ILLINOIS POLLUTION CONTROL
BOARD
July
3,
1980
WILLOWBROOK DEVELOPMENT
)
CORPORATION and DUPAGE COUNTY
)
DEPARTMENT
OF PUBLIC WORKS,
)
Petitioners,
v.
)
PCB 80—58
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY,
Respondent.
MR. WALTER J. O’BRIEN,
II AND MR. RICHARD GUERARD APPEARED ON
BEHALF OF WILLOWBROOK DEVELOPNENT CORPORATION.
MR. JOSEPH
S.
BONGIORNO AND MR. CHARLES RUTH, ASSISTANT STATE’S
ATTORNEYS,
APPEARED ON BEHALF OF THE DUPAGE COUNTY DEPARTMENT
OF
PUBLIC WORKS.
MR. DONALD
L. GIMBEL APPEARED ON BEHALF OF THE ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY.
OPINION
AND
ORDER OF THE BOARD
(by
I.
Goodman):
Willowbrook Development Corporation (Willowbrook) on April
4,
1980 filed a Petition for Variance from Rule 962(a) of Chapter
3:
Water Pollution Control Rules and Regulations
(Chapter 3).
On April
17, 1980 the Board on its own motion joined the Dupage
County Department of Public Works
(DuPage)
as a petitioner
in
this matter.
Hearings were held on June 19 and 20 of 1980.
Neither citizens nor representatives of news media were present
at these hearings.
The Illinois Environmental Protection Agency
(Agency) has recommended that the request fQr a variance be
denied.
Willowbrook is the developer of Lake
Willow
Way,
a housing
development located in the Village of Willowbrook in DuPage
County.
The development is projected to comprise thirty-eight
multiple family buildings which will contain a total of 152
units.
The Village of Willowbrook
is served by the Marionbrook
Sewage Treatment Plant,
a facility which
is owned and operated by
Dupage.
It has been on restricted status since April
30,
1979.
Willowbrook requests that it be permitted to connect a sewer
extension serving all of the buildings with an existing sanitary
sewer which
is tributary to the Marionbrook Sewage Treatment
Plant.
-2—
Willowbrook claims
that it
was
unaware
that
the Marionbrook
facility
was on restricted status
and
that, therefore, it did not
know
that
sawer
hookups
during
the
period
of
restricted
status
were
to
be
banned.
Willowbrook
further
asserts
that
it
was
repeatedly
informed
by
DuPage
that
the
Marionbrook
plant
by
December
30,
1979
would
be
able
to
handle
sewage
flow
from
the
Lake
Wi1 low
Way
development.
Wi1 lowbrook
believed
that
the
construct
only
permit
it
had
received
on
September
24,
1979
from
the
Agency
to
instal
1,
but
not
connnect,
a
sawer
line
implied
that
an
operation
permit
would
be
granted
as
soon
as
upgrading
at
the
Marionbrook
plant
was
completed.
Willowbrook
contends
that
it
was
not
informed
of
the
Marionbrook
plant’s
restricted
status
or
of
the
impact
of
that
classification
(banning operating
permits
for
sewer
lines)
until
it
met with
the
Agency
in
early
April,
1980.
Willowbrook
states
that
it
had
spent
over
$2
million
before
it
had
been
informed
that
the
Lake
Willow
Way
development
would
not
be
allowed
to
connect
its
sewer
lines
to
the
Marionbrook
plant.
Furthermore,
Willowbrook
indicates
that
extreme
economic
hardship
for
the
development
corporation,
its
officers,
and
its
lender
would
result
if
a variance
were
denied.
The
Agency,
on
the
other
hand,
alleges
that
Willowbrook
has
caused
its
own
hardship
by
voluntarily
remaining
in
a
state
of
“blissful
ignorance”.
(R.214,
June
20,
1980).
