ILLINOIS POLLUTION CONTROL BOARD
December 12,
1972
MID-CITY DEVELOPERS,
INC.,
)
Petitioner,
v.
)
PCB 72—274
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
Jack Guthman and James
L. Marovitz for the Petitioner;
Richard
W. Cosby, Assistant Attorney General, for the Respondent.
OPINION OF THE BOARD
(by Mr. Parker):
This opinion supports the Board Order in this matter dated
November 28,
1972 which granted the petition for variance in this
case insofar as it relates to Phase
I of the Green Bay Courts
deve1opment~subject to certain conditions.
That Order was required
to be entered by that date pursuant to Section
38 of the
Environmental Protection Act,
as extended by waiver of Petitioner
for a limited time period.
Petitioner, Mid-City,
seeks a variance from this Board’s
North Shore Sanitary District sewer ban order* entered March
31,
1971
to permit sewer connection
to the North Chicago sewage treat-
ment plant of several hundred low to moderate~income housing units
to be constructed in a development located in the City of North
Chicago known as Green Bay Courts.
The development covers
36½**
acres located at Green Bay Road and Fourteenth Street in North
Chicago
(R.
8,
105).
It is to include 300 housing units expected
to be completed and occupied by September
1, 1974, referred to as
Phase
I,
a commercial shopping area
(R. 11), and an additional 275
units, known as Phase
II,
to be completed some time in 1976
(R.
5).
The construction work on Phase
I of the development is expected
to begin March
1,
1973
CR.
11-12).
Phase
I will include
90 one
bedroom apartments, 110 two bedroom apartments,
75 three bedroom
apartments, and 25
four bedroom apartments
(R. 25—26)
,
which are
expected to house***approximately 1,000 individuals
CR.
27) and to
*
League of Women Voters of Illinois v. North Shore Sanitary Districts
PCB7O—7, 70—12, 70—13 and 70—14.
**
This
is part of
a 500 acre plot owned by IHDA
(R.
104—105).
***
Rentals
to he charged the tenants
(i.e.
apart from government
subsidy) are expected to be $135 for one bedroom units, $153 for
two bedroom units,
$185 for three bedroom units, and $196 for four
bedroom units
(R.
30).
Because of the preliminary nature of
the
plans the Mid-City general counsel did not know how many bathrooms
would be present in each of the units or whether the units would
be air conditioned
(.R.
26—28)
6
—
443
create
a sewage waste load amounting to 910 population equivalents
(R. 2~4.2S7).
Since July 1,
1972,
the North Chicago treatment
olant effluent has exceeded the BOD and suspended solids standards
~see below);
thus the need for a variance.
:he record insofar
as it reflects the history of the develop-
ment shows that in 1969,
the community of North Chicago contacted
the Illinois Housing Development Authority
(IHDA)
for assistance
in prcvidin~State and Federal mortgage financing for construction
of low and moderate income housing in North Chicago.
(R.. 58—61).
IH:;
in turn requested Mid—City to act as developer in the fall of
1969
(R.
13).
In August of 1970,
a three party contract was
entered into
(~.124-125)
between Mid-City,
IHDA and a group known
as
the North
Chicago Development Corporation
(NCDC)*.
The contract
(Petitioner’s Exhibit
3) provides for NCDC and IHDA to purchase or
obtain options on the 36.5 acres of land and later to convey the
land
to Mid—City for approximately $300,000
(R.
14).
Mid-City is
not oblicated to purchase the land, however, until all necessary
covernmental
approvals are obtained for the project. This means that
until and unless the instant variance is granted, Mid-City has no
oblication to purchase the land from NCDC and IHDA
(R.
128).
The
land has not yet been conveyed to M&d-City
(R.
128)
To date, preliminary approvals have been obtained from the
City and the land has been properly zoned.
No further approvals
are required apart from the sewer connection rights which are the
subject of this variance proceeding.
In the event of a grant of
this variance the specifications and plans will be completed for
approval by the City preparatory to issuance of building, and later,
occupancy permits
CR.
12,
28).
It will also be necessary to seek
and obtain
a feasibility letter from IHDA
CR.
85—86).
Petitioner Mid-City contends the record shows sufficient
hardship to justify grant of the requested variance, .ah~1in any event
Mid-City says
that recent improvements by the North Shore sanitary
District in the North Chicago treatment plant capacity justify the
relaxation of the sewer ban which it seeks.
The Agency objects to
-grant of
the variance to the extent that there may be a resulting
adverse effect on Lake Michigan if it is granted
CR.
20).
Although Mid-City thought prior to March 31,
1972 that it would
he able to connect the development sewers to the North Shore Sanitary
District system
CR.
15), there is no evidence that any investigation
was made to see whether the District’s system had adequate treatment
capacity available or what quality effluent was being produced
(R.
31-32).
