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PROCEDURAL BACKGROUND

 

The petitioners filed a variance petition on July 15, 2002. The Agency filed its variance

recommendation on August 20, 2002 recommending the variance be granted. Both parties

waived hearing. The Board received no public comments on the petition.

 

FACTUAL BACKGROUND

 

In 1992, the Agency initially placed the City’s wastewater collection system and the

Farmington Sanitary District sewage treatment plant on restricted status to avoid hydraulic

overloading that had caused sanitary sewer backup and overflow problems. Pet. at 3. In 1996

and 1997, the City constructed an excess flow lagoon to alleviate the overflow conditions, but

the operation of the lagoon has been problematic. Due to construction issues, the lagoon failed

to adequately hold wastewater. As a result, the sanitary system remained on the restricted status

list and the Agency would not issue new construction or operating permits while the sanitary

system remained on restricted status. Pet. at 4.

 

The Farmington Central Community Unit School District has a geographic territory in

Peoria, Knox, and Fulton Counties. Presently it operates six attendance centers. Three of these

centers, including the high school, are located in the City and are serviced by the sanitary system.

The attendance centers are aged and are in need of repair and non-routine maintenance. In the

Spring of 2001, the voters of the School District passed a referendum authorizing the issuance of

$14 million in school construction bonds to partially finance the construction of a new K-12

building that will replace the six attendance centers and will house the School District’s

administrative offices. The 103-acre parcel of land in Peoria County was purchased for the

project and annexed to the City. Pet. at 2.

 

 

After the purchase and annexation, the School District became aware that the sanitary

system was on restricted status and no construction or operating permits for new sewers or

pollution sources could be issued until the restricted status had been removed. The School

District further learned that the issues facing the sanitary system would prevent the construction

and operation of the project until the restricted status was lifted or until the Board granted a

variance from those provisions which prohibit the construction and operation of new sewer or

waste water sources as long as the system remained on restricted status. Pet. at 2-3.

 

 

REQUESTED VARIANCE

 

The petitioners request a variance from Section 309.241 as that section applies to the

School District’s efforts to obtain construction and operation permits for building a new K-12

school, including the attendant sewer connection to the sanitary system. Pet. at 1. Section

309.241(a) sets forth that:

 

The Agency shall not grant any permit required by this Subpart B, except an

experimental permit under Section 309.206, unless the applicant submits adequate proof

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that the treatment work, pretreatment works, sewer, or wastewater source will be

constructed, modified, or operated so as not to cause a violation of the Act or its Subtitle.

 

The petitioners state that they need relief from Section 309.241 since the sanitary system has

been placed on Restricted Status, which is defined at Section 306.402 as an “Agency

determination, pursuant to Section 39 of the Act and Section 309.241, that a sewer has reached

hydraulic capacity or that a sewage treatment plant has reached design capacity, such that

additional sewer connection permits may no longer be issued without causing a violation of the

Act or regulations.”

 

ENVIRONMENTAL IMPACT

 

When deciding to grant or deny a variance petition, the Board is required to balance the

petitioner’s hardship in complying with Board regulations against the impact that the requested

variance will have on the environment. Monsanto Co. v. PCB, 67 Ill. 2d 276, 292, 367, N.E.2d

684, 691 (1977).

 

 

The petitioners state there will be no adverse environmental impact if the requested

variance is granted. It is estimated that average monthly water usage in the school buildings

serviced by the sanitary system will increase from approximately 80,000 gallons to 99,000

gallons when the project is complete. The School District has concluded that the extra load will

not cause any overflows from the system. Pet. at 14.

 

Chapman Elementary School in Farmington has had an average monthly water usage of

17,990 gallons. In March and April of 2001, a leak in the water system resulted in usage of

152,900 gallons of water. This additional load was placed in the sanitary system. Despite the

increased flow of over 100,000 gallons of water, there were no reported overflows. Further, the

additional load occurred while the excess flow lagoon was not operational. The petitioners state

this is the best evidence regarding the impact of the additional load to the sanitary system created

by the School District. Even when the water usage exceeded the expected average monthly

increase occasioned by the project by nearly five times, the sanitary system was able to properly

process the additional load without any overflow. As a result, the School District expects that

the additional capacity created from the operation of the excess flow lagoon will provide any

necessary additional assurance that the project will not result in an adverse environmental

impact. Pet. at 14-15. The Agency agrees that little or no environmental impact will occur

based upon the evidence presented. The Board finds that there will be no adverse environmental

impact if the requested variance is granted.

