ILLINOIS POLLUTION CONTROL BOARD

December 19, 1974

FIRST NATIONAL BANK OF SPRINGFIELD   

)

Trustee of Trust No. 3010        

)

v.

)

PCB 74—298

ENVIRONMENTAL PROTECTION AGENCY

Mr. Robert S. Cohen, appeared on behalf of Petitioner;

Mr. Henry J. Handzel, Jr., and Mr. Delbert Haschemeyer,

appeared on behalf of the Environmental Protection Agency.

OPINION AND ORDER OF THE BOARD (by Mr. Dumelle):

On August 12, 1974, petitioner filed a variance petition

seeking relief from an Environmental Protection Agency

(Agency) sewer ban on connections to the Springfield Sanitary

District sewers. The Agency filed an objection on August

15, 1974. On September 10, 1974, the Agency filed a Recommendation

to deny the requested variance. Four days of hearings were

held during October, 1974 in Springfield. Both parties

submitted briefs in this matter.

Petitioner seeks a variance from the ban on further

sanitary sewer extensions in the southwestern area of the

City of Springfield, which was imposed by the Agency pursuant

to Rule 21(a) of Chapter 3: Water Pollution Regulations of

the Illinois Pollution Control Board (Water Pollution Regulations).

If the requested relief was granted, petitioner would be

able to obtain an operating permit which would allow petitioner

to connect the four apartment units it has constructed to

the Springfield Sanitary District sewers. Petitioner seeks

the variance for four apartment buildings known as the

Westbrook Phase II, located in the Pinebrook Subdivision,

southwestern portion of Springfield. Petitioner serves as

trustee under an Illinois land trust. The beneficial

interest in this trust is held by Mr. Roy Lambert and Mr.

David Eades. Mr. Lambert was the contractor and managing

beneficiary (R. 25).

Westbrook Phase II is the second phase of a two-phase

apartment complex. Phase I consisted of 144 apartment

units, a swimming pool and a laundromat. Phase II consists

of 76 apartment units contained in four buildings. Three

buildings each house 24 2-bedroom apartments. The fourth

building houses 4 1-bedroom apartments. Phase I was the

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subject of a previous Board Order (First National Bank

of Sprin9field v. EPA, PCB 72-301, 5 PCB 649 (October 10,

1972)) (hereaf~tercited as PCB 72-301). In this earlier

variance proceeding, the Board granted petitioner a variance

to allow the connection of Phase I. Phase I had been constructed

at the time the Board entered its Order. The Board dismissed

that portion of the original petition with respect to Phase II,

the remaining 76 units for which construction had not

begun. These 76 units are the subject of the present

variance petition. When fully rented, Phase II will generate

approximately 22,400 gallons per day (gpd) of sanitary

wastes (R. 15).

The chronology of events which have occurred proceeding

the filing of this petition is relevant in light of petitioner’s

claim that it should be granted a variance based upon reliance.

On March 1, 1972, petitioner purchased the land in question

with the intention of developing it into multi-family dwellings.

Construction on Phase I was begun on March 1, 1972. On July

12, 1972 the Agency imposed a two-fold sewer ban on the

southwest portion of the City of Springfield (Petitioner

Exhibit 3). The sewer ban was imposed for two reasons: 1)

because of inadequate treatment plant capacity and 2) because

of repeated overflows and basement backups in the Outer Park

Drive area of Springfield. Construction of Phase I was

completed in the Fall of 1973 (R. 130). The Board granted

petitioner a variance for Phase I on October 10, 1972

(PCB 72—301).

The Agency issued a conditional installation permit on

December 21, 1972 (Petitioner Exhibit 6). During March

1973, petitioner began to acquire materials and labor and to

contract with subcontractors for construction of Phase II

(Page 9, Variance Petition). During March 1973, petitioner

obtained a permanent mortgage commitment and construction

loan CR. 61). Construction began on Phase II in March or

April of 1973 (R. 60 and Page 9, Variance Petition). By

October of 1973, petitioner had completed 60 of the construction

of Phase II (R. 65). In December of 1973, the Agency, the

Springfield Sanitary District, and numerous developers,

including Mr. Lanthert, held a meeting to discuss the issuance

of operating permits to holders of conditional installation

permits in return for construction of a pumping station by

the Springfield Sanitary District (R. 186). During April

and May of 1974, petitioner completed construction on Phase

II. On July 19, 1974, the Agency denied petitioner’s request

for an operating permit for Phase II (Petitioner Exhibit 9).

