ILLINOIS POLLUTION CONTROL BOARD

October 3, 1972

ILLINOIS NATIONAL BANK OF SPRINGFIELD,

Trustee of Trust No. PL 3478      

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v.

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72—300

ENVIRONMENTAL PROTECTION AGENCY    

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Robert Cohen, for the Illinois National Bank of Springfield,

Thomas J. Immel, Assistant Attoirney General, for the

Environmental Protection Agency

Opinion of the Board (by Mr. Currie):

This petition seeks a variance to permit the connection

of several properties to municipal sewers in Springfield.

The initial petition covered 113 acres of housing develop-

ments and an estimated discharge of 400,000 gallons per

day. An amended petition was later filed specifying the

petitioner’s priorities in the event the variance could be

granted only in part. The Agency had imposed a ban on fur-

ther sewer permits in this part of Springfield (southwest)

because of an alleged overload of the sewers transporting

wastes from that area to the treatment plant, which was it-

self alleged to be overloaded. The Agency’s amended re-

commendation, in that regard, alleged that “Agency investi-

gators had observed raw sewage and sewage related solids

flowing in the streets of southwest Springfield from sur-

charged manholes in the affected area on April 20 and 21,

May 29, and July 9, 1972 following rainy weather.” The

record supports the allegations as to both sewer and plant

overloads, with raw sewage bypassed to streams and to storm

sewers, and flowing in streets (R 76-78).

In what we infer may have been a direct result of the

Agency’s connection ban, significant steps have been taken

by the responsible municipal authorities to alleviate the

problem, and the Agency has modified its position in con-

sequence:

Since the filing of the original petition in this

cause, the District has erabarked on a program to

eliminate excess storm water from the sewers tributary

to the Outer. Park Drive interceptor sewer. The Agency

estimates that excess storm water flow of 1.8 mgd has

been eliminated from one tributary sewer and that an

additional 1.2 mgd should be disconnected by December

1972. 

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The Agency has determined, on the basis of the Dis-

trict’s program and the results achieved to date, that

the overload problem of the Outer Park Interceptor

Sewer has been substantially alleviated and is now

willing to issue conditional installation permits for

construction in the area tributary to the sewer, with

connections to be permitted when the overload at the

treatment plant is eliminated.

The overload is expected to be eliminated by March 4, 1972.

See Amended Recommendation, pp. 4, 3; R. 46-68, 77. The

plan for sewer improvements is detailed in Exhibit 3A; it

includes diversion of surface water from a shopping center,

disconnection of downspouts, replacement of leaky laterals

and the testing, cleaning, and sealing of sewers. We commend

this program to the attention of other communities with

similar problems, as it effectively demonstrates that sig-

nificant improvements in sewers determined to be inadequate

can be achieved in a relatively short period.

As a result of these improvements in the sewer situation,

the Agency has in fact issued “install only” permits upon

request for lots within the affected area and states its

intention to issue similar permits whenever asked. (Amended

Recommendation, pp. 6-7; R. 80-81, 83-84, Exs. 8, 9) 

Ex-

cept to the extent that it has been alleged and proved that

such a permit would be inadequate to serve the petitioner’s

needs, the petition must be treated as moot in light of the

changed circumstances.

No contention is made that actual construction of build-

ings has commenced upon the property in question, although

preparatory work such as the installation of roads and utilities

has been done (R. 11-12) 

The record is quite clear that

nobody is ready to connect to the sewers today:

Q In the event construction were begun now, Mr.

Hurwitz, on both the IDA project and the Viking Pro-

ject, or any other projects, any other unsold lot in

your estimation, what would be the construction time

for apartments?

A Approximately eight (8) months from the time of

starting.

Q Do you anticipate that anything would be concluded

or that sewer connections would bexequired before May

1st, 1973?

A No.

(R. 22)

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586

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Thus there is no present need to tap into the City

sewers; what is needed, and what was originally denied, was

permission to construct the sewer extensions serving the

development itself, which need be tapped into the municipal

sewer only after construction of the buildings jg completed,

which will not be before May 1973. Permission to construct

the sewers has been or will be granted upon request, with

connection not to be accomplished until additional treat-

ment capacity is provided, which is expected to occur in

March 1973. As the Agency says with regard to one lot, this

situation “appears to be one in which an ‘install, only’

permit is called for and would serve the needs of the parties

while preventing any risk of additional pollution.” Amended

Recommendation, p. 6. Construction may proceed with assurance

that, if all goes well with the treatment plant improvement

plan, a connection may be had when needed; the public is

protected against additional pollution in the event that the

improvement plan meets an unforeseen snag. It seems entirely

appropriate that the risk of such a snag in most cases

should be borne by the developer who makes the business

judgment to proceed, rather than by the innocent public.

There is no contention that a conditional permit is

inadequate to serve the purposes of the petitioner for any

but two portions of the tract in question, and as to other

portions the petition must therefore be dismissed as moot.

The two portions over which the petitioner expresses con-

tinuing concern are the so-called Viking and Illinois Housing

Development Authority lots, which we discuss separately.

