ILLINOIS POLLUTION CONTROL
BOARD
September
4,
1980
CLEM ~1t.1RIS
and CITY OF SANDWICH,
)
Petitioners,
v.
)
PCB 80—68
ENVIRONMENTAL PROTECTION AGENCY,
)
Respondent.
THOMAS J.
KELLY, PETERSEN
& HOUPT, APPEARED ON BEHALF
OF PETITIONER
JURIS.
VIRGINIA
I. YANG APPEARED ON BEHALF OF RESPONDENT.
C. RONALD COOK APPEARED ON BEHALF
OF THE CITY OF SANDWICH.
OPINION
AND
ORDER OF THE BOARD
(by J. Anderson):
On April
9,
1980 Petitioner Clem Juris
filed his first
petition for variance from Rules 951,
952 and 962 of Chapter
3:
Water Pollution (Chapter 3) and Sections
12 and 39 of the Environ-
mental Protection Act
(Act) to allow connection of the sanitary
sewers of
37 mobile home sites to a portion of the sewer system
of the City of Sandwich (City), which is currently on restricted
status. By its Order of April
17,
1980 the Board joined the City
as an additional petitioner
in this matter.
Juris amended his petition on May
1 and again on June 6,
1980.
Objections
to the petition were received on April
30,
1980
from Mrs. ma Bousselot and from an anonymous group of “tenants
and citizens”;
on May
12,
1980 the City filed an objection to the
petition.
On May
30,
1980,
the Environmental Protection Agency
(Agency)
filed its Recommendation that the variance be denied.
Hearing was held on June 18,
1980, at which several residents
of the City,
including Mrs. Bousselot,
testified.
The City opposed
the variance request.
Leave was given by the Hearing Officer to
file closing briefs within 14 days of the close of hearing.
On
August 21, the Agency, whose brief was filed on August
1,
moved to
strike Respondent~sbrief,
filed August 13,
on the grounds it was
untimely filed.
On August 28, Respondent filed a sworn response
relating that, by telephone,
the Hearing Officer had amended the
due date for closing briefs to be 14 days after filing of the hearing
transcript.
As the transcript was filed July 31, Respondent’s brief
was timely
filed,
and the Agency’s Motion to Strike is denied.
2
The facts in this case are generally not in dispute, although
their proper interpretation is a matter of substantial dispute.
The City of Sandwich, population approximately 5,600,
is
located
primarily in DeKalb County, but with approximately 5
of its
geographical
area located in Kendall County.
In June of 1977,
Clern Juris acquired a 10—acre mobile home park known as Triangle
Mobile Home Park
(Triangle).
Triangle’s present 52 mobile home—
sites are, and the 37 proposed sites
for which Juris
seeks this
variance would be,
serviced by water and sanitary sewer systems
owned and operated by the City.
On December 4,
1972 the Agency placed the City’s wastewater
treatment plant on restricted status.
In its letter advising the
City of this restriction,
the Agency explained that the plant was
hydraulically overloaded, organically overloaded, and
consequently
was discharging effluent exceeding the maximum standards for BOD5
and total
suspended solids.
It was specifically stated that
“As
a result of the overloaded conditions existing at
the plant,
this Agency has no alternative but to prohibit
the
installation
and
operation of any additional sanitary
sewer
extensions which would be tributary to the Sandwich
Treatment Plant”
(Resp.
Ex.
2,
p.
2, emphasis added).
Aided by a federal grant,
the City proceeded with the up-
grading of its plant.
An Infiltration/Inflow
(I/I) Study of the
sewer system performed in 1974 revealed that the City had
problems
(R.
96), but by 1977 the City had upgraded its treatment plant to
handle an average daily flow of 1.0 mgd and a daily maximum flow
of
2.5 mgd
(Rec.
2,
R,
106,
107),
Juris admits that he was aware of the City’s restricted
status at the time he purchased Triangle
(R,
14).
