ILLINOIS POLLUTION CONTROL BOARD
July 3, 1990
IN THE MATTER OF:
PROPOSED SITE SPECIFIC WATER
POLLUTION RULES AND REGULATIONS
)
R81-19
APPLICABLE TO CITIZENS UTILITIES
)
(Rulemaking)
COMPANY OF ILLINOIS DISCHARGE
TO LILY CACHE CREEK
OPINION AND ORDER OF THE BOARD (by J.D. Dumelle):
This case comes before the Board on remand from the
appellate court. On June 12, 1981 Citizens Utilities Company
(Citizens) filed a petition for site—specific regulatory relief
which was accepted by the Board and authorized for hearing and
publication on June 25, 1981. Five merit hearings were held on
October 26, 1981; November 12 and 13, l981;and January 14 and 15,
1982. On November 23, 1982 the Village of Bolingbrook entered
its appearance. On July 14, 1982 the DeDartment of Energy and
Natural Resources (DENR) transmitted to the Board copies of its
economic study entitled The Economic ImDact of Proposed
Regulation R8l—19 for Site—SDecific Water Pollution Rules
Applicable to Citizens Utilities Company Discharge to Lily Cache
Creek (Ex. 23). An economic impact hearing was held to consider
that study on October 20, 1982. Final comments were received by
the Board on December 3, 1982.
In its original petition, Citizens requested that the
effluent discharge standards be relaxed to 20 mg/l for BOD5, 25
mg/i for TSS and up to 15 mg/l for NH3—N. The general—use
standards from which Citizens seeks relief require 10 mg/l for
BOD, 12 mg/I for TSS and a standard of 1.5 mg/l for NH.~-N(except
during the months of November through March when the sEandard is
1.5—4.0 mg/l). On May 5, 1983, the Board issued its final
Opinion and Order dismissing Citizens proposal for site specific
relief. Citizens appealed the Boardts decision and the Appellate
Court remanded the action to the Board on June 17, 1985 with the
mandate that the Board make an economic determination of the
~~cost/benefitT~factor pursuant to Ill. Rev. Stat. Chapter 111—1/2
1027(b). 134
Ill.
App. 3d at 311. Accordinclv, economic impact
hearings were held January 28, 1986 and on November 17, 1987 in
order to further supplement the record so that the Board could
make a decision in regards to economic impact.
As far as our decision on remand is concerned, the vast
majority of the Boardts May 5, 1983 Opinion and Order remains
applicable. As a result, the Board feels that the detailed
analysis contained therein need not be repeated here. Rather,
the Opinion and Order of May 5, 1983 should be taken in
conjunction with today’s ruling. Therefore, the Board hereby
incorporates by reference the entire May 5, 1983 Opinion and
113—113
—2—
Order with the exception of the last two paragraphs of that
portion entitled ECONOMIC REASONABLENESS AND TECHNICAL
FEASIBILITY and the last paragraph under that section entitled
STREAM USES AND ENVIRONMENTAL IMPACT. The Board also strikes
that section entitled BOARD ACTION.
Discussion
Both the Illinois Environmental Protection Agency (IEPA) and
Citizens agree upon the scope of the remand. That is, both IEPA
and Citizens concur that the Appellate Court remanded the case to
the Board because the Board had not made the required findings
under Section 27(b) of the Act. This portion of the Act states
that the Board has a legal responsibility to make a determination
of the economic impact
—
whether adverse or beneficial
—
of
Citizens’ proposed regulations. It is at this juncture that any
agreement between the participants end.
Citizens takes the position that the Board did not make an
economic determination solely because the report issued by the
Department of Energy and Natural Resources (DENR) was
inadequate. As such, they contend that the burden of proof upon
remand lies with DENR. Moreover, Citizens asserts that the
“Court further held that any alleged shortcomings in the record
on the issue of costs and benefits are not the responsibility of
Citizens.” (Citizens’ brief, pg. 10.)
