ILLINOIS POLLUTION CONTROL BOARD

September 26,

1972

ELSIE

M. KELBERGER

)

v.

)

#72—177

ENVIRONMENTAL PROTECTION AGENCY

)

Opinion

& Order of the Board

(by Mr. Currie):

Mrs. Kelberger’s initial pet:Ltion seeking

a variance

to permit connection of a new home to Waukegan sewers des-P

pite the ban in League of Women Voters

v,

North Shore

Sanitary District,

#70—7,

I PCB 369

(March 31,

l97i~,was

dismissed because,

in light of our decision permitting

additional connections tributary to the Waukegan and Clavey

Road treatment plants

(North Shore Sanitary District v.

EPA, #7l~343, 3 PCB 697

(March

2,

1972)),

there appeared

to be no nee! for a variances

Keiberger v.

EPA,

~72~i77,

4 PCB 477

(May

3,

1972),

An amended petition was filed

with the Agency June 5 and with us on June 14, reciting that

the Sanitary District had refused to issue

a permit for

the connection, notwithstanding the relaxation of our

ban, because the sewer into which the new home would

discharge

had

been

designated

as inadequate to transport

its existing waste load

to the treatment plant and there~

£

ore

was

ineligible

for

additional

connections,

We

scheduled

no

hearing,

believing

the

case

was

simple

enough

to

be

subject

to

decision

upon

the

petition

and

the

Agency’s

recommendation.

See

Minutes

of

Regular

Board

Meeting,

June

20,

1972.

We received the Agency’s

recommendation September

19,

1972,

106 days after the amended petition had been filed

with the Agency and 97 days after

it

had been filed with

us,

The addition of still more wastes to overloaded sewers,

as we pointed out at length in Cook v.

EPA,

#72-178,

.5 PCB

—

(Aug.

public health,

the sewer

in question “is subject to excessive flows from

5

477

---

—2—

storm water runoff

during periods of wet weather

(which)

have resulted in the past

in illegal bypassing

of untreated wastes and now result in sewer backups sending

untreated wastes into the homes of individua1s.~ The

petition says nothing at all about these adverse effects

of granting the requested variance, although our procedural

rules

clearly require

“a description of the injury that

the grant of the variance would impose on the public,”

PCB Regs,

Ch.

1, Rule 401

(a) (2).

This information is

necessary because to determine whether or not compliance

with the law would impose an “arbitrary or unreasonable

hardship,”

the statutory test for variance, we must

balance the benefits as well as the costs of insisting upon

compliance, and because the burden of proof is on the

petitioner.

See EPA v. Lindgren Foundry Co.,

#70-1,

1 PCB

11

(Sept.

25,

1970).

This failure to plead facts constituting

an essential part of the petitioner’s case would justify

dismissal of the petition as inadequate, see Decatur Sanitary

District v.

EPA,

#71—37,

1

PCB 359

(March 22,

1971)

On the merits, the Agency recommends that we deny the

petition,

inasmuch as many of the actions relied upon to

demonstrate hardship--the purchase of a lot, the signing

of a contract and making of a deposit relative to building

the home,

the sale of her former home,

and

the

storage of

her furniture——were undertaken with knowledge that the sewer

ban was still in effect.

Even though these actions were

taken on the basis of assurances by the ~ayor of Waukegan that

the ban

would soon be lifted, we have held that persons

relying on promises by officials plainly lacking authority

to repeal our orders act at their own risk;

if

the rule were

otherwise any municipal official could effectively repeal

our orders by announcing

a belief that we will repeal them.

Cook v.

EPA,

#72—178,

5 PCB

—

(Aug.

29, 1972).

on the basis of precedent the

Kelberger, since

construction, would probably be insufficient

sewer ban was imposed.

Cf. Wagnon v.

EPA,

#71-85,

(July 26,

1971).

There are several reasons,

this petition ought to be dismissed or denied.

The statute, however,

is quite clear that

“if

the Board

fails to take final action upon a variance request within

90 days after the filing of

the petition,

the petitioner

may

deem the request granted.”

Environmental Protection Act,

section 38.

Although the statute itself requires only that

a

petition

be filed with the Agency,

(section

37)

,

our

procedural

rules,

adopted pursuant to

the

statutory authority

to

adopt “such procedural

rules as

may

be

necessary to

accomplish

the purposes of this Act,” section

26,

require

filing with the

Board

as

well

(PCB

Reas.,

Ch.

