ILLINOIS POLLUTION CONTROL BOARD

April 10, 1986

IN THE MATTER OF:

)

PROPOSED SITE-SPECIFIC WATER

)

POLLUTION RULES AND REGULATIONS

)

R81-19

APPLICABLE TO CITIZENS UTILITIES

)

COMPANY OF ILLINOIS DISCHARGE

)

TO LILY CACHE CREEK

)

ORDER OF THE BOARD (by J. Theodore Meyer):

This matter comes before the Board on a March 21, 1986

motion for interrogatories filed by the Illinois Environmental

Protection Agency (Agency). In response, Citizens Utilities

Company (Citizens) filed a motion to strike the motion for

interrogatories on March 25, 1986. The Agency filed a reply to

this motion on April 7, 1986 and Citizens filed a reply to the

Agency’s reply on April 7, 1986. The Department of Energy and

Natural Resources (DENR) filed a statement in support of the

Agency’s motion for interrogatories on April 7, 1986. Citizens

filed a motion to strike the statement of support on April 7,

1986. Additionally, the Agency had filed a motion to the hearing

officer for extension of time to file brief on March 25, 1986; in

response to which, Citizens has filed an additional motion to

strike addressed to the Board ofl March 25, 1986.

The background of these motions is as follows: on June 12,

1981 Citizens filed a petition for site-specific rule change for

its discharge from West Suburban Wastewater Treatment Plant No. 1

(WSB 1) to Lily Cache Creek. After numerous hearings, the Board

dismissed the petition finding the record too deficient to make a

substantive decision. This dismissal was overturned by the Third

District Appellate Court which remanded the proceeding for the

Board’s failure to make the statutorily required economic

determination. Citizens Utilities Company of Illinois v.

Illinois Pollution Control Board, No. 3-84-0412 and No. 3-83-

0498, Consol., (June 17, 1985). In response to the court’s

directive and the inadequacy of the record, the Board

subsequently ordered that further hearing be held on the economic

impact of Citizens’ proposal, Order of November 21, 1985. A

hearing was held on January 28, 1986 at which Citizens stated “We

have no witnesses to present today, nor do we believe it to be

relevant at this time to present witnesses. We think the next

step is up to the Board, either to indicate its willingness to

enter a decision based upon the record as~itnow exists or to

direct the DENR to perform additional studies.” (January 28,

1986 transcript at 7).

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The Agency’s motion stems from procedural rule 35 111. Adm.

Code 102.160(g) which allows a hearing officer to issue

interrogatories in the name of the Board when so directed by the

Board. The Agency points out that while the Appellate Court has

remanded the proceeding for an economic determination so as to

complete the administrative record the Board has previously

determined that the existing record is insufficient for this

purpose. The Agency argues that “Ethe only way to make a more

complete record is to obtain answers to the deficiencies noted

earlier by the Board, and nearly all of the answers must come

from Citizens. (Mot. for Interrogatories at 4). Thus, the

Agency has provided some suggested interrogatories to be answered

by Citizens so that the Board can fulfill its mandate.

Citizens argues that the record as it stands is now complete

and that the Board should now enter a decision based upon the

economic impact study (EcIS) performed by DENR (Mot. to Strike at

1, 4). If the Board should determine that the record is

incomplete, however, Citizens argues that “the Appellate Court

has made it clear that this is not the fault of Citizens” and

that “the burden of proof as to economic benefits and costs is

not on Citizens.” (Mot. to Strike at 4). Citizens argues that

that burden is on DENR and that DENR has satisfied their

obligation. However, Citizens has stated that were DENR to

supplement or revise their study, “we would be happy to supply

whatever information it deemed necessary to enable it to complete

that study.” (R. 83-84). DENRf however, has stated that it will

not supplement or revise its study.

The Board must first reject Citizens’ contention that the

record is now complete and adequate. Although Citizens clearly

desires a decision based on the record as it now exists (R. at

7), the Board clearly determined in 1983 and again in 1985 that

the record did not provide an adequate basis for the Board to

make the required economic determination. The Board must also

reject Citizens’ contention that the required findings must be

based solely on the EcIS performed by DENR. Under section 27 of

the Illinois Environmental Act, in making this determination the

Board is to consider “those elements detailed in the Department’s

study and other evidence in the public hearing record

. . .

