ILLINOIS POLLUTION CONTROL BOARD
March
21,
1984
VILLAGE OF LOMBARD,
Petitioner,
v.
)
PCB 83—147
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY,
Respondent.
MS. RITA EISNER AND MR. RICHARD KISSELrJ APPEARED ON BEHALF OF
THE VILLAGE OF LOMBARD;
MR. GEORGE FYLER APPEARED ON HIS OWN
BEHALF;
MR. ARTHUR ALLEN APPEARED ON HIS OWN BEHALF;
MR. WAYNE WEMERSLAGE APPEARED ON BEHALF OF THE ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY.
OPINION AND ORDER OF THE BOARD
(by J.
Anderson):
This matter comes before the Board upon an October
3,
1983,
petition for variance tiled by the Village of Lombard (“Lombard”)
requesting relief from
35
Ill.
Adm.
Code 309.241(a).
On
November 11, 1983 the Illinois Environmental Protection Agency
(“Agency”)
filed a recommendation that variance be granted
sub-
ject
to certain conditions. Hearings were held on December 7,
1983 and
January
4,
1984,
at which witnesses and several members
of
the public testified.
On February
3,
1984 the Agency filed a
motion for additional hearing.
On February
9,
1984 that motion
was granted.
The additional hearing was held February 21,
1984.
Final briefs were filed by Lombard on February 27,
1984,
by the
Agency on February 27,
1984 and by the Intervenors on February 27
and February 28,
1984.*
On February
10,
1984
the Intervenor, Mr.
Arthur Allen filed
a motion for additional hearing claiming newly
discovered evidence.
That motion
is hereby denied.
The Board
could not schedule and hold an additional hearing and still meet
the statutory deadline for decision.
If
Mr. Allen the Intervenor
feels this motion
is still relevant after decision he may file
for reconsideration under
35
Ill. Adm. Code 103.241(a)(1).
*
*
The transcript of the proceeding and the exhibits were
filed with the Board on January
27,
1984.
The prepared testimony
of Mr. Fyler and of Mr.
Allen,
entered
as exhibits,
were filed on
March
19,
1984.
The 54” sewer section of the McClure Report,
entered into the record
by
Mr.
Fyler, was filed on March
20, 1984.
57-181
On Febru~~ry29,
1984,
intervenor~ Mr. Allen,
filed a
document
requesting
a formal finding and ruling on expenses
charged to
him by Lombard for a copy
of
the transcript.
On
March
2,
1984,
Lombard replied.
In
Mr.
Allen’s February 29
filing,
it seems clear that he made a private arrangement with
the Lombard attorney regarding the transcripts.
The Board
declines to make a ruling on the validity of private transcript
agreements.
35 Ill. Mm. Code 104.202
provides that variance
petitioners
shall furnish transcripts to the Board at
petitioner’s expense. The Board notes however, that such
transcripts, and other public files, may be copied at the Board
for a nominal
fee, presently $0.10 per page.
This variance petition is seeking substantially the same
relief as was originally granted
in PCB 82—152, June
16,
1983.
That order imposed certain conditions upon Lombard,
and a Motion
for Reconsideration was filed on July
22,
1983.
The Motion
contained Lombard’s objections
to the Board’s condition that
operating permits could not be issued prior to termination of
Restricted Status
on the applicable portion of the sewer system.
The Board denied the Motion on July 26,
1983.
Lombard did not
sign the certification for the variance granted
in PCB 82—152,
and has filed the current variance request.
HISTORY
In March
1974,
the Agency placed the Village
of Lombard on
Restricted Status, which included the entire sewer system and
wastewater treatment plant.
On March 10,
1977 and May 10,
1977,
the Lombard wastewater treatment plant and all or part of the
sewer system, respectively, were removed from Restricted Status
and placed on Critical Review. On June 22,
1979 the Agency placed
the northwest and northern-most areas of Lombard’s sewer
system
on Restricted Status and on June 16,
1980 the entire Lombard
sewer system was placed on Restricted Status due to
surcharging
sewers, overflows,
and basement backups. On September
14,
1982,
the Agency removed the separate sanitary sewers tributary to the
new West Side Interceptor from Restricted Status
(Rec.
p.
4).
The sewers
in the proposed area of development are currently on
Restricted Status.