The
Agency’s
allegation
is
based
on
the
following
facts:
(1)
the
president
of
Willowbrook
knew
that
the
original
construction
and
operation
permit request
was
denied
because
of
problems
with
capacity
at
the
Marionbrook
facility
in
April,
1979
(R.59,
67,
June
19,
1980);
(2)
Thomas
McWilliams,
as
Secretary—Treasurer
of
Willowbrook,
signed
but
did
not
read
a
permit
application
on
September
17,
1979
which
explicitly
stated
that
the
permit
was
for construction only of a sawer extension,
(R.105, June 19,
1980; Resp.Ex.2);
(3) Willowbrook never contacted the Agency
concerning the status of the Marionbrook plant
(11.107);
(4)
Willowbrook has expended $90,000 in sewer and water work plus at
least $70,000 in road work since learning of Marionbrook’s
restricted status; and
(5) Willowbrook since December 30,
1979
had pumped
down an artificial
lake site, cleared
and
graded land,
and laid three foundations for three eight-unit buildings.
These
facts indicate that many of the expenses that Willowbrook has
incurred
are
a result of its
own
ignorance
of
the
law.
In
fairness
to
Willowbrook,
however,
it
must
be
pointed
out
that
DuPage
did
not
accurately represent to it the condition of
the Marionbrook plant.
Correspondence
from
DuPage
indicates
only
that the Marionbrook plant would be upgraded in the future to
handle the flow from
the
Lake
Wil
low Way development.
DuPage
never mentioned Marionbrook’s restricted status to Willowbrook
even though DuPage had been informed of the status in an April
30, 1979 letter from the Agency.
It was not until February, 1980
that Dupage indicated that the Agency was not satisfied with
effluent monitoring results and
that
a lengthy delay in allowing
sawer hookups might occur
(11.119, June 19, 1980).
—3—
Regardless of whether Dupagets representations to
Willowbrook were deceptive ones, Willowbrook had an affirmative
duty to check with the Agency to ascertain whether the
Marionbrook plant had been placed on restricted status.
The
Agency, pursuant to Rule 604(a)
of Chapter
3, publishes a list of
facilities
it places on restricted
status.
Thus,
the status of
the facility was readily ascertainable to Willowbrook.
Willowbrook is not the only party that will experience
hardships should a variance be denied.
Brookfield Federal
Savings and Loan Association, which
lent more than 55
of its net
assets to individuals associated with the Lake Willow Way
project,
is one.
Twenty—six apparently innocent purchasers of
units in Lake Willow Way also stand to experience economic and
other hardship if a variance were to be denied.
In addition,
the
Village of Willowbrook will experience financial losses and
planning problems.
At present eight buildings, containing a total of thirty—two
units, have been substantially completed and twenty—six of these
units have been sold.
Willowbrook’s plans call for an additional
twenty units
to be constructed in 1980.
Granting variance for
only these fifty—two units will allow time for the Agency and the
Board to determine the likely future of the Marionbrook plant
while Willowbrook continues construction in a limited manner.
If
a variance for only these fifty—two units is granted, the sewage
contribution will be small
in relation to the total flow going
into the Marionbrook plant; therefore,
any measurable increase in
environmental damage will be slight.
In considering the millions of dollars already expended for
the Lake Willow Way development, and the economic effect on the
purchasers of disallowing connection of this development, the
Board concludes that denial of
a variance for these fifty—two
units would result in an unreasonable hardship.
The factual
findings in this case do not justify a grant of a variance for
all 152 proposed units at this time.
This Opinion constitutes the findings of fact and
conclusions of
law of the Board
in this matter.
ORDER
It
is the Order of the Illinois Pollution Control Board that
Willowbrook Development Corporation and the DuPage County
Department of Public Works be granted a variance from Rule 962(a)
of Chapter
3:
Water Pollution Control Rules and Regulations
solely for the purpose of connecting and operating a sewer
extension for fifty-two units located at Willowbrook’s Lake
Willow Way development.
Mr. Dumelle concurs.
—4.-
I, Christan L.
Moffett, Clerk of the Illinois Pollution
Control Board, hereby 18rtify that the above Opinion and Order
w12re adopted on the
3
day of
_____________,
1980 by a vote of
Christan L. Mof
Illinois Pollution Control Board
