ILLINOIS POLLUTION CONTROL BOARD

June 30, 1988

VILLAGE OF CAROL STREAM,

Petitioner,

v.

)

PCB 85—209

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

ORDER OF THE BOARD (by R. C. Flemal):

On February 4, 1988 the Board ordered the parties to provide

the Board with a status report on this matter, “including a

statement by Petitioner whether it desires to pursue its

requested variance and the submission of a timely—filed

recommendation if the variance is to be pursued”. The

Petitioner’s only response was a February 5, 1988 filing of an

amended notice of waiver of the decision deadline with a

statement of intent to supplement the record. The February 5

filing is identical in form and content to the amended notice of

waiver filed June 26, 1987, save for the dates contained

therein. No supplemental information has been filed and the

Respondent has not filed its Recommendation of which the last due

date of May 31, 1988 has now passed.

The Board notes that there have been no less than seven

waivers of the decision deadline in this proceeding with no

substantive information filed, except for the original petition

filed December 20, 1985 and an amended petition filed May 21,

1987. Hearing on the petition has been waived by the Petitioner.

The Board finds that the lack of diligence to pursue this

matter has produced a stale record and is of itself sufficient

grounds for dismissal of this petition or for denial of the

requested relief. The Board has previously stated that:

The moving party in a variance proceeding has the

burden to prove by a preponderance of the evidence

that they are presently entitled to the relief they

request. If they fail in that burden because the

evidence is stale the remedy is

...

to deny the

requested relief. (Emphasis in original) Modine

Manufacturing Company v. Illinois Environmental

Protection Agency, 69 PCB 377 (Board Order, May 9,

1986).

90—475

---

—2—

Additionally, on closer review of the Petitioner’s amended

petition, the Board further finds that the relief which the

Petitioner is now requesting is of a speculative nature and not

of the kind which the Board is empowered to grant under the

Environmental Protection Act (“Act”). The Petitioner is now

seeking variance from the 1.0 mg/l barium standard of 35 Ill. Adm

Code 604.202 (formerly Rule 304(B)(4) of Ch. 6: Public Water

Supply Rules and Regulations of the Illinois Pollution Control

Board), for emergency use of Well No. 5 only. In paragraph two

of the amended petition, the Petitioner states that it does not

regularly use Well No. 5 and would only need to do so during hot,

dry summer days when the pressure in the distribution system has

fallen to 50 p.s.i. Paragraph six of the amended petition

indicates that the Petitioner is not on the Respondent’s

restrictive status list and that the Petitioner is not currently

/in violation. The Board is aware of the fact that even this

information is now over a year old, and that the Petitioner has

not apprised the Board of its current status despite opportunity

to do so.

The Board finds that the lack of diligence to pursue this

matter in conjunction with the speculative nature of the relief

requested warrant dismissal of this petition. The Board

therefore dismisses this petition. However, the Board is not

precluding the Petitioner from refiling with an adequate

presentation of current information and that the relief requested

is within the Board’s ability to grant.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify tha1t~the above Order was adopted on

the

cf~7~Z day of

___________________,

1988, by a vote

of

7-~) .

/22

Dorothy M~7Gunn, Clerk

Illinois l’ollution Control Board

90—47 6