ILLINOIS
POLLUTION CONTROL BOARD
May 3,
1984
ORCHARD HILL BUILDING COMPANY,
Petitioner,
v.
)
PCB 84—10
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY
)
and COUNTY OF DUPAGE,
)
)
Respondents.
MR.
RICHARD W. COSBY
(DOZORYST, COSBY
& BRUSTEIN) APPEARED
ON BEHALF OF THE ORCHARD HILL BUILDING COMPANY;
MS. MARY E. DRAKE
(ATTORNEY-AT-LAW) APPEARED ON BEHALF OF
THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY;
MR. ALVIN G.
SCHUERING
(ATTORNEY—AT-LAW)
APPEARED ON BEHALF
OF
THE
COUNTY OF DUPAGE.
OPINION AND ORDE.R OF THE BOARD
(by J.
D. Dumelle):
This matter comes before the Board upon a January 23,
1984
petition and a February
1,
1984 amended petition for variance
filed on behalf of Orchard Hill Building Company.
The Illinois
Environmental Protection Agency (Agency)
filed a recommendation
on March
2,
1984 that variance be denied,
A hearing was held
on March 27,
1984 at which all of the parties appeared.
On
April 12,
1984 Orchard Hill filed a closing statement
arid
the
Agency filed an amended recommendation that variance be granted
sub’ject to certain conditions.
Orchard Hill requests variance from 35
Ill.
Mm.
Code
309.241(a)
in order that it may improve two tracts of land
for
single family residences
in an area bounded by the Stevenson
Expressway, Woodward Avenue, 63rd Street and Clarendon Hills
Road,
in unincorported DuPage County, despite the imposition of
restricted status,
The proposed development consists of two
parcels of unimproved
land:
the Ide farm which consists of 74,8E
acres and the Birdsong farm which consists of 59,5 acres.
Orchard Hill proposes to construct approximately 200 single.
58-37
2
family residences on the Ide farm parcel and 169 single family
residences on
th~
l3irdsong
farm
parcel.
The
proposed residences
will
house approximately 1292 people and the estimated discharge
will he 1292 PE
(population
equivalents).
Both
parcels
are in an
area
now
served
by the Farmingdale Sewage Treatment Plant.
However,
due to the decision of the Circuit Court in People
v. Countl
of DuP~g~e,80 MR 432, and the plans of the DuPage County Department
of Public Works, any flows resulting from the development of the
two parcels will eventually be tributary to the Marionbrook and
the Knoliwood Sewage Treatment Plants.
The area of the proposed development is served by the Farming-
dale Village, Marionbrook and Knollwood Interim Sewage Treatment
Plants.
In addition, the DuPage County Department of Public
Works will construct the Knollwood Permanent Sewage Treatment
Plant serve the area.
The Farrningdale facility is a 0.25 mgd sewage treatment
plant which is located on Woodward Avenue, one half mile south c~f
87th Street in Downers Grove Township, and which discharges to
Lily Cache Creek.
On April
19, 1978, the plant was placed on
Critical Review by the Agency since
it can only accept an addi~
tional flow of
62
PE.
The Mariontrook facility is designed to treat an average
flow of
5 mgd and a maximum flow of 11 mgd.
The plant is located
at
17 W 440 North Frontage Road in Darien and discharges into the
west branch of Sawmill Creek which
is tributary to the Des Plaines
River.
The facility was placed on Restricted Status by the
Agency on April
30,
1979.
The Knoliwood Interim facility is a 0.25 mgd package plant
located east of Madison Street,
west of County Line Road~ south
of the Atchison,
Topeka
and Santa Fe Railroad right of
way,
and
north
of the Des Plaines River
in unincorporated DuPage County.
The plant is not presently in use due to insufficient hydraulic
loadings
when in operation, the plant will discharge to the Dee
Plaines River,
The Knoliwood Permanent facility will be a
7 mgd plant
located adjacent to the Knollwood Interim facility and will
discharge into the Des Plaines River.
Grants for funding
the
facility have been received, and on January
9,
1984,
engineering
plans were let out for bid.
The Knoliwood Permanent facilit
is
expected to be operational by the summer of 1986.
The DuPage County
Department
of
Public
Works has initiated
two
projects
to
reduce
hydraulic
loading to the Farmiagdale and
Marionbrook facilities which
will result in the transfer of
sewage
from the area served by the Farmingdale facility first to
the Marionbrook facility and then to the Knollwood Interim facility.