Petitioner bases its current variance request on two

grounds: reliance and hardship. Petitioner claims that

reading the totality of the circumstances leading up to the

present would lead a normal person to conclude that an

operating permit would be granted by the Agency once Phase

II was constructed (R. 49 and ill thru 115).

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As previously stated, petitioner proceeded to apply for

and obtain a conditional installation permit. The application

for this conditional installation permit is Respondent

Exhibit 3. The actual permit is found in Petitioner Exhibit

6. Petitioner presented testimony to demonstrate that it

acted in good faith, in reliance on representations on the

Agency and the Pollution Control Board in arriving at its

present situation, and thus cannot now be justifiably prevented

from obtaining a permit to enable the total rental of the

complex. Mr. Lambert testified that he had expected to be

issued a permit because the original recommendation of the

Agency in PCB 72-301 (Petitioner Exhibit 1) 

Opinion and

Order of the Board, in PCB 72-301 (Petitioner Exhibit 4),

letter from Mr. William Pye to Mr. Paul Troemper (Petitioner

Exhibit 3), the Agency amended recommendation in PCB 72-301

(Petitioner Exhibit 2), and its application for a conditional

installation permit (Agency Exhibit 3) (R. 70 and 71). The

Board finds that reliance upon either the original or amended

Agency recommendation in the prior variance proceeding (PCB

72-301), could not warrant the granting of the requested

relief.

The original Agency recommendation was to grant a

variance for those units for which construction had begun 

——

Phase I 

and to deny the variance relief for the 76-apartment units

for which construction had not commenced 

Phase II (Petitioner

Exhibit 1, page 3) 

The amended recommendation was modified

based upon a representation by the Springfield Sanitary

District that it was engaging in a program, which if properly

implemented, would eliminate the overload on the Outer Park

Drive interceptor sewer (Petitioner Exhibit 2, page 4). The

Agency stated that “it was willing to issue conditional

installation permits for construction in the area tributary

to that sewer, with connections to be permitted when the

overload at the treatment plant is eliminated”. The Agency

further referred to the Pye letter of August 29, 1972 which

imposed the sewer ban (Petitioner’s Exhi~bit3). It is clear

that the Agency’s amended recommendation is based upon a

representation made to it by the Sanitary.District that the

sewer transport problems in the Outer Park Drive area, at

the time of the Agency’s recommendation, were partially

solved and would be further solved by the removal of a total

of 3.0 MGD of stormwater flow from the Outer Park Drive

sanitary sewer. Thus, the Agency’s recommendation was

changed based upon a representation from the District which

failed to materialize, namely that the Outer Park Drive

sewer transport problem would be solved. The Board finds

that the Agency is not estopped from recommending a denial

or the Board estopped from denying the requested relief

based upon either of the Agency’s original or amended

recommendation in PCB 72-301.

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Petitioner bases in part its reliance upon the Board’s

Opinion and Order in PCB 72-301. As previously stated, the

Board dismissed as moot a requested variance for Phase II.

“There is no evidence or allegation that connections will be

needed for the units not under construction (See R. 73) 

and

no suggestion that such an installed only permit will be

insufficient to fulfill the petitioner’s needs as to those

units” (PCB 72-301). The Board, therefore rejected the

Agency’s recommendation and did not grant the then requested

relief for Phase II. The Board noted that the Agency was

willing to issue conditional installation permits and that

the petitioner did not warrant additional relief. Reliance

upon this previous Board order does not work an estoppel

upon the Board’s denying the present variance petition.

