ILLINOIS POLLUTION CONTROL BOARD
December 13, 1973
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SPRINGFIELD MARINE BANK
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as Trustee of Trust #51-0239-0
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v.
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PCB 73-348
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ENVIRONMENTAL PROTECTION AGENCY
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MR. W. JOSEPH GIBBS, appeared for Springfield Marine Bank
MR. LARRY R. EATON, ASSISTANT ATTORNEY GENERAL, appeared for
the Environmental Protection Agency
OPINION AND ORDER OF THE BOARD (by Mr. Dumelle):
A variance petition was filed by the Springfield Marine Bank
(“Bank”) on August 20, 1973 for variance from an Environmental
Protection Agency (“Agency”) sewer ban in Springfield. Extensions
were granted to the 90-day period on October 3, 1973 and November 20,
1973 until today. Public hearing was held in Springfield on
November 5, 1973.
The land for which variance is requested is a residential
subdivision of 103 lots totalling 41.1 acres (R. 43) located in the
southwest portion of Springfield in the Sherwood Addition. The
lots which are to be offered for sale at prices of $7,000 to
$8,000 (R. 46) would total 33.1 acres and the remaining 8.0 acres
would be used for a park. The petition estimates an average
daily discharge of domestic waste water of 56,600 gallons per day
based upon 5.5 persons per dwelling unit and 100 gallons per
capita per day.
The petition states that the land was purchased on December 22,
1971. A Conditional Permit was issued by the Agency on December 22,
1972. On April 13, 1973 the Agency denied an application for an
Operating Permit on grounds that both the sewage treatment plant
receiving the waste and the sewage collection system were overloaded
thus violating Rule 921 of the Water Pollution Regulations.
The Agency’s recommendation filed October 3, 1973 is for
denial. It outlines the chronology of events in Springfield as
follows:
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July 12, 1972
Agency notified City of Springfield
and Springfield Sanitary District that
-further sewer permits could not be
issued in southwest Springfield.
August 29, 1972
Agency announced issuance of “Conditional
Installation” permits on basis that 3.0
MGD of stormwater -flow would be eliminated
-from sanitary sewerage system in the Outer
Park drainage area by December 1, 1972.
December 22, 1972 A “Conditional Installation” permit was
issued to \Iredenburgh Home Building Company,
the contractor for the development at issue.
March 15, 1973
The Agency notified the Springfield Sanitary
District that neither “Conditional Installa-
tion” or Operating Permits would be issued.
April 13, 1973
Denial issued for Operating Permit in this
case.
The Agency’s Recommendation details City and District programs
to mit:igate stormwater infiltration in the Outer Park
Drive
drainage
area. It also states that the newly opened Sugar Creek (South)
sewage treatment plant has not relieved completely the bypassing
experienced at the oldeT~p~TiTgCreek (North) sewage treatment plant.
The injury to the public as detailed by the Agency is an
aggravation of dowmstream sewer overflow and basement flooding
conditions during wet weather periods. The Bank’s development would
connect to the Springfield Sanitary District’s Southwestern
Interceptor (36-inch sewer) through the Outer Park trunk sewer
at Outer Park Drive and Cherry Road.
Details as to manholes along Outer Park Drive overflowing onto
streets are given by the Agency with dates from March 6, 1973 through
August 13, 1973 and listing from 2 to 15 manholes. Th~overflows
are said to enter an open, paved stormwater channel in front of the
Ben Franklin Middle School. Children have been observed playing,
swimming and lying in the sewerage contained in this channel
(Respondent Ex. #4, R. 189). The Agency also states that this
same storm channel, containing sanitary sewage from the overflowing
manholes, flows through Washington Park and Pasfield Park and
thence to Spring Creek and the Sangamon River.
The basement flooding in the Outer Park area is causing
property damage and electrocution
hazards, plus health hazards
from the viruses of hepatitis
and polio and from salmonella.
