ILLINOIS POLLUTION CONTROL BOARD
August 14,
1986
BRAVO-ERNST DEVELOPERS,
)
Petitioner,
)
v.
)
PCB 86—10
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY
arid COUNTY
)
OF DUPAGE,
Respondents.
OPINION AND ORDER OF THE BOARD
(by B. Forcade):
This matter comes to the Board on
a January 16,
1986,
Petition for Variance filed by Bravo—Ernst Developers
(“Bravo—
Ernst”).
Supplemental filings were made by Bravo—Ernst on either
the Board or the Illinois Environmental Protection Agency
(“Agency”)
on March
5,
1986, March 31,
1986, April 10, 1986 and
May 20,
1986.
No hearing was held.
The Agency Recommendation
that the Board deny the requested variance was filed July 15,
1986.
Bravo—Ernst has requested
a variance from 35
Ill. Adm. Code
Section 309.241,
to allow
it
to connect
a proposed development,
the Macedonian Heights Subdivision,
to sewers owned
by the DuPage
Utility Company (“DUC”) with ultimate discharge
to the DuPage
County Department
of Public Works
(“DPCDPW”)
Lisle—Woodridge
sewage treatment plant.
The segment of
the sewer
system owned
by DUC is presently on
restricted
status.
During the period that Bravo—Ernst has owned
the subdivision property the Lisle—Woodridge STP has been put on
and taken off restricted status,
but
it
is the current restricted
status of DUC which now prevents
sewer connections
to the
subdivision.
The DUC system has been experiencing problems with
broken sewers,
basement back—ups, manholes surcharging and
illegal downspout connections.
The Macedonian Heights Subdivision,
as proposed, would be
comprised of 12 single family dwellings located at the
intersection of 59th Street and Dover
in unincorporated DuPage
County.
The facts
in this
proceeding are extremely lengthy and
convoluted but a brief description
is appropriate.
Bravo—Ernst
purchased the property in question for development purposes on
April
1, 1977.
At that time neither
the DUC sewers nor
the
DPCDPW sewage treatment plant were on restricted
status.
Also,
Bravo—Ernst had been assured that DUC was capable and willing to
accept sewage from the Macedonian Heights Subdivision
(Petition,
72-30
—2—
Exhibit C).
On March 30,
1978, Bravo—Ernst made formal
application to DUC but the application was rejected.
Bravo—Ernst
filed an action before
the Illinois Commerce Commission seeking
an order requiring DUC
to provide service.
However, while that
action was pending DUC’s sewers were placed
on restricted
status.
Bravo—Ernst’s 1981 attempt
to secure sewerage from the
Lisle—Woodridge sewage treatment plant were similarly frustrated
by the imposition of restricted status.
In evaluating
a request
for variance,
this Board must
balance any arbitrary or unreasonable hardship suffered by
petitioner,
if variance were denied,
against the potential for
environmental harm.
The Board believes the Agency has succinctly
stated Bravo—Ernst’s hardship:
Bravo—Ernst
has
been
unable
to
develop
its
property
for
the
last
nine
years
through
no
fault
of its own...The developers of this tiny
subdivision
have
become
enmeshed
in
a
bureaucratic
morass
of
unusual
complexity.
They
have
been
faced
with
two
areas
of
restricted
status,
two
state
agencies
arid
three
utility
companies.
They
have
had
to
bear
not
only
the
carrying
costs
on
this
property
and
the
costs
of
proceeding
through
the above—described
maze,
but the frustration
of
clearing
each hurdle
in
their path only to
find
another
one
in
their
way.
It
is
the
agency’s
opinion
that
because
of
the
exceptional
circumstances
involved
in
this
case,
if
the developers
could
show that their
proposed
subdivision
would
not
aggravate
existing
sewer
problems
then
denial
of
this
variance
would
constitute
arbitrary
and
unreasonable
hardship.
(Recommendation,
pp.
5—6)
The Board agrees that except for
the environmental
consequences, denial of variance would constitute arbitrary or
unreasonable hardship.
The proposed Macedonian Heights Subdivision
is located
generally at
the southeast corner
of
a residential area whose
sewers flow to the northwest.
In
a 1978 Order
(Petition,
Ex.
B),
the ICC found
that in dry weather,
the sewage system runs at
about 50
capacity;
however,
in wet weather,
about five days per
year,
the system has
a considerable overload problem which leads
to sewage back—ups
in the homes of the Meadows Subdivision (along
the western edge of the service area).
The Agency notes recent
complaints of sewage back—ups
in basements
in the area.
Also,
the Agency contacted one of the complaining citizens who
confirmed sewage back—ups as
recently as November 1985.
72-31
—3—
Additionally,
the Agency has been informed
of manhole surcharging
in the area.
Bravo—Ernst’s proposed development would be
directly tributary to these problem areas.
In summary,
the record discloses and
the Board finds that
basement back—ups and manhole surcharging
in the Meadows
Subdivision are pervasive and severe,
that these problems
continued
as recently as two months before
the present petition
for variance was filed,
and that Bravo—Ernst’s proposed
development would be directly tributary
to the problem area and
would exacerbate the problem.
Further,
the Board finds that the
back—ups and surchage problems are certain to continue as long as
DUC fails
to identify and correct the illegal sewer connections
(sump pumps and drains) which cause
the problem.
The Board
is
aware that raw sewage back—up in
a basement presents problems of
the spread of disease and electrocution,
as well
as property
damage.
Regardless of the economic hardship suffered by Bravo—
Ernst,
the Board finds that
its hardship
is not sufficient
to be
arbitrary
or unreasonable in
light of the increase in the health
and safety risk to the people
in the Meadows Subdivision.
Consequently,
the Board, on balance, denies the petition for
variance.
This Opinion constitutes
the Board’s findings of fact and
conclusions
of
law on this matter.
ORDER
Bravo—Ernst Developers’
request for variance from 35
Ill.
Adm. Code Section 309.241
is denied.
IT
IS SO ORDERED.
I, Dorothy M. Gum, Clerk
of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was
adopte~~on
the
,‘~/-~
day of
______________,
1986,
by
a vote
Dorothy M. ‘Gunn, Clerk
Illinois Pollution Control Board
72-32