ILLINOIS

POLLUTION

CONTROL

BOARD

December

15,

1983

UNITY

VENTURES,

Petitioner,

PC1~ p0—175

ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY

ANT) COUNTY OF DUPAGE,

)

Respondents.

RICHARD

J.

KISSEL

& ROY M. HARSCH

(MARTIN, CRAIG, CHESTER,

&

SONNENSCHEIN),

APPEARED ON

HEHALF

OF

PETITIONER;

JUDITH

A.

GOODIE

&

THOMAS

R.

CHIOLA,

ASSISTANT ATTORNEYS

GENERAL, APPEARED ON BEHALF OF THE ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY; and

ALVIN

G.

SCHUERING, ASSISTANT STATE’S ATTORNEY, APPEARED ON

BEHALF

OF

DUPAGE.

O~tNION

AND

ORDER

OF

THE

BOARD

(by

J,

Anderson):

PROCEDURAL

HISTORY

This matter

comes

before

the

Board on

the

petition for

variance filed by Unity Ventures

(Unity) October

9,

1980,

as

amended January 17,

1983.

35

Iii. Mm.

Code 309.242(a)

formerly

Rule

963(a)

of Chapter

3:

Water Pollution.

This

rule,

in summary, provides that sewer construction permits

expire two years after issuance.*

The purpose

of the variance

is to extend the life of a sewer construction permit issued

by

*

The

complete

text of the rule

is

as

follows:

“Construction permits

for sewers and wastewater sources

shall

require that construction

be completed within two

years.

Construction

permits

for

treatment

works

and

pretreatment

works

shall

require that construction be

completed within

three years.

In situations where the

magnitude

and complexity of the project require

it, the

Agency may issue

a

construction

permit,

requiring

completion

within

a period not to exceed

five

years.”

55-209

---

—2—

the Illinois

Environmental Protection Agency (Agency) January

31,

1979, which would have expired by its terms January

31,

1981.

The sewer would

serve the proposed Ilobson Greene Unit

2

real estate development project, which

is

to be constructed on a

58.9 acre parcel

of land located at the northwest corner of 75th

Street

&

Greene Road

in

Lisle Township,

DuPaqe County.

The

proposed development would consist of

78 single family dwelling

units and 22 multiple family dwelling units, which would

generate an average 239,200 gallons per day

(gpd)

of sewage, or

2,392 population equivalents (P,EJ.

Title to the proposed

sanitary sewer extension at issue, once constructed, would

lie

with the DuPage County Department of Public Works

(County).

Flows from this sewer extension would be tributary to the

County’s Lisle—Woodridge Sewage Treatment Plant

(STP).

The Lisle—Woodridge STP has been on restricted status since

May

31,

1979,

due to hydraulic overloading and violation of

various permit conditions.

This resulted

in the filing of an

action

in the Du Page County Circuit Court entitled

Corporate West

Development v.

IEPA,

et al.,

No.

79 MR 257.*

A

counterclaim for sewage related violations

of the Act was filed

by the Agency against the County of DuPage, and the Village’s of

Lisle and Woodridge.

Pursuant to stipulation,

on August 13,

1980 Judge Teschner issued an Order granting partial

summary

judgment to the Agency.

Upon entering the order the court,

made various

findings

including:

a)

The Woodridge—Lisle plant was hydraulically

overloaded and

in violation of

its permit

conditions;

b)

new treatment plant capacity was needed;

c)

additional

loading

to

the

overloaded

plant

absent some control would result in

a

threat

to

public

health

and

welfare

by

adding pollutants to the waters of the

State and aggravating existing overflows

of

raw

sewage.

The

court

ordered

specific

actions

to

be

taken

in

an

attempt

to alleviate the situation including:

*

What

scanty

history

there

is on the original complaint

and counterclaim in this action

is contained in pleadings

and depositions from 79MR257, which were attached by

the

Agency as exhibits

to

its June

4,

1982 Motion for

Order for Additional Information

in this action.

55-210

---

—3—

a)

construction of additional

sewage treatment

capacity;

b)

construction of

a stormwater bypass system to

alleviate pressure during heavy rains;

c)

maintenance and repair work on the existing

treatment facilities;

d)

adoption of

a sludge management program;

e)

study

of

infi1tr~tion/inf1owproblems.