IEPA, on the other hand, maintains that the shortcomings in
the record referred to by the Court were the failure of the Board
to make a determination of the costs and benefits and the Board’s
failure to address the issue of the economic impact of the
proposed regulatory change. Contrary to Citizens’ position, the
IEPA asserts that under no circumstances did the Court find that
the burden of proof is upon DENR on remand; and further, the
Agency asserts that the Board did not recognize that DENR had any
burden in its Order of May 5, 1983, nor did it blame the alleged
insufficiency of the Economic Impact Study as the sole reason for
not having made the required findings.
In order to make a determination on these issues, we must
look to the decision of the Court as well as the language
contained in Section 27(b). The Court stated, in pertinent part:
Although the technical reading of Section 27(b) may
excuse the Board’s failure to determine the economic
consequences of its action, we believe the narrow
technical reading of the statute would frustrate the
legislature’s intent to create some degree of economic
accountability to “the people of the State of
Illinois”. The intent ~.sto inject into the Board’s
decision—making equation a cost/benefit factor. Where,
as here, the rejection of substitute regulations is in
effect the adoption ofa previously existing regulatory
framework, the same economic accountability should be
113—114
—3—
brought to bear. It follows, then that we agree with
the appellant. The Board cannot avoid the statutorily
required economic determination, even though as the
Board opined, it is difficult to quantify certain
“aesthetic impacts.”
Where the administrative record is inadequate or
incomplete, we must remand the proceeding for the making
of a more complete record. Citations Omitted. While
shortcomings in the record might in some cases be the
responsibility of the appealing party, and thus provide
no basis for alleging error such is not the case here.
Here, the Illinois Pollution Control Board has the legal
responsibility for making a determination of the cost
and benefits, while the Department of Energy and Natural
Resources has the legal responsibility for performing
the study. The appellant, in order to receive a fair
hearing, comporting with the statutory requirements, is
entitled to have the Board confront the issue of the
economic impact of the proposed regulatory change.
134 Ill. App. 3d at 116. (Emphasis added.)
As it can be clearly seen, Citizens’ position that the
burden of proof is upon the DENR takes the Court’s findings
completely out of context. The Appellate Court merely notes that
the shortcomings contained within the record were not the fault
of the appellant because if they were, Citizens’ legal position
would have been irrelevant and therefore there would be no basis
for any determination by the court upon the issue. In other
words, the Court had to determine this issue to proceed
logically. Yet in no way should this simple restatement of the
law be construed to mean that DENR has the burden of proof to
refute Citizens’ assertions contained in the record.
Indeed, the Court also quoted from the Act. Section 27(b),
in relevant part, states:
(Blefore the adoption of any proposed regulations, or
amendment to existing regulations, the Board shall
conduct hearings on the economic impact of those new
regulations, and shall receive comments from the public
regarding the study of the economic impact of those
proposals prepared by the Department (of Energy and
Natural Resources)***. in adopting any such new
regulation, the Bcard shall consider those elements
detailed in the Department’s study
~
and other
evidence in the public hearing record, as to whether the
proposed reQulation has any adverse economic impact on
the people of the State ~f :llinois.”
(Ill. Rev. Stat. 1981, ch. 111—1/2 par. 1027(b).
Emphasis added)
113 115
—4—
The “other evidence in the public hearing record”
undoubtedly includes all of the testimony apart from the study
DENR is legally required to perform. It stands to reason, then,
that “the Board shall consider” the entire record vis—a—vis its
ultimate economic determination. This includes, among other
things, the information brought forth by the proponent, the DENR
study, any testimony submitted by IEPA and its experts as well as
public comment by any interested citizen or advocacy group. In
short, that the DENR was required to perform a study in this
proceeding is uncontested and indeed, completely clear. Yet to
suggest that this legal requirement constitutes a burden of proof
is a complete misapplication of the statute.
It is a well-settled principle that when an administrative
agency such as the Board exercises its rulemaking powers, it is
performing a quasi—legislative function, and therefore, it has no
burden to support its conclusions with a given quantum of
evidence. Illinois State Chamber of Commerce v. Pollution
Control Board, 49 Ill. App. 3d 954 (1st Dist. 1977). This very
same case held that the burden of establishing the invalidity of
regulations promulgated by the Board is on the appellants, and
that burden is very high. Id. at 960. It should be noted that
the issue of whether or not to grant site—specific relief falls
under the Board’s rulemaking powers. In order to have a
regulation overturned, the appellant must prove that it was
clearly arbitrary, unreasonable or capricious because
administrative agencies are inherently more qualified to
determine technical problems. Central Illinois Light Co. v.
