ILLINOIS POLLUTION CONTROL BOARD
    May
    1,
    1980
    H.
    J, BERGMAN BUILDERS, INC.,
    )
    a Delaware Corporation,
    Petitioner
    )
    PCB 79—264
    v.
    ILLINOIS
    ENVIRONMENTAL
    PROTECTION
    AGENCY,
    )
    Respondent.
    TIM SWAIN, ATTORNEY AT
    LAW, APPEARED ~‘ORPETITIONER;
    STEPHEN
    GROS SHARK,
    ASSISTANT
    ATTORNEY
    GENERAL,
    APPEARED
    FOR
    RESPONDENT:
    OPINION
    OF
    THE
    BOARD
    (by
    Board
    Member
    Goodman):
    This
    opinion
    supports
    the
    Board
    order
    herein
    of
    April
    5,
    1980,
    On
    December
    13,
    1979
    Petitioner
    filed
    a
    petition
    for
    variance from §~12(h) and 39(a)
    of the Illinois Environmental
    Protection Act
    (Act) and Rule 962(a)
    of
    the Board’s Water
    Pollution Rules and Regulations
    (Water Rules),
    The Illinois
    Environmental Protection Agency’s
    (Agency) January
    11, 1980
    motion to file its recommendation
    late
    is granted.
    On January
    21,
    1980 the Agency recommended denial
    of the petition.
    The objective Petitioner
    seeks
    is an Agency permit in order
    to construct and operate a sewer extension in Warren County
    to
    service
    a proposed 32—family
    (72 occupants) moderate income
    rental housing project. The sewer would connect to the sanitary
    sewage treatment plant of the City of Monmouth.
    Two of
    Petitioner’s principals have owned an undivided
    50
    interest in
    the site property
    as beneficiaries of a land trust since June of
    1977.
    (R.68—9).
    On June 30,
    1976 a six—month building permit was issued to
    Controlled Builders,
    Inc.
    (Pet.,
    Ex.E).
    On May 27,
    1977 the
    Agency granted Controlled Builders,
    Inc.
    Permit No. 1977—HB—4291
    to construct the sewer extension and granted the City of
    T4onmouth,
    under
    the
    same
    permit,
    the
    right
    to
    own
    and
    operate
    the
    extension.
    (Pet.,
    Ex.F).
    It
    was
    not
    then
    constructed
    due
    to
    federal
    funding delays occasioned by Petitioner’s revisions of
    the site plans and the building plans until the Summer of
    1979.
    (Pet., p.5; R.29).
    In May of
    1977 two of Petitioner’s
    principals
    formed. the Corporation and received assignment of
    Controlled Builders’ permit.
    (R,63-4).
    —2—
    On April
    6,
    1979 Petitioner received an Agency memorandum
    regarding
    the Monmouth plant’s critical review status.
    Monmouth
    city OffLCialS
    on
    August:
    10,
    1979 discussed environmental
    1;r~1)I~‘nsr~qard
    i nj
    t:he project with Petitioner.
    (R.
    31—2
    )
    .
    On
    Atigu;
    L
    20,
    1 979,
    Pet:il-loner was aware
    oF
    cxi sting
    problems
    with
    ‘loumouth
    ‘
    s
    t:r:ea Lment plant,
    but
    t:wo
    days
    later applied
    For
    a
    cons
    t rucU.ion permit
    “
    ii
    n
    order
    that
    cons
    truct:ion
    of
    the
    project
    might
    commence.”
    (Pet.,
    p.5;
    R.55).
    It
    was
    not
    until
    four
    months
    later
    that
    Petitioner
    received
    federal
    funding
    for
    the
    project.
    (R.27).
    The
    Agency
    denied
    the
    permit
    on
    August
    30,
    1979 for these
    reasons:
    (1) §~i2and 39
    of the Act prohibit the Agency from
    issuing permits
    for facilities which could
    tend to cause water
    pollution;
    (2)
    §39 of the Act requires Petitioner
    to prove that
    the proposed project will not cause violations of
    the Act or the
    Board’s
    regulations; and
    (3) Petitioner’s application did not
    meet the requisites of Water Rule
    962, more particularly because
    the
    Agency
    had
    information
    “that
    tho
    Monrnouth
    Sewage
    Treatment
    Plant
    experiences
    near
    continuous bypassing
    from the headend of
    the
    plant.”
    (Pet.,
    Ex.C).
    The Agency was willing
    to
    reevaluate
    the application upon Petitioner’s correcting this
    deficiency,
    ~
    by
    submitting
    plans
    for
    a
    septic
    system
    using
    hol
    di. ng
    tanks
    or
    other
    technology.
    It
    was
    two
    months
    after
    the
    permit
    denial
    that
    the
    Agency
    placed
    Monrnouth’
    s
    treatment
    plant
    on
    restricted
    status,
    although
    it had been placed
    on
    critical
    review
    two
    years
    earlier,
    having
    reached
    98
    of its capacity.
    Monmouth had been notified on
    August
    10,
    1979
    o.f pending restricted status proceedings.
    (Rec., pp.1,2; R.129).
    Monmouth has applied
    for
    federal
    funds
    to upgrade and expand the plant and projects a
    October,
    1981 completion date, with a January
    1,
    1982 startup
    date.
    (R.116—8).
    Petitioner’s alternative to using
    the city’s plant:
    is
    to
    construct
    a septic system.
