ILL iNOi~ POLLUTION CONTROL BOARD
Nc~Tember10,
1977
C. A. HEMPHILL & ASSOCIATES,
Petitioner,
v.
)
PCB 77~204
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY,
Respondent.
MR. GEORGE BULLWINKEL &
MS.
SUSAN
W~
MCMILLAN
OF
NECK, CUSHMAN,
MAHIN & CATE, APPEARED ON BEHALF OP PETITIONER;
MS. CAROL PEARCE
& MS. LORETTA WEBE~. ASSISTANT
ATTORNEYS
GENERAL,
APPEARED ON
BEHALF OF RESPONDENT.
OPINION AND ORDER OF
THE BOARD (by
Mr
Goodman):
On July 29, 1977 C.A, Hemphili
and Associates~
(Hemphill)
filed an appeal from a permit denial by the Illinois Environmental
Protection Agency (Agency). A hearing was held on
October 14,
1977,
briefs were waived by both
parties, and Petitioner requested
expedited consideration and decision by the Board.
The Board will
first consider some procedural
issues which
arose in this case.
On
October
11, 1977 Hemphill filed
Petitioner’s
first amended appeal from a
permit denial. The Board
holds that
this action starts anew the
90 day period within which
the Board
must act on a permit denial
petition. Hemphill disagrees, noting
that there is no provision in the Procedural Rules
governing
permit appeals such as exists
for variances with respect to
this
issue. It appears obvious
to the Board that a voluntary
amendment
to a petition before
this Board effectively waives the
Petitioner’s
rights with regard to the time period
established by
the original
petition, and re~starts
the 90 day
period. Unlike
a permit denial
petition, a variance
petition will frequently
be amended by
Petitioner on an involuntar~
basis, under a Board
Order requesting
additional information.
Since it is not obvious that
an involuntary
28 175
amendment of a variance
tition stdrts the
90
\
thme period anew,
the Board found it
expe~~ent
to promulgate
a Ru~
concuroing that
specific situation. The
Board therefore finds ~s due date for
this
case to be 90 days from
the da~ ml the filing ~ne amendment
or
January 5, 1978.
The Hearing Officer herein
~c. pted an opec wc~iverby one
of
Hemphill’s attorneys at a
pre~heari:~g conference
(R.85). At the
hearing, Hemphill’s attorney
questa~ned
whether this original
waiver
was actually an open waiver,
and on October 24 l~977 filed
with the
Board a waiver of the 90
day Rule a~ti1Novembe::
Y7,
1977,
purporting,
in addition, to revoke any
and all ~revious wal ers. The
Board
rejects the notion that a waiver
occe given car subsequently
revoked. A waiver once given is
relied upon hI
t~
Poard and
the
other parties with regard to work
flow and times for Qec~lon.
To
allow revocation of this
waiver without leave c~the Board
would
prejudice the rights of the
other parties and the Board.
A considerable amount
of evidence was adduced at the hearing
concerning hardships visited
upon H~mphill due co the permit
denial
by the Agency. The Board
agrees ~h the Agency~s attorney with
respect to the admission
of suml vidence that this evidence
is not
relevant to the narrow
issue of ~~ther the Age: cy was correct
in
denying the permit applicatthn.
insofar as thth evidence goes
tc
the issue of reliance by
Hemphili on Agency actions however, the
Board accepts the evidence as
relevant to this proceeding,
The appeal itself concerns a
permit for a sewer extension
to
serve twelve single family homes
in The
Oaks ot Lake Bluff Sub~
division. The permit application
was denied bp she Agency due
to
sewer surcharging and resultant
basement floodiug during
periods of
heavy rains. Hemphill admits the
surcharginc and basement
flooding
but contends that the problem is
caused by rnfiltration and that
the addition to the waste flow would be de
minimus, even to
the
point of being unmeasurable. The
Agency, on the other hand,
relies
on their duty to refrain from issuing
permits wuich would, as
stated
in Section 12(a) of the Environmental
Protection Act, cause or
threaten or allow the discharge of
any contaminants into the
environ-
ment so as to cause water pollution
either alone or in combination
with matter from other sources.
The Board finds that Hemphill’s
contention with respect
to the
alleged lack of potential, measurable
environmental damage, even
if
true, does not address the problem. If
the Agency were to allow
“variance” from the Act
and the Regulations based upon the fact
that
the individual increments )f
pollution
would do no practical
environ-
mental damage, where could it logically
draw the line? How
large an
increment results in no damage
tc the
environment?
How
many
of
these
28
—
176
—3--
increments do you allow before the environment is damaged by the
total? How do you finally deny a permit when the final increment
is no greater than the original increment? And finally, where is
the incentive for the City to solve their environmental problems?
The Board finds that the Agency correctly denied
Hemphill’s
permit
application based upon the admitted facts in this record. Whether
or not Hemphill is entitled to a variance based upon the equities,
potential harm, and period of time involved is a matter for the
Board to decide in a variance proceeding. The Agency, as the
permitting arm of the environmental protection scheme in the State
of Illinois, cannot and should not make these decisions.
As a final issue, Hemphill alleges reliance upon an Agency
publication known as the Restricted Status List. This list contains
the statement “those facilities not listed may be assumed to be
satisfactory for permit to extend this system. However please note
that these lists are continually being revised to reflect the
current situation. This listing reflects the status as of May 16,
1977.” It is apparent that in an ongoing situation such as the
restricted status list, any particular list is obsolete at the
moment that it is printed. That fact plus the proviso contained in
the second sentence quoted above convinces the Board that reliance
upon the list for purpose of entering contracts or starting construc-
tion is, at best, ill advised. In addition, as this case illustrates,
the list could not hope to cover all potential problem areas in the
State; the prudent man would therefore not consider himself in a
permitted condition until after the Agency had reviewed his permit
application.
This Opinion constitutes the finding of fact and conclusions
of law of the Board in this matter.
ORDER
It is the Order of the Pollution Control Board that the June
22, 1977 denial by the Illinois
EnvironmcnLai Protection Agency of
a permit for
the Village of Lake Bluff to construct and connect a
SeWer
extension to a development known as Oaks of Lake Bluff was
correct and that decision be and is hereby affirmed.
Mr. Young concurs.
I, Christan L. Moffe:t, Clerk of the Illinois Pollution Control
Board, hereby certify the above Opinion and Order were adopte~on
_____________day of)) a-_~~-~
,
1977 by a vote of
~- O
/fl
~
Christan L. Moffe’,/)llerk
Illinois Pollution~ontrol Board
28
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177