ILLINOIS POLLUTION CONTROL BOARD
June 20,
1974
CAMEO
DEVELOPMENT
INC.
PETITIONER
)
v.
)
PCB
74—109
ENVIRONMENTAL PROTECTION AGENCY
RESPONDENT
~4R.
JOSEPH
WRIGHT,
JR.,
ATTORNEY,
in behalf of CAMEO DEVELOPMENT,
INC.
~1R,
JOHN H.
REIN,
MR. HENRY HANDZEL, ATTORNEYS,
in
behalf of the
ENVIRONMENTAL PROTECTION AGENCY
~)PINION
~ND
ORDER OF THE EOARD
(by Mr. Marder)
This action involves a request for variance filed March
25,
1974,
by
Cameo Development, Inc., requesting relief from an Agency-imposed
sewer ban
(pursuant to Rule 921
al
of
Chapter
3).
Additional inform-
ation regarding this matter was filed on April 4th and April
11th.
The Agency filed its recommendation which suggested that the request-
eä
relief be denied.
Hearing was held on May 21,
1974,
at
the
Effing—
ham City Hall,
?etiticner~,Cameo Development,
inc.,.owns
5.78 acres of
land.
in
the
city
of
Effingham.
It
is the intent
of
Petitioner to utilize
this
land
for
the
construction
of
a 122-unit Days Inn Motel, a 100-seat
Tast:?
4orld
restaurant,
and
a
three-pump
gas
station
(R.
22)
.
Although
men-
:ion
of
a
gas
station was not included
in
the petition for
variances
~t
was
brought
out
on
hearing.
The
hearing
officer
elected
to
allow
testimony in that
no
undue
surprise
was
evident,
and
the
station
was
not
a major
factcr
in the waste load flow.
We
concur
in
this f±ndtn~,
Petitioner
now
finds that
due
to
an
Agency-imposed
sewer
ban,
it
can
not obtain
the
required sewer extension permit and thus cannot
~oInmence
construction.
Petitioner further alleges that the curtailment
of
~on~
structa~onwould lead to an arbitrary and unreasonable hardship in
that
it
~hardship)
was not self-imposed.
The Agency counters that
the
hard-
ship
was
indeed
self-imposed,
and
that
the
variance
request
should
he
denied.
The
Board
in
deciding
a
case
of
this
nature
must
go
to
the
facts
re-
;arding
hardship,
environmental
impact,
and
alternates
in
order
to
reach
a
reasoned
decision.
A history
of
the
facts
surrounding
thL:~
case
is
thus
in
order.
~4r.,
Richard
H. Cocdy
(president, Cameo Development
Corp.)
test
i~i
as
to
~:he history
of
this
project.
The
land.
was
purchased
in
Nv~~o~
—2—
1973
(R.
27), and before this time an attempt was made to verify the
existence and availability of utilities
in the area.
Mr. Coody en-
gaged Crossroads Realty of Effingham as their agent in this search.
Mr. Coody received a letter (Exhibit A)
dated November 16, 1973,
signed by a Mr. Lowell Wines, Superintendent of the Street
and
Sewer
Department of Effingham, stating in pertinent part:
“This letter is to inform you that the city sewer facil-
ities
are within
70
feet of the property on the West Fayette
Avenue, that the facilities are adequate for installation
that you are planning to do.
It will be necessary for you
to obtain a permit from the Illinois State Highway Depart-
ment for easement on their right of way.
The city tap fee
is
fifteen dollars
($15)
per tap.”
In addition the letter bore the handwritten notation,
“We need an
Environmental Protection Agency permit.”
Mr. Coody then checked with
the city of Effingham as to the problems which would or would not be
concerned in obtaining an Environmental Protection Agency permit
(R.
41).
He was informed that permits for sewer extensions were being
reviewed, and received no indication that there would be any problem
in obtaining a permit
(R.
42).
Mr. Coody then purchased the above-
mentioned land and proceeded with engineering.
A loan for construct-
ion was obtained in December,
1973.
A permit was filed with the En-
vironmental Protection Agency in March, 1973
(Exhibit 5,
R.
31).
Upon hearing that the Environmental Protection Agency had stopped is-
suing permits Mr. Coody filed the instant variance petition.
The
Agency sewer ban went into effect in February of 1974.
The rationale for this ban
along with interim steps being taken
by the city of Effingham weigh heavily in .~thiscase.
The city of
Effingham owns
and
operates a secondary treatment plant consisting of
primary settling,
anaerobic digestion, trickling filters, and final
settling with recirculating pumps and chlorination.
The plant was con-
structed in 1957 at a rated capacity of 1.27 mgpd.
Since 1970 the city
has undertaken to improve the capacity of the plant by cleaning the di-
gestor, rebuilding internal piping, increasing the size of the recirc-
ulating pump,
and going to alternate sludge disposal
(R.
47).
The city
has also taken steps to remove
a large portion of storm water from the
combined system,
and this storm water now discharges into the stream
(R.
50)
(done March 1974).
The city is presently
(under Agency permit
R.
51)
adding prechiorination and converting the trickling filter from
a single stage to a recirculating system.
