ILLINOIS POLLUTION CONTROL BOARD
December
15,
1983
AMERICAN LEGION
POST
NO.
764
OF
TOLEDO, ILLINOIS and the
VILLAGE OF
TOLEDO,
a
municipal
corporation,
Petitioners,
v.
)
PCB
83—99
ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
OPINION AND ORDER OF THE BOARD
(by W.
J.
Nega):
This matter comes before the Board on the petition fo~vari-
ance of the American Legion Post No, 764
of
Toledo,
Illinois
(American Legion)
filed on July 26,
1983 as
amended September 14,
1983;
October
21,
1983;
and
November
14,
1983.
Variance
is
requested from
the restricted status placed upon the sewer
system of the Village o~Toledo
(Village)
by
the Illinois Environ-
mental Protection Agency (Agency) and from 35
111.
Adm.
Code
309.241(a) to allow the construction
arid
operation of
a 470—foot
sewer extension pursuant to Agency permit
to serve a proposed
new American Legion
home.
On August
18,
1983,
the Agency filed
its Recommendation that
variance
he denied because the Petitioners provided insufficient
information as
to environmental impact and arbitrary or unreason-
able hardship.
Hearing was waived and none
has
been held.
In
a letter
to. the Agency dated October
14,
1983, the Presi-
dent of the Board of Trustees of the Village of Toledo submitted
f~urtherdetails on the upgrading of the Village!s sewer system.
In a letter to the Agency
dated
October
17,
1983,
the Petitionersv
attorney submitted additional
information on
the
financial hard-
ships claimed by the Petitioners.
These
letters were forwarded
by the Agency to the Board and
received by the Board on October 21,
1983.
In a cover
letter from the Agency which was attached to the
two letters from the Petitioners,
the
Agency stated that the
“Petitioners did not include a sworn affidavit with the enclosed
letters.
.
.consequently, these letters would not serve to amend
the petition
in this proceeding under
35 Ill. Code 104,124”.
Accordingly, on November 14,
1983,
the
Petitioners submitted a
Second Amended Petition for Variance which included various
sworn
af fidavits
and
additional
in formation.
55-243
—2—
On November 18,
1983, the Board entered an Interim
Order which
mandated that
the
Agency rile its response,
if any,
to the Second
Amended Petition for Variance within
10 days of the date of the
Interim Order in order to expedite proceedings.
On November 28,
1983,
the Agency filed its First Amended
Recommendation
(Rec,) which recommended that the Board grant the
requested variance,
subject
to certain conditions.
The Village of Toledo presently owns and operates a waste-
water
treatment plant
(WWTP) which includes
3
lift stations and
a 6—acre,
single—cell
lagoon.
The Village?s wastewater treat—
rnent facilities have
a design average flow of 0.093 million gallons
per
day (MGD)
and are rated
for a
population equivalent
(p.e.)
of
930.
(Rec.
3—4).
Discharge monitoring reports submitted
by the Village pursu-
ant
to its NPDES Permit No.
IL 0031445
during the months of July,
1982 through June 1983 have indicated,
based
on once per month
grab samples, that BOD~concentrations have ranged between 24 mg/i
and 46 mg/i, while lev~1sof total suspended solids have fluctu-
ated between 21.6 mg/i and
37 mg/i.
(Pec.
4).
Similarly,
during
this same time period, concentrations o~ammonia nitrogen have
been between 2.3 mg/i and 3,4 mg/i.
(Rec.
4).
On these monthly discharge monitoring reports,
flow has been
consistently reported as being
0.15 MGD.
However, the exact
flow involved
is not readily ascertainable, ~ecause the Village
has no flow measuring device to take accurate measurements and
the clocks on pumps in
the pump station have been found by the
Agency to he
“inoperative much of the time.~
(Rec,
4).
On January 19,
1982;
April
9,
1982; June
3,
1982~August
5,
1982; October 20,
1982; December 27,
1982;
and May 16,
1983,
Agency personnel took grab samples
off the Village WWTPts effluent.
Testing of these water samples disclosed that, on the previously
specified dates, BOD~concentrations ranged between 3 mg/i and
55 mg/i,
while concer~trationsof total suspended solids fluc-
tuated between
3 mg/i and
202 mg/i
(with
the anomalous high
Eigure being reported on June
3,
1982).