No evidence
was introduced to rebut his testimony that he was not told that
the restricted status involved anything
but
the
plant
in
conver-
sation during 1977 with the Agency,
and in conversations with the
City’s Mayor, the chairman of its Sewer Committee, and its
plant
superintendant,
Juris was informed that the City’s restricted
status related to the treatment plant
(R.
23,
46,
14,
15,
20—22)~.
At the time of Juris’ purchase of Triangle, approximately
5
acres of it were undeveloped.
In early 1979, Juris took steps
toward developing additional
sites, the first of which was to
obtain necessary permits for 48 additional sites from the
Illinois
Health Department.
Negotiations were commenced with the City
concerning annexation of
Triangle.
It
is
Juris’
unrebutted
testimony that at this time
he
contacted
the
Agency’s
Rockford
office
and
was
again not informed that the City’s
restricted
status related to anything other than its treatment
plant
(R.
46—47,
81—82),
3
On June 11,
1979 Juris and the City executed an Annexation
agreement
(Pet.
Ex.
1).
In paragraph
4, the City convenanted to
rezone Triangle to allow for development of
48 sites
(which it
did by ordinance of the same date,
Pet.
Ex.
2).
In paragraph
6,
the City agreed that the “water mains and sanitary sewer
lines
are of adequate capacity to serve
Triangle
and that the CITY
has available water supply and sewage treatment facilities to
continue to serve
Triangle.”
Juris, by paragraphs
5 and
7,
agreed to dedicate the existing
sewer
line to the City,
and to make certain improvements to
the property, including installation of sewers, water service,
roads and drives, and specified storm drainage pipes.
It was
required and agreed that development of the mobilehome park
(with
the exception of storm drainage pipes) was
to commence within 12
months of annexation and to be completed by September,
1981,
or
two years following issuance of a building permit whichever was
later.
Immediately,
on June 11,
1979, Juris applied to the Agency
for a permit to construct sanitary sewer extensions.
In paragraph
5.5 of the application the City certified that “the sewers to
which this project will be tributary have adequate reserve capacity
to transport the
added
wastewater,” and in paragraph 5.6 the
City certified to having adequate plant reserve to treat the
wastewater
(Pet.
Ex.
4).
On July 23,
1980,
some
6 weeks after Triangle’s annexation
to the City,
the Agency partially lifted the City’s restricted
status
(Resp.
Ex.
4).
The Agency
stated that it was “lifting
restricted status from the Sandwich sanitary sewers with the
exception of Center Street sewer” which had been the subject of
complaints concerning sewer backups
(See Resp.
Ex.
3).
No mention
was made
of the treatment plant which was the subject of the
original restricted status,
although Agency testimony clearly
indicates that the treatment plant was considered capable of
accepting additional new flows
(R.114,
115).
As Triangle
is
directly connected
to the Center Street sewer, Juris’
permit
request was denied by the Agency on September
4,
1979.
The
Center Street sewer currently remains on restricted status.
Juris currently seeks variance for only 37 sites of the 48
additional
sites,
13 to be connected in 1980,
13 in 1981,
and 11
in 1982.
The major points of his petition and testimony are 1)
that his decision to purchase Triangle, to allow its annexation
to the City, and to make improvements to Triangle contemplating
addition of up to 47 sites were reasonable based on the information
he had received concerning the City’s restricted status,
2) that
if variance is denied considerable financial hardship will ensue,
and 3)
that if variance is granted, the only effect on Center
Street residents will be a marginal increase in sewer surcharge
on those occasions when surcharge would have otherwise likely
occurred.
(While the petition contained an assertion of community
need for housing for the elderly, the City’s objection challenged
4
this contention.
As insufficient testimony was offered by Juris
concerning continued need for housing for the City’s elderly, the
Board disregards this contention,)
In support of his financial hardship claim, Juris produced
testimony and documentation concerning improvements made to
Triangle. These improvements were required by the Annexation
Agreement,
but the gist of Juris’
testimony was that these con-
ditions in the Annexation Agreement were agreed to by him in
order to allow him to expand, and that these improvements would
not have been made in conjunction with operation of his present
52 sites
(R.