Chemical settling agents
will also be added to reduce suspended solids.
This work is being con-
ducted in an attempt to obtain
a 20/25 BOD/SS effluent
(R.
53).
This
project is due for completion in July 1974.
Under cross—examination the subject of increased capacity due to the
above improvements was questioned.
It is clear that the improvements
do not guarantee additional capacity; however, there is a substantial
chance for success.
Discussions as to whether or not the Effingham
plant can
‘fleet the required 20 BOD/25 SS requirement were long and in-
volved.
Again, there is no way to determine whether or not the plant
will indeed meet this criteria.
However, this question is of central
importance
in the instant case, in that it swings the balance of other
12—578
—3—
testimony.
One must then explore the Agency’s seeming intent in grant-
ing a permit for these improvements, and try and ascertain what the
Agency’s belief was prior to granting said permit.
The Agency recommendation,
P.
6, states as follows:
“However, Agency engineers strongly believe that even
after the improvements are completed,
the plant will not
be able to meet the twenty mg/l BODç and twenty-five mg/i
suspended solids standard of Rul.e 4~4-Bof Chapter 3.”
Mr. Broms
(Environmental Protection Agency Permit Section)
,
when
asked about this quotation, said,
“Well, the strongly believes,
I won’t say I’m negative
on it,
I have my doubts,
I won’t say emphatically it will,
I won’t say emphatically it won’t.”
(R.
81)
Mr. BromS further testified that due to the design differing from
normal practices one could not predict with certainty the outcome of
the project.
(R.
82)
He further testified that the permit was issued
to see if the facility would meet the’standards and then couldbe per-
haps rerated to 1.75 mgpd
(R.
84).
Mayor Clyde Martin
(city of Effingham)
testified as to the reasons
for the city entering into the abovementioned improvements.
Mayor
Martin testified that he was led to believe
(by the Environmental Pro-
tection Agency) that the improvements would allow the city to meet the
applicable regulations
and
thus continue to grow.
He referred to a
call he placed to the Environmental Protection Agency from which he
learned that the city had “no problem”
(R.
109).
Mayor Martin further testified as to a meeting held in the Environ-
mental Protection Agency offices in Springfield at which time the
Environmental Protection Agency stated that the improvements would help
the city get off restrictions
—
however, no guarantee was made
(R. 116).
Mayor Martin stressed that the city committed to expend $40,000 on the
basis that they were led to believe that this would “get by”
(R.
117).
Mr. Lowell Wines, Superintendent of Streets and Services,
city of Eff-
ingham, was also present at the above meeting.
Mr. Wines
also testi-
fied that at no time did the Agency express
a firm opinion as to whethex
the improvements would or would not meet the applicable criteria
(R.
125)
Agency Exhibit #1 is a letter from the Illinois Environmental Pro-
tection Agency notifying the city of Effingham that it is being put
on critical review (dated February 10, 1972).
Critical Review is a
process whereby the Agency informs the city that its plant
is approach-
ing design capacity and that the Agency will be closely scrutinizing
any new permit applications
(R.
92).
This letter (Exhibit
1) relates
the following design and actual loading:
Design Hydraulic Flow
1.20 mgd
Design Pop. Equivalent
10,500
12—579
—4—
Design
BOD
Load
1785
#/day
Average
Flows
5
Month
1.42
mgd
1971
Average
Pop.
Equiv.
6890
From
the
above
the
Agency
concludes
that:
“The
Effingham
sewage
treatment
facilities
are
hydraul-
ically
overloaded even during periods of no precipitation
while
some
reserve
organic
capacity
remains.”
The
Agency
further
speculates
that
a
large
discharge
of
relative-
ly
contaminant-free
water
is
entering
the
system.
Petitioner’s
Exhibit
I
is
a
letter
from
the
state
Environmental
Protection Agency dated February
4,
1974.
This
letter
informed
the
city
of
Effingham
that
it
was
to
be
put
on
restricted
status.
Re-
stricted
Status
means
that
the
Agency
will
no
longer
issue
permits
for
the
subject
system.
The
following
data
details
the
rationale
for
this
decision.
(Note
the
change
in
design
load
-
no
reason
given.)
Design Hydraulic
Flow
1,27
mgd
Design
Pop.
Equiv.
11,500
Average
Flows
(low
flows)
1.676
mgd
Average Flows
(high
flows)
2,073
mgd
Average Organic Loading
10.275
PE
ftc
letter
also
details
very
high
SOD/and
suspended solids of
85
mg/i
and
86
mg/i
respectively.
This
letter
also indicated that per-
mits
granting
a
population
equivalent
of
2,221.3
and
flow
of
202,130
~pd
were
in
the
works,
which
would
further
complicate
matters.
Mr.
Fitzpatrick
(city
engineer)
stated
(R.
71)
that
a
number
of
the
above
permits
will
not
be
exercised
for
quite
some
time
if
at
all,
and
his
orcjection
would
be
an
addition
of
830
PE.
If
this were the case,
the
total
organic
load
would
then
be
11,105
vs.
a design of
11,500.
:t
this
time,
then,
it
would
seem
that
the
organic
loading
is
close
to
capacity,
and.
the
hydraulic
load
is
somewhat
above
capacity.
