ILLINOIS POLLUTION CONTROL BOARD

October

30,

1975

ENVIRONMENTAL PROTECTION AGENCY,

Complainant,

v.

)

PCB 74—213

SPINNEY

RUN

FARMS,

Respondent.

SPINNEY

RUN

FARMS,

)

Petitioner,

v.

)

PCB 74—347

ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

OPINION

AND

ORDER OF THE BOARD

(by Mr. Goodman):

This

case

returns to the Board upon remand of the

Appellate

Court,

Second

District,

for

a

determination

on

its

merits

of

a Joint Motion for Reconsideration of the parties.

The

Motion,

together with a Stipulation,

was

originally

liled

with

the

Board on July

10,

1975,

On July

24, 1975 we

hold

that

we

no longer had jurisdiction to consider such a

motion,

since an appeal of these cases was pending before

the

Court.

The present remand now cures this jurisdictional

defect.

For reasons noted below

we

deny the Joint Motion

on

its

merits.

The

Board

Order in PCB 74—347

(April 10,

1975)

granted

Spinney

Run

Farms variance

from

certain

rules

of

the

Water

Pollution

Reqularions,

subject

to

construction

of

a

waste

water

pretreatment

facility

which

Spinney

Run

Farms

indicated

tould

he

completed

by

December,

1975.

The

Board

had

granted

at

earlier

variance,

subject

to

the

same

condition,

in

PCB

7~l85,

POE

72—327

(July

12

73).

In

tne

earlier

case

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128

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Spinney Run Farms had originally indicated the pretreatment

facility would be completed by December 31, 1972.

In both

instances the Board relied upon a description of the facility

to be built found in Raspondent~sExhibit No.

16

in PCB

74-

213,

As

we pointed out in our May

8,

1975 Opinion,

the

record in the instant case revealed an intention to con-

struct substantially the very same facility as that planned

in the earlier case

(PCB 74-213 transcript,

p.

305-311; PCB

74—347 transcript,

p.

105)

The Stipulation contained in the Motion for Reconsidera-

tion now proposes

a different pretreatment facility and

a

revision of the plans submitted as Respondentvs Exhibit No.

16

to conform to the new facility.

We must reject this

aspect of the Stipulation

for,

regardless of the relative

merits of the two schemes,

the Board has heard no testimony

nor received any evidence regarding the facility now pro-

posed.

On the sole basis of the description in the Stipu-

lation we cannot determine whether it would be

as desirable

as the earlier plan,

or even whether it would be adequate to

reduce pollution to acceptable

levels.

As a practical

matter,

the procedural posture

in which this Motion has

come

forward is both highly unusual and undesirable.

Both parties

had ample opportunity to reach a settlement prior to our

resolution of this case,

In fact,

the record indicates that

the Environmental Protection Agency resolutely opposed the

granting of the variance throughout the lengthy course of

the proceeding.

No explanation has been made for the Agency~s

sudden

reversal.

For dissatisfied parties

to now come

forward to

propose

a settlement after

a final decision has

been made and without substantial new evidence is not

only

a

misuse of the administrative—adjudicative process but also

an~intolerable bui~denupon the resources of this Board,

Further,

to

accept

stipulated

settlements

subsequent

to

the

rendering of Opinions could have the adverse effect

of

precluding all settlethents prior

to decision,

since both

parties would be encouraged

to await the Opinion on the

chance that

it may be more favorable than

a settlement would

be,

in any event, there is nothing in the instant Stipu-

lation which indicates that the compliance plan,

as

orig-

inally ordered, should be changed.

Two other aspects of the Stipulation contained in the

Motion to Reconsider must be rejected on their merits.

First, paragraph

12 of the Stipulation calls for temporary

effluent limits, during the course of the variance,

not to

exceed 30-day averages of 300 mg/I for BOD5 and 100 mg/l for

suspended solids. Our Order called for limits of 150 and

80

mg/i,

respectively.

These

limits were based

on

the

testimony

19

—

129

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—3—

of Spinney Run Farm~sown treatment plant operator, who

indicated that those were the upper limits of the current

average loading

at the

plant

(PCB 74-213 transcript,

p.

276).

There

is nothing in the present Stipulation which

indicates that these limits need be revised.

Also, para-

graph 13 of the Stipulation calls for effluent limits oflOO

mg/i for BOD5 and 70 mg/l for suspended solids for the

period between completion of the pre-treatment facility and

by-pass of the effluent to the Gurnee treatment plant.

As

we noted in our Supplemental Opinion of May 22,

1975, maxi-

mum effluent standards for such a period could be adjusted

based upon the filing of a new variance petition

(if needed)

at that time,

This Opinion constitutes the findings of fact and

conclusions of law of the Board in this matter.

ORDER

it is

the Order of

the

Pollution Control Board that

the

Joint Motion for Reconsideration

be, and hereby

is, denied.

Mr. Young abstains.

I,

Christan L.

Moffett, Clerk of the Illinois Pollution

Control Board, hereby certi1fy the above Opini n

nd Order

were adopted on the

_____________

day of

_____________

1975 by a vote of

____________

Christan L. Moffet

,

erk

Illinois Pollution

trol Board

19

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