69—74),
Separating out what Juris considers to have
been normal replacement, repair and upkeep costs, these expansion—
related improvements include work done on roadways costing approxi-
mately $26,500, work done on water,
sewer, and drainage lines
costing approximately $10,500, and erection of
a $5,000 storage
shed
(R.
39—40,
62,
70—72,
Pet,
Ex,
3, Resp~Brief p.
7).
Juris
also maintains that,
in addition to these out—of—pocket expenses
for which he has been billed and others for which he as yet has
not,
he will suffer further hardship
in the
form of lost revenues,
as he would anticipate receiving annual gross revenues of $38,000
to $40,000 from the additional
37 sites
(R.
41).
Prior to dealing with the environmental
impact question, the
Beard will address the reliance and hardship issues.
The Agency
generally argues that Juris hardship was self—imposed because Juris
was aware since 1977 of the City’s restricted status,
As to some
improvements, such as the roadways and an equipment shed,
it is
suggested that since the current tenants enjoy benefits from their
use,
that these expenses are not relevant for consideration in this
proceeding,
As to the sewer extension,
it is additionally noted
that Juris admittedly commenced construction before receiving Agency
response to his permit application, and continued construction after
denial of the permit
(R,
63,
83)
(Agency Summation Arguments p.
3—4).
The Board disagrees with the contention that Juris’ hardship
is
self-imposed.
The Board finds that Juris properly and
reasonably relied on the representations of the City
and of
the
Agency concerning the stated reasons for restricted status and
the prognosis for their correction.
Juris reasonably fulfilled
his obligation to determine from the City and the Agency the
reasons for the City’s restricted status, and the progress of the
City’s efforts to correct noted deficiencies in the treatment
plant.
Once the Annexation Agreement was executed, Juris prompt
letting of construction contracts and commencement of construction
was also reasonable in light of the Agreement’s time frame,
Rule 604(b)
of Chapter
3 states,
in pertinent part that
“Restricted status
shall
be defined as the Agency
determination..,
that a sewer has reached hydraulic
capacity or that a sewage treatment plant has reached
design capacity.,.”
(emphasis added)
5
Once this determination is made, notice of it is required to be
given by the Agency and by the entity affected.
Rule 604(a)
requires the Agency to “publish and make available to the public”
quarterly lists of sanitary districts and other entities on
restricted
status, which lists are to include estimates of sewer
and plant capacity and the amount of any additional inflows.
The affected entity pursuant to Rule 604(d)
is required to advise
persons seeking new connections of the Agency’s restricted status
determination,
The intent of Rule 604 is to give any person affected by or
interested in a restricted status determination clear and periodic
notice of what problems the Agency has actually found.
Rule 604(a)
clearly contemplates that the Agency shall specify whether a sewer,
a treatment plant or a combination of the two is the cause of a
restricted status connection ban.
Here, the Agency specified in
1972 that restricted status related to the City’s overloaded plant.
While
it was of course proper for the Agency to place the Center
Street sewer on restricted status,
as it did July 23,
1979, notice
of
that sewer’s restriction cannot be considered to have been
given
in 1972.
The record does indicate that the Agency expected
the City
to take steps to correct sewer problems
(e.g.
R.101—102,
Telephone Conversation Record of June 29,
1979, part of Resp.
Ex.
3).
The record does not show either by reference to telephone
conversations,
letters, or the filing of a formal complaint, that
prior to July 23,
the Agency had informed anyone of how critical
it felt the sewer problems to be, or that they related to the
City’s restricted status.
By its letter of July 23,
1979 the Agency did,
in effect,
lift the restricted status imposed on the treatment plant by its
letter of December 4,
1972.
The Board finds that the Agency
is
precluded,
in this case,
from relying on its imposition of what
amounts to a retroactive restricted status on the Center Street
sewer.
