ILLINOIS POLLUTION CONTROL BOARD

November

2,

1978

KENT SHODEEN and CITY OF ST. CHARLES,

Petitioners,

v.

)

PCB

78—173

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

RICHARD

V.

HOUPT

AND

KENNETH

J.

GUMBINER

APPEARED

ON

BEHALF

OF

PETITIONER

SHODEEN.

ANNE

K.

MARKEY,

ASSISTANT

ATTORNEY

GENERAL,

APPEARED

ON

BEHALF

OF

RESPONDENT.

ALLEN

L.

LANDMEIER,

SMITH

ANI)

LANDMEIER,

P.C.,

APPEARED

ON

BEHALF

OF

THE

CITY

OF

ST.

CHARLES,

OPINION

OF

THE

BOARD

(by

Mr.

Goodman):

This Opinion

is

in support of the Board Order entered herein

September 21,

1978.

This Petition for Variance

was

filed

by

Kent

Shodeen

(Shodeen)

on June

20, 1978 and requests variance from Rules

604,

951 and 962

of Chapter

3:

Water Pollution Control Rules and Regulations,

to

allow

sanitary

sewer

extensions

tributary

to

the

St.

Charles

Sewage

Treatment

Plant

in

St.

Charles,

Illinois.

On

June

22,

1978,

the

Board

on

its

own

motion

added

the

City

of

St.

Charles

as

a

party

to

these

proceedings.

A

hearing

was

held

in

this

matter

on

September

7,

1978,

and

on

September

14,

1978,

Shodeen

filed

a

Motion

for

Expedited

Consideration.

Shodeen

seeks

a

variance to allow the connection

of

a

proposed

20

acre

shopping

center

to

the

St.

Charles

sanitary

sewer

system,

which is tributary

to the

St.

Charles

sewage

treat-

ment

plant.

Unfortunately,

the area which Petitioner wishes

to

develop has been placed on restricted status by the Illinois

Environmental Protection Agency

(Agency)

.

The Agency

took this

action when it discovered that sanitary sewer overflows existed

in the City’s sanitary sewage system in violation of Rule 602(h)

of Chapter

3 of the Board’s Water Regulations.

The main overflow

point is

in the sanitary sewer system at the Riverside Pump Station,

where

flows exceeding the City’s pumping capacity are bypassed

in

the sanitary sewer directly

to the Fox River by

a

24” diameter pipe,

having

had

no treatment.

The St. Charles sewage treatment plant,

32— 35

---

—2—

however, is not in an overload condition, either hydraulically or

organically.

The problem,

therefore,

lies

in

the

delivery

system

to the sewage treatment plant.

Shodeen alleges that the addition of its waste

to

the existing

sanitary sewer overflows would not substantially impact water

quality

in the Fox River.

To support this allegation,

Shodeen

contracted R.J. Environmental Associates

(R.J.)

to prepare a

computer modeling study of the wastewater bypass

in St. Charles.

Evidence presented indicates that the problem is not with the

capacity of the sewage treatment plant in St. Charles, but rather

with the inadequacies of transport system, particularly

the sewage

pipes

to

the

plant.

There

appears

to

be

no

question

but

that

the

addition

of

wastewater

generated

at

the

proposed

shopp:i.ng

center

would

pose

no

problem

during

dry

weather

and

would

be

de

minimis

with regard

to

overflows

during

periods of heavy storms.

The Board,

therefore,

finds that no significant harm

to

the

environment would

result

if

the

proposed

variance

were

granted.

Shodeen alleges that arbitrary

and

unreasonable hardship would

result should the proposed variance he denied.

Evidence adduced

at

the

hearing,

unrebutted

by

the

Agency,

indicates

that

Shodeen

acquired

an

interest

in

the

land

which

he

proposes

for

commercial

development in

1972.

Proposed zoning was obtained by Shodeen in

May

of

1975,

after which Shodeen obtained a commitment from K—Mart,

Jewel—Osco,

and Spiess Department Stores with regard

to tenancy in

the proposed center.

The lease agreements include occupancy dates

of June

1,

1979 for K—Mart,

and September

1,

1979 for Jewel-Osco.

Final zoning was granted

in January of 1978,

at which

time Shodeen

was still advised that there would be no problem in obtaining

appropriate sewer connection permits because the St. Charles

wastewater treatment plant was only at one—third of its organic

and hydraulic capabilities.

Shortly thereafter, Shodeen learned

for the first time that he would be unable to connect to the waste-

water treatment plant due

to

the

wastewater bypass situation

in his

area.

Shodeen was subsequently advised by his tenants

that they

would be forced to look elsewhere if

it became apparent that Shodeen

could not meet the contract occupancy dates.

Shodeen alleges that

considerable funds

had

been expended and contractual commitments

made

in good faith prior to any actual or constructive notice of

the restricted status of the sewers

in

his area.

Total out—of—

pocket expenses alleged by Shodeen are approximately $450,000 for

soil tests, topographical surveys,

traffic studies,

real estate

taxes, mortgage interest,

architectural engineering and legal

fees

in addition to the cost of the land.

Loss of potential profit

is

indeterminant, but is probably

in excess of $1,000,000.

In addition,

the record indicates losses

to the City of St. Charles

of tax

revenue and potential employment.

32—36

---

—3—

Balancing a lack of environmental harm which would accrue due

to the establishment of the proposed shopping center against the

potential financial losses to Shodeen and the loss of

tax

revenue

and potential employment to the City of St. Charles, the Board finds

that denial of the proposed variance would result in an arbitrary

and unreasonable hardship.

The Board will therefore grant Shodeen’s

Motion for Expedited Consideration in this matter, and will grant

the proposed variance from Rules 604, 951 and 962 of Chapter

3:

Water Pollution Control Rules and Regulations,

to allow sanitary

sewer extensions tributary to the St. Charles Sewage Treatment Plant

in St. Charles,

Illinois.

In its recommendation the Agency proposes

to grant the variance on the condition that the City of St. Charles,

which has been added as a party by the Board on its own motion,

present a plan for eliminating all sanitary sewer overflows and

take immediate measures to assure that the

maximum

practical flow

is transported to the sewage treatment plant until such

time

as

all sanitary sewer overflows can be eliminated.

The Board finds

that, when the City of St. Charles was joined into this action,

the Board did not contemplate the City’s participation beyond that

of notice of the proceeding, since the action does affect its

sewer system.

Since the Board action did not contemplate any

involvement

other

than

notice, the Board can not

now

invoke condi-

tions upon the City of St. Charles.

This Opinion constitutes the findings of fact

and

conclusions

of law of the Board in this matter.

Mr.

James

Young concurred.

I, Christan L. Moffett, Clerk of the Illinois Pollution

thea

dayof

,l9l8byavoteof.

ristan

L.

Mo

e

er

Illinois Pollution

trol Board