 |
Home | Search | Browse | About IPO | Staff | Links |
|
Home | Search | Browse | About IPO | Staff | Links |
|
The Illinois Pollution Control Board — Utopia is a city of 35,000 located in south central, Illinois. An agricultural community with some light industry, the city boasts fine schools and a good quality of life. Rebounding from the economic doldrums of the eighties and the drought of 1988, Utopia is now seeking to expand its business base and foster neighborhood development. But events of last week cast doubt on this. Last week the Illinois Environmental Protection Agency (IEPA) informed the mayor that Utopia's water violates recently amended state water quality standards. Additionally, IEPA says that the Illinois Pollution Control Board (Board) possesses the authority to impose penalties of up to $10,000/day for each day the city fails to comply with state water standards. The mayor is further shocked to hear IEPA tell him that the Board also possesses the authority to order the city to issue general obligation or revenue bonds to finance needed changes in the city's water treatment system. The mayor consults his city engineer, who says the city's water poses no real health risk and the reason the city is in trouble is because the regulation was changed a short time ago — but the city's system is ten years old. The city engineer explains that building a new water treatment plant could cost millions of dollars, an expense the city cannot afford. The IEPA is not persuaded, demanding the city comply with the new standards or it will file an "enforcement lawsuit" with the Illinois Pollution Control Board. The mayor consults his city attorney, wanting to know the following:
POLLUTION CONTROL BOARD The Pollution Control Board is an administrative agency created by the Illinois General Assembly for the express purpose of establishing state-wide environmental standards and judging lawsuits involving pollution. Being scientifically qualified, the Board is comprised of a mechanical engineer, a microbiologist, an entomologist, a chemist, a geologist and two lawyers. All are appointed by the Governor. Although the Board's main office is in Chicago1, it has a satellite office in DeKalb2 and another in Champaign3, where the Board Chairman's office is located. ENFORCEMENT ACTIONS An enforcement lawsuit is a pollution lawsuit, usually prosecuted by the Illinois Attorney General against alleged polluters. In this case the prosecutor will seek to prove that the city's water quality violates state standards (set by the Board). Although it is a lawsuit, cases before the Board are not tried in court or before a judge or jury. The case is conducted before a hearing office whose job is to rule on evidence and help establish a clear record — but he does not render a decision on the case. All testimony and public comments are transcribed by a court reporter and forwarded (with any exhibits and public comments) to the Board for a final decision.
1. In the State of Illinois Center, 100 W. Randolph #11-500, Chicago, IL
BIOGRAPHIES Gregory L. Cochran is a partner with the firm of McKenna, Storer, Rowe, White & Farrug (Chicago, Wheaton, Waukegan and Aurora). He obtained his J.D. from the University of Michigan Law School in 1980. Mr. Cochran is a supervising partner in the firm's environmental practice group, concentrating his practice in the areas of environmental law and toxic torts. Michael J. Maher is an associate with the firm of McKenna, Storer, Rowe, White & Farrug and a member of its environmental practice group. He practiced previously with the Environmental Control Division of the Illinois Attorney General and the Illinois Pollution Control Board. He is licensed in Illinois, Florida and California.
November 1989 / Illinois Municipal Review / Page 19 At hearing the prosecutor will bring IEPA inspection reports and may also bring IEPA experts to testify concerning results of water quality tests. The prosecutors can also call treatment plant employees and city officials to testify. In its defense, the city should show that there are no health dangers, that water quality is not harmful to the environment, that the treatment plant provides good jobs for 20 people, and that the costs of constructing a new plant or modifying the existing one would be crippling to a city of Utopia's size. In rendering a final decision, the Board will consider the evidence, public comments (which any interested citizen has the right to submit at the hearing) and all other relevent factors. If the Board finds an unjustified violation it can impose penalties up to $10,000 per day for each day of violation. Additionally, because the General Assembly has conferred broad authority on the Board, the Board may, indeed, force the city to issue, without referendum, general obligation or revenue bonds to pay for needed plant construction or modifications. Because the Board is more likely to temper its final orders when there is a large ground-swell of favorable public sentiment, it is important for the city to show public support at the hearing whenever possible. But, there are several ways to avoid the headaches, headlines and high costs of defending against an enforcement prosecution. One such method is by applying for a variance from the regulation. VARIANCES Although similar to the commonly known municipal variance, a variance from state-wide environmental regulations is unique. Board variances are temporary and are granted only when it is shown that compliance with the general state-wide regulation would impose an arbitrary and unreasonable hardship. Variances are often used as a "stop-gap" procedure, to allow time to find and install new technology, or a new process, before the variance expires. Unlike enforcement lawsuits which involve the Attorney General or other prosecutors, variances are not necessarily adversarial and would involve only the city and IEPA as parties — the Attorney General will not usually participate. In such cases the city, as petitioner, takes the