Cf. First National Bank v.
Pollution Control Board,
346
N.E.2d 181, 371ll.kpp.3d 383
(4th Dist.
1976).
Although the Board
disapproves of Juris’
erroneous sewer construction without permit,
this does not affect our result.
Six citizens testified concerning the nature,
extent,
cause,
and results of the Center Street problem,
and it was stipulated
that 19 other citizens not present at the hearing completed documents
entitled “Clem Juris Variance Hearing Testimony Information—Residents”
(R199_204).*
The record makes graphically clear that the Center
*These documents were marked as Objector’s Group Exhibit
5,
but were not admitted into evidence by the Hearing Officer.
The
Board does not reverse this ruling.
Admission is not required
by Rule 319,
since these citizens were not available for cross—
examination and no request was made by sponsoring counsel
for the
scheduling of a second hearing at which they would be present.
The Hearing Officer did not abuse his discretion in not admit~ting
the documents pursuant to that portion of Rule 320(a), which
allows but does not require admission of evidence which
is relevant
material,
but otherwise objectionable under the rules of evidence.
6
Street area residents are considerably affected by the poor condition
of the Center Street sewer, which is magnified by the area’s sus-
ceptibility to large amounts of surface run—off,
There is some
testimony that Triangle may contribute to this run—off problem,
but there
is also testimony that Triangle’s potential surface water
problems had been satisfactorily corrected by
laying drain tile and
raising manholes, actions requested by the City
(R.12—13, 24—27,
73,
190—191).
While the actual number of back—up incidents
is uncertain,
as complaints are not necessarily made after each and every
incident,
the Agency’s files indicate formal complaints were made
in four or five months since 1977
(R,
125).
Citizens attest that
on those occasions when sewer surcharging has occurred, that the
event has
lasted some hours,
leaving basements flooded, often for
days, with water containing raw sewage
(R.
138,
156,
172,
179).
Specific injury to property has included damage to applicances
such as washers and water heaters,
and destruction of wall panel-
ling,
furniture, clothing and other items stored in basements.
One individual was medically treated for an ailment directly
resulting
from sewage back—up
(R.
160,
Resp.
Ex.
5).
Property
values in the Center Street area have declined according to an
area real estate broker
(R.
185),
and residents’
use and enjoyment
of their property has been impaired by the inability to improve
basements due to fear of water damage
(R.
156—157) and by the
need to monitor weather conditions to assure that newly—acquired
sump pumps are started at the first sign of back—ups
(R.
141,
156,
172).
Consequently,
the citizens of Sandwich are opposed to
any new hook—ons to the Center Street sewer,
including that
proposed by Clem Juris.
While they sympathize with Juris’
financial
problems
(R.
208,
210-211),
they also feel that their own problems
must be solved.
It was stipulated that the City’s plant had adequate capacity
to treat the proposed additional flows from Triangle
(R.
106—107).
All
37 of the proposed connections would produce an additional
4.0—4.4 gallons of sewage per minute
(R.
30—32).
It was also
stipulated that a ten inch sewer line will handle a maximum flow
of 500 gallons
a minute
(R.
106—107),
so that the additional flow
from Triangle would amount to less than 1
of the capacity of the
Center Street ten—inch sewer.
Most importantly,
Mr. Charles E.
Corley, an Agency engineer, testified that if the 37 proposed
connections are allowed,
that, while the amount of sewage sur-
charged would increase somewhat,
the number of back—up Incidents,
in his opinion, would not increase
(R.
131—133),
The Agency argues that variance should not be granted because
the City has not demonstrated a commitment to improve or upgrade
the Center Street line
(Sum.
Arg.
p.
3).
The record bears this
out.
The Mayor has appointed a Citizen’s Advisory Committee to
study and recommend solutions to the problem
(Resp.
Ex.
3).
The
commitment and concern of member citizens was demonstrated at the
hearing by Mrs. ma Bousselot and Mrs.
