ILLINOIS POLLUTION CONTROL BOARD
November 3, 1988
VILLAGE
OF SAUGET,
)
3
Petitioner,
)
)
v.
)
PCB 88—18
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE BOARD
(by 3. Marlin):
On October
ii,
1988 the Village of Sauget
(Sauget)
filed a
Motion for Reconsideration of the Board~sSeptember
8,
1988
decision.
The Illinois Environmental Protection Agency filed
a
Motion
to Strike,
Agency Objection to Reconsideration,
and
Request for
Clarification on October
19,
1988.
Sauget filed a
Response
to the Agency’s Motion to Strike on October
28,
1988.
The general contention of Sauget’s October 11th motion
is
that the Board improperly
limited the arbitrary or unreasonable
hardship evaluation to the hardship resulting from the PACT/WAR
accident which occurred on December
2,
1987.
Sauget asserts:
While Sauget’s original variance was premised
upon the explosion and/or fire which disabled
one of the WAR units, Sauget made
it clear at
hearing,
as
the
Board
recognized,
that
the
question of how to achieve overall compliance
as well
as
Sauget’s
basis
for
demonstrating
arbitrary and unreasonable hardship goes well
beyond the
PACT/WAR
process.
(Sauget Notion,
p.3)
Then,
Sauget seems to
link,
for the first
time,
its changing
relief request with the basis for
the variance.
(The
Agency
had
no
objection
to
Sauget’s
revisions
to
the
scope
of
its
relief.
This
up—dated
information
demonstrated
that
the
problems
and
the
compliance
alternatives
go
beyond
the
PACT/WAR
process,
and
the
basis
for
the
variance
changed
along
with
the
changing facts which came to
light.
The Board,
on
the
other
hand,
appears
to
be
limiting
Sauget
to
the
basis
stated
in
Sauget’s
petition,
e.g.
the explosion and/or
93—281
2
fire
which
rendered
the
PACT/WAR
system
inoperable.
(Sauget Motion,
p.6)
Sauget suggests that the Board based its evaluation of
Sauget’s only on the information asserted
in Sauget’s January 19,
1988 Petition.
Evidently, Sauget chooses to ignore pages 11 and
12 of the Board’s September
8, 1988 Opinion.
On those pages the
Board quoted passages from Sauget’s post—hearing briefs that
clearly support the Board’s conclusion that Sauget has attempted
to use the unfortunate and unexpected accident of December
2,
1987 as the basis of its variance request.
The Board concluded
in its September 8th Opinion that this was an inadequate basis
for a variance.
That
is, Sauget would not incur an arbitrary or
unreasonable hardship, stemming from the December
2,
1987
accident,
if denied
a variance.
In
its motion Sauget further contends:
The
Board
appears
to
have
seriously
misunderstood
the present
intent
of
Sauget’s
variance
request.
Sauget
is
attempting
to
achieve
and
maintain
consistent
compliance
with
all
applicable
standards.
Due
to
unforeseeable
changes
in
the
influent,
possible
design
deficiencies
and
the
fire
and/or
explosion
of
one
of
the
WAR
units,
Sauget
is
faced
with
a
complex
problem
of
doing
so.
(Sauget Motion,
p.
8—9)
Therefore, Sauget now claims that design deficiencies due to
changes
in its influent are the heart of its variance request.
However, Sauget still maintains in its motion that “effluent data
from the AB plant since the explosion demonstrates substantial
compliance with the effluent standards”.
(Sauget Motion,
p.9).
The motion also states,
“Mr. George Schillinger
(a Sauget
witness
presented unrebutted testimony that
‘all portions of the
plant, other than the PACT/WAR system are functioning and
functioning well.’”
(Sauget Motion,
p.5).
Notwithstanding such inconsistencies the Board addressed the
issue of design deficiencies in its September 8th Opinion
concluding:
Changes
in ABRTF’s
American
Bottoms Regional
Treatment Facility
influent could
have been
reasonably
anticipated
and
dealt
with
by
pretreatment
or other
means.