FACTS
Lombard owns the property on which development is proposed
and is acting as agent on behalf
of School District #44
which
is
the beneficial owner of
land.
Presently,
it
is the site of
Lincoln School and the former Village Hall
(Rec,
p.
2).
Lombard
states that both buildings are boarded up and
not
used for any
purpose, and proposes that these properties be privately
developed
as a means to revitalize the downtown area.
The
Lombard Center Plan (“Plan”) formulated
in negotiations
with a
57-182
3
developer included 179 total multi-family units,
of which 128
would be
in a six-story, one-and two-bedroom conventional
building,
39 senior units will be
in a three-story building, and
the remaining 12 units would be attached three-bedroom town
homes.
The remainder of the site would be a 10,000 square—foot
one—story retail and office center with accessory off—street
parking
(R.
65—66).
Lombard anticipated flows from this
development to be 48,300 gallons per day
(Pet.
¶
6).
During the
pendency of this variance proceeding, the expected developer
withdrew from negotiations
(R. Feb.
‘84,
p.
20).
However, Lombard
stipulated that the Plan under a new developer, regardless of
project details, would not result in an increase in the volume of
sanitary discharge,
and that the water retention requirements
would be the same,
although the amount of green space might
change
(R. Feb.
‘84,
p.
27,
37,
38).
Since this portion of the
sewer system is on Restricted Status,
a variance is necessary
before the Agency can issue a Construct and Operating Permit for
a sewer extension under
35
Ill. Mm. Code 309.241(a).
The Village of Lombard has a present population of approx-
imately 38,800 people.
Existing sewer facilities are
both
combined and separate sewers and consist basically of four
interceptor sewers:
a 30—inch serving northern areas,
a 54—inch
serving west central
areas,
a 108-inch serving southern and east
central areas,
and a new interceptor serving separate sanitary
sewers in the southern-most areas.
The proposed development will
be tributary
to the 54—inch combined interceptor
sewer
(Rec.
p.
6).
Currently,
Lombard is participating
in a multi-phase state
grant project for sewer system rehabilitation with Phases I,
II
and III aimed
at the 30-inch,
54-inch, and 108—inch interceptors,
respectively.
Phase
I is near completion and Phase II will be
completed on or before December 31,
1984.
Upon completion of
Phase II the section tributary to the 54-inch interceptor,
which
includes the proposed sewer extension, may possibly be removed
from Restricted Status
(Rec.
p.
4).
However, there may be only a
50
chance that completion of Phase II will result in a lifting
of restricted status
(Pet.
Br.
15).
~t present,
several locations served by the 54-inch inter-
ceptor are subject to basement backups and sewer system
overflows.
Several citizen witnesses appeared at the December
7,
1983,
hearing to describe these problems which form the basis for
the imposition of Restricted Status
(R.
Dec.,
83,
p.
185,
281—82).
ENVIRONMENTAL IMPACT
One of the benefits claimed by the Plan is that the storm
water from the developed site would be removed from the line
tributary
to
the
54” combined interceptor and routed into a
separate
storm sewer.
Lombard asserts that the stormwater volume
removed is much greater than the sewage flow which would be added
by
the
development
(Resp.
Rec.
p.
2).
57-183
4
In the variance petition,
(Exhibit E,
p.
2) various removal
values were presented.
These removal
values are based on
rainfall intensities
of 5.3 inches per hour, not total
rainfall,
which can be misleading when comparing this to the continuous
discharge that will occur
from the proposed development. The 5.3
inches per hour figure is actually based upon a total rainfall of
0.88 inches occurring over a 10—minute period.
As
a result,
the
actual quantities
of water that will be eliminated or restricted
from entering the system on a day of average rainfall are much
less than these amounts.
The Board also notes that the compar-
ative information was often presented using different bases.
There are
a limited number of issues on which the Board can
make factual findings here.
It is clear that basement back—ups
will continue at least until
the sewer separtions under Phase II
are completed.
The Board agrees with the testimony by Mr. Allen,
that the domestic sewage component in those back—ups would
increase
(R.
Jan.
‘84,
p.
122-23), but also concurs with the
rebuttal by Mr.
Huff
(R.
Jan.
‘84,
p.
173) that BOD and suspended
solids will not measurably
increase; however, this does not
address the point that the potential for health risks would
increase if the frequency and duration of basement back—ups
remain unchanged.
