ILLINOIS POLLUTION CONTROL BOARD

August

18, 1983

JAMES

S.

NOBLE,

)

)

Petitioner,

)

)

PCB

83—39

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

Respondent.

MR.

JAMES

K,

YOUNG OF GIFFORD, DETUNE

& GIFFORD, LTD., APPEARED

ON BEHALF OF JAMES NOBLE;

MR. WAYNE

L. WIEMERSLAGE, STAFF ATTORNEY, APPEARED ON BEHALF OF

THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY;

and

MS. RITA EISNER, VILLAGE ATTORNEY, APPEARED ON BEHALF OF THE

VILLAGE OF LOMBARD.

OPINION AND ORDER OF T~3EBOARD

(by 3,D.

Dumelle):

This matter comes before the Board upon a March 18,

:1983

petition for variance and an April

19,

1983 amended petition

which was filed

in

response to a March 24,

1983 Board Order for

additional

information on behalf of James Noble,

On June

9,

1983

the Illinois

Environmental Protection Agency (Agency)

filed a

recommendation that variance be denied.

Hearings were held on

June 10 and 13, 1983 in Lombard,

On June 15,

1983 Noble

filed

an objection and answer to the Agency recommendation.

A motion

to strike pleadings of the Agency was

filed

by Noble on July

13,

1983 to which the Agency responded on July 19,

1983.

Noble

argues that the Agency pleadings and recommendations should be

stricken in that no technical information was submitted in support

of the statements contained in those documents.

That motion is

denied in that the “Agency recommendation

is

simply a statement

of the Agency’s position” which Noble

“has had an opportunity to

rebut”

(City of Marquette Heights

v,

IEPA,

PCB 81—15,

44

PCB

27,

November

5,

1981).

Further,

the burden of proof is upon Noble

to prove his allegations;

it

is not upon the Agency to disprove

them.

However, the support for Agency

allegations certainly

affects the weight they will be given.

Noble requests variance from

35 Ill.

Adm.

Code 309.241(a)

to enable him to proceed with the construction of

32

two-bedroom

residential condominium units consisting of eight buildings

53-225

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with

four

units

per

building.

The

project

is

to

be

constructed

on

2.84

acres

slightly

east

of

Main Street and

south

of

Hickory

Street

in

Lombard~

He cannot proceed at present

in that the

Village of Lombard~ssewer system is

on

restricted status.

On March

19,

1981

the Board granted Noble

a variance from

old Rule 962(a)

now

35 ilL

Adm,

Code

309,241(a)

to allow

issuance of sewer construction and operation permits for a

twenty—unit condominium building on the western portion of the

parcel

of

land

that

is

the subject of

this

proceeding

(James

Noble

v,

IEPA,

PCB

80—215,

41

PCB

i05)~

That variance, however,

has not been used, ap~arentiybecause such development was found

to be “economically unsound”

(R. 30),

Noble

has

instead

developed

the

present

32—unit

proposal.

ENVIRONMENTAL IMPACT

Sewage from Nobie~s

proposed development would

enter

Lombard~s24—inch sanitary sewer

line, which is tributary to a

30—inch combined sewer,

and

which

in turn

is tributary to a

54—inch combined sewer

line.

All

these

lines

are

currently on

restricted

status

due

to

periodic

surcharging.

The

24-inch

sanitary sewer runs west on Hickory Street to join the 30—inch

combined sewer at the intersection of Hickory and Main Streets

where there

is an inlet that discharges

storm water into the

30—inch combined sewer,

A separate storm sewer runs parallel

to the 24-inch sanitary sewer on Hickory Street fronting the

proposed site,

That storm

sewer

is

tributary

to

a

48—inch

storm

sewer

on

Main

Street.

Noble

proposes

an offset plan which he alleges will

result

in

a

net

reduction

in

the rate of flows

of

the

combined

sewer and

the storm

sewer

by

diverting storm flow

coming

from

the

subject

property away from the combined

sewer

and

redirecting

it

to

the

48—inch storm sewer.

He believes he can also reduce the rate of

flow of stormwater runoff to the

storm

sewer

by

use

of

detention

and restrictors.

Petitioner’s

Exhibit

7

indicates

that

the

net

result of his offset

plan will be

a

decrease of

flow rate to

the 24—inch sanitary

sewer of

2,07 cubic

feet per

second

(cfs).

This

plan

is essentially the

same

as

the

plan

presented in

PCB 80—215

(see

Ex,

7,

~m.

Pet,),

Based upon a

fifty—year

intensity storm of

6.9 inches per hour

(10

minute

concentration)

overall reduction of flows to

the

24—inch

combined

sewer

is

calculated at 2,07 cfs

(cubic feet per second) and

0.44

cfs

to

the 48—inch storm sewer based upon

a fifty—year

storm

of 5.9

inches per hour

(15

minute concentration),

Thus,

Noble argues

that his project will result

in an overall environmental benefit.

However, the Agency points Out that a more realistic storm

event should have been chosen, that while the rate of flow may

be reduced,

the quantity will be increased, and the quality

of

53-226

---

—3-.

flows would be changed through an increase in the concentration

and amount of sewage.

Further,

the Agency questions whether the

detention sites will capture the amount of runoff alleged.

The Board shares the Agency’s concern

regarding

the

use of

a

fifty—year storm,

Certainly,

surcharging

in

the Lombard area

occurs on a

much more frequent basis

than that,

and data based

upon the minimum

size

storm

that causes

sewer

backups would have

been much

more relevant than the data

presented.