1, Rule 401

(a).

As we said in our opinion adopting the rules,

filing a

S

47~

---

—3—

petition

with

the

Board

at

the

outset

of

the

period

in

which

we

must

act

upon

it

is

indispensable

to

our

proceeding

intelligently.

In

the

Matter

of

Procedural

Rules,

#R

70-4,

1 PCB 43

(Oct.

8,

1970).

Section

26 clearly embraces the

power to prescribe the method of filing in the interest of

providing adequate notice to all interested persons, in-

cluding

the Board that must make the decision.

We believe

that under section 38 of the Act a petition should not be

deemed to have been filed,

for purposes of the running

of the 90—day period,

until it has been filed with both the

Agency and the Board as required by our procedural rules.

Nevertheless, 104 days have elapsed since the amended

petition was filed with the Board, and the statutory period

has passed.

The petition has therefore been granted by

the

passage

of

time;

it

remains

for

us

only

to

confirm what

has already occurred.

The 90—day rule reflects the salutary policy that

government agencies must be made to act with reasonable speed

upon

citizen

petitions

legitimately

brought

before

them.

So

far

as

we

know,

there is no dissent from

this

policy;

there

has

been

considerable

debate

over

the

appropriateness

of

the

draconian

remedy

of

permitting

violations

of

the

pollution

laws,

with

consequent

injury

to

the

innocent

public,

if

govern-

ment

is

slow

to

act,

This

Board,

without

taking

sides

in

that

dispute,

has

several

times

requested

legislation

extending

the

decision

period

to

120

days,

on

the

:hasis

of

extensive

experience

indicating

that

90

days

is

simply

too

short

a

time

to

permit

us

in

many

cases

to

obtain

the

facts

necessary

for

an

intelligent

decision.

When

petitions

come

to

us

they

are

placed

on

the

agenda

for

the

next

weekly

meeting

for

a

decision

whether

or

not

to

authorize

a

hearing.

If

a

hearing

is

authorized,

a

hearinq

officer

must

be

ap~ointed,

a

hearing

date

set

after

consultation

with

the

parties,

and at

least

21

days’

notice of the hearing given

to

parties

and

public.

The

Agency

is

required

by

statute

to

investigate

the

petition

and

file

with

us

its

recommendation.

Although

we

have

required

by

rule

that

this

be done

within

21

days

after

the

petition

is

filed,

the

Agency

has

regularly

been unable

to

meet

the

deadline.

We have

often

urged the Agency to

act

more

quickly,

see,

e.g.,

Metropolitan

Sanitary

District

v.

EPA

#72—110

(5

PCB

)

,

decided

today,

but

the

21—day

period

may be unrealistically short.

Once the recommendation is

filed

a

reasonable

time

should

in

fairness

be

given

the

petitioner to respond, whether in writing or in the hearing.

After the hearing we must await receipt of the transcript,

which we have in most cases been unable to obtain in less

than two or three weeks at best because of the heavy

workload our cases impose upon court reporters.

If the

5

—

479

---

—4--

parties wish to file briefs, as is their right,

they

cannot very well do so until after they have received the

transcript.

At each weekly meeting we place on the next

week’s discussion agenda all cases in which final transcripts

and

briefs have been received during the preceding week.

After discussion a Board

member

is assigned to draft an

opinion

and

order

for decision,

in the usual course, the

following week.

Given this schedule of events,

the 90-day rule has

proved impossibly tight in actual practice.

If all goes

well a hearing

can

be held within the first

40 days and

transcripts

and

briefs be received in another month,

leaving us

20 days

to study and decide the case.

With

that we could live reasonably well.

But all too often

matters are not that simple.

An inadequate petition

must be amended.

A recommendation is not ready in time

to

give notice before the hearing.

The parties are not

available or ready for hearing at the desired time.

Additional hearings must be held,

and the hearing officer,

who

is fully employed elsewhere,

cannot sit this week.

The transcript is not received on schedule.

Reply

briefs are required.

The case is a difficult one requiring

extensive Board deliberation.

The list of complicating

factors could go on.

Suffice it to say that in a very

substantial percentage of petitions filed, perhaps

approaching 50,

the case is not ready for considered

decision within 90 days after filing.

