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
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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.
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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.
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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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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’—/
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