The part of

the court’s order which

is most pertinent to

Unity Ventures’ claim

is the allocation system which the court

set up for connections

to the overloaded plant.

This allocatior

system provides for staged addition of

connections

to the

overloaded plant based upon performance of the plant as

represented by discharges to the

waters of the State.

This

order contemplated and provided for additional connections by

all those holding sewer permits

from the Agency for addition to

the Woodridqe—Lisle facilities.

The allocation system was to

have a limited life since additional treatment capacity was to

he added

to the Woodridge plant by the end of

1983.

The

additional plant capacity is

to

he provided by the Green Valley

plant.

Unity entered

the Cor~porate

West

case as an intervening

complainant on October 10,

1980,

seeking

in part a declaratory

iudgment that

the

August

13,

1980 Order did not affect Unity’s

ability to utilize the January

31,

1979 2,392

P.E. permit

relatinq to Hobson’s Greene Unit No.

2.

(While that permit was

included

in

the

court’s overall flow calculations,

Unity had

not been

a party

to

the stipulation creating the Order.)

As

of the time

of Unity’s briefing

of this matter,

it

would appear

that Judge Teschner has not ruled on Unity’s request

(see Unity

Reply Brief

of September 15,

1983,

at p.2—3).

As

of the filing of its original October

9, 1980 petition,

Unity had not begun construction of the Hobson’s Greene Unit

2

development pursuant

to

its January

31,

1979 permit,* and

presented

no proposed construction timetable.

Unity asserted that construction had been delayed

“because

of the slowdown in demand for residential housing

and the uncertainties surrounding the Lisle—Woodridge Sewage

Treatment Plant involving multiple litigation” (Pet.~).

*

Construction had been completed on Hobson’s Greene Unit 1,

a 35 single family dwellings development immediately north of

Unit

2, pursuant to a February,

1979 permit.

A

third phase,

Unit

3,

is also planned,

to consist of 121 single family

dwelling units and 480 multiple family units.

The Units

1

and 3 developments are not here at issue.

55-211

---

—4-.

Variance was sought

for a

5

year period to allow for

construction of the sewer

at some

time after completion of

the Green Valley plant.

On December 19,

1980,

a majority

of the Board voted to

dismiss the petition as inadequate pursuant to

35

Ill, Mm.

Code 104.125

(formerly Rule 401(h)

of Chapter

1, Procedural

Rules),

upon motion by the Agency.

The majority Order found

that the petition “lacked

a sufficient allegation of hardship”,

and that

it alleged uncertainty

as

to whether

Unity

might

construct the sewers

at all.”

Leave

to refile the petition

was,

however, granted.

Unity appealed the dismissal,

rrhe Appellate Court

for the

Second District reversed the dismissal

in a non—published

decision pursuant to Supreme Court Rule 23 in Unity Ventures v.

IEPA

etal.,

No.

81—59, February

2,

1982.

The Court ruled that

the Agency~smotion

to

dismiss constituted an objection to the

grant of variance such as to trigger a mandatory hearing

pursuant

to Section 37 of the Environmental Protection Act,

therefore finding the Board’s pre—hearing dismissal of the

action improper

(slip op.

at p.3).

The Board received the

remand mandate

of the Appellate Court on May

28,

1982,

and

reinstated the case and directed that hearing be set by

Order ot June

10,

1982.

D

over

and SanCtion

S

On June

4,

1982

the

Agency

asked

the

Board

to r~rd~rUnity

to provide additional information concerning

the legal entity

which

is the petitioner

in this case.

On June

11,

1982 the

Agency filed

its initial discovery including interrogatories

and requests to produce.

The discovery requests sought

information

to support statements

in the Petition,

including

information about Unity’s development plans, the ownership of

the property to be developed,

the holder of the permit for

which an extension was requested, and the expenditure of funds

for development,

improvement and other costs.

The Agency also

asked

for admissions of fact and genuineness of documents

on

June

11,

1982.

In its July

1,

1982 Order, the Board noted

that the information which the Agency sought concerning the

holder of the permit should be forthcoming

in discovery.

