ILLINOIS POLLUTION CONTROL BOARD
    August 22, 1972
    ESTELLA LEWIS
    v.
    )
    #72—208
    ENVIRONMENTAL PROTECTION AGENCY
    Opinion of
    the Board
    (by Mr. Currie):
    This opinion explains the reasons for our order of August
    15 dismissing this request for a variance.
    The petition seeks
    permission to connect a single—family home to sewers tributary
    to the North Chicago sewage treatment plant despite our connection
    ban order of March 31,
    1971
    (League of Women Voters
    v. North
    Shore Sanitary District,
    #70-7).
    Our order forbidding additional connections until substantial
    improvements were made in the treatment plant was based upon our
    findings that existing treatment facilities were inadequate;
    that additional connections would aggravate the situation and
    cause the discharge of additional ill-treated sewage to Lake
    Michigan, a body of water deserving special protection because
    of its unique value and recreational uses;
    that in the ordinary
    case these considerations outweighed the inconvenience of delay
    in the construction of new homes or other buildings.
    Moreover,
    as has been confirmed by later experience,
    a ban on connections
    serves as a powerful incentive to those charged with responsi-
    bility for treating sewage to do whatever is practicable to im-
    prove their processes in the shortest possible time.
    See
    Danville Sanitary District v.
    EPA, #72-161
    (June 14,
    1972);
    City of Mattoon v.
    EPA, #72-64
    (June
    6,
    1972); North Shore
    Sanitary District v.
    EPA, #71-343
    (Jan.
    31 and March
    2,
    1972).
    At the same time we have recognized that in certain extreme
    cases the hardship of denying a connection is so great as to
    justify the additional pollution that. a connection would cause and
    have granted variances from the ordr~r. The principal cases spelling
    out our policy in this regard are Wachta v.
    EPA,
    #71-77
    (July
    12,
    1971)
    and Patricia Development Corp.
    v. EPA,
    #71-161
    (Sept.
    16, 1971).
    In Wachta a Board majority held that a
    connection must be allowed in cases in which construction of the
    building had begun before the connection ban was imposed,
    because of expenditures
    in reliance on the supposed ability
    tc’ connect and because of the expenses of providing security
    and maintenance for a finished and vacant building.
    In
    Patricia we held that connections must be allowed in cases in
    which by reason of limited income a commitment for federal
    mortgage assistance had been obtained for a home contracted
    5
    225

    —2—
    for before the connection ban was imposed.
    The need for decent
    housing within financial means in such cases was found to
    justify the additional pollution.
    Mrs.
    Lewis does not claim to qualify for a connection under
    the Wachta doctrine,
    since her home is not yet under construction.
    Her petition is based upon the Patricia line of cases.
    Living
    with two children without support from her divorced husband,
    she earns a gross weekly income of $137.20; her rent is about
    to be raised to $155 per month.
    She alleges that the increased
    rent “will be beyond your Petitioner’s means;
    “that the
    apartment in which Petitioner and her children are now residing
    is not a suitable place to raise children;” and that her efforts
    to find other suitable accommodations she can afford have been
    without avail.
    She contracted to purchase a lot and to have
    a home
    built upon it, and on September
    1,
    1971 she received a commitment
    for federal mortgage assistance under Section 235 of the National
    Housing Act.
    She states that unless she is permitted to begin
    construction soon,
    she will be without suitable accommodations and
    may lose her eligibility for mortgage assistance.
    The Environmental Protection Agency asked us to deny the
    petition, both because there was no specification of why Mrs.
    Lewis’s present housing is not “suitable” and because of
    another part of the holding
    in the Patricia case.
    In Patricia
    we granted connections for federally—aided homes for which a
    contract to build had been entered into
    before connections
    were forbidden because by entering into contracts the buyers
    were “abandoning the search for alternative quarters and increas-
    ing the hardship that they would suffer if denied their new
    homes now.”
    On the other hand, variances were denied for
    federally—aided homes for which no construction contract had been
    entered into at the time of the connection ban:
    Much as we sympathize with the people who would greatly
    benefit if they could build these homes, we believe the
    line must be drawn somewhere to avoid open-ended increases
    in the pollution of Lake Michigan.
    Persons not committed
    at the time of the sewer connection ban were on notice
    that they must look elsewhere to build new homes.
    Though
    homes within the District may be more convenient for these
    people, we think some consideration must begiven
    to
    locating new homes
    in areas where there are adequate sewage
    treatment facilities.
    In light of the possibility of
    constructing comparable homes with similar federal assist-
    ance elsewhere, we cannot open the door to the building
    of new homes even for the needy where the contract to
    build was not signed at the date of the ban.
    Patricia Development Corp.
    v.
    EPA,
    supra.
    5
    226

