ILLINOIS POLLUTION CONTROL BOARD
November
5,
1981
CITY OF MARQUETTE HEIGHTS,
)
Petitioner,
v.
)
PCB
81—15
)
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
WIL1t1IAM F. MORRIS, TEPLITZ
& MORRIS, APPEARED ON BEHALF OF THE
Pt~TITIONER.
WILLIAM E. BLAKNEY, ASSISTANT ATTORNEY GENERAL, APPEARED ON BEHALF
OF THE RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by
3.
D.
Dumelie):
Ork February
2,
1981 the City of Marquette Heights
(City)
filed a petition for variance from Rule 604(b)
of Chapter
3:
Water
Pollution.
On March
5,
1981 the Board ordered the
developers of “Outlot H” to be joined as parties to this action.
On March
18,
1981 the Illinois Environmental Protection Agency
(Agency) filed
its recommendation that the variance be denied.
Hearing was held on July
28,
1981.
The Agency filed its closing
brief on September 22,
1981 and the City filed its brief on
September 24,
1981.
LLK Development Company joined
in the City’s
brief.
The City owns and operates a sewage treatment plant
(STP
located in Tazwell County that consists of a comminuter/bar screen,
one primary clarifier, an activated sludge unit,
a secondary
clarifier, chlorination and
art anaerobic digester.
Discharge
is
to the Illinois River.
The water and sewer systems were first
developed in the late 1940’s by a private developer and were
purchased by the City
in 1963.
By that time, the secondary
treatment equipment, which had never been used,
had deteriorated
to the point that it was totally unusable
CR.
19—23).
On
December
6,
1976 the Agency placed the STP on restricted status
(Pet.
Ex.
#1) for failure to provide secondary treatment.
“Outlot H”
is a tract of undeveloped acreage in the City
(Pet..
Ex.
#3) which was purchased by the LLK Development Company
(LTJK)
of Pekin,
Illinois,
in July,
1978,
for the purpose of
constructing 40 single—family homes on the site over
a
3 year
period
(Pet.
Ex.
#3 and R.
7—9).
Due
to the restricted status,
44—27
2
“Outlot H” cannot be developed
(R.
13—16).
Variance is requested
in order that sewer service can be made available to
“Outlot H”
sich that development may proceed.
The Board,
like the Agency, construes
the petition as seekiig
relief from Rule 962(a)
of Chapter
3.
Variance from that rule is
sufficient to allow the requested relief.
Variance from Rule
604(h)
is denied
in that that rule is merely definitional.
In determining whether a variance should be granted, the
Board must balance the hardship which would be imposed by denial
of the variance against the environmental harm which would be
caused by its granting.
In this case the City alleges hardship
i.n the following areas:
cost of compliance,
loss of growth and
revenues, direct costs, hardship to the developer and unreasonable
affluent limitations.
The Board finds that none of these have
been proven to demonstrate the sort of hardship which is necessary
to support variance in this case.
First,
the cost of compliance, which is stated to be the
‘jreatest hardship imposed,
is not
a cost which would he imposed
by a variance denial.
It does not necessarily follow that because
the sewer hookups under consideration here will not he permitted
absent a variance that the City will spend the funds necessary to
upgrade the plant so as to be removed from restricted status.
This is especially true in that the plant will be closed upon
coitapletion of the regional facility in 1984.
Second,
the loss of growth and revenues due
to the
i;!aposition of restricted status is also not arbitrary or
unreasonable.
It is an obvious consequence of the imposition of
restricted status
that the growth and revenues are deferred
unti.l
such time as restricted status ends,
and there is
rio showing that
th~impact would be greater than normally expected through the
i’~positionof restricted status.
Third,
the City alleges hardship as a result of
litigation
pending
in Circuit Court involving the deannexation of “Outlot H”
as a result of the inability of the developers of “Outlot H” to
obtain
sewer connections
(Pet.
Ex.
#17 and R.
93—4),
The City
has also had to expend public
funds to defend itself in that
:3uit
arid
to pursue this petition for variance,
Again,
these costs are
not the sort of costs which establish an arbitrary or unreasonable
hardship.
These costs are at present speculative at best and any
judgment against the City may well he passed on to the 7~gency
(which has been impleaded)
if the restricted status
is found
to have been improper.
Money spent in pursuing this variance
cannot be regarded as hardship in that all petitioners would
have such
a “bootstrap” claim.
Fourth,
the developer’s hardship is self—imposed.
LLK
purchased the property two years
after the imposition of
restricted status,
such that it knew, or should have known,
that
44—28
3
development could not take place until the restricted status
was lifted.
LLK should certainly have made inquiries regarding
the sewage treatment capabilities, though they did not
(R.
16—17).
Fifth,
the imposition of restricted status based upon
violations of
interim limitations which were imposed upon the
City’s STP under
a federal enforcement compliance
letter cannot
support a finding of arbitrary or unreasonable hardship
in this
case.
In a variance proceeding
the issue before the Board is
whether the Board’s rules or orders work an unreasonable hardship
upon the petitioner as applied, not whether restricted status was
properly imposed years earlier.
The City has attempted to show
that its interim limitations are more stringent than surrounding
communities, but that is not the issue and such testimony is,
therefore,
immaterial and will not be considered by the Board in
that these other communities were not shown to have been in a
substantially similar situation.
Thus,
there has been no showing of any hardship other than
that which necessarily follows from the imposition of restricted
status.
That being the case,
any environmental harm will out-
balance
it.
The Board finds that the STP’s discharges are well
in
excess of general
standards,
and that any increase beyond present
levels will cause additional harm and should be discouraged.
The
Board,
therefore, denies the requested relief.
This Opinion constitutes
the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The City of Marquette Heights
is hereby denied variance from
Rules
604(b)
and 962(a)
of Chapter
3:
Water Pollution,
and its
petition in PCB 81—15 is hereby dismissed.
IT IS SO ORDERED.
I, Christan
L. Moffett,
Clerk of the Illinois Pollution
Control Board, hereby certify that the above Opinion and Order was
adopted on the
‘~S’4’
day of
1)
ri’~-c
~
—,
1981 by a vote
of ~
Ut
~
)
~
.
Christan L. Moffe~,rClerk
Illinois Pollution~C~ntrolBoard
44—29