Additionally,
ammonia
nitrogen levels varied from 0.17 mg/i to
19 mg/i, with lower
levels
(at,
or under,
6.8 mg/i)
being reported since June
3,
1982.
(Rec.
5).
The Agency has
indicated that
it
has received
no reports or
complaints pertaining
to
sanitary sewer overflows or basement
back—ups in the Village of Toledo.
(Roe,
5).
On February 14,
1983, the Agency issued Permit
No. 1983—AB—1224
to the Village for the upgrading and expanding
of its
WWTP.
Pursuant to this permit,
a 2—cell, non—aerated lagoon will be
created with chlorination, flow measurement equipment,
and
inter—
55-244
—3—
mitteni
sand
filters.
However,
no
sewer
system
rehabilitation
work
is planned by the Village.
On July 15,
1983, contracts
for
the
construction work
on
this project were approved, and
final construction
is expected to be completed on, or before,
August 13,
1984.
The Village has been awarded a combined Step
2/3 grant under the Construction Grants Program to help finance
these
WWTP
improvements.
(Roe.
6—7).
The American Legion has indicated that it is
in
the process
of building
a new Legion home at the edge of the Village, within
the Village’s corporate limits.
However,
this new home
is 470
feet from the present sewer line
in the Village.
(2nd Amended
Pet.,
p.
2).
The American Legion has stated that the present
Legion home
will.
no longer be used after
the new Legion home
is
completed and it will probably not be rented or sold for some time
because it
is unsuitable
for a commercial business.
(2nd Amended
Pet.,
p.
2).
In reference to the environmental impact of
the
requested
variance, the Petitioners have emphasized that “no new and
additional
sewage will be added
to the present sewer system
of the Village.”
(2nd Amended Pet.,
p.
2).
Moreover, the
Petitioners have stressed that “there are no residences, or
other buildings,
along the route of the proposed sewer” and
indicate that no buildings (other than the proposed new American
Legion home)
“would he attached to the sewer at least until the
sewer improvement work is completed and probably not for many
years.”
(2nd Amended Pet.,
p.
2).
The currently utilized American Legion building, which is
25 feet x 100 feet, contains the following water fixtures:
1 kitchen sink.
2 stools,
2 lavatories,
and
1 urinal.
This
older building uses,
on average,
less than 2,000 gallons of water
per month
(i.e.,
the minimum rate).
The proposed new American
Legion building, which will
he 50
feet: x 150 feet,
will have
1 kitchen sink,
4 lavatories,
4 stools,
and
2 urinals.
(2nd
Amended Pet.,
p.
2).
The
Petitioners have emphasized the limited use of both the
old American Legion building and the proposed new American Legion
home.
The building is primarily used to conduct American Legion
meetings.
Post 764 is a small organization which has only 152
members and no employees.
Bingo is played
in the building twice
a week and there is a club room
in the building for Legion
members.
Other than the waste
from
a small amount of cooking
that will be done, human waste is the only material that will
be discharged
from the proposed new building into the Village
sewer system.
Moreover, although
the
new building will be much larger than
the old building and will have more toilet facilities,
the same
number of people are expected
to
use
the new building
(as no
SF4-245
—4—
more American Legion members are expected
to join Post 764
and no more people are expected to be
using the new faciltiy).
In the new building,
it
is anticipated that the equipment,
facili-
ties,
furnishings, and other accoutrements will be nicer and
that the atmosphere will he more comfortable and less crowded.
(2nd Amended Pet,,
p.
3—4).
On November 25,
1974, the Agency sent
the
Village
a letter
to notify it of pending
restricted status.
On January 16,
1975,
the Agency placed the Village’s WWTP
on
restricted status
because these “wastewater treatment facilities
wc~rp
hpjna
operated 10
in excess of the design organic capacity.”
(Rec.
2).
Accordingly,
under the restricted status imposed by the Agency,
the Village’s
sanitary
sewer system could not be extended more
than 150 feet.
Although the American Legion’s proposed sewer
extension will
be via 8—inch pipe,
the Petitioner
feels that
less than 1,500
but
see Agency Rec. pg.3 i500 gpd or
more
gallons
of sewage per day will
be discharged into the Village’s
sewers from the new Legion building and no new sewage will be
added
to the present Village
sewer system.
The Petitioners feel
that “the only non—compliance with the restricted status imposed
by the E.P.A.
on the sewer system of the Village
is that the
Legion building is 470 feet
from the existing sewer line.”