Pollution Control Board, 159 Ill. App. 3d 389 (3rd Dist. 1987).
The Board now addresses the issue of whether Citizens’
compliance with the “general—use” regulations are economically
reasonable. IEPA alleges and Citizens admits that it could
afford to implement the revisions needed to achieve compliance
with the “general—use” regulations. As such, the Board limits
itself to the issue of whether, given the existing conditions,
the cost incurred by Citizens would be reasonable.
It should be noted at the outset, as it was in the original
Board Order in May of 1983, that quantifying some of the aspects
of this dispute is extremely difficult. The Appellate Court
noted this when it said that “The Board cannot avoid the
statutorily required economic determinators even though, as the
Board opined, it is difficult to quantify certain ‘aesthetic
impacts’.” Citizens, 134 Ill. App. 3d at 116. Upon remand,
these difficulties remain. However, the Board is firmly
convinced that the evidence, although imprecise, supports the
Board’s determination.
The Board notes that it had to refer to the existing record
in that little evidence was forthcoming following the remand in
regards to stream potential. In contravention of the established
case law as well as Section 27(b), Citizens took the position
that the only relevant new information would be an addition to
113—116
—5—
the DENR study. Because of this stance, Citizens objected to
every witness brought forth by the IEPA in the hearings on
remand. Consequently, instead of supplementing the record and
educating the Board, Citizens took on an obstructionist role.
In conjunction with this difficulty, Citizens apparently
interpreted the appellate court’s statement that “the intent is
to inject into the Board’s decision—making equation a
cost/benefit factor” to be solely monetary in nature. For
example, Citizens objected to testimony which pertained to water
quality as not relevant to economic impact. Based on the same
grounds, Citizens also objected to testimony by Thomas R. Stack,
who was familiar with both the Utility Company (Citizens) and the
workings of the Illinois Commerce Commission as he was an
employee of the latter.
This is truly significant because Citizens’ argument
throughout the course of the litigation has been that the Creek
is so degraded that to spend money to comply with the “general—
use” regulations would be imprudent and indeed, would benefit
neither the company, its ratepayers nor the taxpayers of
Illinois. Given this argument, along with the fact that the
appellate court remanded the case to the Board to make a more
complete record (i.e., economic impact analysis), it remains
difficult for the Board to ascertain the logic behind Citizens’
objections.
At the very same time, Citizens argues, both in its brief
and at the remand hearings, that the decision of the appellate
court to remand the case renders any prior decision of the Board
null and void. Assuming, arguendo, this position is correct,
then why would Citizens object to further testimony which
indirectly
—
but undoubtedly
—
relates to the economic impact of
the proposed regulatiOn? Apparently, Citizens is of the opinion
that the record on remand is incomplete, but the only thing which
will make it whole is another DENR study. Such an interpretation
could not possibly be based on any authority contained within
Section 27(b) of the Act, but rather must stem from a misreading
of the appellate court decision.
To say the very least, the Board finds this litigation
strategy to be disconcerting. Citizens’ position that stream
potential is not related to the cost/benefit analysis reflects
Its misunderstanding of the “benefits” aspect. Any benefits
which might be derived from the creek are necessarily related to
its cleanliness. Concurrently, the “costs” are always the
easiest to ascertain. The benefits, however, are far more subtle
and therefore difficult to quantify.
Inasmuch as the Board is required ~o consider the economic
study performed by DENR pursuant to Section 27(b) of the Act, it
has done so. Yet the Board is not required to agree with the
study, especially when, as in the instant case, seven public
hearings were held and the record contains ample evidence which
directly contradicts many of the study’s conclusions.