Therefore, the Board denied the Agency’s June

4,

1982 request~

Following

five requests by Unity

for extensions of time

to

respond

to

the

Agency’s

interrogatories

and

requests

to

produce

(see

the

Board’s

Order

of

December

2,

1982

and

the

Agency’s

September

21,

1982

Motion

in

Opposition

to

Request

for

Additional

Time),

the

Board

on

October

5,

1982

ordered

Unity

to

respond

by

October

12,

1982.

Unity’s

response

on

October

12,

1982

was

to

move

to

strike

the

Agency’s

inter—

rogatories

as

burdensome

and

beuause

the

iiiformaLioi~

was

55

19

---

available from

some

unspecified ‘alternative means.’

Unity also

moved

to strike the document requests on grounds of relevancy.

In its order of

November

12,

1982 the Board noted

that

during the four months following the discovery requests,

Unity

had not raised an objection to the discovery.

The Board also

noted that the petitioner presumably would be the one to

provide

information on its identity, on funds expended on the project

and on the entities expending such funds.

The Board assumed

that

this

information

would

be

forthcoming

from

Unity

and

found

it

to

be

relevant

to

the

proof

of

arbitrary

or

unreasonable

hardship.

The

Board

ordered

responses

from

Unity

by

November

19,

1982

and

warned

Unity

that sanctions would result if

Unity

failed to respond.

Unity did not answer the Agency’s discovery

requests as ordered.

On December 2, 1982, the Board entered sanctions against

Unity for its ‘intentionally dilatorious’ conduct.

Specifically, those sanctions barred Unity from making claims or

introducing

evidence

on

the

issues

of

ownership

of

the

property

in

question;

expenditure

of

funds

for land development and

improvement costs

as

well

as

other

expenses;

identity

of

the

holder of the permit which

is the subject of the extension

request;

and

plans for development.

In addition to precluding

introduction of evidence on these matters at hearing, the Order

struck information on these issues from the petition.

On December 30,

1982, the Board denied Unity’s motion to

reconsider the December 2 sanctions Order.

given leave to file an amended petition.

Unity filed its amended petition January 17,

1983.

The

amendment

was

virtually identical to the October, 1980 petition,

and

contained the material stricken December 2.

However, the

petitions

did

differ

in

that

the

amendment

alleged

that

the

‘worst

case

completion

date’

for

the Green Valley plant

was

October,

1983.

The relief requested was also slightly

different,

in that a

two

year variance was requested to begin

‘upon notification by the

Agency

that construction of the Green

Valley plant was complete, or on January 1,

1984, whichever date

is earlier’

(Am.

Pet.,

¶9,10).

This amended petition

was

the subject of a March 1, 1983

motion in limine by the Agency,

which

contended over Unity’s

objections,

that the

December

2 sanctions should apply despite

the filing of an amended petition.

In its order dated March 24,

1983 the Board said:

‘Unity cannot escape sanctions imposed for cause

merely by filing an amended petition.

The Board will

not

allow that which cannot be done directly to be done by

indirection.’

---

—6—

Upon

reconsideration of this unanimous decision

the Board once

again reaffirmed the earlier sanctions in an orAer dated

May

5,

1983.

In the same order the Board directed the heating officer

to set the hearing on the Amended Petition within a specified

time,

and

prohibited any continuance of the date to be set.

This order was based on the Board’s acknowledgement of ‘Unity’s

listory of delay in this case.’

(Order of

May

5, 1983 at p.3).

At this juncture,

it should also be noted that the

Agency

had filed a Recommendation that variance be denied June 28,

1982,

and

an Amended Recommendation favoring denial on February

14, 1983.

The Agency recommended

that

vdriance

be

denied

on

two

basic grounds.

The first was that there was no valid permit

whose term could be extended, as the

permit

was issued in

January,

1979 to ‘Unity Ventures’, a corporation defunct as ot

June 21,

1979,

and

no

transfer had been made to the ‘Unity

Ventures’ partership which came into existence

on

~1une1, 1979.

The second ground was that Unity’s petition failed to allege

arbitrary or unreasonable hardship.

The Agency alternatively

requested, however, that if variance were to be granted that

sewer construction not begin until the Green-Valley-Woodridge

Complex demonstrated ability to comply

with

its NPDES

permit

for

three consecutive months.

The County adopted the Agency Amended Recommendation as its

own

on February 17,

completion of the Green Valley plant between August and October,

The Hea4flj

The hearing on the Amended Petitiun

was

held on June 30,

1983.