The reasonableness of the reliance upon the August 29,

1972 letter from Mr. William V. Pye, Manager, Division of

Water Pollution Control of the Agency, to Mr. A. Paul Troemper,

Executive Director, Springfield Sanitary District, (Petitioner

Exhibit 3) has been discussed in prior cases dealing with

the Agency’s imposed sewer ban in the Springfield area (See

Springfield Marine Bank v. EPA, PCB 74-117, 13 PCB 196,

(July 25, 1975)). Petitioner’s Exhibit 3 was sent directly

to the District not to petitioner, and therefore, petitioner

should have examined other correspondence and events proceeding

and following the issuance of the letter. This letter refers

to letters of August 11 and August 23, 1972 from the District, whic

outline the future steps to be taken by the District to

relieve the sewer overload problem. The August 29, 1972

letter did not lift the sewer ban but merely warned the

District that continued issuance of conditional installation

permits would depend on further progress in relieving the

overload problem in the Outer Park Drive area. Reliance

upon this letter alone does not warrant the granting of the

present requested relief.

The conditional installation sewer permit which was

issued to petitioner contains four conditions which are

relevent to the question of reliance upon either the conditional

installation sewer permit or Petition Exhibit 3. Condition

#2 states that hookup to the existing sewers shall not be

completed without an operating permit issued by the Agency

(Petitioner Exhibit 6). Condition #3 requires that installation

of new sewers stop 10 feet from existing sewers and that

connection shall not be made until a permit to operate the

proposed sewer is issued by the Agency (Petitioner Exhibit

6). Condition #3 also states that the conditional installation

permit is issued in reliance upon representations made in

Part I and Part II of the application for a conditional

permit. Condition #2 of Part II of the application states

that relevant parts of the sewer system must have the capacity

to adequately transport anticipated waste from the sewer

extension described in Part I (the sewers petitioner proposes

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to connect) (Agency Exhibit ~ The Sanitary District

signed Part II, therefore attesting adequate capacity.

However, there is testimony which shows that the sewers

continued to surcharge, sewer overflows existed and basement

backups existed during the time and subsequent to the time

that the conditional installation permit was issued. Special

Condition #4 of the conditional installation permit states

that “issuance of this permit must not be construed as

termination of the sanitary sewer extension restricted

status imposed by our letter of July 12, 1972, which remains

in effect” (Petitioner Exhibit 6).

Mr. Lambert testified that it was normal experience to

proceed in the face of a permit which says one may not use a

building until you have various inspectors come out and

inspect a building and issue an occupancy permit (R. 25).

He therefore stated that it was normal for a contractor or a

developer to receive construction permits with reliance on

the fact if they do what the construction permit allows them

to do properly that it is routine that they would receive a

use permit (R. 25). However, such is not the case with

conditional installation permits. As in previous cases

based with reliance upon similar conditional installation

permits issued by the Agency, the Board finds that reliance

upon such a permit is a calculated business decision with

potential adverse results.

The Board finds that the previously discussed events do

not alone or in total constitute a basis upon which sufficient

reliance could be made in this case in order to mandate the

granting of an operating permit by the Agency or the granting

of the requested variance to allow Phase ,II to be connected

to the existing sewer system. Petitioner Exhibit 7, a

letter from the Agency to the Sanitary District dated March 15,

1973, clearly establishes that the sewer ban was still in

effect and that the Agency was precluded from allowing the

operation of sewers installed tributary to the Outer Park

Drive area under a “conditional installation permit”. Mr.

Thompson, the building superintendent, testified that he did

not know of the existence of Petitioner Exhibit 7 in March

of 1973, and in fact first became aware of the letter in

October, 1973 (R. 63). He further testified that if he had

known of the existence of Petitioner Exhibit 7 on March 15,

1973, that he would have recommended to Mr. Lanthert that the

construction be stopped on Phase II because “it still would

have been possible to gotten out with very little damage”

(R. 180)

The Board finds that it is regrettable that the Agency

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did not send notice to all holders of conditional installation

permits of the existence of Petitioner Exhibit 7. However,

such notice is not mandatory. Mr. William Bush testified

that it was a standard practice to send such correspondence

to the particular service area (in this case, the Springfield

Sanitary District) of restrictions on sewer systems (R.