113—117
For example, Citizens cites the DENR study and maintains
that it reinforces their position that complying with the
“general—use” guidelines would not be prudent and is therefore
unreasonable. In fact, the study does come to these
conclusions. Yet in some crucial areas, the rationale is so
incomplete as to be totally lacking in credibility. Other areas
are simply dismissed and not counted. The DENR study, in effect,
ratified Citizens’ position when it came to the conclusion that
if everything IEPA alleged was true, then the economic benefit
would still remain in Citizens favor by a ratio of 16:1 to
26:1. (See Board Order of May 5, 1983.) But the concept of
“ratio” is a creation of the DENR study eagerly adopted by
Citizens. Nowhere in the Act nor the appellate court language is
ratio mentioned. In fact, absent fishing, the conclusory ratios
expoused by Citizens totally fails to even consider any potential
benefits. Indeed, it appears that Citizens’ attitude was that if
it is not quantifiable, it cannot be a benefit.
The theory behind this ratio analysis was that the only
“cost” that could be quantified remained $52,000 a year in the
loss of fishing. And this, according to the DENR study, was a
worst—case scenario. In reality, the author stated, the losses
incurred may very well be zero and therefore the cost/benefit
ratio would be infinite. In arriving to this conclusion, the
author considered four separate topics; streamside activities,
aesthetics, natural resources and fishing. Of these, only
fishing
—
after it had been lumped together with natural
resources
-
could be quantified.
The study also lumped together aesthetics and streamside
activities:
“Q
(David Rieser, IEPA Attorney.) Chapter 5, to
continue, you discussed the variety of available
uses. Why did you combine aesthetics and
streamside activities in your discussion?
A (Dr. Ducharme, author of EcIS) Because it seemed
to me that they were closely related, that
streamside activity
——
and this is a personal
judgment drawing from my own personal, the way I
react to a creek or stream of water body
——
is that
the degree to which I want to picnic near that
stream or camp near it is really in large part to
what the water body looks like. And it seems to me
reasonable that most people would view it that way,
and that’s the reason for combining them.
Q
And Northwestern Illinois Planning Commission
(“NIPC) defines them as entirely different things,
isn’t that correct? They are uses which are
identified as different things?
A Yes.
113—118
—7—
Q So there are differences between them?
A Yes, I suppose there are from strictly speaking.
Q
Are those differences
——
A I would characterize streamside activity and sic)
a picnic table next to the creek. I would
characterize the aesthetic aspect the way the creek
looks or the way it smells.
Q Would there be differences?
A And I think there is a connection between the two.
Q Despite the connection would there be different
quantifiable values associated with those two
different uses?
A Well, I would find it difficult to identify and
quantify the factors that were related to
streamside activities other than the aesthetic. In
this particular case if boating and water skiing
were possibilities, they would be related, but they
are not potential uses in Lily Cache Creek. And so
it seems to me it boils to a question of pretty
much of aesthetics in terms of that waterbody.
Q Would there be any incoherent values associated
with having an aesthetically pleasing stream that
would be different from those which could be
associated with streamside activities?
A I suppose there could be.
Q
And is there a way to quantify these?
A Well, if you could
——
I am thinking again of water
contact activity, where you might put a value on
swimming opportunity or boating opportunity of
water skiing opportunity, would be tough.
Q
Similarly why have you combined natural resource
protection use and the fishing, for the same
reasons that you stated before?
A Say that again.
Q
You combined those natural resources protection and
use and
-—
A Yes, because
the
natural resource protection
relates to the stream’s capability to propagate,
113—119
—8—
serve as a breeding ground and spawning ground for
fish. That is part of the natural resources value
of the creek.
It was intimately related to the aquatic life in
the testimony and I thought it seems logical to me
to connect the two.
Q Again in the NIPC stream report, is it possible to
quantify values that are different for each
category?
A I don’t know. On that I am not enough of an
aquatic biologist to know how you would separate
out the sod fish cain from the fish chain, you
know, the connecti~~ between the two and sorting
out all of the fac: rs that are related to each one
of them. I do~IT now, I can’t answer your
question.
Q So there would be some
-—
so you are not aware of
——
so you are not ~Dle to quantify the value of the
stream as a fish stawning stream as opposed to a
fishing stream, is that correct?
A Yes.(Tr. at 896—899.)