 

HARDSHIP

 

There were two additional options rather than a variance request that the School District

explored. The School District maintains both options would lead to severe hardship and would

make the construction of the new facility impossible. The first option is to wait until repairs are

completed on the sanitary sewer system and the restricted status is lifted, and then apply for the

new K-12 facility’s sewer construction and operation permits. The second option is to obtain the

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construction permit and then wait until the restricted status is lifted to obtain the operational

permit. Pet. at 11.

 

As for the first option, the School District argues that it cannot wait until the lifting of the

restricted status since the timely completion of the new K-12 facility is crucial to the District’s

budgetary plan. If the new facility cannot be opened in the fall of 2003, the School District will

be forced to maintain the old facilities as well as the new K-12 facility. The School District will

be required to make costly capital improvements pursuant to the life and safety code to the older

facilities despite the fact that each will eventually be closed. The effects on the School District’s

budget will be very significant. In a worst case scenario, the School District might have to

forego construction of the project altogether even though it already has the obligation to repay

the bondholders with interest. In order to open the new school on a timely basis, the School

District argues it must begin construction this summer prior to completion of the repairs to the

lagoon. For this reason, the School District argues that waiting for the repairs of the lagoon to be

complete before obtaining the necessary permits could be financially devastating. Pet. at 11-12.

 

 

The School District argues that the second option of obtaining a construction permit

before the assurance of being able to operate would be risky. With $31 million at stake, the

School Board argues that it cannot begin construction until it has complete assurance of

obtaining both a construction and operating permit from the Agency. The School District

believes that it is not in the position to absorb any financial risk if the new K-12 facility cannot

be built or not connected to the sanitary sewer system. The School District argues that the undue

hardship imposed on the School District if the permits cannot be obtained immediately can best

be described as a choice between an unacceptable cost overrun in the event construction is

delayed and an unacceptable risk of not obtaining an operating permit if the Board were to obtain

only a construct-only permit prior to completion of the lagoon repairs. Pet. at 12.

 

Along with financial hardship, the School District argues that the delay or cancellation of

construction of the new K-12 facility will force the use of the older facilities. These facilities are

severely aged and in need of repairs and there would be risks associated with fire, weather

conditions, aging, and potential intruders in the older facilities. The older facilities would not

improve the health and safety of the occupants nor will they allow for student consolidation or

provide additional education programs, equipment and security that would be found in the new

K-12 facility. Pet. at 13. The Board concludes that an economic hardship would be imposed if

the variance was not granted.

 

PROPOSED BEGINNING AND ENDING DATE FOR THE VARIANCE

 

The petition is limited to a request for the necessary construction and operating Permits.

The School District understands that no continuing permit is required of the School District once

the operating Permit is issued and the Project connected to the sanitary system. The petition

sought no relief from discharge limits or the other regulations that might require installation of

proper equipment. As a result, the petitioners believe that placing beginning or ending dates on

the variance would not be appropriate in this case. Notwithstanding this conclusion, the

petitioners proposed that any beginning or ending date established by the Board should allow the

School District sufficient time to construct and operate the project. A construction permit will be

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necessary as soon as possible and an operational permit will be required prior to September

2003. Therefore, the petitioners proposed the beginning as of May 2002 and ending in May

2005. Pet. at 15-16. As of August 9, 2002, neither the School District nor the City had

submitted permit applications for the project to the Agency for its review. The Agency believes

that a retroactive variance is unnecessary and supports the issuance of a variance effective as of

the date of the Board’s order.

 

COMPLIANCE PLAN

 

Pursuant to Section 104.204(f), the Petitioners are required to present a detailed

compliance plan. In this regard, the petitioners note that the only remaining issue that it needs to

address to come into compliance is the correction of the defects in the excess flow lagoon. Pet.

at 4. Petitioners have provided the compliance plan and have initiated actions to correct the

defects in the excess flow lagoon. In 2001, the City hired a consulting firm to assess measures

necessary to repair the excess flow lagoon. The consulting firm indicated that the installation of

a concrete slope walls and a concrete ramp and stairs in the lagoon would address the leaks and

render the lagoon amenable to pumping and cleaning operations. On April 12, 2002, the City

accepted a proposal for a design and build contract for the lagoon-repair project, and the Agency

issued the needed permit. The City projects that the lagoon rehabilitation project will be

completed in August 2002 but it could be delayed by weather or other factors. The Agency has

confirmed that the lagoon is currently under repair. Pet. at 5.