490). The Board finds that the conditional installation

permit which stated that the sewer ban was still in effect

should have given Petitioner sufficient notice that potential

problems existed in obtaining an operating permit. The

Board agrees with the Agency that a developer expending

large sums of money should be even more careful that the

average person in pursuing construction based only on a

conditional installation permit. Petitioner stated that it

had no contact with the Agency from the date it was issued a

conditional installation permit until October, 1973 (R. 146

and 147). Petitioner cannot base reliance upon one document

sent to the District without once seeking to determine if

contrary documents exist. Petitioner had several readily

available means of determining that adequate transport

capacity (including wet weather flows) existed so that the

Agency would be able to issue an operating permit. Petitioner

could have contacted the District or could have contacted

the Agency in this eleven month period. Reasonable care

would seem to have directed inquiry to the Agency in view of

the nature of the conditional installation permit, the

history of previous transport problems, special conditions

found in the conditional installation permit continuing the

sewer ban, and the amount of investment in the project.

Having determined that petitioner has failed to establish

sufficient reliance upon which the Board must grant the

requested relief, the Board must proceed to weigh the hardships

imposed upon petitioner versus the hardships that would be

imposed upon the public in the event that the requested

relief were granted. The hardship to petitioner is in the

form an economic loss to the two beneficiaries of the land

trust, Mr. Lambert and Mr. Eades. It is alleged that the

rental income from the partial occupancy of Phase II, together

with the profit from Phase I, is insufficient to meet the

expenses of Phase I and Phase II (Variance Petition, page

16 and Petitioner’s Brief, page 9). From examining the

record it appears that this monthly loss is in the approximate

amount of $4,800 (Petitioner Exhibit 16). The offsetting

income from Phase I is approximately $2,000 (Petitioner

Exhibit 16). Petitioner states that its total monthly loss,

including interest on equity borrowing and 1975 taxes would

be approximately $7,500) (Petitioner Exhibit 16). The Board finds

this to be a considerable economic loss. However, petitioner

presented no proof that either beneficiary of the land trust

would suffer irreparable financial loss which would result

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in bankruptcy. Petitioner alleges on page 9 of its Brief

that Petitioner will be subjected to bankruptcy if the loss

it is suffering is not curtailed. No testimony was presented

to indicate that the venture could not be sold to recover

any alleged loss of investments.

While the record is not abundantly clear on this point,

Mr. Lambert, one of the beneficiaries of the land trust is

the sole owner of M & L Construction Company, which was the

general contractor for Westbrook Phase II. Mr. Lambert

testified that the intent of the construction agreement was

for M 

L Construction Company not to make a profit (R.

150). However, M & L Construction Company received substantial

payments for work done on Westbrook Phase II to cover overhead

and other expenses. Mr. Lainbert’s income statements for

1972 and 1973 show a substantial portion of his income was

derived from the endeavors of 11 & L Construction Company

(Agency Exhibits 4 & 5).

By October, 1973, Mr. Thompson testified that he had

become aware of a potential problem in obtaining an operating

permit through a newspaper article which appeared in the

Springfield paper (Petitioner Exhibit 12). By October, 60

to 65 of the construction had been completed (R. 66).

Petitioner proceeded with construction because the buildings

would have been very vulnerable to deterioration due to the

elements of weather (R. 65 and 67). Petitioner testified

that by December, 1973 construction was some 90 completed.

Petitioner testified that they had proceeded to complete the

project because they felt a permit would be issued. Petitioner

also testified that it felt an operating permit would be

forthcoming because of a proposed project by the Sanitary

District that would provide additional sewer capacity. The

Board finds that Petitioner, having once made a business

judgment to proceed with the construction based on a conditional

installation permit, instigated a series of steps to protect

the original investment, while hoping to eventually be

issued an operating permit for the project.

Petitioner bases, in part, its request for a variance

from the Agency imposed sewer ban upon a proposal by the

Springfield Sanitary District to construct a pumping station

at Fayette Avenue and Jacksonville Branch in Springfield (R.