The petitioner has contracted to sell a part of the

land to the Viking Corporation, which has .spent about

$100,000 in preparatory work such as “plat specifications and

legal actions” but had not commenced actual construction of

buildings at the date of the hearing (R. 22-23, 31). A

construction permit for sewers was initially denied, but a

conditional permit was later granted, and Viking is “pro-

ceeding with the conditional permit” (R. 23, 31-33). The

petitioner states that it anticipates that Viking will on

the basis of the conditional permit release it from its

obligations under the contract of sale and admits that

upon receipt of such a release the variance request for

the Viking lot would become moot (R. 33, 92-93). We agree

with the argument of the Agency that, whether or not such

a letter is received, a variance for the Viking lot is

“completely unnecessary in light of Viking’s apparent in-

tention to proceed” (R. 75) 

No one has any remaining dis-

pute with the Agency regarding this lot; the sole question is

whether the petitioner will continue to be subject to legal

action in the event that the treatment plant improvements

are delayed, and in the further event that such delay causes

injury to Viking by postponing its ability to connect. On

the facts presently before us the variance petition regarding

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the Viking 1~tis essentially moot, and it must also be

dismissed without prejudice.

The final ~tract in question is to be developed, with

financial assistance from the Illinois Hiusing Development

Authority (IrmA), to provide housing for elderly persons

and for others of moderate income requiring government

subsidies to afford adequate housing (R. 15-16). IHDA

has issued a commitment for such assistance provided satis-

factory permits can be obtained from the Environmental Pro-

tection Agency (R. 14; Ex. 6) 

The IRDA has made clear that

if such permits are not forthcoming the commitment will be

withdrawn and the money spent outside the area (R. 21-22).

IHDA has also made clear that it must secure, on or before the

Initial Closing Date for the project (October 30, 1972)

“the written authorization of the Environmental Protection

Agency permitting the Development to construct necessary

sewer lines and hook on and utilize disposal facilities”

(Ex. 6) (emphasis ours) 

Thus the IHDA will not proceed

on the basis of the conditional permit offered, and the con-

troversy over issuance of an absolute permit allowing connection

by a date certain is still ripe.

The evidence as to the need for housing for the elderly

in the Springfield area is compelling (R. 38-43). The

Springfield Housing Authority, with respect to a waiting

list, “quit counting at eight hundred” (R. 41). The Agency

acknowledges the need and the likelihood that the absence

of an install-and-connect permit may deprive Springfield of

the needed housing. In Patricia Development Corp. v. EPA,

#71-161, 2 PCB 469 (Sept. 16, 1971) 

we allowed connections

for persons who had entered into contracts to build homes with

federal assistance, even though construction had not commenced

at the time the connection ban was imposed, because of the

great need for public-aid housing. At the same time we

denied variances ifor persons whose contracts had been enter-

ed into after the ban, saying they should have applied to

receive the same aid in another place not subject to the

ban:

“Persons not committed at the time of the sewer connection

ban were on notice that they must look elsewhere to

build new homes.”

See also the application of these principles in Lewis v. EPA,

#72—208, 5 PCB  

(Aug. 22, 1972). It is not wholly clear

from the evidence just when the IHDA commitment letter was

sent (it is undated, but the Agency’s Amended Recommendation

dates it June 20, 1972, prior to the July 12 announcement

of the sewer ban) 

or when contracts for construction were

entered into (Ex. 1 says as of Sept. 11 that “the contractor

is ready to begin constructionu).

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588

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An additional fact, however, makes it unnecessary for

us to decide whether the above circumstances would be sufficient

without more. As observed by the Agency, the project can-

not be constructed before May of 1973 at the earliest, and

by that time, barring unexpected difficulties, the treat-

ment plant problem as well as the sewer problem will have

been solved. The Agency concludes that

“the risk that completion and connection of the IHDA

project will cause violations of the Act or of applicable

regulations is minimal. 

. . .

Since the risk of

pollution is small, the need for housing of this

type in Springfield is substantial, and the risk

of losing the available financing is immediate,

the Agency recommends that with respect to the

IHDA lot, petitioner’s variance be granted and that

the Board direct the Agency to issue to Petitioner

a letter which will satisfy the requirements of

paragraph 4(c)(15) of IHDA’s Commitment Letter.”

We agree. To deny the variance would require the

small risk of delay in providing additional sewage treat-

ment 

to be borne by the IHDA and thus by persons greatly

in need of housing; IHDA’s insistence that it safeguard

the utility of its limited funds to maximize the housing

it can provide for such people appears to us justifiable

under the circumstances.

ORDER

1. Illinois National Bank of Springfield, Trustee of

Trust No. PL 3478, is hereby granted a variance to

permit connection of the IHDA lot, as described in

the petition as amended, to the appropriate sewer or

sewers by a date certain.

2. In all other respects the petition is hereby dismissed

as moot, without prejudice.

I, Christan Moffett, Clerk of the Pollution Control Board,

certify that the Board adopted the above Opinion this______

day of October, 1972, by a vote of_____________

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