ILLINOIS POLLUTION CONTROL BOARD
    Nay 20,
    1993
    VILLAGE OF FORRESTON,
    )
    Petitioner,
    v.
    )
    PCB 93—13
    )
    (Variance)
    )
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    OPINION
    AND
    ORDER OF THE BOARD
    (by B. Forcade):
    This matter comes before the Board on the variance petition
    filed on January 22,
    1993 by the Village of Forreston
    (Forreston).
    Forreston requests a variance from 35 Iii. Adm.
    Code 306.303 and 306.304 and from 415 ILCS 5/12
    (1992).
    The
    Agency,
    on April
    1,
    1993,
    filed its recommendation suggesting
    that the variance be denied.
    Forreston waived its right to a
    hearing and no hearing was held.
    Forreston is
    a rural community of approximately 1,400 people
    located in Ogle County.
    (Pet.
    at 2.)
    The community is surrounded
    by agricultural land.
    (Pet. at 2.)
    Forreston provides sewer
    service to approximately 550 users.
    (Pet.
    at 2.)
    Forreston requests
    a variance to allow bypassing the
    sanitary sewer collection system during periods of excessive
    surface runoff; the excessive runoff currently causes surcharging
    of the sewer
    system.
    (Pet.
    at 1.)
    Forreston reports that
    basement backup of sewage into approximately eleven homes
    occurred on June 29,
    1990 and March 26,
    1991.
    (Pet.
    at 1.)
    Forreston has undertaken steps to determine the potential cause
    of the inflow/infiltration.
    (Pet.
    at 2.)
    Several identified
    sources have been corrected and there has been no additional
    incidents of basement backups.
    (Pet. at 2.)
    While Forreston has taken several steps to reduce the
    surcharging which caused the basement backups, Forreston asserts
    that the adequacy of these measures cannot be proven since
    Forreston has not experienced a rainfall of the magnitude that
    resulted in the prior backups.
    (Pet.
    at 2.)
    Forreston contends
    that the variance is required to prevent basement backups from
    occurring until other remedies can be implemented and proven.
    (Pet. at 1.)
    Forreston proposes constructing on overflow bypass
    which would relieve to a surface ditch during surcharging
    conditions.
    (Pet.
    at
    3.)
    Forreston intends to bypass the sewage
    system when heavy rain conditions exist to protect residences
    from sewage backup.
    (Pet.
    at
    3.)
    0
    ~.2-0589

    2
    The Environmental Protection Agency
    (Agency) opposes the
    granting of the variance.
    The Agency contends that Forreston
    has failed to demonstrate sufficient hardship as required by the
    Environmental Protection Act and the Board regulations.
    The
    Agency notes that the economic difficulties asserted by Forreston
    do not amount to a statutory hardship.
    The Agency contends that
    Forreston has failed to fully explain the environmental impact of
    bypassing the sewer system.
    DISCUSSION
    In determining whether any variance is to be granted, the
    Act requires the Board to determine whether a petitioner has
    presented adequate proof that immediate compliance with the Board
    regulations at issue would impose an arbitrary or unreasonable
    hardship.
    (415 ILCS 5/35(a)
    (1992).)
    Furthermore, the burden is
    upon the petitioner to show that its claimed hardship outweighs
    the public interest in attaining compliance with regulations
    designed to protect the public.
    (Willowbrook Motel v.
    IPCB
    (1977),
    133
    Ill. App.
    3d 343,
    481 N.E.2d 1032).
    Only with such
    showing can the claimed hardship rise to the level of arbitrary
    or unreasonable hardship.
    Where the petitioner seeks to extend a
    variance, the petitioner must show satisfactory progress.
    A further feature of a variance is that it is,
    by its
    nature,
    a temporary reprieve from compliance with the Board’s
    regulations and compliance is to be sought regardless of the
    hardship which the task of eventual compliance presents an
    individual polluter.
    (Monsanto Co.
    v. IPCB
    (1977),
    67 Ill.2d 276,
    367 N.E.2d 684).)
    Accordingly, except in certain special
    circumstances,
    a variance petitioner is required,
    as a condition
    to grant of variance, to commit to a plan which is reasonably
    calculated to achieve compliance within the term of the variance.
    Forreston proposes bypassing the sewer system during periods
    of surcharging while it completes evaluations of its sewer
    system.
    (Pet.
    at 4.)
    If it is determined that sanitary sewer
    improvements are needed,
    Forreston will proceed with the needed
    sewer construction.
    (Pet.
    at 4.)
    Forreston contends that due to
    the anticipated infrequent times and durations of overflows and
    the dilute nature of the surcharge overflows of sanitary sewage,
    negligible impact on human, plant and animal life is anticipated
    in the unnamed ditches and tributaries.
    (Pet.
    at 5.)
    Forreston
    notes that it does not have the financial resources to undertake
    a sanitary sewer replacement program and additional time is
    needed to determine if backups are likely to reoccur and obtain
    the required funding
    if construction is necessary.
    The Agency contends that Forreston has only demonstrated a
    possibility of future backups and has not demonstrated with any
    certainty that backups are likely to occur in the future.
    The
    0
    1t~2-U59O