204). The proposal would have the District pumping excess

storm flows from the 27—inch sanitary interceptor sewer serving

the southwestern portion of Springfield into a 84-inch storm

sewer. Mr. Gerald L. Peters, a district engineer for the

Springfield Sanitary District, stated that the purpose of

the proposed pumping station would be to reduce the hydraulic

head in the interceptor sewer, thereby providing additional

capacity in that interceptor sewer (R. 201 and 202). Representatives

from the District, the Agency, and various developers who

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held install-only permits held a meeting on December 12,

1973 (R. 203). The District proposed that 

if it proceeded

to build the pumping station,

then the Agency should issue

operating permits for those developers who held install—only

permits (R. 204).

The record is not clear on the exact nature of the

agreement, if any, that was reached at this meeting. Mrs.

Barbara Sidler, an Agency enforcement attorney, testified

that she felt an agreement of sorts was reached, but when

she later tried to reduce that agreement to writing she was

unable to do so (R. 366). She stated that apparently there

was not either an agreement or there was a certain amount of

fogginess as to whether an agreement had in fact been reached

(R. 366). Mr. Thompson said that he felt that there was a

verbal agreement reached, subject to approval by the Agency and

development of a design for the pumping station (R. 380).

He further stated that he felt it was not a binding agreement

(R. 380). Mr. Loudermilk, an Agency engineer who was present

at the December meeting, stated that the District proposed

to install a lift station. If, after actual testing, the

pumping station accomplished what it was represented to do,

then the Agency would lift the restriction and grant operating

permits for those outstanding construct-only permits (R.

404). From these statements of people who were present at

the December meeting, the Board finds that the Agency issuance

of operating permits in return for the installation of a

pumping station was at least conditional upon a showing that

the pumping station would in fact provide additional capacity

in the southwest interceptor.

While Mr. Peters represented that the pumping station

would provide an additional 3.0 MGD of capacity, Agency

calculations show a maximum 2.2 MGD. Mr. Peters testifies

that groundwater would not significantly reduce this additional

capacity (R. 229). Mr. William Bush, Permit Section Manager,

Division of Water Pollution Control, Illinois Environmental

Protection Agency, testified that the pumping station could

provide some additional increase in the effective capacity

in the southwest interceptor (R. 496). However, Mr. Bush

testified that “there may be more water waiting to simply

rush into the sewer and use up that capacity which the pump

has freed” (R. 497). Based upon his experience with the

Outer Park Drive sewer problems, Mr. Bush states that

infiltration of groundwater could result in nearly using up

all the capacity that the pump would free up (R. 498). Mr.

Bush stated that 1.8 MGD was reportedly eliminated in

extraneous flow from the sewer out of a capacity of 5.6 NGD,

yet the sewer surcharge problem continued to exist .(R. 499).

Mr. Bush was unable to provide a professional opinion,

because of his experience in the Outer Park Drive flow

elimination problem, when asked if the pumping station could

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provide an additional 25,000 gallons per day of flow (R.

502). The Board agrees with the Agency that, in light of

the history of infiltration problems occurring in the Outer

Park Drive area, it is reasonable to obtain demonstrated

results prior to agreeing to issue operating permits.

It should be noted that during the times when the

District proposes to pump excess storm flows into the 84-

inch combined sewer that the combined sewer will be discharging

untreated combined sewage to Jacksonville Branch (R. 236 and

237). That is the additional flow added to the 84-inch

combined sewer by the pumping station will be bypassed

during wet weather at the overflow located at Washington

Street (R. 237). Mr. Peters further testified that the

proposed pumping station would not eliminate the overflow on

the upper Outer Park Drive sewer system but was designed to

eliminate any possibility of overflow on the southwest

interceptor (R. 256).

Mr. Peters testified that the preliminary plans for the

pumping station had been submitted to the Agency and that he

estimated that the pumping station would be operating approximately

seven months from the date of the hearing (R. 211)

In weighing the hardship imposed upon petitioner, the

Board must also look at the hardship imposed upon the public.

The parties agreed to a stipulation that outlined the public

hardship caused by the inadequate sewer trnasport capacity

of the southwest portion of Springfield (October 10, R. 13

through 17). This stipulation. sets out citizen testimony

that would be presented by citizens in the proceeding and

what it would substantiate.