General design
deficiencies
in
the
treatment
processes
employed
by
ABRTF due
to
such changes, while
perhaps
unfortunate,
are
not
a
sufficient
93—282
3
basis
for
an
“arbitrary
or
unreasonable”
hardship determination.
(PCB
88—18,
slip
op.
at
20, September
8,
1988)
Sauget counters that such a finding
is not supported by the
record.
The Board disagrees.
While the Board believes that ABRTF’s performance is such
that a variance
is not necessary for most parameters at issue,
any hardship which would result from
a variance denial might be
classified as self—imposed.
Sauget chose and implemented the
design
for ABRTF.
It
is true that the quantity and quality of
flow,
now tributary to ABRTF, have changed over years.
This
change was due to the fact several major industries no longer
contribute
to the flow and other changes
to contributors.
In
fact the current flow amounts
to 1/2
to 2/3 the designed flow.
CR.
126)
It is reasonable,
though,
to believe that Sauget could
have initially planned for
the possibility of such changes.
In
the least, Sauget should have attempted to modify its treatment
system and pretreatment program to accommodate variations
in flow
when first observed.
A pretreatment program could have been one
route.
These conclusions seem even more reasonable when one
considers that at least one—half
of ABRTF influent consists of
wastewaters originating from chemical and other various
manufacturing plants.
(R.
125)
The Board must emphasize that under
the Act variances are
not granted merely because the petitioner has shown that it
cannot comply with regulations despite its efforts
to achieve
compliance.
Rather,
a shield from an enforcement action is only
given to a petitioner who would suffer
an arbitrary or
unreasonable hardship.
See Monsanto Company
v. Pollution Control
Board,
67
Ill.
2d 276,
367 N.E.
2d 684
(1977)
(Inability
to
comply with a State standard does not make mandatory the granting
of
a variance.).
Certainly, most persons would view any defense
to an enforcement action as
a hardship.
But
it does not
automatically follow that such a defense
is an arbitrary or
unreasonable hardship.
Quaker Oats Company
v.
Illinois Pollution
Control Board, PCB 83—107, 59 PCB 25 (July 19,
1984)
(Enforcement efforts and decisions have nothing
to do with the
question of arbitrary or unreasonable hardship.).
It
is only
through enforcement that the environmental laws are given their
teeth.
Without the potential
for such actions,
the environmental
quality of this State would never improve.
Therefore, variances
are not
to be granted lightly.
Additionally, Sauget’s past
efforts
in the design and construction of ABRTF,
although not
determinative
in this variance proceeding, would
have relevance
and weight
in an enforcement action.
Finally, Sauget
seems
to argue that the Board must grant
a
variance imposing
a compliance plan before Sauget will
be able
to
achieve compliance.
Sauget asserts:
93—283
4
The Board’s failure to recognize the need for
such
an
overall
compliance
strategy,
which
includes
investigation
of
pretreatment
alternatives,
is improper.
Sauget concludes its motion by stating:
Even
if
variance
from some
of
the standards
should
be
denied,
the
compliance
plan
required
must
consider
each
of
the
constituents at issue and not focus upon some
small
part
of
the overall
problems
in order
to
be
both
technically
and
economically
effective.
Even though the Board denied Sauget
a variance with respect
to all the parameters except color,
Sauget is not precluded from
taking action to ensure that
it will continue
to comply with all
other parameters.
In other words, Sauget
is free to
implement
its proposed compliance plan even though
it does not have the
variance which it requested.
The Board
notes,
though,
that Sauget agrees with the Board
that its proposed compliance plan is speculative.
However, on
this point, Sauget again relies on the December
2, 1987 accident
to justify its proposal.
Sauget
has
fully
admitted
that
the
relief
sought
is
speculative.
Sauget
did
not
foresee that the PACT/WAR system would fail.
(Sauget Motion,
p.5)
Throughout this proceeding Sauget has used the December
2,
1987 accident as the keystone to its variance request.
