ILLINOIS POLLUTION CONTROL BOARD
Nay 20,
1993
VILLAGE OF FORRESTON,
)
Petitioner,
v.
)
PCB 93—13
)
(Variance)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
OPINION
AND
ORDER OF THE BOARD
(by B. Forcade):
This matter comes before the Board on the variance petition
filed on January 22,
1993 by the Village of Forreston
(Forreston).
Forreston requests a variance from 35 Iii. Adm.
Code 306.303 and 306.304 and from 415 ILCS 5/12
(1992).
The
Agency,
on April
1,
1993,
filed its recommendation suggesting
that the variance be denied.
Forreston waived its right to a
hearing and no hearing was held.
Forreston is
a rural community of approximately 1,400 people
located in Ogle County.
(Pet.
at 2.)
The community is surrounded
by agricultural land.
(Pet. at 2.)
Forreston provides sewer
service to approximately 550 users.
(Pet.
at 2.)
Forreston requests
a variance to allow bypassing the
sanitary sewer collection system during periods of excessive
surface runoff; the excessive runoff currently causes surcharging
of the sewer
system.
(Pet.
at 1.)
Forreston reports that
basement backup of sewage into approximately eleven homes
occurred on June 29,
1990 and March 26,
1991.
(Pet.
at 1.)
Forreston has undertaken steps to determine the potential cause
of the inflow/infiltration.
(Pet.
at 2.)
Several identified
sources have been corrected and there has been no additional
incidents of basement backups.
(Pet. at 2.)
While Forreston has taken several steps to reduce the
surcharging which caused the basement backups, Forreston asserts
that the adequacy of these measures cannot be proven since
Forreston has not experienced a rainfall of the magnitude that
resulted in the prior backups.
(Pet.
at 2.)
Forreston contends
that the variance is required to prevent basement backups from
occurring until other remedies can be implemented and proven.
(Pet. at 1.)
Forreston proposes constructing on overflow bypass
which would relieve to a surface ditch during surcharging
conditions.
(Pet.
at
3.)
Forreston intends to bypass the sewage
system when heavy rain conditions exist to protect residences
from sewage backup.
(Pet.
at
3.)
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The Environmental Protection Agency
(Agency) opposes the
granting of the variance.
The Agency contends that Forreston
has failed to demonstrate sufficient hardship as required by the
Environmental Protection Act and the Board regulations.
The
Agency notes that the economic difficulties asserted by Forreston
do not amount to a statutory hardship.
The Agency contends that
Forreston has failed to fully explain the environmental impact of
bypassing the sewer system.
DISCUSSION
In determining whether any variance is to be granted, the
Act requires the Board to determine whether a petitioner has
presented adequate proof that immediate compliance with the Board
regulations at issue would impose an arbitrary or unreasonable
hardship.
(415 ILCS 5/35(a)
(1992).)
Furthermore, the burden is
upon the petitioner to show that its claimed hardship outweighs
the public interest in attaining compliance with regulations
designed to protect the public.
(Willowbrook Motel v.
IPCB
(1977),
133
Ill. App.
3d 343,
481 N.E.2d 1032).
Only with such
showing can the claimed hardship rise to the level of arbitrary
or unreasonable hardship.
Where the petitioner seeks to extend a
variance, the petitioner must show satisfactory progress.
A further feature of a variance is that it is,
by its
nature,
a temporary reprieve from compliance with the Board’s
regulations and compliance is to be sought regardless of the
hardship which the task of eventual compliance presents an
individual polluter.
(Monsanto Co.
v. IPCB
(1977),
67 Ill.2d 276,
367 N.E.2d 684).)
Accordingly, except in certain special
circumstances,
a variance petitioner is required,
as a condition
to grant of variance, to commit to a plan which is reasonably
calculated to achieve compliance within the term of the variance.
Forreston proposes bypassing the sewer system during periods
of surcharging while it completes evaluations of its sewer
system.