The first project, which commenced on January 11,
1984,
is to
58-38
3
build an in~~e~eptor
sewer
from
the
Farmingdale
facility
to a 36~
main which
1~oi.ns the Marionbrook facility and which will divert
all
tilows exceeding 250,000 gallons per day to the Marionbrook
faciiit:y~
Flows generated by the development proposed by Orchard
Hill will
he diverted to the Marionbrook facility.
The second
project,
which commenced about January 3,
1984,
is the Knoliwood
East interceptor
sewer which will allow flow to the Marionhrook
facility to be diverted to the Knollwood Interim facility.
Both
interceptors
are
scheduled
to
be completed by December of
1984,
but are anticipated to be completed somewhat earlier.
The Farmingdale,
Marionbrook,
Knoliwood Interim and Knollwood
Permanent facilities are subject to orders of the Circuit Court
for the Eighteenth Judicial Circuit, DuPage County,
(Peopie
of
the State of Illinois
v. County of DuPage,
80 MR 432).
In its
orders of December
8,
1980 and April
14,
1982,
the Court imposed
certain effluent limitations on the Farmingdale and Marionbrock
facilities
(20 mg/1
of
biochemical
oxygen
demand
(BOD) on
a
30—day average and 25 mg/i
total
suspended
solids
(TSS)
on
a
30—day average), directed
that
flows
from
the
area
served
by
Marionbrook facility he diverted to the Knoliwood
Interim
fac.~ltr~
set a schedule
for the construction of the Knoliwood Permanent
facility and required that once the Knollwood Permanent facilit~~
was operating,
all interim package treatment plants
in the area.
including the Farmingdale facility, be abandoned.
The April
4
1982,
amended order of the Court provides that those who are
required to obtain Agency permits and did not hold such permat3
as of December
4,
1980, must obtain a variance from this Board
allowing the Agency to issue a sewer permit.
In addition, new
connection requests may be filled only to the extent that PE are
earned under the Court approved allocation system and are off-’l~m~::.
from the Marionbrook facility to the Knoliwood Interim facility~
~7henthe Knoliwood East interceptor is completed,
1800 PB can be
off—loaded to the Knoliwood Interim facility.
Pursuant to
the
Court’s order,
the
County will be credited with 90
of the 1800
PB or 1620 PE.
In order to determine whether Orchard Hill has adequately
demonsi:rated that denial of variance would impose an arbitrary o~:
unreasonable
hardship
upon
it,
the
Board
must
examine
the purchase
of
the
subject party
as
well
as
Orchard
Hill’s
expenses
in
atte~p:
ing
to
develop that
property.
Orchard
Hill
purchased
the
Ide
farm
in
June
of
1973
for
$785,925
arid
purchased
the
Birdsong
farm
in
August
of
197?
for
$575,000.
Within
a month of purchasing the Ide farm, Orchard
Hill. entered into what was to be the first of a series of Se~er
Service Agreements with DuPage County in an attempt to secure.
sewage treatment for flows generated by its development~.
58-39
4
The fir~u~‘fthe Agreements required Orchard Hill to provide
temporary ~e’~a~etre~itmentfacilities to serve certain areas
being deve1e~e~ty the builder,
The agreement also required that
Orchard Hill
pcty tap~onfees for each residence built to be
placed in escrow for use by the County in financing the construe—
tion of the 83rd Street Trunk Sewer,
The County agreed to
construct the trunk sewer line within four years of the date of
the Sewer Service Agreement to tie the areas to be served by the
temporary sewage treatment facility to the County’s sewage treat—
ment system.
The County also proposed that the area be served by
the Woodridge Sewage treatment plant.
In accordance with that agreement,
Orchard Hill built a
temporary sewage treatment facility known
as the Farmingdale
facility and paid monies into an escrow for each residence con—
structed,
However, the County did not begin construction of the
83rd Street Trunk Sewer within the four years provided by the
agreement and on September
7,
1977,
the County and Orchard Hill
amended the 1973 agreement to give the County until July
5,
1980
to build the trunk
sewer.
Less than two years
later, the agreern~i~t
was again amended to require the County to construct necessary
sewers to phase out the temporary Farmingdale facility by July
b,
1984,
Orchard Hill was allowed, assuming an Agency permit could
be obtained,
to expand the Farmingdale facility from 2,500 PE to
3,985 PB at ~ts own expense by moving certain equipment to the
plant from County~sBenedale Green plant.