The Board
concluded that the situation created by the accident would not
impose an arbitrary or unreasonable hardship if Sauget were
denied
a variance.
In addition,
the Board concluded that the
general design deficiencies of ABRTF would similarly not create
an arbitrary or unreasonable hardship
if the variance were
denied.
Now Sauget claims that
it needs the variance due to general
design deficiencies beyond the December
2,
1987 accident.
Sauget
also asserts that if
it had known that the Board would
have ruled
unfavorably regarding the issue of design deficiencies it would
have sought to enter into this proceeding information which
Sauget believes would counter the Board’s conclusion.
To this
end, Sauget attaches
to its motion copies
of portions
of
a 1980
report.
Also,
in
its Response, Sauget states that it “has file
drawers
filled with information regarding the design and
construction of the AB plant which it could have entered as
exhibits.”
93—284
5
A petitioner
in
a variance proceeding carries the burden of
proof;
a petitioner must prove arbitrary or unreasonable
hardship.
Sauget presented evidence and argued
its case before
the Board.
If the case is insufficient to prove arbitrary or
unreasonable hardship, to the full extent of the variance
request, then a decision unfavorable to Sauget
is warranted.
Sauget seems
to be requesting
a second bite of the apple.
While
new information
is not necessarily inappropriate when presented
in conjunction with
a motion for reconsideration, such
information should indeed be “new”.
In
its Response Sauget
admits that “the information presented
is not
‘newly discovered’
in the sense that Sauget was unaware
of its existence prior
to
hearing
in this matter.”
(Sauget Response,
p.2)
Consequently,
Sauget voluntarily decided not to introduce information
concerning ABRTF’s design history even though it
is now seeking
to justify a variance on that issue.
Sauget
is free to file
a
new variance petition under
a new docket to introduce into that
proceeding any information which
it wishes the Board
to consider.
Sauget also suggests that the variance from the color
standard granted by the Board
is improper, because “neither
Sauget nor the Agency presented evidence that compliance can be
achieved
in one year”.
(Sauget Motion,
p.7)
In its variance,
the Board
imposed conditions which require Sauget to
investigate
the color problem and implement a solution within one year.
The
Board believes that such conditions are appropriate.
In Monsanto
Company,
367 N.E.
2d at 238, the Supreme Court spoke of the
Board’s authority
to impose “technology forcing” standards.
The
Court held
Tb
hasten
ultimate
compliance
with
a
statewide
standard,
the
Board
may
establish
an
interim
standard
which,
though
not
impossible
to
satisfy,
is
beyond
the
polluter’s
present
technical capability.
In
short,
it
is
not
necessarily
arbitrary
and
capricious
conduct
for
the
Board
to
set
a
standard which
a
petitioner
cannot adhere
to
at the present time....
It is not conclusive from the record that compliance with
the color standard
is even beyond Sauget’s present
capabilities.
The issue of pretreatment requirements
to remedy
the color problem was not addressed
in the record.
The only
compliance option discussed for color was the addition of carbon
to the whole flow at ABRTF,
as the Agency points out in its
Objection.
The Board believes that other compliance options
should
be
investigated.
Sauget’s October 11th motion referred
to an attachment which
was inadvertently left off the motion.
Sauget filed copies of
the attachment on November
2,
1988.
However,
the Board has not
substantively considered
the attachment.
Sauget’s motion
for
rec9n$ideration
is denied,
and the Agency’s motion to strike
is
denied.
93—285
6
Finally,
the Agency requests clarification of the Board’s
Order
of September 8,
1988.
The Board believes that the Order
accurately reflects the Board’s intention concerning the
variance.
That is,
the Board did not intend to
incorporate any
interim deadlines
or any reporting requirements
in this
variance.
However, this does not preclude the Agency from
imposing permit conditions which the Agency deems necessary for
compliance.
IT IS SO ORDERED.
B.
Forcade dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certif
that the above Order was adopted on
the
~
day of
_______________,
1988, by a vote
of
______________.
Dorothy M.~unn,Cl~rk
Illinois Pollution Control Board
93—286