(Pet.
at 4.)
If it is determined that sanitary sewer
improvements are needed,
Forreston will proceed with the needed
sewer construction.
(Pet.
at 4.)
Forreston contends that due to
the anticipated infrequent times and durations of overflows and
the dilute nature of the surcharge overflows of sanitary sewage,
negligible impact on human, plant and animal life is anticipated
in the unnamed ditches and tributaries.
(Pet.
at 5.)
Forreston
notes that it does not have the financial resources to undertake
a sanitary sewer replacement program and additional time is
needed to determine if backups are likely to reoccur and obtain
the required funding
if construction is necessary.
The Agency contends that Forreston has only demonstrated a
possibility of future backups and has not demonstrated with any
certainty that backups are likely to occur in the future.
The
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1t~2-U59O
3
Agency maintains that this does not present a hardship.
The
Agency further contends that the need to obtain funding to
undertake sewer replacement is not considered a hardship.
The
Agency also argues that Forreston has not provided sufficient
information concerning the environmental impact of the bypass.
In particular, the Agency notes that Forreston has not provided a
plan to remove the sewage from the ditch or a means to keep
residents away from the ditches or named the ditches in which the
bypassed water will flow or described how far the bypassed water
will flow.
The Agency argues that without this information it
is
unable to determine the environmental impact of the bypass
system.
Forreston has not filed a response addressing the concerns
raised by the Agency in its recommendation.
The Board finds that Forreston has not presented adequate
proof that immediate compliance with the regulations would impose
an arbitrary or unreasonable hardship.
Further,
the Board finds
that Forreston has not fully addressed the environmental impact
of bypassing the sewer system during periods of surcharging.
Therefore, the Board denies the request for variance.
While Forreston has taken some measures to correct the
inflow/infiltration problem,
it
is not certain whether these
measures have fully corrected the problem.
Forreston has noted a
decrease in flow to the wastewater treatment plant.
Forreston
has not presented any information relating to the events that
resulted in prior basement backups of the sewer system.
Further,
Forreston has presented limited data concerning the modifications
made to the sewer system or the results of these modifications.
Based on the material presented in the petition it is impossible
to determine
if basement backups are more than likely to occur in
the future or under what conditions backups are likely to occur.
To establish arbitrary or unreasonable hardship the
petitioner must prove that the economic hardship resulting from a
denial of the variance would outweigh the injury to the public
from a grant of the petition.
(Cater~i11arTractor Co.
v.
Ill.
Pollution Control Board
(3rd Dist.
1977),
48 Ill. App.
3d 655,
363 N.E.2d 419.)
If the variance is not granted, the public may
be subject to additional backups causing property damage or
injury and creating a potential health hazard.
The Board notes
that the bypass system proposed by Forreston could also result in
property damage or injury and create a potential health hazard.
Forreston has not demonstrated that measures were taken in the
design of the bypass system to eliminate these potential
problems.
Based on the information submitted by Forreston, the
Board cannot determine the effect that the granting of the
variance would have on the public and the environment.
0IL~2-059I
4
For the reasons discussed above the Board denies the
variance sought by Forreston.
This denial does not preclude
Forreston from submitting a new petition with additional
information.
This opinion constitutes the Board’s finding of fact and
conclusions of law in this matter.
ORDER
The Board hereby denies the Village of Forreston’s petition
for a variance from 35 Iii.
Admit.
Code 306.303,
35 Ill. Adm.
Code
306.304 and 415 ILCS 5/12
(1992).
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act,
(415 ILCS
5/4.
(1992)), provides for appeal of final orders of the Board
within 35 days.
The Rules
of the Supreme Court of Illinois
establish filing requirements.
(See also 35 Ill. Adm. Code
101.246,
Motion for Reconsideration.)
I, Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify.t~tthe above opixüon and order was
adopted on the
day of________________________
1993,
by a vote of________
,
Clerk
ion Control Board
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