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The Petitioner, in testimony, stated that the full 102
lots were not at issue since 22 have access to an existing
sewer which is not under the sewer ban (R. 28, 29). Of the
80 lots remaining, the Petitioner is willing to build on 1/3
of them each year (about 27 lots per year).
The exact monetary hardship to the Petitioner is not
absolutely clear from the record. The purchase price of the
total land is given as $209,270.00 at an interest rate of 9-1/2
(R. 35). At the time of the imposition of the sewer ban by the
Agency, the full land purchase price and engineering costs of
$2,340.00 was incurred. The total cost of the 102
home
sites
in
the park area is given as $531,954 (Petitioner’s Ex. #1),
which would include the land costs, engineering costs, and
improvement costs. Petitioner states that the “Total Cost
to Develop” is $521,354 (Petitioner’s Ex. #1). A further
deduction for the cost of the 8 acres of park land would give
$490,572 as the cost for developing 102 home sites minus costs
attributable to the park. Petitioner stipulated that the total
cost could be reduced by a factor of 80/102 which corresponds to
the number of sites covered by the sewer ban (R. 45, 46); this
would give $408~905as the total cost of developing the 80 sites.
By applying a factor to the costs minus all park costs, the total
costs would be $384,762.
It is not clear what portion of the costs were incurred
during the short period of time Petitioner held a “Conditional In-
stallation Permit.” Mr. Richard Gibbs testified that at the
time of the hearing $363,000 had been spent out of the total
costs and that Petitioner was obligated to pay the balance (R49).
(R. 49). Mr. Gibbs further testified that some “half million
dollars” in building materials had been inventoried for the
development (R. 36). No evidence was presented showing the
possibility of liquidating that proportion of the building materials
not used in the construction of 22 homes through the Vredenburgh
Lumber Company or other
suitable outlet.
Petitioner’s development is in the same area as the apartment
development which was the subject of a prior variance petition in
Viking Investment Corporation v. EPA, PCB 73-236, (Order of
August 30, 1973; Opinion of Septemb~r6, 1973). The Board granted
Viking a variance to connect the 19 apartment buildings with
320 apartments because, in that case the actual building con-
struction was substantially complete. In the present variance
petition, there has been no construction of the homes.
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In Viking
we treated at length the doctrine of reliance,
which we rejected. A “Conditional Installation” permit is just
that and is not an operating permit. Petitioner’s own engineer,
Robert E. Oglesby, initialled the eight conditions to a grant
of a conditional permit found on page 3 Petitioner’s application
for a “Conditional Installation” permit (Respondent Ex. #1, Page 3).
Condition 3 states:
The Agency will not grant permission to operate until:
a) the receiving sanitary district, municipality or other
owner notifies the Agency that it has completed construction
of the additional or upgraded facilities that serve as the
basis for the grant of this limited permit and that the
additional facilities have been placed in operation and are
operating as designed; and b) the Agency has inspected
these facilities in operation and notifies the owner in
writing that the facilities are actually operating success-
fully as designed.
Condition 5 states:
Since the Agency will not grant permission to operate until
the conditions set in paragraph 3 above have been met, the
installation of sewers under this permit and any related
real estate improvements are done solely at the applicant’s
risk.
The developers took a business risk by proceeding to install sewers
and streets with only a “Conditional Installation” permit.
The citizen testimony as to property damage is full and
persuasive (R. 77-144). Instances are reported of appliances
damaged and “geysering” of sewage from manholes.
We deny the variance without prejudice. The building materials
“inventories” for the development can undoubtedly be sold or used
at locations not under a ban.
The ultimate solution to the problem
appears to be adequate sewer relief capacity.
And as we said in
Viking:
The parties involved in the sewer problem are the
City of Springfield and the Springfield 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 of law.
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ORDER
The variance is denied without prejudice.
IT IS SO ORDERED.
Mr. Henss dissents.
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify the above Opinion and Order were
adopted on the
J34~t
day of I)ecemher, 1973 by a vote of
~I-I
(1
Christan L. Mof~ett, C~k
Illinois Pollution Coiét’~ol Board
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