    3
    Agency maintains that this does not present a hardship.
    The
    Agency further contends that the need to obtain funding to
    undertake sewer replacement is not considered a hardship.
    The
    Agency also argues that Forreston has not provided sufficient
    information concerning the environmental impact of the bypass.
    In particular, the Agency notes that Forreston has not provided a
    plan to remove the sewage from the ditch or a means to keep
    residents away from the ditches or named the ditches in which the
    bypassed water will flow or described how far the bypassed water
    will flow.
    The Agency argues that without this information it
    is
    unable to determine the environmental impact of the bypass
    system.
    Forreston has not filed a response addressing the concerns
    raised by the Agency in its recommendation.
    The Board finds that Forreston has not presented adequate
    proof that immediate compliance with the regulations would impose
    an arbitrary or unreasonable hardship.
    Further,
    the Board finds
    that Forreston has not fully addressed the environmental impact
    of bypassing the sewer system during periods of surcharging.
    Therefore, the Board denies the request for variance.
    While Forreston has taken some measures to correct the
    inflow/infiltration problem,
    it
    is not certain whether these
    measures have fully corrected the problem.
    Forreston has noted a
    decrease in flow to the wastewater treatment plant.
    Forreston
    has not presented any information relating to the events that
    resulted in prior basement backups of the sewer system.
    Further,
    Forreston has presented limited data concerning the modifications
    made to the sewer system or the results of these modifications.
    Based on the material presented in the petition it is impossible
    to determine
    if basement backups are more than likely to occur in
    the future or under what conditions backups are likely to occur.
    To establish arbitrary or unreasonable hardship the
    petitioner must prove that the economic hardship resulting from a
    denial of the variance would outweigh the injury to the public
    from a grant of the petition.
    (Cater~i11arTractor Co.
    v.
    Ill.
    Pollution Control Board
    (3rd Dist.
    1977),
    48 Ill. App.
    3d 655,
    363 N.E.2d 419.)
    If the variance is not granted, the public may
    be subject to additional backups causing property damage or
    injury and creating a potential health hazard.
    The Board notes
    that the bypass system proposed by Forreston could also result in
    property damage or injury and create a potential health hazard.
    Forreston has not demonstrated that measures were taken in the
    design of the bypass system to eliminate these potential
    problems.
    Based on the information submitted by Forreston, the
    Board cannot determine the effect that the granting of the
    variance would have on the public and the environment.
    0IL~2-059I

    4
    For the reasons discussed above the Board denies the
    variance sought by Forreston.
    This denial does not preclude
    Forreston from submitting a new petition with additional
    information.
    This opinion constitutes the Board’s finding of fact and
    conclusions of law in this matter.
    ORDER
    The Board hereby denies the Village of Forreston’s petition
    for a variance from 35 Iii.
    Admit.
    Code 306.303,
    35 Ill. Adm.
    Code
    306.304 and 415 ILCS 5/12
    (1992).
    IT IS SO ORDERED.
    Section 41 of the Environmental Protection Act,
    (415 ILCS
    5/4.
    (1992)), provides for appeal of final orders of the Board
    within 35 days.
    The Rules
    of the Supreme Court of Illinois
    establish filing requirements.
    (See also 35 Ill. Adm. Code
    101.246,
    Motion for Reconsideration.)
    I, Dorothy M.
    Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereby certify.t~tthe above opixüon and order was
    adopted on the
    day of________________________
    1993,
    by a vote of________
    ,
    Clerk
    ion Control Board
    4
    i
    ;t
    :•‘
    ‘I

    Back to top