This
analysis
places
heavy
weight
on
the
abcvementioned testimony
that
a
substantial
portion
of
the
storm
water
was
removed
from
the
system
in
~4arch
1974.
~Ir.
G.
Schwager
testified
as
to
how
samples
are
handled
at
the
Envir
onmental
Protection
Agency
laboratory,
and
as
to
the
results
of
samples
run
at
that
laboratory~
There
was
much controversy over the validity
of
the
samples;
however,
this
oint
was
somewhat
moot.
The
Agency
rec~
ommendat.ion
(Pg.
5)
details
tesuits
of
samples
run
on
the
city
of
~
ingham~seffluent.
These
results
~ncw
brie
city
ho
be
clearly in viol-
ation of the ap~1icab1e
standatho.
It
is
important
tc
note
that
these
samples
were
taken
before
the
city
oor~pleted
the
abovementioned
imprcv
ments
~some
.improvemen~s
are
st:~.~onderway
,
and
reflect
Only
that
th
Acencv~as
correct
in
issuing
a
~ewer
can.
These
analyses
gave
no
!a
cation
f
what
the
effl
cent
will
~:a. a that
improvements
are
completed.
—5—
All of the above may be summarized to state that although the
Agency properly imposed a sewer ban, the city of Effingharn has been
diligently pursuing a plan which has the potential of cringing its
plant into compliance.
This means
that should a variance be allowed
Cameo Developers, the impact of this added effluent
(1864 gpd at 300
mg/i BOD5
)
should have much less effect on the receiving stream than
it would in a case where no improvement is underway.
The question
then must go to the hardship involved.
Mr. Coody related the economics involved in the project.
He stated
that a price of $32,900 per acre was paid for the land, which was sig-
nificantly greater than its value for residential property.
He ex-
plained that the $32,900 per acre was reasonable
in that his project
was a high density area
(R.
16)
.
Mr. Coody anticipates that the land
would be worth $5,000
an acre should he not be able to build
(R. 17).
Mr. Coody also related that if he were to lose his loan and then have
to reie~otiateat
a later date, he would potentially incur a loss
of up
to $200,000
(FL
19).
Mr. Coody further related engineering costs of
$30,000.
Various other commitments were mentioned, totaling approxi-
mately $380,000.
Although Mr. Coody conceded that some of the above
commitments could be cancelled, he had no
way
of knowing what his loss
would be
(R.
27).
The Agency contends
(see Agency Brief Pg.
9-10)
that the financial
hardship is vague and at best defers the enjoyment of the subject
property rather than terminates its use
(Brief Pg.
13).
The Board
must agree that this is true; however, the hardship, although vague,
is, by facts
elicited, substantial.
While it is true that some of
the losses can be recouped in time, no one can guess how long this
time will be.
The city of Effingham enjoys priority
4146
(FL
75), and
Mr. Fitzpatrick (engineer for Effingham) predicted that federal money
should be available during 1974—1975.
The city has completed its in-
flow—infiltration analysis and could st&rt construction during late
1974.
This, however,
is an estimate and not a firm date.
The Board
feels that delay in utilization of said property could be substantial
indeed.
The Board, then, must weigh the potential hardship against the en-
vironmental harm which would ensue should the variance be granted.
This Board has faced similar situations many times in the past.
In
instances such as Viking Investment
Co.
v. Environmental Protection
As~ency,PCB 73-236, and Meridian Community School District
~t1v. En-
vironmental Protection Agency, PCB 73-349,
this Board has granted
variance due to conditions which combined with other factors showed
substantial hardship.
In many other cases, such as Monyek v. Environ-
mental Protection Agency, PCB 71-80, the Board has refused to grant
variance.
In the instant áase the Board takes
note
that
there
is
a
reasonable
chance that the receiving plant will comply with applicable regulations
shortly.
Agency witnesses testified that such is the case.
The Board
finds that this factor involves a condition which
is unique in sewer
ban cases,
and must be given serious consideration.
In light of this
fact, and with cognizance that a substantial hardship will occur, this
Board will grant variance.
12—581
—
6_
We emphasize that the unique factors surrounding this case have
led to this decision.
In future cases the Board will ask for proof
of operation of the Effinghain plant before granting variances.
The
improvements
are scheduled for July,
1974,
and data of this nature
should be shortly forthcoming.
We would again confirm our position
in Feige
V.
Environmental Protection Agency, PCB 72-192, wherein the
Board noted that completion of construction or substantial steps to-
wards such construction can be clearly used to judge hardship.
This
position, however, was founded without the rather unique situations
of this case.
This Opinion constitutes the findings of fact and conclusions of
law of the Board.
ORDER
IT IS TUE ORDER of the Pollution Control Board that variance is
hereby granted to Cameo Development,
Inc.,
from the Agency sewer ban
in the city of Effingham to connect a 122 unit Days
Inn, a 100-seat
Tasty World restaurant, and a three-pump gas station.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control
Board,
certify that the above Opinion and Order was adopted by the
Board on the c~&~’~
day of
__________,
1974, by a vote of
____
to
b
12—582