The DENR study also stated that there existed the
possibility of odors, but that it was not significant. Although
evidence was adduced through the hearing
—
as well as in the DENR
study
-
that Bolingbrook and Will County would be seeking to
increase public access to Lily Cache Creek, no value was placed
there either. Finally, the DENR study asserted that if the water
standards for Citizens’ #1 plant were to be relaxed, economic
benefit would be conferred upon those other four plants along the
creek currently in compliance with the “general use” requirements
in that their standards might also be relaxed.
Throughout the record, it becomes abundantly clear that the
value of a clean stream remains an intangible quality, but
produces tangible, if not quantifiable, economic results. What
if, as the record revealed, Bolingbrook and/or Will County choose
to develop the land and public access is increased? What would
the price of the land be if a clear stream ran through the
affected properties with fishing opportunities and water
activities for children? Even assuming private ownership, land
values
—
and subsequently the tax base
—
would only increase.
Conversely, if effluent standards were relaxed and odors
appeared, it stands to reason that land values would decrease.
Yet this was never cons~dered by the DENR study, and any attempt
to gain a better understandins of tnese aesthetic benefits was
objected to by Citizens on remand.
113—120
—9—
DENR chose to maintain that relaxing effluent standards for
Citizens would provide economic benefits to other utilities
operating along the creek. The approach belies a niisconception
of site—specific relief in particular and, in general, directly
contravenes the purpose of the Act. The notion that “if one can
pollute, all can pollute” hardly represents a long—term economic
benefit, assuming, that is, that the other utilities currently
complying would even qualify for site-specific relief. In short,
the Board vehemently disagrees with this rationale.
Citizens lastly argues that to meet the “general-use”
standards would impose a burden upon their customers so
substantial that it renders compliance to be economically
unreasonable. In asserting this point, Citizens maintains that
only those served by WSB 41 would bear the cost of updating the
plant. (See Board order, May 5, 1983.) Citizens has two plants
in the Bolingbrook area and many more throughout the Chicago
Metropolitan Area. It is Citizens’ contention that each region
pays its own way for those charges which are identifiable and
unique to that region.
The Board finds this proposition to be, at best, tenuous.
At its worst, it constitutes a self—created hardship, the only
purpose of which is to bolster Citizens’ argument in regards to
economic hardship. In its effort to persuade the Board, Citizens
states that WSB#2 was funded by developers who in turn passed on
the costs to homeowners. Implicit in this rationale, however,
remains the fact that costs are diffused through a market
economy. That is, the developers ultimately passed on those
costs to speculators, brokers, homeowners, renters, etc. In this
vein, it is not unreasonable to assume that Citizens would employ
the same technique and disperse the cost of compliance so that
any increase would be incremental. Perhaps equally significant,
Citizens’ analogy proves false in that anyone who incurred any
expense chose to do so within the rules of the free market. In
no way is the situation analogous to the restrictions and
equities imposed by the Illinois Commerce Commission. Moreover,
Thomas R. Stack, an employee of the Illinois Commerce Commission,
testified and basically refuted all of Citizens claims. He also
testified that ratepayers of Citizens WSB #1 and WSB #2 plants
paid identical rates at the time in issue. (See Board Order May
5, 1983.) Apoarently, Citizens would have the Board believe that
1) this was a coincidence; 2) that large expenses incurred by
publicly—regulated utilities are regionalized and therefore not
spread out across the board, and 3) that the Commerce Commission
would affirm a plan whereby one faction of ratepayers would be
subjected to significant increases while the vast majority of
others remain unaffected.
The Board not ~nlv d~sucreeswith this contention, but notes
it is reflective of Cit::ens sosition throughout the course of
the proceedinc. Citizens offered no alternative solutions and
every issue orsented was done so narrowly
—
only within the
context of its objective. As pointed out earlier, Citizens
113—121
—10—
maintained that upon remand, the prior order of the Board was a
nullity and that the record was incomplete. Yet upon remand,
Citizens had no witnesses to offer, and objected to virtually
everything.