Finally, on December
9,
1980,
in a third amendment, the
County required that effluent from the Farmingdale facility be
sent to Marionbrook,
thus abandoning its plans to
direct
flows
from the Farmingdale facility to the Woodridge Sewage Treatment
Plant,
The
County agreed to allow Orchard Hill to rehabilitate
and expand the Farmingdale facility by 2,000 PB using the esercw
funds.
Finally,
the County agreed
to construct
an
interceptor
sewer to
thE. Marionbrook facility.
The evidence establishes the long—standing and on—going
nature of Orenara Hills development project of which the Ide
ar ~J
Birdsong farm parcels are only a part.
Orchard Hill began acquir
ing land for development in April of 1969 and continued purchases
through November of 1978
(Pet,
Ex,
1, p.2).
The Farmington
Village development began in 1974 with the construction of 200
homes
(R.9,
10 and 39),
The land for the overall proposed develo?~
ment consists of approximately 1200 acres which was purchased fox
$7.8 million (R~8~10and Pet. Ex.
1).
That Orchard HilPs intent
from the inception of the project was to develop the entire
acreage
is supported by Orchard Hill’s construction of the
0~25
mgd
sewage treatment plant and the Farmingdale Utility Company
which was sized to service 4,000 users, the projected number of
residents
in the completed development
(R.
9—12 and Pet, Ex~5)~
While a 0~25age sewage treatment plant is much too small
to
support 4,000 residents,
Robert Gallagher, one of the owners of
58-40
Orchard Hi~
~~ed
that Orchard Hill did not construct a
larger oJant
ise the County had told him that the 83rd Street
trunk sewer wou~ he completed by 1976, obviating the need for
larger cipaci~
R,12),
Later, when Orchard
Hill. sought to
expand
the
pla~t
in 1979 by transferring a 100,000 gpd temporary
package plant to the Farmingdale site at a cost of $60,000, the
Agency would not permit its use since they refused to permit any
more plants under 0,25 mgd (R.14—15).
Then, when
Orchard Hill
later obtained permits
at a cost of $47,000 to enlarge the plant,
the County refused to allow it “because they thought the trunk
li-ne and the
expansion of the Knollwood plant would occur
sooner than it has~
(R.16—17).
additional hardship
is
shown
through
Orchard
Hill’s
continuing
financial
loss on
the
water
utility.
While
operating
at
a
small
percentage
of its capacity (450 residences out of a potential
4,000) as it is
forced
to do at present due to Restricted
Status
the Utility suffers a substantial
operating deficit
(Pet.
EX~S,
5,
6 and
7)~
Gallagher
and Henry (the owners of Orchard
Hill)
are
obligated to reimburse
the utility annually for its
operatinc
deficits.
Contributions
are
nonreimbursable
and
the
utility is
under
no
obligation to
repay
the
contribution
so
long
as
it is
operating at a deficit.
Aggregate
contributions
to
the utility
equaled $918
6 1,uO through December 31,
1983 (R,24—25 and Pet.
Exs.
5—fl.
Orchard Hi:1~sinability to complete purchase of a portion
of
the
total
nd purchase
(the Zarn property) presents an
additional hardship caused by the imposition of restricted statu~
Unable to he
o
the
property
or
other
properties
tributary to
the Maxionbr~
ant because of the inability to connect,
the
Company
could rot afford
to continue the remaining
installments
Consequently it was forced
to
discontinue payment of the last
four $100,OCO ~ns~~cllmentsand to forfeit the contract after
having pa:d ~90
000
(69
of the purchase price) and having
received oul~’38 acres
(53
of the acres contracted)
(Pet.
Exe.
3
and 4),
The Ager ~J asserts and the Board finds that Orchard Hill
as
part of a
ar~e a elopment project including the construction or
a wastewater
reatment plant and a water utility, began acquirirc,
land in 1969 and commenced construction on the Fariningdale Villauc
home sites
in J914,
That project was interrupted by Restricted
Status
in 19~, and since that time Orchard Hill has attempted to
maintain its position
while
waiting for Restricted Status to be
lifted
such ttct development
could
continue,
Mr.
Gallagher
testified tha
r~order to avoid loss of the entire
project
developmert must
occur
very
soon
(R,27 and Pet.
Ex.
1).
The
Company is
illing
to release escrow funds to be used for an
environmental improvement program which should result in a net
reduction of environmental harm if development activity commences
under
the requested variance.