Lombard requests this Board
to find that the Plan will
significantly reduce the frequency or duration of basement
back-ups and, thus, total
environmental impact.
Mr.
Fyler
asserts
(R. Jan.
‘84,
p.
49) that less than 1
of peak sewer
capacity will be diverted, having an insignificant impact on
reducing basement back-ups.
The Board
is unable to make a
finding on this issue because
in at least three areas factual
information to support such a conclusion is totally lacking or
was not
persuasive:
(1)
Acreage
included in the Phase II project
varied from
91 acres
to 198 acres. The Phase II project
includes the separation of
storm sewers and sanitary
sewers.
This obvious discrepancy has impact on sewer
capacity calculations.
(R. Dec.
‘83,
p.
407,
Jan.
‘84,
p.
86).
(2)
One of the alleged benefits of the Plan is diversion
of project area storm water run—off from the combined
sewer to the stormwater sewer.
The method by which the
diversion will be accomplished was not addressed
(Ex.
E
p.
2).
(3)
It is not readily apparent that the proportional
relationship between the drainage area contributing
storm water to the storm sewer and the discharge
57-184
D
capacity of
the sewer downstream was examined. Since
the sewer must transmit discharge as
it
is supplied
from the tributary drainage area, both of these factors
are crucial
in determining available capacity,
and any
flooding or adverse environmental impacts from the
diverted stormwater.
However, the petitioners have
stated that runoff from this project would not overload
the Grove Street storm sewer
(Pet.
Br.
p.
8).
If in
fact,
this statement was framed only to imply that this
proportionality was examined and determined to be
sufficient,
but
that these facts were not thoroughly
studied,
this would amount to an unacceptable omission
by the petitioners.
HARDSHIP
For variance to be granted,
the Petitioner must adequately
prove that,
due to the imposition of Restricted Status,
arbitrary
and unreasonable economic hardship has resulted
(Ill.
Rev.
Stat.
1981,
ch.
111½, par.
1035).
In cases involving variance from
restricted
status, petitioners must allege hardship which
is
different than that which is intended by the imposition of
Restricted Status, which creates
a moratorium
on
development
until adequate sewage treatment is available. Arbitrary ~
unreasonable economic hardship
is usually found by the Board only
where the costs incurred prior to the imposition of restricted
status outweigh the environmental harm which would be caused by
the granting of variance,
The only exception to this
is that
costs incurred subsequent to the imposition of restricted status
may be considered as hardship if such costs resulted from firm
~ommitments made prior to the imposition
of
restricted status or
were incurred based upon a reasonable belief that the area was
not under restricted status.
In this case,
Lombard chose~?~
subsequently fund the planning of the development with full
knowledge that Restricted Status had been imposed by the Agency
on the entire sewer system in 1980
(R.
Dec.
‘83,
P.
80—81).
Therefore,
that. hardship
is self-imposed.
However,
there
is additional community hardship in this
situation that the Board
finds
is arbitrary or unreasonable.
Henderson’s the downtown “anchor” department store went out of
business.
Subsequently, part of the building was leased by
an
apparel store.
Lombard’s
Director of Development stated that the
presence of the apparel store did not alter
his
view about the
need for new development as
quickly
as possible
(R. Feb.
‘84,).
The Board recognizes that the loss of an anchor store can
seriously threaten
the stability
of
a downtown area.
In
this
case the loss of
the
anchor store poses a risk of accelerating
the deterioration of downtown Lombard that
is not offset by the
existence
of
the
apparel
store.
57-185
RESOL1JTIO~~
The Board
is required to reach a conclusion on environmental
impact based on facts in evidence.
While testimony was provided
regarding the ultimate legal conclusion,
the factual information
is
so conflicting that. the Board is unable to formulate a clear
and concise understanding of the overall environmental
impact of
these changes.
Although Lombard has demonstrated a reduction
in
flow to the 54 inch line during storm events,
it has not demon-
strated that the reduction
is sufficient to decrease the extent
and the freguency of surcharging.
If surcharging continues, the
problem could be aggravated because the domestic sewage component
of the flows entering basements will
be greater.
For these reasons this case is a difficult one.
The Board
has
seriously considered the option of denying this variance
request,
and granting leave to refile
to allow Lombard to fill
the troublesome holes
in this record.