(2nd Amended Pet.,
p.
3),
The
Village
of
Toledo
is
presently
in the process of improving
and enlarging its sewer system and its 6—acre,
single—cell lagoon.
The Agency has approved the contract for the construction of improve-
ments and work on the sewer improvement project has already begun.
Although the scheduled project completion date
is August 13,
1984,
it
is
anticipated that the construction work will
be completed
well
ahead of schedule,
(2nd
Amended
Pet., p.3—4).
The Petitioners strongly contend that denial
of the requested
variance will cause an
arbitrary
or unreasonable hardship.
In
reference to financial hardship,
it is pointed out that American
Legion Post No.
764
(which only has 152 members) has “spent
over $65,000.00 and hundreds of hours of labor on a building
that they cannot use because of
the
sewer restriction”.
(2nd
Amended Pet.,
p.5).
The cost of the new
building is
in excess
of $65,000.00
(with all
labor having been donated) and The First
National Bank in Toledo,
Illinois presently holds
a $l5,00.O0
mortgage on the property which bears an interest rate of 13
per
year.
The Petitioners believe that
it is an “unreasonable hardship”
that “this interest and principal must be paid while thebuilding
cannot be used.”
(2nd Amended Pet., p.5).
Thus,
the American
Legion
feels that its substantial investment
is now “a complete
loss”.
Additionally, the American Legion has noted that they are
losing
significant
revenues
from
their
bingo
games
because
of
the
present
situation.
Because
of
a
current lack of space and table
55-246
—5—
room
in the older building, the American Legion and Legion
Auxiliary
(which operate a bingo game
in the present building
twice
a week)
are not able to meet the needs of the bingo players
and
“this
costs
the
Legion
a
large
sum
of
money
each
week”.
(2nd
Amended
Pet.,
p.
5—6).
Once
the bingo games can be moved into
the new building,
this problem can
be rectified and additional
funds
generated.
The American Legion has also delineated
its insurance
problems which are causing what it believes to be an arbitrary
or unreasonable hardship.
While the
present
insurance
coverage
on
the
new
building
is
a
“builders’
risk”, their insurance
carrier
“is now pressuring the agent as to why the building
should not be removed
from builders risk and written as a regular
policy.”
(2nd Amended Pet.,
p.
5).
Under such a regular policy,
a vacancy permit would be needed
for an “unoccupied building” and
this would
entail an extra premium which “probably could not be
continued longer than four months.”
If this situation were to
develop, the Petitioners have concluded that.
“the Legion could
be
in a position, until the Village sewer work
is completed,
of
being without insurance on the new building, which situation would
be
a violation of the mortgage terms and might cause
a foreclosure
of the mortgage”.
(2nd Amended Pet.,
p.
5).
Although the Agency does not fully concur with Petitioner’s
estimate
that
its discharge will he less than 1500 gpd,
the Board
notes
that,
even
if
Petitioner’s loading fell within the single
building exemption provided
in 35
Ill. Mm.
Code 309.202(b)(2),
the exemption is not applicable in the present case because,
although there are no other buildings currently along the proposed
sewer extension,
the Village intends
to construct the extension
large enough to he able
to possibly service additional properties
at some future date i.e., the sewer is apparently designed and
intended to have the
capacity to serve more than a single build-
ing.
In
its First Amended Recommendation,
the Agency has recom-
mended that the Board grant the
requested variance, premised on
two conditions.
(Rec.
1;
8).
One condition would allow the Vil-
lage of Toledo to construct the sewer to serve the new American
Legion Home but provides that “no other properties,
building,
lots,
service taps, hook—ups, or the like are served”.
(Rec.
8).
The second condition would mandate that the old American Legion
Home remain vacant until the sewage treatment plant has
been up-
graded.
T.he Petitioners have stated
that,
although the American
Legion had knowledge of the existence of the restricted status
on the Village’s sewer system before construction of the new Legion
building, the American Legion reasonably expected that all
sewer improvement work by the Village would
be
ffinished well betore
the Legion’s new building was completed.
(2nd Amended Pet.,
p.
4).