This stipu1~tionis set out on pages 13 through 17 Q~

the October 10, 1974 .he~ring. “Petitioner does, not dispute

the hardship to the public in general educed not only from

the testimony in this case, but also in several other cases

previously before the Board 

“

(Petitioner’s Brief pages 9 and

10). The stipulated public testimony, the testimony presented

by Mrs. Dorothy Garwood, and the prepared, testimony of Mr.

James Frost and A.H. Loudermilk serve to reinforce the

Board’s finding that problems which resulted in the original

Agency sewer ban in July 1972 and the discontinuance of the

issuance of conditional installation sewer permits in March,

1973 still continues to exist.

The Board agrees with petitioner that there exists

adequate sewer capacity to transport dry weather flows in

the sewers in question. H~wever,~these sewers were designed

and intended t~serve as a sanitary sewer and at times

carry an equivalent dry weather flow in excess of ten times

the standard engineering design of 100 gallons per day per

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capita (R. 497). During periods of rainfall, the sanitary

sewers surcharge 

-—

completely fill and begin to back up 

resulting in sanitary sewage’ overflowing manholes located

above and below the point of interconnection with the Outer

Park Drive sewer (October 10, R. 13). Sanitary sewer overflows

which contain toilet tissue and human feces have been observed

by the Agency inspections on numerous occasions (October 10,

R. 14, and Agency Exhibits 6, 7, 9, and 10). The sewage

which overflows the manholes discharges through stormwater

inlets along Outer SPark Drive and eventually to a paved

storm channel which parallels Outer Park Drive. This paved

channel eventually discharges into a natural drainageway which

discharges to Jacksonville Branch, a tributary to Spring

Creek. Spring Creek flows to the Sangamon River through

both Washington and Passfield Parks. The Agency presented

testimony that such sanitary sewer overflows could interfere

and degrade the water quality in lakes contained within

these parks (October 10, R. 17 and Agency Exhibit 6). In

addition to the overflowing of manholes, the inadequate

transport capacity in the sanitary sewers results in the

backup of sewage into a large percentage of the basements in

the Outer Park Drive area (October 10, R. 15). The sewer

transport problem has existed for 30 years (October 10, R.

13). Numerous citizens have experienced backups every year

for the past 15 years (October 10, R. 15).

It is uncontroverted that the sewer overflows and

basement backups represent a health hazard to those who live

in the area (October 10, R. 17). Dr. Byron Francis of the

Illinois Department of Public Health testified that:

“A number of communicable diseases are acquired by

ingestion of the contents of material which comes from

the intestine of an animal or another human, and these

can be acquired by contact with sewage...” (R. 448).

Dr. Francis testified that salmonellosis, a communicable

disease, could result from fecal material ingested in

microscopic amounts (R. 449). He further testified that

other communicable diseases such as shigella, viral hepatitis

(also referred to as infectious hepatitis), intestinal

infections caused by E. coli, typhoid fever, polio xnyelitis,

and other internal viral infections were possible from the

context with fecal matter (R. 449 and 450). He testified

that he was aware of cases where teenage children had contracted

leptospirosis by swimming and diving in a pool contaminated

with fecal matter from farm animals (R. 452). He further

testified that he was aware of outbreaks of salmonella in

Riverside, California and other outbreaks of infectious

hepatitis where people had drank well water contaminated

with septic tank effluent (R. 456). Dr. Francis also presented

testimony that young children are more susceptible to these

communicable diseases (R. 450). Dr. Francis testified that

swimming or diving in water that is contaminated with sewage

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732

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is hazardous (R. 450). He further testified that drinking

sanitary sewage overflows occasioned a hazard to children’s

health (R. 454). 1r. Francis further concluded that based

upon the conditions described in the testimony of Mr. Frost

that the sewer overflows cause a health hazard (R. 462).

The record clearly establishes that instances of children

swimming and playing in the sanitary sewage overflow and

drinking sanitary sewage overflows have been observed in the

Outer Park Drive area (October 10, R. 14; Agency Exhibit 6,

and R. 433).

Petitioner, in an attempt to rebut the significance of

the health hazard, established that Dr. Francis was unaware

of any outbreak of any such communicable disease in the

southwest portion of Springfield R. 464). However, Dr.

