ILLINOIS POLLUTION CONTROL BOARD
September 6, 1973
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VIKING INVESTMENT CORPORATION
)
)
)
V.
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PCB 73-236
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ENVIRONMENTAL PROTECTION AGENCY
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OPINION OF THE BOARD (by Mr. Dumelle)
Robert Cohen, of Giffin, Winning, Lindner, Newkirk and Cohen,
appeared on behalf of the Petitioner,
Thomas A. Cengel, Assistant Attorney General, appeared on behalf
of the Respondent
This opinion is in support of an order of the Board issued
August 30, 1973. Petition for variance from an Agency sewer
connection ban was filed on June 4, 1973. Public hearing was held
on July 16, 1973.
Viking Investment Corporation (“Viking”) owns 20 acres of
land in Springfield between South By-Pass Road and lVabash Avenue
and east of Illinois Route 4. The development consists of 320
apartments distributed as follows:
72 three bedroom units
144
two
bedroom units
104 one bedroom units
320
units
The apartments are contained in 19 buildings all of which are
under construction and virtually complete. A community building
is planned together with an outdoor swimming pool. The community
building is under construction (P.. 76). The average hydraulic loading
is estimated at 40,000 gpd and the maximum flow at 139,840 gpd
all consisting of domestic sewage.
The development has a 27-inch sanitary sewer installed by
special assessment to serve it which connects to an :interceptor
sewer along Outer Park Drive. The Agency has placed a ban on
development in this area because of inadequate transport capacity
in the Outer Park Drive sewer system and overloading of the Spring
Creek sewage treatment plant.
The sewage treatment plant probliem
is
expected to
be
solved by the opening of the
new Sugar
Creek plant
expected to be on June 20, 1973 according to the
petition Clater
given as July 30, 1973 by the Agency),
-2-
The mortgage commitment on the project is listed at $4,000,000
at 8.5 with a $40,000 fee to secure it CR. 17). By September 15, 1973
when the last 56 apartments are completed, the rents going uncollected
are alleged to amount to $70,560 per month. The monthly interest
cost to tho petitioner is given as $23,056. Later, the mortgage
is given as $4,300,000 CR. 33).
The situation then is one of a virtually completed multi-
million dollar residential development which cannot connect to the
sewer system. The case has been before us in PCB 72-300, October 3,
1972, which we then dismissed as moot, without prejudice, because
Viking could then proceed with an “install only” sewer permit and
all then available intelligence pointed toward no problem, either
sewer transport or sewage plant capacity, by the time of completion.
What happened in this proceeding was an “on-off-on” sequence
of sewer transport bans. The Agency first placed a ban in this
area on July 12, 1972. On August 29, 1972 it permitted “install
only” permits based upon reports showing that some 3.0
MGD of stormwater flow would be eliminated from the area in
in question by Llecember 1, 1972. On March 15, 1973 the Agency
banned any new “install only” permits and banned operating permits
for those who had installed sewers. This action was taken because
of overflows and basement flooding still occurring from January 1973
on in spite of the hoped-for solution by December 1, 1972.
The Agency recommendation, filed July 17, 1973 is for denial.
The health hazard of the overflows is cited. Those overflows go
from manholes to the streets to a stormwater channel in front of
the Ben Franklin Middle School. Children have been observed playing
in this channel. The channel flows to the Jacksonville Branch, then
through Washington and Pasfield Parks then to Spring Creek and the
Sangamon River. The basement flooding which occurs in the area
may cause a health hazard from hepatitis, polio and salmonella as
well as cause property damage and create electrocution hazards,
according to the Agency.
The petitioner makes much of the doctrine of reliance which
we do not accept. It stated that the Board opinion in PCB 72-300
said there would be no sewer transport problem by mid-1973. The
opinion, however, clearly discussed the risk undertaken by a developer
who accepts an “install only” permit. lndeed, the very nomenclature
of the “install only” permit is enough to put any reasonable man on
notice that to “install” is not the same as to “operate”. The
petitioner then brings forth the Agency letter of October 4, 1972
in support of its reliance doctrine. But the Agency letter in turn
refers to permit conditions which still required adequate sewer
transport capacity.
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as
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We must then balance the hardship which we would adjudge to
be almost certain mortgage forfeiture to the petitioner against
additional surface and perhaps basement flooding. Vandalism has
occurred to the buildings CR. 77). Viking has invested some
$250,000 CR. 34).
One alternative followed in part by Viking was to install
5-1750 gallon holding tanks to serve 32 apartments for $10,000
total CR. 87-89). The operating cost is given as $40 to empty
1000 gallons from a holding tank. The capital cost for the entire
development C320 units) would then be $100,000 CR. 91). Using
the petitioner’s flow estimate of 40,000 gpd, some 40 trips per
day at $40 each would be required or $1600 per day or $48,000
for a 30-day month. This additional cost almost equals the rental
losses of $70,560 per month. Rental losses were incorrectly given
as $180,000 a month for 140 apartments CR. 78).
A variant of the holding tank alternative which is not
discussed in this record is to use the tanks only during and
immediately after rainfall or thaws. This would necessitate only
2-3 days storage and only occasional pumping out and the costs
would be far less than $48,000 per month. But we hesitate to
order this type of installation without some expression from both
parties as to its applicability.
The testimony by Agency engineer Mr. Abe Loudermilk, Agency
sanitarian James Frost, and citizen witnesses substantiates the
overflow and basement flooding conditions. But both Mrs. Barbara
Harry and Mr. Lawrence Schneider mentioned the “plugs” they had
installed on their plumbing openings. Evidently these people had
solved their problem at a cost perhaps as low as six dollars CR. 131).
There is nothing in the record to indicate that others plagued by
‘~ementflooding in the area could not use the same solution. Also
‘ave no idea of the extent of basement flooding. Is it just the
tk homes of the persons who testified Ctwo of whom had solved
ft :,roblems with plugs) or is it far greater?
..ause of the financial hardship involved in keeping these
ted buildings from connecting we grant the variance from the
Agency sewer ban. We point out the dangers inherent in the use
of “install only” sewer permits and urge careful weighing of
their use by any developer.
We will require that Viking keep its klows to a minimum from
its buildings and that public laundry faciflties not be installed
while the sewer transport ban is still in effect. We shall require
monthly reports of water consumption and tenant occupancy from
Viking to the Agency in order that actual apartment house data may
be gathered now for future design use. And we deny a variance as
to connecting a community building or swimming pool to the sewer
system. Both of these facilities will bring guests to the development
9—
as
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and lead to higher flows.
One last word. The permanent solution as advanced by
Agency engineer Loudermilk is for a “new main trunk sewer system”
paralleling the existing one (R.lll). The parties involved in
the sewer problem are the City of Springfield and
the S1iringfield Sanitary District and
they are not before us in
this case.
We
urge that they bend every effort to solving the
sewer transport problem by infiltration correction and/or polymer
usage as soon as possible.
This opinion constitutes
the Board’s findings of facts
and conclusions o~
law.
Mr. Odell abstains.
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify the above Opinion was adopted on
the ~
day of September, 1973 by a vote of
J—o
Christan L. Mo fett, r
Illinois Pollution C rol Board
9
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