ILI LNDIS

POLLU TI ON

CONTROL

POAPD

Ma

28,

1980

Nil

LJlOFTE1?—~ifLflOH

AND

ASEOCIATHS

(/\K

F!

I hi

l~~ATF~~

)

,

)

Pet:

iJjoner,

V.

)

NCR 80—9

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY,

Respondent.

PAUL

M.

MITCHELL

APPEARED

ON

BEHALF

OF

PETITIONER.

JUDITH

GOODIE,

ASSISTANT

ATTORNEY

GENERAL,

APPEARED

ON

BEHALF

OF

RESPONDENT.

OPINION

OF

THE

BOARD

(by

I.

Goodman):

Thi~

Dpi

n

ion

i

in

~u)port

of

the

Hoard

Order herein

ci

M

i

y

1

r~

,

1

88

(1

NcId(1

h(Thr

for—Wi i:;on

and 7\s~oe at:e~: (Nadeiholfer

)

filed

a

petition for

variance

from Rule

962(a)

of Chapter

3:

Water

Pollution Control Rules and Reaulations

(Water Rules)

on

February

8,

1980,

Hearings were held in this matter on

April

9 and 10,

1980.

The Roard has received no public comments

in this matter.

In August of 1978 Nadeihoffer entered into

a contract to

acquire certain

real estate known as Oak Hill

Estates

(Oak Hill)

which

is

the

subject of this proceeding.

Nadelhoffer was

to

subdivide the subject property into thirteen

lots and

fully

improve the lots with sewer, water and roads.

Three of these

lots,

including one containing

a residence,

were to he retained

by the original owners.

The contract called for Nadelhoffer to

pay $1,000 should the contract not be

fully executed.

After

incurring expenses totaling somewhere between $8,000 and $10,000,

Nadeihoffer,

along with the Village of Woodridge,

on June

20,

1979 filed with the Illinois Environmental Protection Agency

(Agency) connection permit applications, at which time

it was

informed that the Lisle—Woodridge

sanitary treatment plant

had been placed on restricted status by the Agency.

Subsequent

to the time

of notification of the unavailability of the

connection permits,

Nadelhoffer entered into an amended

---

contract: which

states,

in

revelant:

part,

that

if the

connection permits cannot

be ohl:ained by

July

31,

1980,

Nadeihoffer will

Forfeit $20,000

of the $60,000 purchase

price and will have

no further

interest

in the property.

NadeTho I For al

leqeS

that

the

~1

oss

of

t:uie and

money

incurred by

it:.

with

relation to the property

is an arbitrary

and

unr~~isonablc’

hardship

and

therefore

requests

va

riance

to

allow

both

construction of a sewer

system

to serve

all

thirteen

lots

and

connection

of

Lots

3,

4,

and

5,

which

were

retained

by

the

original

owner.

The

variance

would

also

allow Naclelhoffer to

execute

its duties under the contract

so as to avoid nonperforrnance penalties contained therein.

The Agency recommends denial of the petition.

At the

two—day hearing

the Agency presented overwhelming evidence

that the Li.sie—Woodridge Plant fully deserves its restricted

status.

It

is the Agencyvs position

that

no one be allowed

to hook up to the Plant, particularly

if one~shardship is

of a ninor nature and is

largely self—imposed.

The Agency

places Nadelhoffer in this classification since

it stands to

loose $1,000 and preparation costs which might well have

been

lost had the project been found to

he without merit,

The

Agency

foe~s that.

the potential

additional

loss

of

$20, 000

is

s(~lF—imposed since Nadelhof or

entered

into that

uq re~’ment: subsequently

to

Ls know ledge

t:hat

nO

connecti on

pe rmit~~ would ho

lett~hcomino.

There

is

little

question

that

the

plaut

has

been

correctly

placed

on

restricted

status

by

the

Agency.

The

issue

before

the

Board

is

whether

Nadelhoffer

will

sustain

an arbitrary and unreasonable hardship should the Board

fail

to grant

its petition, thus allowing three more

connections

to he permitted.

With regard to Nadelhoffer’s

financial hardship,

the Board agrees with

the Agency that the

potential

loss

o.F $20,000 was

a risk assumed by Nadelhoffer

with knowledge of the likelihood that

it would be denied

a

permit

to hook up to the plant.

The Board

finds,

however,

that Nadelhoffer had expended somewhere between $8,000 and

$10,000 prior to the time that

it knew or reasonably could

have known about the impending restricted status.

Another

factor which the Board must consider

in this case

is

the

abrupt manner

in which the plant was placed on restricted

status.

Although the Board disagrees with Nadelhoffer~s

allegation that the rules envision

a situation where

a plant

must he put on critical review prior to its placement on a

restricted status list,

nevertheless, direct placement of

a

plant on a restricted status list without prior warning of

critical review must be considered

to be unusual~It is this

unusual procedure by the Agency,

along with the legitimate

hardship imposed upon Nadeihoffer,

that convinces the Board

that grant of variance

is indicated~~inthis particular case.

Another

factor

is

that Nadelhoffer has

offered

to

transfer

three

existing

permits

from

two

other

subdivisions

which

it

owns,

Summer

Hill

Estates

subdivision

and

Mending

Wall

---

subdivision,

to the three

lots

i~i

Oak

Hill.

This

would,

technically,

impose no additional

potential

load on the

plant

a

ni

there

icre

eause

no deqralat. ion of the environment:

The

l301r41

~hero

fore

qrantn

Nadeiholier

variance

frm

Rule

96

2

(

d

)

)

I

(‘Ii

~pt~’ r

of

the

1~oa

rd

‘

~

Wa

t

or

Ru 1

(O~

to

a

1

OW

constrtint:iori

ci

a

sanitary

sewer

‘‘xtcn5j~)n

t:e

thirteen

proposed

home

sites

at

flak

Hill

and

to

allow

connection

only

to

Lots

3,

4,

and

5

of

the

subdivision

under

certain

conditions.

This

Opinion

constitutes

the

findings

of

fact

and

conclusions of law of the Board

in this matter.

I, Christan L.

Moffett, Clerk of the Illinois Pollution

Control Board, her~hycertify that the above Opinion was

adopted on the ~

day of

~

1980 by

a vote

of

~

Christan

L,

MoFd~i~J, Clerk

1 11 i nois Pol

I ut,ion Con1:roT Hoard