55-247
—6—
The
American
Legion
has
noted
that
it
acted
in
good
faith
and in reasonable reliance on the expected completion of
improve-
ments in the Village’s sewer system because:
(1)
American Legion
officers contacted Village officials many times about the progress
of the sewer work and on the status of
the
Federal Grant applica-
tion of the Village,
and
were informed “that the project was ex-
pected
to be approved in good time
and
that
the work would soon
start”;
(2)
the Village Engineer assured the Legion officers
that he was “doing everything he could”
to
expedite
the project;
and
(3)
all indications were that there was “good
reason
1.o
expect the Village sewer improvement
to be completed long before”
the new Legion building would be
finished.
(2nd Amended Pet.,
p.
4).
The Agency has asserted that the hardship is largely self
imposed, except the mortgage payments to some degree.
The
Board believes, however, that the particular circumstances ot
this case justify a finding of arbitrary or unreasonable hardship.
The Legion Post substantially changed its position to its detri—
inent
in
reasonable reliance that the improvements in the Vil-
lage’s sewer system would he completed long before the new Legion
building would
be finished.
As the Agency itself has noted,
“problems arising in the
course of reviewing the Villaqe of Toledo’s permit application
for treatment plant improvements
may
account for the American
Legion Post’s expectations of earlier lifting of restricted
status”.
(Rec.
7).
Regarding
environmental
effects, the Agency has indicated
that “the lack of reported bypasses, overflow, or back—ups and
the short time period until expected completion of treatment
plant improvements” will serve to limit any adverse environmental
impact if
the requested
variance
is
granted.
(Rec.
6).
Accord-
ingly,
the Agency believes that the “potential
harm to
the envi-
ronment
is so minimal
in
this case” that
•the requested relief
is proper.
(Rec.
7).
The Agency’s assessment, with which
thE
Board agrees,
is premised on the conditions
that there be
no
more hook—ons and that the old building remain vacant during the
variance period.
While the Board usually imposes conditions
only on the primary petitioner,
in this case the Board
finds
it necessary to impose
a condition on the Village to assure the
avoidance of environmental harm,
especially given the marginal
basis
for a finding of arbitrary or unreasonable hardshi~’
Accordingly,
the Board finds that denial of variance would
impose an arbitrary or unreasonable hardship and will grant the
requested relief,
subject to the conditions delineated in the
Order.
55-248
—7—
ORDER
The Petitioners,
the
American Legion Post No. 764 of Toledo,
Illinois and the Village of Toledo, are hereby granted a variance
from 35 Ill. Mm. Code 309.241(a) to allow the construction
and
operation of a 470—foot sewer extension to the new American Legion
Home, subject to the following conditions:
1.
This variance
shall
expire on December 30, 1984, or upon
the lifting of restricted status, whichever occurs first.
2.
The Village
of
Toledo shall be allowed to construct
the
sewer
to
serve
the
new
American
Legion
Home
provided
no
other
properties, building, lots
,
service
taps,
hook—ups,
or
the
like
are
served.
3.
The new American Legion Home shall be the only allowed
sewer
connection to this sewer until the treatment plant is up-
graded, provided that
the
old American Legion Home remains vacant
until the sewage treatment plant has been upgraded.
4.
Within 45 days of the date of this Order, the
Petitioners shall execute and forward to the Illinois Environmental
Protection Agency
Division of Water Pollution Control, Compliance
Assurance Section,
2200 Churchill Road,
Springfield, Illinois
62706, a Certificate of Acceptance and Agreement to be bound to
all terms and conditions of this variance.
This 45 day period
shall be held in abeyance for any
period
this matter is being
appealed.
The form of the certificate shall be as follows:
CERTIFICATE
I,
(We), ______________________________, having read
the Order of
the
Illinois Pollution Control Board in PCB 83—99
dated
December
15,
1983, understand
and
accept the said Order,
realizing that such acceptance renders all terms and conditions
thereto binding and enforceable.
American Legion Post No.
764
Village of Toledo
of Toledo, Illinois
By:
Authorized
Agent
Title
Byr
Authorized Agent
Title
55-249
—8--
Date
Date
IT IS SO ORDERED.
Chairman
J.
Dumelle concurred.
I,
Christan
L. Moffett, Clerk of
the Illinois
Pollution
Control
Board,
hereb1y certify that the,~aboveOpinion
arid Order
was adopted on the ~
day of~t—’~-—~
,
1983 by
a vote
of~~-C_.
Illinois Pollution
trol
Board
55-250