Over objection,

Unity presented the testimony of one

witness, James Huff, on the issue of the environmental effect of

grant of variance.

It also presented

two

exhibits, the

application for the permit at issue and the

permit

itself. Again

over objection, Unity presented an offer of proof reiterating

the allegations of the amended petition.

Neither the Agency nor the County presented witnesses at

hearing, although the Agency presented opening remarks.

Pursuant to schedule, the Agency and Unity submitted simul-

taneous briefs on August 30,

1983, and reply briefs on September

15—16,

1983.

The County has not briefed the matter.

THE

ISSUES

Pending Motions

In addition to objections preserved in its briefs on August

30, the Agency made separate motions to strike the testimony of

James Huff, and to strike Unity’s offer of proof.

Unity

filed

responses on September 15.

CC

014

---

—7—

The basis

for the motion

to strike the Huff testimony

(R.24-38),

i.n

essence revolves about unfair surprise, and

inadequate opportunity for rebuttal and

cross—examination.

Unity

advised the Agency that

it intended to call

Mr.

Huff as

a

witness on June 2~J, 1983,

ies3 than 24 hourn before

the June 30

hearing;

the County was never informed

(R.14).

Unity asserts

that the decision to use Mr.

Huff

as an expert was not made

until

June 28-29

(Reply at 2).

The Agency asserts

that

it had

been attempting

to learn the identity of Unity’s witness(es)

since July 22,

1982,

and that as

late as June

22,

1983,

Unity

objected that

it was “oppressive

and

burdensome

to ask that the

experts he disclosed at this time”

(Motion at 2).

In reviewing the hearing record, the Board

notes that,

under

the

circumstances,

it

was inappropriate on the part of the

hearing officer to

deny

the Agency’s requests to allow a

pre—testimony

interview,

or a one—halF hour recess to enable the

Agency

to call

a technical expert to he present during Huff’s

10

minute testimony

(R.20,

23—24).

Yet the Board also notes that

the Agency

did

not exercise the option offered both by the

hearing officer

(R.21) and by counsel

for Unity (R.38—39) to

make the witne~~savailable ~

ctoss—examination on another day.

Thus,

while the Board cannot condone Unity’s last minute

decision or approve the actions of

its hearing officer, the

Board will accept the Huff testimony.

The Agency has also moved to strike the Unity offer of

proof reintroducing into the record information thrice—stricken

by the Board in sanctions Orders.

This offer was also objected

to

by

the

County

at

hearing

(R.4~).

The Board

linds

that:

the

offer

of

proof

was

properly

accepted,

but

will

not

consider

the

information

as

evidence.

The Board will allow the offer

to remain

in the record.

Unity

has

raised

two

other

sanctions—related

questions

in

its brief.

Unity reserves and renews its prior arguments that

the sanctions Orders of December

2,

1982,

March

24,

1983,

and

May

5,

1983

were

“arbitrarily, capriciously, and

unlawfully

imposed”

(Brief at 2).

These arguments are rejected for all of

the reasons exhaustively detailed

in the Orders

of those dates.

Finally,

Unity has argued that the Agency has somehow

“waived” the sanctions Orders by addressing the issues on which

Unity had silenced itself by delay

(Brief at 2—3).

The

practical, and ludicrous, effect of acceptance

of this argument

is

to invite variance petitioners to rewrite the Act by

1)

withholding

information

which

the

Act

charges

them

to

give,

so as

2)

to trigger sanctions on particular issues,

so as

3)

to

prevent

the

~geney

from

present

i ng

evidence

so

as

4)

to

prevent

the Board from deliberating

the full range of

issues.

---

—8—

.lit’

Special

Condition 7 of the permit issued January 31,

1979

provides

that

“This permit may not be assigned or transferred without a

new

permit

from

the

Environmental

Protection

agency.”

(Unity

Ex.

2, p.2).

The “Unity

Ventures”

here appearing as a petitioner and claiming

to own this permit

has

admitted

that

it

“was

formed

pursuant

to

an agreement 01 Partnership dated June 1,

1979”

(Unity Response

to Requests for Admissions oE Facts No.

1. and 2).