58-41
6
Orchard
HI.I1 asserts that the
escrow
funds
would
be
better
spent on an environmental improvement program, which was described
at hearing, rather than on the enlargement of the Farmingdale
Plant.
The Board finds that in view of the court
order
requiring
the eventual dismantling of that plant, enlargement would not be
the
best use of available funds
(Pet.
Ex.
12,
Par,
6).
The Board
also agrees
with Orchard Hill
that the environmental
improvement
program as
testified to by
Mr. Gallagher and Mr. Wilcox
would
result in a
net
reduction
of
environmental harm
(R.28,
50—59 and
92—94).
That
program
would
involve
the following:
1.
Purchase, installation and
operation
of submersible
aerators at the Farmingdale Plant which could also be
used at other locations after dismantling of that
plant,
and which should result in improved effluent
quality;
2.
Purchase, installation and operation of a chlorinator
at the Farriingdale Plant which could also be used at
other locations after dismantling of that plant, and
which should result in improved effluent quality;
3.
Purchase, installation and operation of pumps at the
lift station immediately upstream of the Marionbrook
Plant of such capacity as to eliminate, or
substantially
reduce,
surcharging of the sanitary sewers tributary to
the Marionbrook Plant; and
4.
Continuation and expansion of the inflow and infiltra—
tion study of sanitary sewers tributary to the Marion—
brook plant.
The Board finds that the adverse environmental impact which
would result from the granting of the requested variance would be
mimimal.
Orchard Hill cannot connect any new residences built on
the ide and Birdsong properties to sewers tributary to the
Marionbrook Plant until
the Knollwood East interceptor is completed
which will allow the off—loading of 180,000 gallons per day.
Further, Mr. Gallagher testified that the first residences will
not be connected to the sewer system until February,
1985, and
the final residences will not he connected until October, 1986,
several months after the projected completion date of the Knoll-
wood permanent plant
(R,29 and Pet,
Ex,
8),
Thus,
the adverse
impact should be minimal.
Finally,
the Board has every expecta-
tion that the escrow funds will
be used for environmentally
beneficial purposes in accordance with the environmental program
which is set out above,
and to which Orchard Hills has agreed.
However, the Board understands that those
funds cannot be used
without County approval and will not order that the funds be
so
used.
While the Board strongly urges that the funds be expended
in accordance with the program,
the failure to do so would not
negate the Board~sfinding of arbitrary or unreasonable hardship.
58-42
The
Board,
therefore, concludes that Orchard Hill has demon-
strated an arbitrary or unreasonable hardship and that it should
be granted
variance from 35
Ill. Mm. Code 309.241(a).
However,
to assure the minimum of environmental harm, the Board will
condition
the variance upon the installation of water saving
devices to
minimize discharge flows,
This
Opinion constitutes the Board’s findings of fact and
conclusions
of law in this matter,
ORDER
Orchard Hill Building Company is hereby granted variance
from 35 Ill.
Adm,
Code 309.241(a)
to allow the Agency to issue
construction and operating
permits for the connection of single
family homes on property
presently
owned by Orchard Hill known as
the Ide and
Birdsong farms
in
unincorporated DuPage County
to the
Farmingdale-Marionbrook—Knollwood sewer system,
subject to the
following conditions:
1.
Water
saving
faucets and water saving shower heads
shall be installed in all units built pursuant to this
variance.
2.
Water—saving toilets, water dams or similar water
conservation devices shall
be installed in
all
units built pursuant
to this
variance,
3.
Within forty—five days from the date of this Order,
orchard
Hill
shall execute and forward to the Illinois
Environmental Protection Agency,
2200 Churchill Road,
Springfield,
Illinois
62706,
a
Certificate of
Acceptance
and
Agreement
to
he
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 be as
follows:
CERTIFICATE
I,
(We), Orchard Hill Building
Company,
having read the
Order
of the Illinois Pollution Control Board in PCB 84—10, dated
May
3,
1984,
understand and accept the said Order,
realizing that
such
acceptance renders all
terms
and conditions thereto binding
and enforceable.
58-43
8
Petitioner
~jT~
Authorized Agent
Title
Date
IT IS SO ORDERED.
I, Christan
L.
Moffett,
Clerk
of the Illinois Pollution
Control Board,
hereby c~tifythat the above Opinion and Order
was adopted on
the
~‘
________
day of
1984 by a vote
of
(~-o
______________
C)
Illinois
ntrol Board
58-44