 

AGENCY RECOMMENDATION

 

The Agency agrees that the petitioners have established an arbitrary or unreasonable

hardship. The Agency states that it cannot guarantee that the restricted status will be removed

since it must wait until completion of the improvements to the excess flow lagoon and until the

soundness of the lagoon has been demonstrated. However, the Agency is in agreement with

petitioners that regardless of the status of the sewer system, the inability to issue permits could

be financially devastating to the School District’s project. The potential hardship, however, is

not economic alone asserts the Agency. Undue hardship could also result from attendance of

school children in attendance centers that do not meet current health and safety requirements and

by the delay of educational opportunities that will be available upon the project’s completion.

Resp. Rec. at 14.

 

 

While the Agency agrees with the petitioners on the environmental impact and the

financial hardship, it argues that the variance should be granted from Section 306.402 rather than

Section 309.241(a). The Agency argues that granting a variance from Section 309.241(a) for the

sewer construction permit for the project could be construed to imply that no aspect of the sewer

construction was subject to the Act and regulations. The Agency asserts that this is not the intent

of the petitioners. As a result, the Agency recommended that the Board consider the petition as a

petition for relief from Section 306.402 and the Agency’s restricted status determination as it

applies to the project. A variance from restricted status would enable Farmington to allow

additional connections to collection system and the Agency to issue permits for the construction

and operation of the sewer line even though planned and on-going repairs are not complete and

the Agency may not yet remove the City from restricted status. Resp. Rec. at 5-6.

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CONSISTENCY WITH FEDERAL LAW

 

The petitioners and the Agency agree that the variance would be consistent with federal

law. In accordance with Section 35 of the Act, the Board may grant variances only where they

are consistent with federal law. 415 ILCS 5/35 (2000). The requested variance is consistent

with federal law since the sanitary system will be in complete compliance with state law by the

time the project is complete. Pet. at 16.

 

CONCLUSION

 

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 would impose an arbitrary and unreasonable hardship upon the petitioner.

 

 

As previously stated, the Board finds that, if the variance is not granted, the petitioners

will incur an arbitrary or unreasonable hardship. The petitioners have demonstrated that denial

of the variance would impose an economic hardship. The Board finds that there will be no

adverse environmental impact if the requested variance is granted. As requested by the Agency,

the Board finds that the appropriate variance is from Section 306.402 to avoid confusion over the

restricted variance. Accordingly, the variance request will be granted from Section 306.402.

The variance is effective as of the date of the Board’s order.

 

This opinion constitutes the Board’s findings of fact and conclusions of law.

 

ORDER

 

1. The Board grants the City of Farmington, the Farmington Sanitary District, and

the Farmington Central Community Unit School District No. 265 a variance from

35 Ill. Adm. Code 306.402 to allow the construction and operation of a new K-12

school building, including the attendant sanitary sewer connections to the

Farmington City waste water collection system and the Farmington Sanitary

District sewerage treatment plant located in Farmington.

 

2. This variance begins on the date of this order and terminates no later than May

2005.

 

IT IS SO ORDERED.

 

 

If petitioner chooses to accept this variance, within 45 days after the date of this opinion

and order, petitioner shall execute and forward to:

 

Connie L. Tonsor

Associate Counsel

Illinois Environmental Protection Agency

2200 Churchill Road

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P.O. Box 19276

Springfield, IL 62794

 

A certificate of acceptance and agreement to be bound by all the terms and conditions of the

granted variance. The 45-day period shall be held in abeyance during any period that this matter

is appealed. Failure to execute and forward the certificate within 45 days renders this variance

void. The form of the certificate is as follows:

 

I (We),________________________________________________,

having read the opinion and order of the Illinois Pollution Control Bard, in PCB

03-06, dated October 17, 2002, understand and accept the said opinion and order,

realizing that such acceptance renders all terms and conditions thereto binding

and enforceable.

 

________________________________________________________

Petitioner

________________________________________________________

By: Authorized Agent

________________________________________________________

Title

________________________________________________________

 

  

Date

 

Section 41(a) of the Environment Protection Act provides that final Board orders may be

appealed directly to the Illinois Appellate Court within 35 days after the Board serves the order.

415 ILCS 5/41(a) (2000);

see also

35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706. Illinois

Supreme Court Rule 335 establishes filing requirements that apply when the Illinois Appellate

Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The Board’s

procedural rules provide that motions for the Board to reconsider or modify its final orders may

be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code 101.520;

see also

35 Ill. Adm. Code 101.902, 102.700, 102.702.

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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above opinion and order on November 7, 2002, by a vote of 6-0.

 

 

  

  

  

  

  

  

 

Dorothy

M.

Gunn,

Clerk

Illinois

Pollution

Control

Board