ILLINOIS POLLUTION CONTROL BOARD

Auqust 5, 1971

AMERICAN

NATIONAL BANK

AND

TRUST

)

COMPANY, as Trustee under Trust

)

No. 28512, by Harold

Ableman,

Beneficiary

)

#PCB 71-132

v.

ENVIRONMENTAL PROTECTION AGENCY

OPINION OF THE

BOARD (BY MR. LAWTON):

This is a petition filed by the American National Bank and Trust

Company as Trustee seeking a variance from our March 31, 1971

order entered in Case-Nos, PCB7O-7, 70—12, 70-13, 70-14, forbid-

ding any new connection to sewers operated by the North Shore

Sanitary District until the conditions of overload are corrected.

This opinion supports our order entered July 26, 1971 granting the

petition without hearing, subject to receipt of verification of

the petition. Such verification has been received. Motion to

reopen and hold a hearing was filed by the Environmental Protec-

tion Agency on July 30, 1971, The petition notes that the Agency

had not filed a timely recommendation in this matte~rbut has in-

tended to participate in the hearing. The motion to reopen and

hold hearing filed by the Agency is denied.

Petitioner is in the process of constructing a 65-unit apart-

ment building in Waukegan. The petition sets forth that engineering

drawing and specification have been filed with the Agency request-

ing the extension of sewer service and connection with the facili-

ties of the North Shore Sanitary District, Petitioner has been

advised that temporary treatment facilities to service the struc-

ture would not be approved because irrespective

of the purity of

the effluent the increased hydraulic load could not be accomodated,

The petitioner recites that a construction loan in the amount of

$912,200 secured by mortgage has been made, Construction of the

building was initiated upon receipt of the building permit from

the City of Waukegan in October of 1970, The building at the

present time is approximately 35 completed. A construction loan

pay-out is presently due and

the

mortgage requires approval of the

sewer extension prior to pay—out.

Interest

payments at 8—1/4

per annum amounting to $6,687.29 per month commence February 1,

1972. The payments are to be made out of the rentals of the pro-

perty.

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This case is one of many the

Board has been considering as

a consequence of its March 31, 1971 sewer

ban order. As we

said

in Wachta, et al v, EPA, No, PCB71-77 (opinion approved

this

day),

each case must be decided on its own facts, The basic considera-

tion in every variance is to balance the hardship inflicted on

the petitioner if th? variance is denied against the hardship

imposed on the community if the variance is allowed. This balance,

in turn, determines whether the hardship on the petitioner is

of such a magnitude as to justify a variance from the order of

this Board. We have held that where substantial expenditures

have been made and substantial improvements placed on the land

in the reliance on the right to obtain a permit and made prior

to the date of our order, the hardship is of a degree justifying

the variance allowance. In the present case, the incurring of

the mortgage indebtedness and the completion of 35 of the struc-

ture represent activity of a sufficient magnitude to entitle

petitioner to the variation spught. In granting this variance

we are not unmindful that its allowance will further worsen an

already bad situation, However, it is the opinion of the Board

that the hardship imposed on the petitioner in being denied the

sewer tie—in in this case is of a magnitude far greater than the

burden that will be suffered by the general public in its allowance,

It must be noted that the sole issue dealt with in this case

was the request for sewer connection, We have not commented upon

or decided in any way the question raised by the EPA in their

motion to reopen, of whether the petitioner was proceeding with

their construction in an illegal manner inasmuch as it did not

obtain a permit from the Agency. This grant of a variance will

not protect the petitioner from possible prosecution by the EPA

on the permit question.

This opinion constitutes the findings of fact and conclusions

of law of the Board,

I, Regina E, Ryan, Clerk of the Pollution Control Board, certify

that the Board adopted the above opinion this ~~day of August,

1971.

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