ILLINOIS POLLUTION CONTROl. BOARD
SPRINGFIELD MARINE BANK
as Trustoc of Trust I~51—O239—O
V
Petitioner,
PCB 73—348
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
DISSENTING OPINION OF MR. HE~SS
Petitioner’s hardship is not all self—)mposed. Major ex-
penditures were made prior to the Agency decision in July 1972
ho impose a sewn connection ban. The Agency letter of August 29,
1972
granting a “conditional installation”
permit led
to
further
expenditures by the Petitioner.
Elements of
es Loppel are present
in
this case. The July 1972 docision to ban further sewer connections
was a decision of the ~nvironmental Protection Agency. The August
1972 decision to Issue conditional permits was also a decision of
the Environmental Protection Agency, and seemed to remove the ban.
An omployac of the Agency, ~4r. Abraham Loudermilic, testified:
Q. “What I’m
hearing
the ban
pletion
trying to
officer th
was lifted
of the new
get at, you are telling the
at it was your opinion that
by this letter upon the corn-
sewer plant, is that right?”
A. “Essentially,
yes.”
(R. 157)
Q. “So your testimony is
to lift
the ban when
based upon an assump
mation received from
A. ~That’s right.”
that that letter was intended
the new plant was completed,
tion of the truth of the inior—
the City?’
Q. “Or from the Sanitary District?”
January 3, 1974
A. “That’s right.’1 (R.
171)
—2—
If the Agency employees thought
Petitjq~ier not entitled to that same
a degree of clairvoyance on the part
possessed by EPA employees?
the ban had been lifted, is
understanding? Do we require
of Fetitioner which is not
‘the majority state that Petitioner took a business risk. This
is
true.
Ho gambled that the sewer improvements would operate “as
designed” (See Condition No. 3 of the permit) If the “design” was
inadequate the Agency should have detected that error prior to
issuing an installation permit, If the Agency intended to prevent
use of the sewer when constructed and operated “as designed” it
should never have issued a conditional permit which wou.d induce
Petitioner to make further expenditures. Impflcit in
thp
issuance
of a conditional permit is the understanding that an operating permit
will be issued within a reasonable
period of time.
In
my opinion, the Petitioner sho
connect 27 homes to the sewer. That n
reasonably be developed in the next co
help Petitioner to avoid any financial
result from
the
misunderstanding of the
are making investments in the area
clearly stated; because Petitioner
August
1972 letter as a
relaxation
hardship to Petitioner which accomp
would allcw a limited number of con
clear statement should be made rega
should be to the effect that no fur
allowed, nor will conditional perrai
the sewer system has been found to
load
-
(PC~
73—216)
ay that this
of homes
ikincj case.
costs of at least $384,000, a
unreasonable to require that
gs in place.
sanitation problems which accomnany
It is entirely proper for
the usage of such a sewer.
However,
t be so unclear in its meaning as
harU~liip on the part of those who
Because the sewer ban was not
could reasonably rely upon the
of the ban; and because of the
anied this state of confusion I
nections.
At the same time, a
rding the future.
That statement
tlier sewer connections will be
Ls be issued until such time as
This case is not substantially
different from Viking
in which we allowed the sewer connection.
The
majority s
case
is different because there has been no construction
whereas construction was substantially complete in the
v
However, this Petitioner has incurred
substantial hardship. It seems to me
this hardship take the form of buildin
uld be granted the right to
umber is all that could
nstruction season and should
problems which
might
otherwise
Agency action.
would
until
put ?e
should
for the
of that fact and
the overloading o
governmental agen
that governmental
La
lead to confus
Although I would allow this limited number of connections I
clearly state that
further
connections will not be authorized
the sewer system can handle the additional load.
This should
titioner on notice to avoid adding to the financial burden and
remove any misunderstanding or possible questions of estoppel
future.
The sewer is ‘verloaded.
There is ample evidence
of the health and
C a sewer system.
cies to restrict
action should no
lOfl
dud
rLnancidl
be adequate to handle the additional
—3
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control hoard hereby certify that the Above Dissenting
Opinion was submitted by Mr. ienss or. the 10th day of
January, 1974.