Yet, on balance, the
community hardship
in the form o1~accelerated business area
deterioration and the likelihood of environmental improvement
from completion of Phase II improvements lead the Board to
conclude that denial
of variance,
even on this faulty record,
would
impose
an
arbitrary
or unreasonable hardship.
The Board will,
however, include as conditions some require-
ments and prohibitions which are based on Lombard’s assertions,
especially regarding the completion of Phase II,
and are designed
to prevent problems arising from the unanswered questions
concerning the capacity of the Grove Street storm sewer and
existence of downstream flooding problems.
The variance
is
conditional,
therefore,
on completion of Phase II sewer system
rehabilitation
-~—
whether or not grant funding
is available
——
before operating permits may be issued.
Lombard,
thus, by its
own actions, has the ability to offer potential developers some
certainty as to when hook-ons will be available,
while at the
same time basement backups stand a reasonable chance of being
eliminated before hook-ons occur.
No design changes
increasing
P.E. above 483 will
be permitted. Lombard will further be
required to comply with
its storm water control ordinances.
Diversion of flows to the storm sewer so as to cause or
contribute to downstream flooding
is prohibited,
as
is
surcharging from the Grove Street storm sewer directly, or
indirectly,
into the 54 inch interceptor.
As a condition of this variance,
the Board does not include
an aerated holding tank designed to contain three days of waste—
water from the aparbnent complex,
as recommended by the Agency.
The
holding tank has several
inherent problems,
namely;
1.
the proximity to existing and future residential areas
for both practical and aesthetic reasons,
~7-1R6
2.
possible
zoning
cons:Lderations~
3.
the cost of the tank which
w~uid have
a
short
service
life would be approximately $200,000.
This
opinion
constitutes
the
~oard’s
findings
of
fact
and
conclusions of law
in this matter.
ORDER
The
Village of Lombard is hereby granted a variance from 35
Ill.
Adm.
Code
309.241
(a)
subject
to the following conditions:
1.
The developments
shall
be restricted
to two parcels of
land as described
in Exhibits A and B of the Variance Petition,
which consist of approximately one-half of the area bounded by
the Lombard streets of Lincoln, Grove,
Park and St. Charles. This
variance authorizes the Illinois Environmental Protection Agency
(“Agency”) to issue construct-only permits
for development upon
Lombard’s submittal
of applications and acceptance of this
variance.
Operating
permits
shall
not
be
issued
until
all
of
Phase II sewer system rehabilitation
is
completed
and
the
Agency
certifies
that
it
is
completed
and
operational.
Storm
water
from
the
two
parcels
of
land
in
question
shall
be
diverted
from
the
54
inch
combined
sewer
line
to
the
separate
storm
sewer
line
prior
to issuance of an operating permit.
2.
The development of the two parcels of
land shall be
restricted to
a total design population equivalent of
483.
3.
The development will strIctly adhere to Lombard Storm
Water Ordinance,
No. 2231,
which limits the runoff rate to 0.1
inches per hour.
4.
Any water diverted to the
Grove
Street
Storm Sewer
shall not cause or contribute to downstream flooding.
5.
If any water surcharges from the Grove Street Storm
Sewer,
such water shall
not be allowed to flow into the 54 inch
interceptor
sewer.
6.
Within 45 days of the date of this Order,
the Village
of Lombard shall execute a Certification of
Acceptance
and
Agreement to be hound to all
t,~rms
arid conditions
of
this
variance.
Said Certification shall
be
submitted to the Agency at
2200 Churchill Road, Springfield, illinois
62706.
The 45—day
period shall be
held
in
abeyance
during
any
period that this
matter is being appealed.
The
form
of said Certification shall
be as follows:
57-187
8
CERTIFICATION
I,
(We)
____
______
_____
,
hereby accept and
agree
to be bou~~b~TI
terms
and condition~ofthe Order of the
Pollution
Control
Board
in
PCB
83--147,
March
21,
1984.
Petitioner
Authorized
Agency
Title
Date
IT
IS
SO
ORDERED.
Board Member Bill
S.
Forcade dissented.
I, Christan L.
Moffett, Clerk
of
the
Illinois
Pollution
Control Board, hereby certify that the, above Opinion and Order
was ~dopted on
the
~
day of
~
1984 by
a vote
of
~3-/
Christan L. ~
Clerk
Illinois Pollution Control Board
57- 188