While other similarly situated plants thoughout the state
are in compliance with water quality regulations, Citizens
continues to assert that they are somehow special. Inherent in
their argument is the allegation that the regulations being
imposed upon them are arbitrary and therefore unreasonable. This
argument demonstrates a complete disregard for the purpose of the
regulations as well as the history thereof. Total suspended
solids, ammonia nitrogen and biochemical oxygen demand directly
affect the entire ecosystem of a waterway. Damage to micro-
organisms feed their way up through the food chain and affect the
entire aquatic community. The regulations were adopted so as to
prevent this type of damage. And these regulations were
formulated by scientific dat~a; that is, the numbers were adopted
in light of evidence which demonstrated that past a certain
point, effluents being released into a waterway detrimentally
affect the aquatic organisms dependent upon that waterway.
With this in mind, the Board has considered the testimony
upon remand and scrutinized the prior existing record. Although
the evidence was contradictory, the Board has determined that
Lily Cache Creek is typical of most streams in the Northern
Illinois region. Based upon the testimony of Dr. Ronald Flemal,
whose field of expertise is hydrology and soil content, the Board
concludes that Lily Cache Creek has the potential to support a
diverse aquatic biota. Wallace Matsunaga also testified, and
based on his expertise in biology, he concluded that Lily Cache
Creek supported a diverse aquatic community. As such, the Board
finds Citizens’ characterization of the creek as hopelessly
degraded to be unfounded.
Thus the “general—use” standards the Board seeks to enforce
in this proceeding are not arbitrary, but rather, consist of
firmly established scientific criteria necessary to preserve the
health of the environment. The Board is here by virtue of
statute to do just that. Citizens has failed to rebut the
scientific data which demonstrates that its effluent release
damages the aquatic diversity of the stream. Moreover, they have
failed to assert any unusual or special economic burden not
suffered by other utilities who are currently in compliance. The
Board finds instructive the comments of a decision years ago in
an opinion drafted by Professor of Law David Currie when he was
Chairman of the Board. To wit:
i-Subsequent to his testimony in this proceeding, Dr. Flemal
has been appointed to the Board. Accordingly, he took no part in
this decision.
113~122
—11—
.it would be folly to set effluent
standards at such a level as to permit
existing pollution sources in every case to
degrade the water to the level set by the
standard. To do so would transform standards
designed to protect the environment into
licenses to degrade. It would ignore the fact
that a water quality standard prescribes not
the ideal condition of the environment, but an
outer limit of dirtiness that should be
avoided if it reasonably can be. It would
commit us to the philosophy of allowing the
environment to be as dirty as we can bear it,
when our correct philosophy should be to make
the environment as clean as we reasonably can.
(R70—5, March 12, 1971. See also, PCB 88—47,
p. 8 and R87—35 pp. 16—18).
Finally, the Board notes that a wealth of precedent exists
to supoort our decision today. In Central Illinois Light Co. V.
Pollution Control Board, 159 Ill. Aop. 3d 389 ( 3rd Dist. 1987),
the Appellate Court held that the Board’s decision to deny CILCO
site—specific relief was supported by the evidence. Similar to
the instant case, CILCO asserted that to comply with effluent
standards in regards to ash would be unduly expensive. The court
found:
CILCO’s witness testified that the phvsicochemical
treatment method was unreasonably expensive at a cost of
$550,000 a year total—levelized cost for 25 years.
CILCO also provided testimony that indicated a new ash
p~~dwould cost approximately Sll million. Finally,
CILCO maintained that a third alternative, that of ash
disposal off—site, would be too expensive at $10 to $14
per ton. However, as respondents further point out, for
each of the alleged unreasonable alternative, CILCO
submitted no evidence to establish a comparative basis
upon which the Board could determine the reasonableness
of the cost of any of these alternatives.
159 Ill.App. 3d at 391 (Emphasis added.)
The main difference between CILCO and the proceeding at bar is
that at the time Citizens applied for site—specific relief, four
other plants operating in the area were in compliance with the
regulations Citizens sought to avoid.
In Greater Peoria Sanitary and Sewace Disposal Dist., 185
Ill. App. 3d ~ ~rd Djst.1989), the Appellate Court again ruled
in favor or ~ne Bc~r~
Lt cenied site—soec~f~c-elief to the
District in regards to ammonia—nitrogen effluent standards. Here
the Court found that, Like the Citizens case, current violations
of water quality downstream were contributed to by the District’s
113—123
—i2’-
ammonia discharges. Accord, Illinois State Chamber of Commerce
v. Pollution Control Board, 177 Ill. App. 3d 923 (2nd Dist.