(emphasis added). Ill. Rev. Stat. 1985, ch. 11l~’/2, par. 1027.

Thus, while the EcIS forms part of the basis for the Board’s

economic finding, it is not the exclusive foundation upon which

this finding must rest. This conclusion is self-evident from the

language of Section 27 and from the fact that while the Board is

required to make an economic finding for all regulatory

proposals, DENR is not required to prepare an EcIS for certain

proposals as outlined in Ill. Rev. Stat. 1985, ch. 96_h/2, par

7404. Thus, the Board must reject Citizens’ reading of the

court’s holding that the entire burden of proof as to economic

benefits and costs is on DENR. In fact, the court held only that

DENR has “the legal responsibility for performing the study” and

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not that it bears the entire burden of proof as contended by

Citizens. Slip op. at 8.

The Board agrees that DENR has discharged its legal

responsibility of performing an EcIS, however, the Board has

previously found it inadequate to base an economic determination

upon. The Board is unaware of any statutory authority empowering

it to order a revision or supplement to this study as desired by

Citizens, nor is such a revision necessary to cure the

deficiencies in the record. As noted above, an economic finding

may be based on elements in the public hearing record as well as

the EcIS under Section 27 of the Act. It is incumbent upon

Citizens to provide this information despite its contention that

the Appellate Court has absolved it from any such obligation by

virtue of the following language “w)hile shortcomings in the

record might in some cases be the responsibility of the appealing

party

. . .

such is not the case here.” Slip op. at 8. This

language has been taken out of context. Immediately prior to

this statement, the court notes that the Board cannot avoid the

statutorily required economic determination and that “where the

administrative record is inadequate or incomplete” the proceeding

must be remanded for the making of a more complete record. It is

at this point that the “shortcomings in the record” are noted not

to be the responsibility of Citizens. The Board concurs with the

Agency’s reading that the phrase “shortcomings in the record”

expressly refers to the incompleteness of the administrative

record on review because of theBoard’s failure to make an

economic determination. It is this determination which is the

Board’s legal responsibility and is not the responsibility of

Citizens. However, it is the responsibility of Citizens to

provide the information to the Board necessary to make this

determination. To assert that the court’s language means

otherwise, would lead to an absurd result: the Board would be

required to make an economic finding on a record which it has

found to be inadequate for such purpose, but which it has no

means of supplementing short of ordering a revised EcIS which it

is not empowered to do. The absurdity of such a construction is

apparent.

Citizens’ remaining objection to the Agency’s motion for

interrogatories and to DENR’s statement of support concerns the

timeliness of these filings. Citizens contends that the filings

are frivolous as they come after the hearings have been

concluded, after the record has been closed and after initial

briefs were due and filed. The Board rejects Citizens’ arguments

as to timeliness as any delay is in large part the responsibility

of Citizens. Although the Board ordered additional hearing in

this matter to gather necessary economic information, Citizens

failed to present any witnesses and questioned the relevancy of

doing so. Although Citizens expressed its willingness to provide

information to DENR it refused to provide the same information to

the Board directly under the mistaken position that the only way

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to cure the record was through a supplemental or revised EcIS.

This posture was not made apparent until the hearing.

Accordingly, the hearing was fruitless and no new information was

gathered. The record remains as inadequate today as it was in

1983. The Board believes the answering of interrogatories to be

an advisable method of curing these deficiencies. Accordingly,

the Board hereby grants the Agency’s motion for interrogatories

and directs the hearing officer to issue those interrogatories

filed by the Agency, as well as any additional interrogatories

deemed advisable by the hearing officer, in the name of the

Board. Citizens’ motions to strike the Agency motion for

interrogatories and DENR’s statement of support are hereby

denied. The motion to strike motion for extension of time is

directed to the hearing officer.

IT IS SO ORDERED.

R. Flemal abstained.

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

Board, hereby certify t,~hat the above Order was adopted on

the

/~Y~—

day of

~

,

1986, by a vote of ~5—~

Ill

Pollution Control Board