Francis testified that if the cases of communicable diseases

were widely scattered, that they could go unreported to his

agency (R. 468). Dr. Francis testified that it was normal

procedure for his division of the. Illinois Department of

Public Health to not undertake.a project if another State

agency with primary responsibility was taking steps to solve

the problem and he felt that such was the case at present

(R. 460 and 466). The Board finds that a signficant health

hazard is caused by such sanitary sewer overflows and

basement backups.

In addition to the health hazard, the problems caused

by the inadequacy of the sewer capacity in the Outer Park

Drive area result in economic and physicaJ~hardships to

those who live in the area (October 10, R. 16 and 17). The

individual economic and other hardships faced by the approximate

900 homes in the area, when totalled together, reach a

substantial economic figure (October 10, R. 17). Examples

of the economic hardship are citizens who have been required

to dry out air conditioning fans and motors, washing machine

motors, and dryer motors at considerable expense (October

10, R. 17). The backup of sewage in the basements has resulted

in the destruction of personal articles stored in the basements

(October 10, R. 17). During periods when the sanitary

sewers are backing up, the citizens are unable to use clothes

washing facilities or bathrooms located in their basements.

In rebuttal, petitioner tried to establish that the

overflows which occurred in 1973 were the result of rainfall

in excess of the average for the past 30 years. The record,

however, establishes that overflows have existed in the area

for at least 15 years (October 10, R. 15). In an attempt to

rebut petitioner’s characterization that 1973 overflows

occurred during periods where rainfall exceeded the 30 year

monthly average, the Agency established that overflows

occurred during the month of August, 1973 which had a monthly

rainfall average below the 30 year monthly average (R. 427

through 429). In addition, the record establishes that the

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instances of basement backups and sewer overflows appear to

be increasing each year (R.511). Mrs. Dorothy Garwood

testified that such was the case and that during all of 1973

her records showed only 9 instances of basement backups and

that to date, that during 1974, 10 instances have occurred

(R. 514 and 515). Agency witnesses testified that petitioner’s

proposed connection would further aggravate the sewage backup

and sanitary sewage overflow problems (Agency Exhibit 6, page

10 and R. 481).

Petitioner established that there are available self—

help remedies available to those home occupants who have

experienced basement backups. These include sewer plugs,

sump pumps and standpipes. However, once a plug is installed,

the citizens cannot do such normal functions as laundry, use

of basement toilets, or basement cleanup (October 10, R.

16). In additiOn, “because the plug prohibits the backup

into the basement, the flooding of the sanitary sewers in

the street causes a buildup of pressure in the citizen’s

sanitary sewer leading from their home. This can cause

failure in the seals in the sewer joints, which in turn

results in a backup of sanitary sewage into the ground

surrounding the sewer leading to house, to the street, and

backup under the basement floor. This backup into the

ground can cause basement floors to crack. This cracking

results in basement flooding through the cracks even though

plugs are installed in the drains” (October 10, R. 16).

Mrs. Garwood testified that even with the plugs in place,

sanitary waste backed up through cracks in her basement

floor and that such backups had a very foul odor (R. 512).

The Board, after weighing economic hardship to the

petitioner versus the hardship worked to the public in

general, finds that petitioner has failed to establish an

arbitrary or unreasonable hardship which would allow the

Board to grant the requested relief.

Petitioner’s case is somewhat unusual because in prior

variance cases, the Board has normally granted requested

relief in sewer ban cases where the buildings in question

were already constructed. This was normally done to insure

that vandalism would not result in destruction of the facilities.

However, petitioner has taken self—help measures by allowing

connection to the sewer system and the occupancy of less

than 15 people in each of the four buildings constituting

Phase II (R. 358). Petitioner was told by the Springfield

Sanitary District that they could connect each building

separately without an Agency operating permit if they allowed

the occupancy of less than 15 people per building (R. 373).

Water Pollution Control Regulations, Rule 902 (now amended

and found in Rule 952), requires an Agency operating permit

for a sewer extension to serve a building designed or intended

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to serve more than 15 people. Phase II consists of three

buildings which have a total of 24 units in each building.

