ILLINOIS POLLUTION CONTROL BOARD

October

3,

1972

JOHN W. BENDER

)

v.

)

 72—324

ENVIRONMENTAL PROTECTION AGENCY

Opinion

 & Order of the Board

 (by Mr. Currie):

Mr.

 Bender seeks permission to connect

 a new single

family dwelling

 to a Waukegan sewer.

 Connections to all

sewers in the North Shore Sanitary District were forbidden

by our order of March 31, 1971

 (League of Women Voters

v.

 NSSD,

 #70-7,

 1 PCB 369).

 Mr. Bender began excavating

for his home October 11,

 1971,

 the foundation was erected

November

1,

 and construction

 is now at least 75

 complete.

In cases in which construction was begun before the

connection ban was imposed, we have generally allowed variances

because of the commitment of substantial resources

in

good faith reliance on the expectation of ability to connect,

and because of the danger of vandalism or other damage to

an unoccupied structure.

 See, e.g., Illinois National Bank

of Springfield v.

 EPA,

 #72—307,

 5 PCB

 (Oct.

3,

 1972)

On the

 other hand, we have held that one who proceeds to

construct

 a home with knowledge that a connection ban has

 been imposed assumes the risk that the ban will not be lifted

in time for him to connect when he desires;

 to hold other-

wise would allow a builder to avoid the ban simply by defying

it.

 Cook v.

 EPA,

 #72-178,

 5 PCB

 (Aug.

 29, 1972).

Mr. Bender concedes that he took a calculated risk when

he began construction with knowledge that no connection could

be had until the ban was lifted.

 However, he argues, the

ban was initially imposed on the basis of inadequate facilities

for treating sewage once it reached the plant:

It seemed logical

 to me that by the time

 I would be

in need of

 a sewer the Districtvs treatment plants

would be upgraded to the point where the ban would be

relaxed.

As he observes, this prediction was correct, since our orders

of January

 31 and March

2,

1972

 (North Shore Sanitary District

v,

 EPA, #71—343,

3

 PCB 541 and 697) did in fact authorize the

District to allow additional connections on the basis of

treatment plant improvements,

 What he did not foresee when

he began construction was that our later decision would

5—591

—2--

limit relief from the ban on the ground that certain sewers,

later designated by

 the Agency, were inadequate to transport

their present waste loads to the plant for treatment:

I applied for

one

 of these permits from the Sanitary

District but was informed by letter

 5 June 1972 that my

lot was in an area of the city on which the Environmental

Protection Agency had placed a ban.

 This sewer ban

was placed on Waukegan

 21 April 1972.

 My house was

about 75

 complete on this 21st day of April 1972.

As a technical matter,

 it would be possible for us to

take the position that the original connection ban has never

been lifted with regard to the sewers in question, although

the reason for forbidding connections has changed.

 But the

outcome of this case should depend upon the Detitioner’s

legitimate expectations and not upon technicalities as to

whether there was one ban or two.

 The risk Mr. Bender

voluntarily assumed was the risk that treatment plant improve-

ments would be delayed, not that an unforeseen and unrelated

problem with the adequacy of the sewer itself might inter-

vene.

 His expectations with regard to the transport problem

were just the same as they would have been if there had

never been a ban based on the treatment problem.

Only a single house, with limited wastes,

 is involved.

Mr. Bender has expended considerable personal effort in building

it in his spare time.

 He has alleged substantial and credible

hardships resulting from double housing payments and the

nonuse of substantial savings if the house must stand empty.

 His neighbors have filed a petition asking that we grant the

variance to protect the neighborhood

 from vandalism.

We believe we should take the above facts, none of which

are disputed,to indicate that Mr. Bender commenced construction

before he had reason to know of the present cause of his in-

ability to connect; that he assumed the risk only of a de-

lay in treatment plant improvements; and that we should

allow the variance under the doctrine of the Illinois National

Bank case cited above.

We note that we were most favorably impressed by Mr. Ben-

der’s forthright and forceful presentation of his own case

before the Board.

ORDER

John W. Bender is hereby granted a variance to permit

connection of his home at 339 Pioneer Road,

 Waukegan,

 to the

appropriate municipal

 sewer.

592

—3--

I, Christan Noffett, Clerk of the Pollution Control Board,

certify tha~tthe Board adopted the above Opinion

 & Order

this

~

 day of October, 1972, by a vote of

/

5

—

593