ILLINOIS POLLUTION CONTROL BOARD
May 11,
1978
ORLAND
TRAILS CONSTRUCTION COMPANY,
)
)
Petitioner,
V.
)
PCB 78-25
ENVIRONMENTAL
PROTECTION
AGENCY,
)
Respondent.
MR. JEFFREY FORT, OF MARTIN,
CRAIG, CHESTER AND SONNENSCHEIN,
APPEARED ON BEHALF OF PETITIONER;
MR. ARTHUR MUIR, ASSISTANT ATTORNEY GENERAL, APPEARED ON BEHALF
OF RESPONDENT.
OPINION OF THE BOARD
(by Mr. Goodman):
On January
30,
1978, Orland Trails Construction Company
(Orland Trails)
filed a Motion to Intervene, Motion to Reduce
Time to Object to Motion to Intervene, and Motion for Modifi-
cation of Board Orders, under docket number PCB 77-153.
On
February
2,
1978,
the Board construed the motions as a variance
petition and assigned the petition the above-captioned docket
number.
The Agency filed its Recommendation on March
3,
1978.
Hearings were held in this matter on March
10 in Joliet, Will
County,
and
on
April
4
in Chicago.
No citizen witnesses
appeared.
Orland
Trails,
owned
by
Mr. Thomas Flood,
is the developer
of
the
Oriand
Trails
Subdivi~ion
,
which
i~
wi
t:h in
(In’
~crvice
area
of
~he
Derby
Meadows
Utility
Company
(Derby Meadows)
treat-
ment
plant.
In
Derby
Meadows
Utility
Company, et al.,
v.
EPA,
PCB
77-153,
the Board limited to
six
the
number
of
homes
in
the
Orland Trails Subdivision which could be connected to the Derby
Meadows plant at the present time.
In this proceeding, Orland
Trails
seeks
to
extend
to
92 the number of homes which may be
connected
to
the
treatment plant.
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—
197
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2-~
The current permitted capacity of the Derby Meadows treat—
ment plant
is 0.3 MGD.
Expansion of the plant
is currently under-—
way,
and,
upon completion and approval of permits by the Agency,
the capacity of the plant will be 0.6 MGD.
The problem facing
Orland Trails as well as the other developers and homeowners in—
volved in the !~~o~js
case
is thus only temporary and will
presumably be resolved upon completion of the
expanded facility.
Orland Trails alleges two—fold hardship from compliance:
hardship to people who have contracted for homes with Orland Trails
and would be denied those homes if
the variance were denied and
hardship to Orland Trails and Tom Flood due to extreme financial
pressure approaching insolvency as
a result of the legal inability
to connect more than
6 homes
to the plant.
The Agency,
on the other
hand, alleges that any hardship suffered by Orland Trails is self--
imposed and that Orland Trails cannot rely on hardship to the
homeowners
if the Company itself imposed that hardship.
The Board finds
that,
if indeed Mr. Fiood~sand Orland
Trails~ hardship is self--imposed,they are not entitled to a
variance merely due to financial pressure.
The question to be
resolved, therefore,
is whether Mr. Flood did create the hard--
ship he now pleads.
The hearing in the Derb~
adows case took place
in June,
1977, and the Board~sOrder allocating to Orland Trails the
connection
of
6 homes was entered in September.
The evidence
establishes that Mr. Flood sold homes continuously
from
May
through November,
1977, with
5 sales
in May,
4 in June,
3
in
July,
10 in August,
11 in September,
9 in October,
5 in November
and 2 in January,
1978
(R,137).
The question to be answered is:
did Mr. Flood have knowledge of the
~J~odows
proceeding and
the Board’s Order but continue to construct and sell homes despite
this knowledge?
Many of the facts of this case are contested.
On March 23,
1976, Oriand Trails and Derby Meadows signed a contract for the
connection
of~
~i76homes to the Derby Meadows sysLem.
