ILLINOIS POLLUTION CONTROL BOARD
September 21, 2006
C&F PACKING COMPANY, INC., an Illinois
corporation,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY, COUNTY OF
LAKE, VILLAGE OF LAKE VILLA, and
VILLAGE OF FOX LAKE,
Respondents.
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PCB 06-53
(Variance - Water)
ORDER OF THE BOARD (by T.E. Johnson):
On October 28, 2005, C&F Packing Company, Inc. (C&F), an Illinois corporation, filed a
variance petition for its manufacturing facility located at 515 Park Avenue in Lake Villa, Lake
County. C& F produces custom private label sausage products, pizza toppings, and other cooked
meat items for the food industry. On December 14, 2005, the County of Lake (Lake County)
filed a motion to join both the Village of Lake Villa (Lake Villa) and the Village of Fox Lake
(Fox Lake) as respondents to this proceeding.
Since December 2005, the Board’s hearing officer has conducted numerous status
conferences with the parties in this case, including one as recently as September 14, 2006.
During these conferences, the parties have represented to the hearing officer that settlement was
being pursued. At the parties’ request, the Board has reserved ruling on a number of filings
made early on in this proceeding while the parties have bee trying to settle.
1
During the last status conference call one week ago, the parties informed the hearing
officer that settlement discussions were progressing. In addition, C&F represented again that it
would not be filing a response to Lake County’s motion for joinder, and the parties agreed to
another extension of the deadline for filing responses to all other outstanding motions, this time
to November 16, 2006. The parties also indicated to the hearing officer that settlement might be
aided if the Board now ruled on Lake Couty’s motion for joinder.
Before ruling on Lake County’s motion for joinder, the Board must first determine
whether C&F’s variance petition contains sufficient information so as to properly put this matter
1
For example, besides C&F’s petition and Lake County’s motion for joinder, Lake County and
the Illinois Environmental Protection Agency have each filed a motion to dismiss, respectively
on November 23, 2005 and December 12, 2005.
2
before the Board.
See
35 Ill. Adm. Code 104.228. For the reasons below, the Board accepts
C&F’s petition and grants Lake County’s unopposed motion for joinder.
PETITION FOR VARIANCE
By its petition for variance, C&F seeks relief from 35 Ill. Adm. Code 309.222(b).
Section 309.222(b) is housed in Subpart B of the Board’s Part 309 water pollution permit rules.
Generally, Subpart B addresses permits to construct, modify, and operate treatment works,
pretreatment works, sewers, wastewater sources, and other discharges not required to have
National Pollutant Discharge Elimination System (NPDES) permits.
See
35 Ill. Adm. Code
309.201. Section 309.222(b) requires that a sewer construction or modification permit
application include various certifications. These include a certification by the owner of any
intermediate receiving sewer that adequate capacity is available to transport the wastewater
discharge that would be added if the permit application were granted.
C&F asserts that the requested relief is necessary because Lake County, as owner of an
intermediate receiving sewer, is inappropriately withholding its certification of a permit
application that C&F wishes to submit to the Illinois Environmental Protection Agency
(Agency). Petition at 1. According to C&F, Lake County is refusing to certify the application
because of a dispute Lake County has with Lake Villa over the payment of sewer connection
fees. C&F contends that it seeks this variance because of Lake County’s “improper linking” of
the permit application certification with the sewer connection fee dispute.
Id
. at 2. C&F does
not request a hearing on the petition, asserting that the evidence contained in the petition
adequately advises the Board of the pertinent facts and legal issues.
Id
. at 28.
The Board finds that the petition meets the content requirements of 35 Ill. Adm. Code
104.204 and accepts the petition. The Agency must investigate the petition for variance and file
its recommendation with the Board.
See
35 Ill. Adm. Code 104.216. The recommendation must
be filed at least 30 days before the date of any hearing, unless the Board or the hearing officer
orders otherwise.
Id
. C&F will then be allowed 14 days after service of the Agency
recommendation to file a response to the recommendation.
See
35 Ill. Adm. Code 104.220. In
addition, the Agency must file with the Board a certification that the Agency caused the required
newspaper publication of notice of C&F’s petition.
See
35 Ill. Adm. Code 104.214(f).
The Board will hold a hearing under any of the circumstances specified in 35 Ill. Adm.
Code 104.234, including upon any person’s timely written hearing request and objection to
granting the requested variance.
See
35 Ill. Adm. Code 104.234(d). The hearing officer must set
the matter for hearing in accordance with the requirements of the Environmental Protection Act
(415 ILCS 5 (2004)) and the Board’s procedural rules. It is the responsibility of the hearing
officer to guide the parties toward prompt resolution of this matter, through whatever further
status calls and hearing officer orders he determines are appropriate. Any hearing will be
scheduled and completed in a timely manner, consistent with the decision deadline (
see
415
ILCS 5/38(a) (2004)), which only C&F may extend by waiver (
see
35 Ill. Adm. Code 101.308).
If the Board fails to take final action by the decision deadline, C&F “may deem the request
granted.” 415 ILCS 5/38(a) (2004). On December 16, 2005, C&F filed an open waiver of the
decision deadline.
