October 10,

Trustee of Trust No. 3010

v.

)

4~

ENVIRONMENTAL PROTECTION AGENCY

Mr. Robert Cohen, Attorney,

for First National Bank of

Springfield, Trustee of Trust No.

3010

Mr., Thomas

J.

Immel,

Assistant Attorney General, for the

Environmental Protection Agency

Opinion of the Board

(by

Mr. Currie):

This

is

another Springfield sewer connection case,

see

Illinois

National Bank

of Springfield v. EPA, #~72—300and

72~3O7.

5

PCB

*

and

—

(Oct.

3,

1972)

resulting from the

Environmental Protection Agency~sdecision to refuse permits

to connect to certain Springfield

sewers lecause both the

sewers and the treatment plant to which they led were serious-

ly overloaded.

This case concerns a housing development in southwest

Springfield.

144 units were already under construction at

the time of the

ban, and a number have been completed and

occupied,

An additional 76 units are not yet under con-

struction

(R,

9,

51—52,

59,

62)

Since the filing of this petition the City and Sanitary

District

have

undertaken an extensive program of sewer im-

provements, described in our

opinion

in ~72—300, which has

led the Agency to agree

to issue permits allowing con-

struction,

with connection to he made upon completion

of

~:reatmentplant expansion in the spring of 1973.

There is

no

evidence

or allegation that connections will be needed

before then

for

the

units

not

yet

under

construction

(see

R.

73)

,

and

no

suggestion

that

such

an

install-only

permit

will be insufficient to fulfill

the petitioner’s needs as to

those units.

As in

~t72—300,therefore,

the petition is

moot with regard to units not under construction when the

ban was imposed.

With respect to the units that were under construction

when

the ban was imposed,

the case

is substantially similar

to #72-307,

in which we allowed connection because of the

extensive commitment

in good faith reliance on the ability

5

-~

648

---

—2—

to make a connection and because of the short time before

correction of the treatment plant problem.

However, we note

that in this case the petitioner took the law into its own

hands and made the connection for completed units without

a

permit,

well knowing that a permit was required

(H. 70—71)

That we ultimately allow use of the connection because of

hardship does not justify such flagrant disregard for the

permit system.

We cannot simply ignore this behavior by

granting an unconditional

variance

to

benefit

from

the

wrong.

To deny the variance would be one alternative,

as it

would

leave the petitioner open to possible enforcement pro-

ceedings that would very likely result in money penalties.

To avoid unnecessary multiplicity of proceedings we think

it proper to grant a partial variance, exonerating the

petitioner from a cease—and—desist order but not from

money

penalties,

by

conditioning

the

grant

of

a

shield

from

further

prosecution on the payment of

a menalty of $2000 to protect

the integrity of the permit system.

Cf. Marquette Cement

Mfg,

Co.

v.

EPA,

#71—23,

1 PCB 145

(Jan.

6,

1971); EPA v.

High Lake Poultry,

Inc.,

#72—198,

5 PCB

(Oct.

3,

1972).

ORDER

1.

With respect to buildings not under construction as of the

date

of the sewer connection ban the petition is hereby

dismissed as moot.

2.

Variance is

hereby

granted

to allow the connection

of

units

under construction on the date of the ban to municipal

sewers,

on condition that within

35 days after receipt

of this order the petitioner shall pay to the State of

Illinois the sum of $2000 as

a penalty for making

connections without a permit.

Payment shall be made to:

Fiscal Services Division,

Illinois Environmental Pro-

tection Agency,

2200 Churchill Drive, Springfield,

Illinois 62706.

3.

Failure to comuly with said condition shall render this

variance null and void.

I, Christan Moffett, Clerk of

the Pollution Control Board,

certify that the Board adopted the above Opinion this______

day of October,

1972,

by

a vote of____________

5

—

650