Requests for legislative relief have so far founder-

ed upon the unrelated debate over whether

the result of

our

inaction should be a grant or a denial of the variance.

Though all seem to concede that we need an extra

30 days

to perform our duties adequately, we are forced to make

do with

the 90-day rule.

We have in general met with

considerable cooperation from petitioners, recognizing the

desirability of our deciding on an adequate record rather

than

on whatever materials might be before us at the end

of 90 days, who have been willing to waive for a reason-

able period their right to a decision within 90 days.

Whenever possible we have avoided requesting such

waivers, for we do not think it-desirable for the Board

to be put in the position of begging

a party for special

consideration.

To avoid grants by the passage of time we

have in a number of cases rendered decisions prior to the

writing of opinions,

a practice that is not conducive

to intelligent judgment since our understanding of

a case

is often sharpened by the discipline

of explaining our

decision.

On occasion we have been required to render

decisions on the very day on which a transcript or

recommendation was received, which obviously dOes

not

afford adequate time for thoughtful

consideration

of

difficult cases.

Too often,

as in today’s Metropolitan

5

—

480

---

—5—

Sanitary District case,

cited above, we have had to decide

without benefit of the Agency’s recommendation,

on the basis

of

a record made by only one party.

By dint of these

unpleasant and unsatisfactory com-

promises with good judicial practice, we have until today,

so far as

we

are aware, managed

to avoid the ultimate

public misfortune of having variances granted by default

without consideration of the merits.

We have done so only

at considerable risk to the soundness of our decisions,

and we once again reiterate our urgent request to the

General Assembly to put aside the unrelated debate over

the

effect of our inaction and give us

a reasonable time period

in which to decide cases.

Notwithstanding the above excursion,

the present case

is not one in

which

there was any reasonable need for more

than the allotted 90 days for decision.

The time often

consumed by a hearing was saved, since no hearing was

scheduled.

The

case was and remains

a simple one that

could and should have been disposed of within less than

half the statutory time.

We cannot fathom how the Agency

and Attorney General managed to take over 100 days after

receiving this petition to prepare and file the two—page

recommendation in this case, especially since the

recommendation consists solely of a recitation of

the

allegations in the petition,

a statement drawn from Agency

records

as to why the sewer was designated inadequate, and

a one-paragraph opinion, without so much as citation of

authorities, as to why the petition should be denied.

Perhaps an hour’s work was involved in preparing it.

Some-

thing simply must be done about the late filing of

recommendations.

It was within the Board’s power, as we have done on

other occasions,

to decide the case without the recommendation.

Although this

is contrary to the strong statutory policy

favoring independent evaluation of the facts,

it is better

than granting a variance by default.

Our process of

discussion and decision is triggered by receipt of the final

materials on which we are to decide,

such as transcripts,

briefs,

and recomraendations, which it is the parties’ res-

ponsibility

to provide in time for us to act.

We.

have

supplemented this trigger with independent searches of the

docket by both the Clerk and the Chairman to discover

petitions on which

the 90 days are about to elapse.

Unfortunately,

it

has not been the Board’s consistent practice

to assign new docket numbers to amended petitions filed after

dismissals or denials, and with its old number this case

escaped notice in ascertaining cases requiring an early

September decision.

We have directed that new numbers be

5

—

481

---

—6—

assigned in such situations,

and

that petitions as filed be

placed upon tentative agendas for decision just before the end

of

the

90-day

period,

to

minimize

the

risk

that

cases

will

slip past us in the future.

It would also help if

recommendations

were

filed

in

time

to

be

considered.

ORDER

Ninety days and more having elapsed since the filing

of

the

petition

without

final

action

by

the Board,

the

petition

is

declared

to

have

been

granted

by

default,

and

Mrs.

Kelberger

may

be

issued

a

permit

to

connect

the

pro-

posed

home

in

the

600

block

of

Frolic

Avenue

to

the

adjacent

sewer

notwithstanding

this

Board’s

ban

on

sewer

connections.

I,christan

Moffett,

Clerk

of

the

Pollution

Control

Board,

certif~

that

the

Board

adopted

the

above

Opinion

&

Order

this

~

.~

day

of•~•’

~

‘.

.,,,

•

,

1972,

by

a

vote

of

L

A~:

•vt’o:,.

-

~1.’./.