In

its

Amended Recommendation,

the Agency states that

“This permit was issued to a different legal

entity,

a

corporation, which withdrew from doing business in Illinois

on June

21, 1979.***There is no record

of any transfer of

this permit

from the corporation to the

petitioner—partnership.”

(A!n.

Rev. ¶4)

The Board

finds that the permit here at issue,

Unity Ex.

2,

expired by its own terms

on or about June 21,

1979, when the

entity to which it was issued ceased

to exist.

The Board wishes

to note that this

is not,

in its opinion,

an issue

in which form

is elevated over substance.

As afore—mentioned, the

badly—overloaded Lisle-Woodridge plant was placed

on

restricted

status May 31,

1979.

Based on imposition of restricted status,

the Board questions whether

the

Agency

would have had legal

authority on June 1,

1979 to issue,

or to transfer from one

“Unity”

to the other, the “new” permit specified by Special

Condition

7 absent prior grant of

a variance by the Board

from

3S

Ill. Mm.

Code 309..24L

Arb~~r

or_Unreasonable_Hardsh4~

and

Environmental Effect

Even had the Board not concluded that the permit here at

issue had not expired

long before this action ever reached the

Board, based on

the

evidence here presented,

the

Board could not

find that grant of variance would be lustified.

Consistently, but particularly

in its reply

brief,

Unity

has characterized this action as one in which no environmental

harm would occur if its request were granted,

so that hardship

need not be proven.

The basis for this argument,

as explicated

by portions of the testimony of James

Huff,

is that once the

Green Valley plant comes on line,

about 1.5

mgd

will

be

diverted

from

the

Woodr±dge plant

to

Green

Valley.

The

diversion

is

expected

to cause the effluent quality from both the existing

Lisle and Woodridge plants

to

improve.

Once the 1.5 mgd is

taken out of the Woodridge system,

it.

was stated that

introduction ot

a new wastestream of 240,000 gpd “would not he

detrimental——the effluent quality would be better still than

it

would have been historically”

(R.33).

55-216

---

—9—

However,

this ignores the fact that the Lisle—Woodridge

tlants have been unable to meet. effluent standards, even given

their improved performance in the past two years.

As the Agency

suggests,

the Green Valley system can be expected

to have an

inconsistent performance

whil.e the usual,

initial “debugging”

process occurs.

The system is still on restricted status, and

will doubtless remain so until both the Woodridge and Green

Valley plants are operating properly.

Unity has therefore

proven that a

less adverse environmental effect would occur b~

~i

connection after Green Valley

is operational than before,

but

not

that none will occur.

Hardship therefore must he proven.

Unity has not,

in

three

years, once alleged that

it was

ready,

willing,

and able to build Hobson’s Greene Unit

2.

It

has,

on the other hand, consistently stated that

it had made

a

business decision not to build during

the time period when its

purported “permit” was valid,

and has resisted revealing any

building plans whatsoever.

Based on the entire complex and

convoluted history of

this action,

the Board has become

convlnced that Unity has pursued variance before

the

Board

merely

to keep the 1979 permit arguably in effect for specu-

lative purposes.

Unity’s proposed 2,392

P.E. was figured into plant capacity

under Judge Teschner’s Order.

Despite Unity’s arguments to the

contrary, denial of variance does not automatically foreclose

Unity’s ability to build when and

if it has actual plans to

proceed.

Once Green Valley becomes fully operational and the

Woodridge

portion

of

the

facility

is

removed

from

restricted

status,

Unity may “get in line” with other prospective

developers and apply for a new permit.

In the event that Unity

wishes to commence construction prior to lifting of restricted

status,

it may petition for variance from Section 309.241,

presenting

a construction schedule and proof of hardship.

This Opinion consttbites the Board’s findings of fact and

conclusions of

law in this matter.

ORDER

Unity Venture’s petition for variance from 35

Ill. Mm.

Code 309.242(a)

is hereby denied.

Fi5-~l7

---

—10—

IT

IS

SO ORDERED.

I,

Christan

L. Moffett,

Clerk of the Illinois Pollution

Control Board, hereby c~çtifythat t~eabove Opinion and Order

were adopted on the

L~1~

day of~J~—~,

1983

by a vote of

J~.

Christan L. Mof~e

‘,

Clerk

Illinois Pollution

ontrol Board

55-218