In a case virtually analogous to the one at bar, the
Appellate Court upheld the Board’s denial of site—specific
relief. In City of Mendota v. Pollution Control Board, 192 Ill.
App. 3d 704 (3rd Dist. 1990), the Court found that the City,
which operated the sewage treatment plant and sanitary sewer
water system, failed to establish that spending $14 million for a
new sewer system in a town of seven thousand people was
economically unreasonable. The court refused to overturn the
Board and grant site—specific relief despite the fact that
evidence existed which demonstrated that pollution of the
waterway in question occurred from sources in addition to the
city.
The City of Mendota shatters the nucleus of Citizen’s
petition, namely, that the condition of the stream is so degraded
from external sources that compliance would be meaningless and
therefore unreasonable. In rejoinder to the identical argument
made by the city of Mendota, the Court held:
This court does not find the Board’s decision
on this issue to be arbitrary and
capricious. The legislature passed the Act to
“restore, protect, and enhance the quality of
the environment.” (Ill.Rev.State.l987, ch.
.111—1/2, par. 1002(b).) There is no hidden
legislative purpose to be gleaned from the
statute. The purpose of the Act is to keep
the waters of this state clean. We appreciate
the great expense the city might incur if they
replace their entire sewer system, and we
applaud the city’s recent efforts in detecting
the whereabouts of infiltration and inflow
sources. This court is not persuaded,
however, that this case warrants a site—
specific exemption to the sewer over—flow
standard set forth in section 306.304 of the
Board’s water pollution regulations. 35 Ill.
Adm. Code Section 306.304 (1985)
192 Ill. App. 3d at 707.
There are two distinctions which apply between Mendota and
Citizens, but both favor Mendota. First, Mendota made a good-
faith effort to comply with the regulations; and second, the lack
of conformance in Mendota was intermittent and would only occur
when precipitation ‘as ~~:reme. Citizens, on the other hand,
remains in perpetual r.on-ccmoliance and they have yet to seek
alternative solutions
—
maintaining instead that the cost will be
unduly burdensome and only WSB ~l rarepayers will be liable.
(See Board Order May 5, 1983.
112—124
—13—
Conclus ion
The Board has examined the elements detailed in the
Department’s study and the other evidence in the public record
and remains convinced that Citizens’ petition should not be
granted for a variety of reasons. The cost to Citizens to
upgrade its plant is not unreasonable and it has not
distinguished itself sufficiently
—
or indeed, at all
-
from
plants in the area and throughout the state that are currently in
compliance. Citizens’ assertion that only the WSB #1 ratepayers
will bear the cost of compliance is viewed with a great deal of
skepticism. There is very little common sense inherent in this
position and the Board cannot help perceive it as self-serving.
In addition, allowing Citizens to degrade the creek will
certainly have an adverse economic impact on the people of
Illinois in that Lilly Cache Creek itself has the ability within
its existing structure to support a diverse aquatic biota. In
fact, the creek is a feeder stream into the DuPage River and will
ultimately affect the aquatic health
—
or lack thereof
—
of that
waterway. For these reasons in conjunction with the State Act
(“to restore, protect and enhance”) and the Federal Clean Water
Act (“that wherever attainable, and interim goal of water quality
which provides for the protection and propagation of fish,
shellfish, and wildlife and provides for recreation in and on the
water be achieved by July 1, 1983”), the Board finds that the
record does not support Citizens’ request for site—specific
relief. In particular, we have determined that, on balance,
compliance with the general—use standards is economically
reasonable for Citizens Utilities and that, under the terms of
Section 27 of the Act, the proposed regulation has an adverse
impact on the people of the State of Illinois.
BOARD ORDER
Accordingly, for the reasons expressed herein, Citizens
Utilities petition for site—specific relief is hereby denied.
IT IS SO ORDERED.
Board Member R. Flemal abstained.
Board Member B. Forcade concurred.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board do hereby certify th~tthe above Opi ion and Order was
adopted on the
,
~
day of
-
,
1990 by a
vote of
—()
.
~.
Dorothy M. G~n, Clerk
tllinois Po~Y’utionControl Board
113~-125