    Petitioner claims that it has neither
    funds
    nor lands
    for this purpose,
    and adds that “it
    is against
    FmHA
    sic
    policy to
    fund any multi-family housing on septic
    system where an existing community
    sewer treatment
    facility is
    available.
    Consequently, the funding
    for this proposed project
    would he denied.”
    (Pet., p.4).
    The Board
    finds that denial
    of federal funding or lack of other access
    to funding does not
    constitute an arbitrary
    or unreasonable hardship,
    especially
    where a project is
    a proposed one.
    This
    is all the more true
    where Petitioner has
    not proven an actual denial
    of
    funds, but
    pleads only their threatened denial.
    Petitioner does plead the hardship to Monmouth’s rental
    market as
    identified
    by
    a Housing Assistance
    Plan prepared by the
    city in an application
    for Community Development Block Grant
    —3—
    funds.
    (See
    Pet.,
    Ex.C),
    Petitioner
    does
    not
    plead
    the
    precise
    extent
    of
    the
    need
    for
    the
    rental
    units
    or
    the precise
    extent
    of
    the
    “tight”
    city
    rental
    market.
    The Agency
    is
    of
    the
    opinion
    that
    Petitioner’s
    hardship
    is
    self—imposed.
    (Rec., pp.2—5).
    It states that
    in 1977,
    being successor
    in interest to Controlled Builders’ permit,
    Petitioner know
    the plant was nearing capacity.
    Additionally,
    since that
    1977 permit was issued,
    three intervening permits for
    a
    total
    of
    121,000 gallons per day were issued.
    Petitioner’s
    August
    20,
    1979
    permit application was made
    ten
    days
    after
    the
    city had been notified of pending restricted status proceedings.
    The city was sued in April
    of
    1979 for water quality violations
    during bypassing which
    is necessary when the plant’s capacity
    is
    exceeded; Petitioner either knew or should have known of the
    existence and possible effects
    of this proceeding before
    it filed
    its permit application.
    Petitioner’s proposed project would add a
    hydraulic
    load of 0.4,
    The project would discharge 7,200
    gallons per day of domestic sewage into sewers tributary
    to
    Honrnouth’s
    plant.
    The plant continues
    to be subjected
    to
    bypassing during wet weather.
    There
    is
    no
    doubt
    that
    the
    sanitary
    sewage
    treatment
    plant
    of
    the
    City
    of
    Monmouth is heavily overburdened with no prospect
    for
    relief
    for
    at
    least
    20
    months.
    The
    proposed
    additional
    load
    of
    7,200 gallons per day
    of
    domestic
    sewage
    or
    an
    estimated
    0.4
    increase
    in
    plant
    loading
    i.s
    not,
    in
    of
    itself,
    significant.
    The
    questlon
    which
    the
    Board
    must
    resolve
    is
    whether,
    given
    the
    existing
    ban
    on
    all
    sewer
    connections,
    Petitioner
    has
    satisfactorly carried
    its burden of proving that the sewer ban
    constitutes
    an
    arbitrary
    and
    unreasonable
    hardship
    in its case.
    Although the hardship in this case is
    not as compelling
    as
    some previously considered by the Board under similar
    circumstances,
    the Board finds that sufficient evidence exists
    to
    warrant granting the proposed variance,
    The Board
    is convinced
    that without
    the proposed variance the project will have to be
    abandoned
    (Pet,, Ex.
    5).
    As previously noted,
    this fact
    is
    not sufficient
    to warrant the granting
    of a variance.
    What
    is sufficient,
    however,
    is the fact that Petitioner has
    proceeded
    in a deliberate manner
    in his development plans
    including obtaining
    a permit from the Agency to hook the proposed
    development to tionmouth’s sewage system.
    While
    it
    is true that
    Petitioner
    allowed this permit to lapse for reasons largely
    unexplained by the record,
    the Board finds that Petitioner’s
    reliance upon the issued permit was reasonable and that it would
    be arbitrary and unreasonable,
    in this case,
    to suddenly deny
    a
    new permit because of the miscalculation by
    a few months of
    the
    planning
    and construction schedule.
    Petitioner has
    shown that its monetary investment of $85,000
    is jeopardized by the permit denial,
    and that this project will
    he
    in the public interest
    (Pet.
    Ex.8),
    —4—
    Finally,
    there is the fact that Petitioner’s project
    is not
    likely
    to add additional
    load
    to Monmouth’s sewage system until
    the end of
    1980.
    Two
    citizens testified at the hearing concerning the
    petition.
    The thrust of their complaints goes more to the total
    condition
    of
    Monmouth’s
    sewage
    system
    than
    to
    the
    construction
    and
    hookup
    of
    the
    buildings
    in
    question.
    After considering and balancing all the evidence in the
    record,
    the Board
    finds
    that
    it would be an arbitrary and
    unreasoneole hardship to deny Petitioner the variance requested.
    The Board will
    therefore grant variance from Rule
    962,
    of the
    Board’s Water Rules under certain conditions.
    Variance from
    Sections
    12 and 39 of the Act are hereby denied as unnecessary.
    This Opinion constitutes the findings of fact and
    conclusions
    of
    law of the Board
    in this matter.
    Mr. Dumelle concurs.
    I,
    Christan
    L. Moffett,
    Clerk of
    the Illinois Pollution
    Control Board,
    hereby certify that the above Opinion was adopted
    o~the
    J~
    day
    of
    ______,
    1980 by a vote of
    Clerk
    ontrol Board
    Illinois Pol

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