See
35 Ill. Adm. Code 101.308(c)(1).
3
MOTION FOR JOINDER
Lake County’s joinder motion seeks to add Lake Villa and Fox Lake as respondents to
this variance proceeding. Lake County states that the requested variance, if granted, would
facilitate C&F’s “expanded sewer discharges into the County’s Northwest Interceptor and,
ultimately, the Fox Lake Wastewater Treatment Plant.” Motion (Mot.) at 1. According to Lake
County, Lake Villa and C&F owe Lake County nearly one-half million dollars in sewer
connection fees relating to C&F’s operations.
Id
. at 2.
Lake County argues that for the Board to provide a complete adjudication, Lake Villa and
Fox Lake should be joined as respondents to this proceeding. Mot. at 2-3. As to Lake Villa, the
motion for joinder states that C&F’s entitlement to use Lake County’s Northwest Interceptor is
“entirely derivative” of (1) the agreement between Lake County and Lake Villa, which “makes
specific capacity in the County’s Northwest Interceptor available to certain Lake Villa
customers,” and (2) Lake Villa’s compliance with the terms of that agreement.
Id
. Lake County
argues that the overdue connection fees “is as much a matter of concern to Lake Villa as it is to
C&F Packing” because Lake Villa is responsible for collecting and remitting the sewer
connection fees to Lake County.
Id
. at 3.
According to Lake County, if the Board grants C&F’s requested variance and C&F is
thereby able to obtain a permit from the Agency without the County’s certification as the
intermediate sewer owner, Lake Villa would be affected. Specifically, Lake County maintains
that Lake Villa would be affected by, among other things, the following: (1) the resulting
increased discharge, which “directly impacts Lake Villa’s local collection system” because Lake
Villa is the local sewer provider for C&F and the local interceptor owner; and (2) potential Board
conditions on the grant of variance. Mot. at 3-4. Lake County concludes that Lake Villa
therefore has a “direct interest in the outcome of this proceeding.”
Id
. at 4.
As to Fox Lake, the motion for joinder states that Fox Lake serves as the treatment
authority for the additional discharge that C&F seeks through its permit application. Mot. at 4.
Fox Lake, continues Lake County, receives almost 90% of the connection fees paid to Lake
County under Lake County’s agreement with Lake Villa.
Id
. at 4-5. According to Lake County,
Fox Lake:
certainly has an interest and also stands to lose if, because of any variance granted
by the Board, additional flows are sent to the Fox Lake Wastewater Treatment
Plant without commensurate fees being paid.
Id
. at 4.
Lake County adds that any condition the Board might impose on a granted variance, such
as conditions concerning discharge amounts and flow qualities, will impact Fox Lake. Mot. at 4-
5. Lake County concludes that Fox Lake should therefore be joined to enable the Board to
completely and properly adjudicate the issues before it.
Id
. at 5.
The Board notes that under its procedural rules, “joinder” is defined as “the procedure by
which the Board adds a person, not originally a party to an adjudicatory proceeding, as a party to
4
the proceeding.” 35 Ill. Adm. Code 101.202. Section 101.403(a) of the Board’s procedural rules
provides:
a) The Board, on its own motion or the motion of any party, may add a
person as a party to any adjudicatory proceeding if:
1) A complete determination of a controversy cannot be had without
the presence of the person who is not already a party to the
proceeding;
2) The person who is not already a party to the proceeding has an
interest that the Board’s order may affect; or
3) It may be necessary for the Board to impose a condition on the
person who is not already a party to the proceeding. 35 Ill. Adm.
Code 101.403(a).
The Board finds that under these provisions, both Lake Villa and Fox Lake should be
added as parties to this variance proceeding. Neither C&F nor the Agency opposes Lake
County’s motion for joinder.
See
35 Ill. Adm. Code 101.500(d). Further, counsel for Lake Villa
and Fox Lake represented to the hearing officer that they were served with the joinder motion
and would not be filing any responses. Under these circumstances, the Board grants Lake
County’s motion for joinder and accordingly adds as respondents Lake Villa and Fox Lake.
Future filings in this proceeding must reflect the caption of this order, which has been amended
consistent with Board’s ruling on the joinder motion.
CONCLUSION
The Board finds that C&F’s variance petition meets the content requirements of the
Board’s procedural rules. The Board therefore accepts the petition. The Board also grants Lake
County’s unopposed motion for joinder, adding Lake Villa and Fox Lake as respondents to this
variance proceeding. As appropriate, the Board will rule on other currently pending motions
when the response time, as extended, has run.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on September 21, 2006, by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
