ILLINOIS POLLUTION CONTROL BOARD
November 15,
1979
NADELHOFFER-WILSON and
ASSOCIATES
(Oak Hill Estates),
)
Petitioner,
v.
)
PCB 79—193
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
OPINION AND ORDER OF THE BOARD
(by
Mr. Dumelle):
Petitioner Nadeihoffer-Wilson and Associates
(Nadeihoffer)
has requested a variance to construct and connect sewer
lines
from thirteen homesites and connect them with the
DuPage County Department of Public Works
(DPCDPW) Lisle—Woodridge
sewage treatment plant that is presently on restricted
status.
The Board construes this request as seeking a variance
from Rule 962
(a)
of Chapter
3:
Water Pollution Control
Rules and Regulations
(Water Rules).
Petitioner has waived
a hearing in this matter.
The Agency has recommended that
the variance be denied.
Petitioner has executed an agreement to purchase a
subdivision in Woodridge,
Illinois as
a site for construction
of thirteen single family homes.
Under this agreement
Nadeihoffer is obligated to complete proposed improvements,
including sewer connections,
by December 31,
1979.
Petitioner
states that the Agency is precluded from granting permits
for construction and operation of
a sewer connection that
directs flow to a sewage treatment plant on restricted
status.
Petitioner,
therefore, asserts that it cannot honor
its contractual obligations without a variance allowing the
issuance of the required permits. Nadelhoffer further claims
that
it and the seller of the subdivision, who were both
unaware of the treatment plant’s restricted status during
negotiations, will suffer arbitrary and unreasonable hardship
if a variance
is not granted.
In Corporate West Development,
Inc.
and County of
DuPage v.
EPA, PCB 79—163
(Oct.
4,
1979),
a variance was
granted to connect sewer
lines that directed flow into the
Lisle—Woodridge sewage treatment plant upon proof that a
hotel construction contract was executed prior to the declaration
by the Agency of the plant’s restricted status.
In the
present case, however, Petitioner fails
to offer sufficient
proof that it was unaware of the plant’s restricted status
when it executed the purchase contract.
The dates these
agreements were executed are not stated in the petition.
On
36—137
—2—
April
25,
1979 the DPCDPW was notified that restricted
status was pending and on May 31, 1979 DPCDPW was notified
that restricted status was pending and on May 31, 1979
DPCDPW was notified that its sewage treatment plant was on
restricted status.
Nadelhoffer,
in
a cover letter to its
variance petition, merely states that it had been negotiating
prior to the date that restricted status was declared and
that it did not learn of Lisle—Woodridge’s restricted status
until mid-June 1979.
Without knowledge of the date that the
contract and the subsequent extension were executed, there
is no way that the Board can determine whether or not Petitioner’s
hardship is self-imposed.
Furthermore,
Nadeihoffer does not
demonstrate that
it made diligent inquiries into the status
of the plant other than checking local newspapers.
The Board
cannot tell whether the Petitioner contacted the DPCDPW or
the Agency prior to entering into its purchase agreement.
Nadeihoffer also argues that construction and operation
of the sewer connections will not result in additional
environmental harm.
Petitioner claims that it was granted
permits for sewer connections for 314 homesites in three
other subdivisions
in the area before the Lisle—Woodridge
treatment plant was placed on restricted
status.
Nadelhoffer
asserts that it will not install all
314 connections prior
to the time that Lisle-Woodridge treatment plant improvements
are scheduled for completion
(Sept.
15, 1980)
and that far
more than 13 permitted connections will remain unconnected
at the time treatment plant improvements are completed.
Petitioner,
therefore,
insists that environmental harm will
not exceed that which was anticipated when the original 314
permits were granted.
Nadelhoffer, however, does not state whether the 314
permits were granted by the Agency or by
a municipality or
the dates on which permits were granted.
Under Rules
951
and
952 of the Board’s Water
Rules, permits for construction
and operation of a sewer connection must be granted by the
Agency.
Because the Petitioner
fails to name the other
three subdivisions for which permits were allegedly granted,
there is no way that the Agency or the Board can determine
whether the proper Agency permits were granted prior to the
sewer connection ban.
Nadelhoffer has not offered information sufficient to
prove that unreasonable hardship will result
if a variance
is not granted or that it will not contribute to environmental
harm if the Board allows permits to be issued.
With the
information presented, the Board cannot determine that
hardship was not self-imposed.
The Board,
therefore,
denies
Nadelhoffer—Wilson and Associates’
request for variance
relief.
This Opinion constitutes the Board’s findings of fact
and conclusions of law in this matter.
~6—1~8
—3—
ORDER
The Board hereby denies Petitioner Nadeihoffer
Wilson and Associates
a variance from
Rule 962(a) of Chapter
3:
Water Pollution.
IT IS SO ORDERED.
Mr. Werner dissents.
I, Christan
L.
Moffett, Clerk of the Illinois Pollution
Control
Board, hereby certify the above Opinion
and Ordar
~
were adopted on the
/,.S#~
day of
___________________
1979 by a vote of
2—i
OJvv~dirp~
Christan
L. Moffet~
Illinois Pollution
ilrol
Board
36—139