Michael
Baldwin,
aitorney
for
Oriand
Trails,
testified
that
he
became
aware of problems
in the subdivision in June,
1977, when he
received a copy of the Environmental Protection Agency~sdenial
of Derby Meadows~ request to connect the Orland Trails homes.
Torn Flood, developer of Orland Trails, contended that,
although
he knew of problems with the connections,
he relied upon assur--
ances by Derby Meadows through Anthony Perino that the problems
30
—
198
—3—
would be temporary.
Mr. Flood claims he did not actually know
of~thehearings before the Board in t~he
Derby
Meadows
case
before
receiving
a copy of the Board’s Order on December
1,
1977.
Deborah
Senn,
however,
an attorney with the Agency,
testified that she saw
and spoke to Mark Randall, one of Orland Trails~ attorneys,
at one
of the Derby Meadows hearings.
In addition, Mr. Perino testified
that he did not assure Mr. Flood that the problem would be tempo-
rary, although the record contains a letter sent by Mr. Perino to
Mr. Flood assuring him that Derby Meadows would be able to service
Orland Trails by September
30,
1977.
Mr. Perino also testified
that he saw Mr. Flood sign a document authorizing a Joliet attorney
to sign a letter to Derby Meadows which specifically refers to an
agreement to allocate permits and to represent him in all matters
pending or otherwise involving the Agency.
The evidence indicates that Mr. Flood did have knowledge of
the problems with connecting his development and yet continued
to sell homes from June,
1977 through January,
1978.
Evidence
indicates that Mr. Flood may well have had specific knowledge of
the Derby Meadows proceeding and the allocation Order.
Possibly
Mr. Flood relied upon representations by Mr. Perino.
However,
if Mr. Flood did choose to rely on such representations rather
than inquire for himself, such a decision seems poor business
judgment at best and certainly involved taking a risk.
That
risk proved miscalculated,
at the expense of the people to whom
the homes had been sold.
Orland Trails presented a technical expert at the hearings
who suggested that the additional effluent from the 100 homes
sought to be connected could be stored in aerated tanks and pro-
cessed during times of low flow.
However, Derby Meadows did not
agree to this alternative method and was not joined as a party.
The witness also attempted to prove that the effluent could be
connected to the Derby Meadows plant without exceeding a 10/12
BOD/suspended solids standard (R.19l).
However, the Agency’s
cross-examination
of Mr.
Eddy
revealed
that
the
plants
on
which
he based his conclusion were not necessarily comparable
to the
Derby Meadows plant.
In the Derby Meadows case,
the Board noted that “no develop-
ment should be undertaken until capacity has been provided to
handle the total potential volume of waste
to be generated.”
In
this instance, not only did development take place, but Orland
Trails continued to sell homes after learning that there was not
sufficient capacity in the plant to handle those homes.
The
30
—
199
*
4~
Board finds that because Oriand Trails’ hardship was self—imposed,
this hardship alone is too minimal
to justify a further burden on
an already overloaded plant.
However,
the record indicates that
approximately 25 homeowners have purchased their homes and are
facing a serious hardship by not being allowed to move in
(Peti-
tioner’s Group Exhibit 26),
In
fact,
the record indicates that
some homeowners are living in motels, renting the homes they’ve
sold,
or living with relatives.
The Board finds that the hard-
ship to these homeowners
is
so severe that denial of the variance
would be arbitrary and unreasonable.
We will, therefore, grant
the requested variance
to allow the connection of
25 homes
in
addition to those
6 homes allocated
to Orland Trails
in the
Derby Meadows case.
This Opinion constitutes the findings of fact and conclusions
of law of the Board in this matter.
Mr. Young dissents.
I, Christan
L. Moffett, Clerk of the Illinois Pollution
Control Board,
hereby certify
the above Opinion was adopted
on theJ~
day of~,
1978 by a vote of~/-/
o
cA~r~a
Christan
L.
Moffett
rk
Illinois
Pollution
C
ol
Board
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