri.t
to persuade the Ecard
that
it has
erred
in
its decision.
We
do wish, hc~ever, to
respond to one
argument asserting that
the Board misread the
record.
Citizens
notes
that
it has not proposed a third compliance scenario,
as
stated by the Board
in its March
8,
1990 Opinion and Order.
113—12
—-~—
Rather, on page
4
of
its Motion for Reconsideration, Citizens
states that
if
the first eighteen months
of
its compliance
schedule pass without resolution of
the Northfield Woods
litigation but resolution were imminent, Citizens would advise
the Board.
The Board would then decide whether
it wanted
Citizens
to pursue
its compliance plan
for obtaining Lake
Michigan water.
At the outset,
we note that
this statement
underscores
the whole speculative nature of Citizens’
compliance
proposal.
We
remind Citizens
that
the Board
does not advise on
prospective compliance plans but
rules on proposed compliance
plans
that
it has before
it.
It
is
not
uo
to the Board
to
express
its wishes.
Thus,
the Board will
not
be placed
in the
position of selectinc,
at
a later date,
the method of
compliance
that Citizens should pursue.
The burden of choosing
a compliance
option
is squarely
on Citizens
snoulders.
The burden
is also on
Citizens
to propose an am~ndment to
its compliance plan
if
it
so
wishes.
Moreover,
we cannot
help but note
that
the above proposal
is
not the third soena::o testified
to by
Mr. Chardavovne
at
hearing.
Rather,
:t
is
a fourth comoliance scenario regardina
the imminent
resolution of
the litication.
Mr.
Chardavoyrie
had
stated-at
the hearinc
that Citizens would
not necessarily drop
its legal proceedings
at the end of
the 18 months but would,
even
after three more years, when
its
ion exchange equipment design
is
essentially complete,
commit to having either Lake Michigan water
on line
(if the litigation
is by then successful)
or
the ion
exchange equipment operating at the end of
the
four and one—half,
year period
requested
in
its second scenario.
In
fact, Citizens
statements, on page
5 of
its Motion for Reconsideration,
confirms
that the above proposal
is
a fourth scenario of
its intentions
by
correctly quoting what Mr. Chardavoyne stated at
the hearing
regarding the third scenario.
The Board also takes special note
of the fact that Citizens
now states that
it has retained an engineering firm
to provide
it
with
a preliminary design of the Lake Michigan water supply
facilities.
;ce must
first emphasize that
the
record
in this
proceeding has neen closed
for some time and that we have made
our decision based
-on
that
record.
The Board will therefore
not
act lightly and reopen
the proceeding to take notice at
this
late
date of Citizens’
unverified assertion except
to state
that we
are at
a
loss
to understand why Citizens
is doing now what
it
consistently said
it could
not or would
not
do before.
For
the foregoing
reasons,
the Board grants Citizens’
Motion
to Strike Agency Response
to Reply and Verification
arid its
Motion for Reconsideration.
However,
the Board declines
to grant
the relief requested
in
the Motion
for Reconsideration.
IT
IS
SO ORDERED.
113--I3
—4—
Board Member
J.
Dumelle concurred.
Board Member
R.
Flemal dissented.
I, Dorothy
M.
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./Aunn,
Clerk
Illinois ~6llution
Control Board
I I
3—1 4