Pat Janovic, who testified
that funds had been sought from but denied by the Department of
7
Housing and Urban Development
(R.
144,
150, Obj. Ex.
4).
Yet the
City elected not to pursue the Committee’s suggestion that an
updated survey costing $5,000 be done, and failed to follow
through on applications for two grants
identified to it by the
Committee
(R.
174-175).
The Center Street sewer problem must be corrected, hut denial
of this variance is not the vehicle by which this correction can
be accomplished.
However, the City’s lack of progress towards
solving
its sewer problems
is not relevant to the Board’s findings
a) that petitioner Juris has demonstrated that an arbitrary or
unreasonable hardship will be imposed if variance
is denied,
and
b) that he has further demonstrated that his proposed connections
will have minimal additional impact on what is clearly an over-
loaded sewer.
Variance from Rule 962 of Chapter 3 is hereby
granted.
Variance from the other rules and sections of the Act
specified is denied as unnecessary.
Given the back—up problems of the Center Street sewer,
and
the lack of immediate plans to correct them, this variance is
granted subject to the conditions outlined in the attached order.
In order to minimize the environmental impact on Center Street area
residents, in addition to the schedule of gradual hook—ons Juris
suggested, the Board requires that Juris install and maintain a
pump,
if necessary, and a holding tank with a capacity sufficient
to store the discharge anticipated from all 37 sites for at least
three days.
Until such time
as restricted status
is removed from
the Center Street sewer, the tank shall he operated during wet weather
periods in such a manner as
to avoid increase in surcharges from the
Center Street Sewer.
This Opinion constitutes the Board’s finding of fact and
conclusions of law in this matter.
ORDER
1.
Petitioner Clem Juris
is hereby granted variance from
Rule
962 of Chapter
3:
Water Pollution subject to the followLng
conditions:
a)
Of the 37 connections hereby allowed to be made
from the Triangle Mobile Home Park to the City of
Sandwich sanitary sewer system and treatment plant,
13 are to be made in 1980,
13 are to be made in 1981,
and 11 are to be made
in 1982.
b)
A pump,
if necessary,
and a holding tank with
capacity sufficient to store the discharge anti-
cipated from all 37 sites for at least three days
shall be installed and properly maintained.
In
consultation with Agency, Juris shall develop an
operation
schedule
for
discharges
from
the
tank
to
the
sewer
system
designed
to
minimize
the
loading
to
the
system,
especially
under
wet
weather
8
conditions.
This schedule shall be followed until such
time as the Center Street sewer is removed from restricted
status.
2.
Within
45
days of the date of this Order, representatives
of the City shall meet and consult with Agency personnel concerning
correction of the Center Street sewer problem.
3.
The
Agency’s
August
21,
1980
Motion
to
Strike
Respondent’s
Brief is hereby denied.
4.
Within forty—five days of the date of this Order, Petitioner
Juris shall execute and forward to the Illinois Environmental Pro-
tection Agency, Variance Section,
2200 Churchill Road, Springfield,
Illinois 62706,
a Certificate of Acceptance and Agreement to be
bound to all terms and conditions of this variance. This forty—five
day period shall be held in abeyance for any period this matter
is being appealed.
The form of the certificate shall he as
follows:
CERTIFICATION
I, ________________________________,
having read the Order
of the Illinois Pollution Control Board
in
PCB
80—68,
dated
_________________________,
understand
and
accept
the said Order,
realizing that such acceptance renders all terms and conditions
thereto binding and enforceable.
Petitioner
By:
-,
Authorized Agent
Title
Date
IT IS SO ORDERED.
I,
Christan
L. Moffett, Clerk of the Illinois Pollution
Control
Board,
hereby
certify
that the above Opinion and Order
w~re
adopted
on
the
~
day
of
__________
1980
by
a
vote
of
Christan
L. Mof
,
Clerk
Illinois Polluti n Control Board