In any event there have not been,
and Mid-City concedes
this
(R.
128, 298-299), any assurances given by the District,
municipal officials,
or anyone else,
to Mid-City relative to sewer
connection rights.
*
A
not-for-profit corporation formed to encourage development of
low income housing in the City of North Chicago, and funded by
IHDA
(R.
65)
—2—
6— 444
Mid-City argues that prior to the March 31, 1971 sewer ban
order it had spent approximately
$30,000
(R.
102—103) plus time
spent by its employees and those of IHDA
(R.
101) and other
parties interested in the development, all of which may be lost
if the project does not go forward
(R.
135).
On the latter
point the IHDA witness did not deny that it might be possible to
recoup this loss or part of it through resale of the land should
the project be discontinued
CR. 136-B).
We find the testimony
as to these asserted losses unpersuasive, however, since it is
largely hearsay
(R. 40—43,
46,
54)
While Mid-City does not argue that the $300,000 spent by
NCDC and IHDA to acquire the land forms an element of its possible
financial loss should this variance be denied
(R.
95), Mid—City
does point out that it is not the business of IHDA,
a state
financing agency,
to inventory land
CR.
96,
133-134).
A Mid-City
witness said it would be hard to predict whether the project would
be continued if the variance is denied
(R.
35).
The IHDA witness
testified that IHDA would still own the land
CR.
76) and would
have to re-evaluate possible future uses
CR. 67-68,
109, 110).
The
IHDA witness conceded that the $300,000 paid for the land is not
a loss at this point in time
(R.
94-97,
136).
In support of its Petition, Mid-City presented the testimony
of Mr.
H. William Byers, General Manager of the North Shore
Sanitary District on September 27 and again on October 23, 1972.
Mr. Byers testified that the effluent from the District’s North
Chicago plant averaged
31 mg/i BOD and 34 mg/l suspended solids
during the period January 1 through July 31, 1972
CR.
247).
These numbers are to be compared with the 20/25 requirement* of
effluent standard 404
(b), which became effective on July 1, 1972,
and which will apply to the North Chicago plant in September of
1974 when Phase I of the Green Bay Courts development is complete.
Mr. Byers testified that the North Chicago plant would, beginning
October
10,
1972, begin alum treatment of its effluent to reduce
the BOD and suspended solids levels
(R. 246_7)**.
He said, although
*
This requirement is tightened to 4/5 on December 31, 1974
(Reg.
404
(d) for discharges to Lake Michigan), but before
the end of 1974 the District plans to transfer the present
North Chicago plant operations
to the District’s Gurnee
plant
CR. 264-265) which does not discharge to Lake Michigan
and thus will become subject to the 10/12 effluent standard
of Reg.
404
(c).
**
Also chlorination of storm water by—passes
(R.
246).
—3—
6
—445
somewhat equivocally*, thatthistreatment will permit addition
of up to 1,500 population equivalents of waste load and still
enable the 20/25 standard to be met
CR.
249,
253,
259,
261-2).
Also,
the record shows that addition of yet another waste load,
the 156 population equivalents
(BOD)
contemplated by the
Fansteel discharge
(see EPA Exhibit 2 in EPA v. Fansteel et al.,
PCB72—76, Board opinion dated November 28, 1972), will have
a
minimal effect on the North Chicago treatment plant effluent
(R. 14, October 23,
1972).
Mr. Byers
said he has not made any pilot tests of the new
chemical treatment system
(R.
255), but that his predictions of
the improvements to be expected are based on laboratory tests
as well as full scale alum tests made at the Clavey Road plant
CR.
258).
The witness described his calculations as
“very
conservative”
CR.
262).
Mr. Byers expressed his personal preference that any
additional connection rights to be permitted by our Board to the
Nroth Chicago plant be granted in connection with a variance
sought by the District itself based on actual experience with
the new chemical treatment
CR.
266,
298), and indicated that the
District does plan to seek
a variance to permit additional con-
nections to its North Chicago treatment plant in the near future
(R. 280-281).
At the hearing the Petitioner was asked whether
it would be willing to wait a few months to permit the District
to gather data on its chemical treatment operations and to seek
a variance based on this data
CR. 281-284).
Petitioner objected
that the costs are greater the longer it waits
CR. 284),and
said that a delay now would cut three months of good construction
time off the present March, 1973 starting date
(R.
285).
Mayor Kukla of North Chicago also testified on behalf of
Petitioner.
He vividly described the City of North Chicago and
its people.
The City has a population of about 47,000 of which
about 31,000 are associated with the U.
S. Navy
CR.
213).
Mayor
Kukla described the need for housing in the City as acute
CR.
180).
*
At first Mr. Byers said the alum treatment could be expected to
drop the present 31/34 levels by about 10 mg/l each,
i.e.
to
about 21/24, which would about meet the 20/25 standard without
any added waste load.