active role, presenting its case for a variance. IEPA is the respondent. In showing that compliance with the general regulation would impose an arbitrary and unreasonable hardship, the city will need to show that adverse health effects and environmental impacts are minimal. After this it should introduce data showing that the city simply cannot afford any new construction. When state or federal grant monies are available, this is viewed as lessening the financial burden on the city. The actual Petition for Variance must be mailed to both the Board and the IEPA. A final decision is due no later than 120 days after the Board's acceptance of the petition (unless a waiver is issued). Upon reviewing Utopia's petition, IEPA can choose to support or contest it. In either case there must be a public hearing; but if IEPA supports the requested variance the process is much more streamlined. This serves to highlight the fact that the city should contact and work with IEPA as much as possible before filing. By incorporating lEPA's concerns into the petition, the city may turn a powerful opponent into an ally. When all parties agree, it is easier for the Board to grant the requested variance. If IEPA contests the requested variance, it will seek to disprove city claims of minimal health and environmental effects and discredit claims of financial burden. One important side-light to remember is, if the Petition for Variance is filed within 20 days of the new regulation's effective date, the Environmental Protection Act prohibits the regulation from being applied against the city until after the Board renders its final decision. This provision of the Act operates like an Page 20 / Illinois Municipal Review /November 1989 automatic stay of enforcement; therefore, the mayor should have someone check with the Secretary of State's office or examine the Illinois Register to determine when the regulation went into effect. If the Board decides to grant the requested variance, it will impose temporary water quality standards which the city must adhere to while the variance is in effect. If the Board denies the variance the city can then appeal to the Appellate Court. However, a variance is not the only alternative option available to the city. SITE-SPECIFIC RULES In addition to promulgating permanent, state-wide environmental standards the Board also possesses authority to set permanent (non state-wide) site-specific regulations. In other words, the Board is authorized to give the city a permanent water standard that is different than the general, state-wide standard. These are called site-specific regulations. Unlike variances, which are temporary, site-specific regulations are permanent. Not surprisingly, the burden of proof on applicants for a site-specific rule is somewhat different than for variances. Applicants for site-specific rules must show the Board that complying with general state-wide rule is technologically infeasible and/or economically unreasonable. Thus, in reviewing requests for site-specific regulations, the Board will look very closely at the equipment involved, as well as any available engineering data. This, in addition to reviewing data concerning the city's fiscal health. Because site-specific standards are permanent rules, all applicable provisions of the Illinois Administrative Procedure Act and the General Assembly's Joint Committee on Administrative Rules (JCAR) must be followed. Although not conceptually difficult, these rules can be tedious and nit-picky. By calling the Board's offices in Chicago, DeKalb or Champaign, applicants can obtain copies of filing requirements as well as speak to Board attorneys who are both knowledgeable and helpful. Whether the Board issues the requested site-specific regulation or denies it, a written opinion is required by law. If denied, the city can appeal to the Appellate Court. However, the city has another option available. ADJUSTED STANDARDS Adjusted Standards are a new procedure whereby the city can apply for a permanent site-specific rule without going through the tedious procedures of the Administrative Procedure Act and JCAR. Unlike variances, which require a showing of arbitrary and unreasonable hardship, and site-specifics, which require a showing of technical infeasibility or November 1989 / Illinois Municipal Review / Page 21 economic unreasonableness. Adjusted Standards require a showing that the water treatment plant and the city's circumstances are unique and were not considered by the Board when promulgating the general statewide rule. Additionally, the city must again show that public health and environmental quality will not be adversely affected. Because adjusted standards are new, filing soon before the Board develops complicated procedures may be advantageous. Also, like variances, if a request for an Adjusted Standard is filed within 20 days of the new rule's effective date, applicants can take advantage of the automatic stay of proceedings until the Board renders a final decision. As always, Board decisions must be in writing. If the Board grants the requested adjusted water standard, the city will be permanently relieved from having to comply with the general state-wide water standard. If denied, the city can appeal to the Appellate Court. CONCLUSION As indicated, the mayor is not without options. Rather than wait to be sued as a defendant and prosecuted for environmental violations in an enforcement action, the city can take an active role and apply for a temporary variance or permanent relief. If the regulation has only recently become effective, the city might take advantage of the automatic stay provisions. Although slightly different proofs are required for the three alternatives outlined above, one common thread is public health and environmental impact. If the city can demonstrate that public health and environmental quality will not be adversely affected, its chances for obtaining relief are greatly enhanced. Page 22 / Illinois Municipal Review I November 1989 |
|
|