Clearly, petitioner’s buildings were designed and intended

to serve more than 15 people. The fourth building contains

4 1—bedroom apartments, and as such, was probably not

designed or intended to serve more than 15 people. Petitioner

met with representatives from the Agency to discuss the

possibility of connection without an operating permit and

was told to contact its attorneys (R. 375). Mr. Cohen,

attorney for petitioner, telephoned an Agency attorney and

told her that he was directing his client to proceed with

the installation of the sewer connections. Evidentally the

Agency has made a prosecutorial decision not to prosecute

the Petitioner for these connections (R. 377). However,

such a decision by the Agency does not absolve petitioner

from proceeding to connect its facilities without an operating

permit in violation of the Board’s Rules and Regulations and

in violation of Condition #3 of its conditional installation

permit.

This is not the first time that petitioner has proceeded

to connect buildings located at the Westbrook site without

an operating permit. In the previous proceeding, PCB 72-

301, the Board stated that “we note that in this case the

Petitioner took the law into its own hands and made the

connection for the completed units without a permit, well-

knowing that a permit was required (R. 70 and 71). That we

ultimately allow the use of the connection because of the

hardship does not justify such flagrant disrespect for the

permit system. We cannot simply ignore this behavior by

granting an unconditional variance to the benefit of the

wrong”. In granting ‘the variance for Phase I, the Board

imposed a $2,000 penalty to protect the integrity of the

permit system. Petitioner should have ample notice that an

operating permit was required before proceeding to connect

Phase II.

Because petitioner has allowed occupancy in its buildings,

Petitioner has not suffered from the ravages of vandalism on

Phase II, with the exception of several minor incidents (R.

141). After partial occupancy of Phase II, Petitioner has

suffered very little vandalism (R. 297). For these reasons,

the Board does not find that the variance should be granted

because of vandalism.

Petitioner has examined both sewage treatment systems

and holding tanks. Petitioner submitted preliminary plans

and bids for a small package treatment plant to treat wastes

from Phase II and a larger plant to handle wastes from other

developments within the area (Petitioner Exhibits 13, l3a,

14, 14a, 14b and 15). Mr. Thompson testified that a small

on- site “plant could be a practical solution for Phase II

14—735

—14—

sanitary sewage disposal” (R. 278). He stated 

that

such a

plant would “present an on—site degradation to the Westbrook

Apartments” (R. 278). Mr. Thompson testified that he felt

holding tanks were not practical (R. 190). He stated that

the principal objection was to the location of a large 10-

day holding tank (R. 193) and such a tank’s effect upon the

attractibility of the apartment complex (R. 192).

Petitioner alleges in the variance petition that it is

willing to install either holding tanks or a private sewage

treatment system. However, the Brief filed by Petitioner

does not so indicate. After examining the record, the Board

is not convinced that holding tanks or a private sewage

treatment system are unreasonable. Petitioner is therefore

free to further develop such alternatives with the Agency or

before the Board in an appropriate proceeding. Petitioner made

a calculated business decision to proceed with the construct—only

permit and is now suffering the consequences of that decision.

We will direct the Agency to act with the utmost haste

in the review of the application of the Sanitary District to

install the proposed pumping station. However, this Opinion

and Order should not be viewed as a prejudgment on the

merits of such a permit application. We are only requiring

that the Agency proceed with diligence to review and render

a decision on the permit application. The record establishes

that in approximately four months the pumping station could

be on line. The Agency at that time, after review of the

results of the pumping station, might see fit to proceed

with the awarding of operating permits for those developers,

such as petitioner, who have conditional installation permits.

This Opinion constitutes the Board’s findings of fact

and conclusions of law.

Mr. Henss dissents.

ORDER

Petitioner’s request for a variance from the Agency—

imposed sewer ban is hereby denied without prejudice. The

Agency is directed to proceed with diligence in the review

of the construction permit application currently on file

by the Springfield Sanitary District for the construction

of the proposed pumping station.

IT IS SO ORDERED.

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control Board, hereby certify the above Opinion and Order were

adopted on the  ~jday  

of December, 1974 by a vote of

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...

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