Stated otherwise,
Mr. Byers said the
“degree of treatment of about
10 milligrams per liter greater
by the added chemical will be equivalent
to approximately 1,500
population”
CR.
248).
Later, Mr. Byers said
there would be
additional capacity for 1,500 population equivalents and still
permit the 20/25 standard to be met
CR.
249).
Still later,
Mr. Byers seemed to revert to the original testimony
CR.
252,
259),
but the remaining testimony appears consistent that the standard
will be substantially met even with the added 1,500
P.
E. waste
load
CR.
253,
254,
260-2).
(The term “substantially” characterizes
Mr.
Byers’ testimony at R.
261 that the resulting BOD/SS could
end up as high as 23/27 rather than 21/24)
—4—
6
—446
So
much
~or
the
record
proofs.
We
must,
pursuant
to
statute,
determine whether petitioner has proven that denial of its
petition
would
impose an arbitrary or unreasonable hardship on
it (nvironmental Protection Act, Section
35)
.
We believe that
such
a
hardship
has been proven here.
As recognized by our Board
?rocedural
Rule 401
(a)
(2)
,
we
should take into account the
costs
that
compliance would impose on others as well as the
cetitioner.
While Mid—City’s asserted $30,000 in pre—March 31,
l~i expenditures was not persuasively proven,
the substantial
land investment
by IHDA
($300,000)
is
a factor that we can hardly
i~nore.
This,
coupled
with
the
acute
need
for
housing
in North
~hicacio,
which
Mayor
Kukia
addressed
so colorfully, constitutes
what
we
believe
to
be
a
serious
hardship
situation.
While
this
hardship condition might not,
standing alone,
be
enouch
to
warrant
grant
of
the
variance, there is another factor
cresent
in this case which effectively resolves any doubts we
mieht
have
whether
a
statutory hardship has been proven.
That is
that
the
North
Chicago
treatment plant will, according to the
testimony,
have enough capacity to handle the waste
load that will
be added from petitioner’s Phase
I development
Cas well as from
Fansteel,
see
p.
4
herein).
Mr.
Byers’
testimony
that
the
plant
will
be
able
to
accept
an
additional
1500
P.
E. waste load
(comeare
with
the
910
P.
5.
which
petitioner will add, plus the
156
P.
E.
from Fansteel) while still making the 20/25 standard
is,
we
believe,
compelling
evidence
that
the
variance
must
be
granted.
So
long
as
we
are
assured,
as
here,
that
the
effluent
discharged
from
the
North
Chicago plant to Lake Michigan will
meet
the
prevailing
standards,
the
variance
should
be
granted.
On the latter point, the assurances which petitioner
has
given the Board concerning the North Chicago sewage treatment plant
capacity,
we
must
recognize that
the record is not as certain as
we
would
like
it.
Because
petitioner
has,
to
serve
its
needs,
filed
the
instant
petition without waiting the few months necessary
for
the
Sanitary
District
to
actually carry out and tiemonstrate the
effectiveness
of
its
chemical
treatment
program,
we must base this
variance grant on treatment efficiency
predictions rather than on
actuality.
This
is unfortunate.
Like Mr. Byers of the Sanitary
District,
we
would
have
preferred
to
wait
a few months until the
District could evaluate its chemical treatment program.
At that
time,
if
the District found that BOD/SS levels had dropped low
enough
to
permit
an
additional
1,500
population
equivalents,
this
could
be
shown
after,
rather
than
before,
the
fact
in
a
variance
proceeding
brought
by
the
District.
We
would
then
be
able
to
grant
the
District
the
right
to permit the additional
(1,500 P.
E.)
connections, and to follow its own procedures in determining
priorities
as
between
competing
permit
applicants
for
the
limited
number of additional connection rights
(Presumably the District
—5—
6
447
still plans to seek such
a variance in the near future, taking
cognizance of the whatever commitments it has made for the future,
such as in this Mid-City case and the Fansteel case).
As indicated, we believe that Petitioner has, based upon the
record in this proceeding, shown the requisite statutory hardship
for grant of
a variance.
It
is appropriate, however, for our
Qrder to hold Petitioner to the proofs and representations which
it has made before us concerning the expected effectiveness of
chemical treatment at the North Chicago treatment plant.
Accordingly, our Order dated November 28, 1972 granted the variance
as it relates to Phase
I of the development subject to a 910
population equivalent waste load limit, and subject to the
requirement that the North Chicago plant effluent, with the added
waste load,
comply
(as petitioner represented it would) with the
relevant water pollution regulations, and that such compliance be
certified by the Agency.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control
Boarçl, certify that the above Opinion was adopted by th~Board on the
/.~‘~dayof
•~
(
I
~
,
1972,
by a vote of
_____
to ~
•t±T-i_~:‘~(~~
~
—6
-
6
—
448