    —3—
    On the facts as presently alleged, we believe Patricia
    requires that we not grant this variance.
    We do not say that no
    set of facts could possibly justify a hardship connection when
    the contract and mortgage aid commitment were obtained after im-
    position of the connection ban;
    it may be, for example,
    that
    in certain cases federal aid was in fact unavailable outside
    the forbidden area, or that the hardship of living at
    a con-
    siderable distance from one’s present employment was pro-
    hibitive.
    We did not find such proof as to the late contracts
    in Patricia,
    and we do not find sufficient allegations to that
    effect in the present petition.
    We agree with the Agency that
    there must be some further specification of the inadequacy of
    present living conditions and the unavailability of satisfactory
    alternatives before we can allow this connection.
    We add that
    we cannot be sure from the petition whether this case really
    falls within the grant or the denial portion of Patricia; for
    although it
    is alleged that the federal aid commitment was re-
    ceived several months after the ban was imposed, we do not
    know when the contract to build was signed,
    since the contract is
    not in our files although the petition states that it will
    be attached.
    It may be that
    a further petition will show Mrs. Lewis
    did commit herself to build at the requested location before the
    ban was ordered, and if so she will be entitled to a connection.
    If it were not for the unfortunate rule requiring the
    Board to decide variance cases within
    90 days after their filing
    or have them granted by inaction, we would schedule a hearing
    or ask for written submissions in which the issues we have
    raised in this opinion could be fully addressed.
    We would
    not wish to stand on the technicalities of pleading, especially
    in a case brought by an individual not blessed with
    a large
    stable of corporate attorneys.
    It was in hopes of avoiding
    the expense and inconvenience of
    a hearing that we decided to
    pass on the case on the basis of the petition and Agency recommen-
    dation alone.
    The recommendation has alerted us to matters
    that require further exploration, and it is now too late to
    hold a hearing within the 90-day period.
    Our only recourse,
    therefore,
    short of granting a variance on the basis of
    allegations we find not entirely complete in light of the
    Patricia case,
    is to dismiss
    the present petition without pre-
    judice to the filing of
    a more complete one on which hearings
    can be scheduled if factual questions remain.
    The filing of
    a
    relatively factual petition, verified,
    in response to the
    questions raised in this opinion, might render a hearing un-
    necessary;
    and should a hearing be needed we call attention to
    our procedural rule allowing the Board to assume the cost of
    the transcript in cases of financial hardship upon request.
    Of course it may be that the facts are not such as to justify
    reapplication in light of this opinion.
    5
    227

    —4—
    It would be tempting simply to grant this petition on
    the ground of
    the very real desirability of permitting the
    petitioner to build her new home.
    The additional waste from
    a single home will not break Lake Michigan.
    But although ‘we
    deal today only with one home, what we hold today will determine
    what we must do in similar future cases.
    If we allowed the
    connection requested today,
    on the allegations before us, we
    should find it very difficult to distinguish the next petition
    seeking to connect another federally-aided house for which
    commitments were not made until after the connection ban, or
    any of the next several hundred; and the cumulative effect of
    many such connections might well be serious.
    The policy we
    ununciated in Patricia remains important:
    Even when federal
    ai~1.
    for those without adequate means to provide suitable housing
    is in issue,
    the importance of preventing pollution counsels that
    new homes, except in extraordinary cases, be put in areas with
    adequate sewage treatment facilities.
    The answer to the hardships created by the inability to
    connect is the improvement of sewage treatment.
    It was on
    the basis that such improvements had apparently been made at
    North Chicago, together with allegations that a family was
    forced to live apart, that we relaxed the Patricia rule to
    allow a connection for federally—aided housing not shown
    to have been committed before the ban in the recent case of
    Starks v.
    EPA,
    #72-157
    (May 10, 1972).
    The presently applicable
    effluent standard of Rules and Regulations SWB—7
    (now PCB
    Regs., Ch.
    3, Rule 404)
    is
    20 mg/l of biochemical oxygen demand
    and 25 mg/l suspended solids.
    In the original North Shore
    Sanitary District case we ordered the District to add alum to
    its treatment tanks at North Chicago in order to improve the
    effluent in the interim before it
    is diverted to the future
    Gurnee plant for advanced treatment
    (League of Women Voters
    v. North Shore Sanitary District,
    #70—7, July 12, 1971).
    Since
    this improvement was to be accomplished by January
    1,
    1972,
    the Agency’s recommendation in Starks that the effluent had
    improved to a BOD of
    8 and solids of
    14,
    in compliance with
    the regulations,
    suggested to us that our alum order had been
    complied with and foretold the possibility of a general
    relaxation of the sewer ban.
    Cf. North Shore Sanitary District
    v.
    EPA, #71—343,
    Jan.
    31 and March
    2,
    1972,
    in which we re-
    laxed the ban in part on the basis of interim
    use of chemicals
    and other improvements at the Clavey Road and Waukegan treatment
    plants.
    The recommendation in today’s case,
    however, reports
    that BOD deteriorated
    in April to 44 mg/l and solids to 36.
    We have asked for an explanation of this deterioration
    (See
    EPA v.
    Fansteel,
    Inc.,
    #72—76, July 25, 1972), which seems to
    indicate the District may not have complied with our order.
    We
    urge the Agency to take appropriate action if that is the
    case.
    As the present case illustrates,
    the failure of the
    District to do what it can to treat sewage properly,
    if such
    be the case,
    not only contributes to pollution of Lake Michigan;
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    228

    —5—
    it can also interfere with the interests of District residents
    in obtaining adequate housing.
    The present petition must be dismissed,
    for reasons given,
    without prejudice to the filing of
    a more detailed petition
    responding to the questions here raised;
    and without prejudice,
    of course,to a general relaxation of the sewer ban based upon
    proof by the District that it has significantly improved the
    effluent by doing what this Board ordered to provide better
    treatment.
    The key to normal development of eastern Lake County remains
    in the hands of the North Shore Sanitary District.
    Mr.
    Lawton dissents, believing the petition should be
    granted.
    I, Christan Moffett, Clerk of the Pollution Con~ol Board,
    certify
    that Board adopted the above Opinion this ______day of August,
    1972, by a vote of
    ~f’—/
    5
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