The record does

indicate that

calculations

were

made

of

a five—year intensity

storm as

well.

The specific data

is

not

presented,

hut Albert

Kinsey,

a

registered professional

engineer who

is president of

a

consulting

firm

involved in sanitary and

civil engineering,

testified that “the outcome still shows that

there is a decrease

in

the

sanitary sewer

at

Hickory

and

Main,~ although

~‘there

would

he

a

slight increase in the

storm

sewer

flow”

(R.

69).

At

a

rainfall intensity of an eighth of an inch per hour

there would

he

an overall

increase in the flow to the combined sewer,

although

Mr.

Kinsey pointed out that there would not be

any flooding

under

those conditions.

It appears safe to assume that surcharging occurs at a

rainfall intensity of somewhere between a five—year storm and an

eighth of an inch per hour.

Unfortunately, no assessment of the

environmental impact is presented at such levels.

However,

it is

clearly true that there will be an increase

in the quantity of

storm flow due to an increase in impervious surface area caused

by the buildings and pavement proposed.

Further, the sewage

component of the combined sewer flow will be

increased by the

addition of

96 Population Equivalents to

the sewer

line,

Additionally, Noble’s engineering data concerning the decrease

in

flow to the 48—inch storm sewer appears to be based upon the

assumption that all currently unrestricted runoff flows from the

property will be captured by the detention basins

(see Pet.,

Ex,

A, May

19,

1983). An inspection of Agency Exhibit H does not

appear to confirm that assumption

in that much

of

the 40

of the

site area which

is

not open space appears to drain to the

sewers

rather than to detention areas.

The record fails to explain how

complete capture

is to be accomplished and,

if

it

is not, what

the actual capture would be.

The Board also notes that much of the alleged reduction of

flows

is premised upon the disconnection of a storm water

inlet

from the combined sewer,

an action which could seemingly be

accomplished by Lombard regardless of the granting

of this

variance,

While there may well be

an economic advantage

(especially to Lombard)

to having this change made during Noble’s

site construction, it does not necessarily represent an environ-

mental benefit which would flow from

the

grant

of this variance.

At the time of the initial variance,

it seemed that

the

disconnection might also have been accomplished

more

expeditiously

if

made

a

condition

of

variance,

but that has not

been the

case.

53-227

---

—4—

For all of the above reasons,

the Board finds that the

record is insufficient to form a conclusion as to the specific

environmental impact.

The environmental benefit,

if any,

is

highly speculative and may be more than offset by the adverse

effects that have been noted above,

HARDS

HIP

In PCB 80-215, the Board noted that “Noble appears to have

already spent approximately $10,000 in architects and engineers

fees and related expenses

(incurring “verbal obligations” for

$12,000 more),

as well as obligations for $18,000 in attorneys

fees relative to the zoning matters.”

The Board also concluded

“that most,

if not all of his obligations were incurred before

imposition of the sewer ban,”

In the present proceeding Noble realie~esthat hardship

claimed in PCB 80-215 in addition to “additional obligations

and expenditures incurred for the 32 unit development...

(which

have all been incurred since July

16,

1980.”

These expenditures,

which include monies spent “for reduction and part payment of

land purchase,” application fees,

architectural fees,

engineering

fees, and related expenses

(Pet,

~.

6),

must be considered as

self—imposed hardship in that they were all incurred well after

the imposition of restricted status,

Thus,

the only hardship which can be considered relevant

to the present variance request

is that hardship which the Board

found in PCB 80-215 to the extent that

it remains applicable.

The Board agrees with Noble that this second variance request

should be treated as though

it were an initial petition.

That

being so, only that part of the hardship found in PCB 80—215

which is directly related to the present request remains relevant.

Unfortunately, Noble has not broken down the expenses in that

fashion.

Certainly, some, if not most, of the architectural and

engineering expenses would relate solely to the formerly

proposed 20—unit project and are not relevant to the present

variance request.

It may also be that some of the attorney’s

fees would apply only to the former proposal,

Therefore,

all

that the Board can find regarding hardship is that the hardship

is substantially less than that found in PCB 80—215.

BOARD ACTION

In determining whether variance should be granted, the

Board balances the hardship which would be imposed by denial of

the variance against the environmental harm which would result

from its granting.

Thus,

in this case the Board is faced with

the task of balancing a poorly supported environmental benefit,

53-228

---

—5—

or detriment, against an economic hardship to Noble of an

undetermined amount less than $30,000.

If the record contained

adequate support for the proposition that there would i~fact

be a substantial environmental benefit and

if the hardship were

more clearly documented, the Board would be

in a position to

consider granting the variance.

However, based upon the possible

range of environmental impact and hardship, the Board cannot

determine that variance should be granted.

The record is simply

insufficient, and since Sections

35(a) and 37(a) of the Environ-

mental Protection Act place the burden of proof upon the variance

petitioner to ensure that the record contains “adequate proof”

that compliance would impose an arbitrary or unreasonable

hardship, variance must be denied.

This Opinion constitutes the Board’s

findings of fact and

ORDER

James

S. Noble is hereby denied variance from 35 Ill. Mm.

Code 309.241(a)

IT IS SO ORDERED.

I,

Christan L.

Moffett, Clerk of the Illinois Pollution

Control ~ard

hereby certify that the

bove Order was adopted on

the

~Z

day of ______________________,

1983 by a

vote of

Illinois Pol