ILLINOIS POLLUTION CONTROL BOARD
October 14, 1971
ARGONNE DEVELOPMENT COMPANY
)
v.
)
PCB 71-185
ENVIRONMENTAL PROTECTION AGENCY
Messrs. Roger B. Harris and Henry flalikov of Aitheimer, Gray,
Naiburg & Strasburger, Attorneys for Argonne Development Co.
Mr. Roger Ganobcik, Attorney for Environmental Protection Agency
Opinion of the Board (by Mr. Dumelle):
On March 31, 1971, the Board decided an enforcement action
initially brought by the League of Women Voters against the North
Shore Sanitary District (NSSD). Paragraph seven of the order in
that case imposed a ban on new sewer connections throughout the
District.11) The petitioner in the instant case, Argonne Develop-
ment Company (Argonne), is directly affected by the sewer connec-
tion moratorium which forbidy~ew or additional discharges reaching
the North Chicago Sewage Treatment Plant.
Argonne is an Il1in~ispartnership in the business of acquiring
and developing real estate in the City of North Chicago for urban
renewal orojects. The ‘agreement concerninci the particular project
involved in this proceeding was entered into by Argonne and the City
of North Chicago on December 23, 1968. Argonne is presently actively
involved in Phase II of the Project which calls for the construction
of 180 units of cooperative apartments known as Manchester Knoll.
The overall urban renewal plan also provided for the construction
of 224 housing units which were completed in 1969 and 1970,
U
League of Women Voters, et al v. North Shore Sanitar Dis-
trict, PCB7O—7, 12, 13, 14 (March 31, 1971
The portion of the order from which the instant variance was
sought is as follows:
The District shall not oermit any additions to present
sewer connections, or new sewer connections to its facilities until
the District can demonstrate to the Board that it can adequately
treat the wastes from those new sources so as not to violate the
Environmental Protection Act or the Rules and Regulations promul-
gated thereunder.
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-~ 645
By its petition for variance filed on July 12, 1971, Argonne
sought to be allowed to make sewer connections for 180 housing
units. We grant petitioner’s request to connect 180 units of Man-
chester inoll to the sewer system served by the North Chicago
Plant of the North Shore Sanitary District. We do so because of
the nature of the hardship which a denial would create.
Variances are usually requested from regulations or statu-
tory requirements. However, in this case a variance is sought
from the operation of a Board Order. Such a procedure is clearly
provided for by the Environmental Protection Act, Section 35.
The standard to be applied in such cases is likewise provided for
in the Statute and the Board~s Rules. In considering whether to
grant the variance, the Board must consider all the facts and
ultimately use its best judgment coupled with the expertise it is
statutorily presumed to embody to determine if compliance with the
Order from which exemption is being sought will impose an arbi-
trary or unreasonable hardship on the petitioner. This hardship
must then be balanced against the harm done to the environment.
In this case petitioner has set in motion unique and irretrievable
procedures which cannot be duplicated in any similar fashion at
a future date. Petitioner has obtained FHA mortgage commitments
which include interest reduction payments, loan guarantees, and
assurance of rent reduction payments. Without such commitments
from the federal agency,low and moderate—income housing of the
type contemplated in the instant venture cannot possibly be realized.
The probable loss of direct federal funds and other desirable
federal participation in the project is the chief reason why we
are able to grant the requested variance,
Apart from the hardship visited on the petitioner in this
case, we are struck by the crying need for housing presented on
the record. Mayor Kukla testified eloquently on the dire need for
low and moderate—income housing in North Chicago. He further
stated that it was likely that many of the occupants of the new
housing would be denizens of the area presently served by the NSSD,
people who would be leaving substandard and over—occupied dwellings
to take up residence in Manchester Knoll and, as such, the load
on the treatment system would not be an additional one. This conclu-
sion reached afte~ considerable speculation is believable, however,
only if the new occupants~ former residences are abandoned and demolish~
Thus, it is clear that this is not a case of a property owner
who, after owning a parcel of real estate for several years, decides
it is time to build his dreamhouse only to be confronted with the
prohibition on sewer connections. (See e.g. Robert H. Monyek v.
EPA, PCB 71-80, July 19, 1971). Denial of the variance here would
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646
constitute not a dream deferred but a raisin withered in the sun.
Such substantial steps have been taken down a path which cannot
be trod again that we are persuaded that the hardship resulting
from not allowing the connection of the 180 units would outbalance
the environmental harm which must result from allowing the con-
nection to a greatly overburdened treatment plant.
We have considered the alternative to connection to the treat-
ment system of the NSSD presented on this record and indeed would
surely have considered the presentation incomplete without evi-
dence of the possible other ways of handling the wastes from the
project. The most promising alternative in most situations would
appear to be the package treatment plant; a portable facility
(in the sense that it can be relocated after its period of utility)
capable of treating up to perhaps 100,000 gallons per day and
requiring minimal supervision, A requisite for employment of
such alternative treatment is a receiving stream which does not
find its way to the overloaded treatment plant. The only feasible
portable plant outlet in this case would be to the City sewer
system. The hydraulic burden of the effluent would then be con-
veyed to the North Chicago plant with very little alleviation of
the pollution problem. The other alternatives discussed were
septic fields, storage and hauling, and storage with selective re-
lease to the treatment plant. Use of a septic field in a high density
population area could constitute a health hazard. (See IIEQ71—2,
Septic Tanks and the Environment). So, too, could the storage of
a great quantity of raw sewage be a health hazard and unaoprovable
by health authorities. Hauling the sewage by tank truck to another
treatment plant, involving several trips per day, would be pro-
hibitively expensive. Of the several alternatives imaginable none
would be feasible in this case. (R.l06-1l7).
It has not been an easy or simple matter arriving at the deci-
sion in this case. The strategy of imposing a sewer connection ban
when the treatment capacity of a facility is exceeded is a severe
one which should not be used except in exacerbated situations like
the NSSD. The underlying rationale of the instant sewer ban is
simply to abate the amount of untreated and inadequately treated
waste flowing into Lake Michigan. With such a ban in effect this
Board and other public agencies are confronted with balancing con-
flicting but seemingly equally important oublic interests, The
Board’s decision cannot be viewed as meaning that low-cost housing
is of transcendent interest. This case presents unusual circum-
stances where very substantial and non-duplicative steps were taken
by petitioner before the imposition of the ban. In other cases
2 — 64?
where substantial steps were taken prior to the date of our
decision we have allowed connection to existing sewers. See,
e.g. Wachta
V.
EPA, PCB 71-77 (July 12, 1971); Wagnon v.
EPA,
PCB 71—85 (July l~, 1971).
The above constitutes the Board’s findings of fact and
conclusions of law.
Mr. Lawton took no part in the consideration or decision of this
case.
ORDER
The Variance requested by Argonne Development Company is
granted. Permission is hereby granted to allow the inter-
connection
to the City of North Chicago sewer system of the
one hundred eighty (180) housing units of Manchester Knoll.
I, Regina E. Ryan, Clerk of the Illinois Pollution Control
Board, certify that the Board adopted
the above Opinion and Order
on the 14 day
of October, 1971.
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