ILLINOIS POLLUTION CONTROL BOARD
    November
    5,
    1981
    CITY OF MARQUETTE HEIGHTS,
    )
    Petitioner,
    v.
    )
    PCB
    81—15
    )
    ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
    Respondent.
    WIL1t1IAM F. MORRIS, TEPLITZ
    & MORRIS, APPEARED ON BEHALF OF THE
    Pt~TITIONER.
    WILLIAM E. BLAKNEY, ASSISTANT ATTORNEY GENERAL, APPEARED ON BEHALF
    OF THE RESPONDENT.
    OPINION AND ORDER OF THE BOARD
    (by
    3.
    D.
    Dumelie):
    Ork February
    2,
    1981 the City of Marquette Heights
    (City)
    filed a petition for variance from Rule 604(b)
    of Chapter
    3:
    Water
    Pollution.
    On March
    5,
    1981 the Board ordered the
    developers of “Outlot H” to be joined as parties to this action.
    On March
    18,
    1981 the Illinois Environmental Protection Agency
    (Agency) filed
    its recommendation that the variance be denied.
    Hearing was held on July
    28,
    1981.
    The Agency filed its closing
    brief on September 22,
    1981 and the City filed its brief on
    September 24,
    1981.
    LLK Development Company joined
    in the City’s
    brief.
    The City owns and operates a sewage treatment plant
    (STP
    located in Tazwell County that consists of a comminuter/bar screen,
    one primary clarifier, an activated sludge unit,
    a secondary
    clarifier, chlorination and
    art anaerobic digester.
    Discharge
    is
    to the Illinois River.
    The water and sewer systems were first
    developed in the late 1940’s by a private developer and were
    purchased by the City
    in 1963.
    By that time, the secondary
    treatment equipment, which had never been used,
    had deteriorated
    to the point that it was totally unusable
    CR.
    19—23).
    On
    December
    6,
    1976 the Agency placed the STP on restricted status
    (Pet.
    Ex.
    #1) for failure to provide secondary treatment.
    “Outlot H”
    is a tract of undeveloped acreage in the City
    (Pet..
    Ex.
    #3) which was purchased by the LLK Development Company
    (LTJK)
    of Pekin,
    Illinois,
    in July,
    1978,
    for the purpose of
    constructing 40 single—family homes on the site over
    a
    3 year
    period
    (Pet.
    Ex.
    #3 and R.
    7—9).
    Due
    to the restricted status,
    44—27
    2
    “Outlot H” cannot be developed
    (R.
    13—16).
    Variance is requested
    in order that sewer service can be made available to
    “Outlot H”
    sich that development may proceed.
    The Board,
    like the Agency, construes
    the petition as seekiig
    relief from Rule 962(a)
    of Chapter
    3.
    Variance from that rule is
    sufficient to allow the requested relief.
    Variance from Rule
    604(h)
    is denied
    in that that rule is merely definitional.
    In determining whether a variance should be granted, the
    Board must balance the hardship which would be imposed by denial
    of the variance against the environmental harm which would be
    caused by its granting.
    In this case the City alleges hardship
    i.n the following areas:
    cost of compliance,
    loss of growth and
    revenues, direct costs, hardship to the developer and unreasonable
    affluent limitations.
    The Board finds that none of these have
    been proven to demonstrate the sort of hardship which is necessary
    to support variance in this case.
    First,
    the cost of compliance, which is stated to be the
    ‘jreatest hardship imposed,
    is not
    a cost which would he imposed
    by a variance denial.
    It does not necessarily follow that because
    the sewer hookups under consideration here will not he permitted
    absent a variance that the City will spend the funds necessary to
    upgrade the plant so as to be removed from restricted status.
    This is especially true in that the plant will be closed upon
    coitapletion of the regional facility in 1984.
    Second,
    the loss of growth and revenues due
    to the
    i;!aposition of restricted status is also not arbitrary or
    unreasonable.
    It is an obvious consequence of the imposition of
    restricted status
    that the growth and revenues are deferred
    unti.l
    such time as restricted status ends,
    and there is
    rio showing that
    th~impact would be greater than normally expected through the
    i’~positionof restricted status.
    Third,
    the City alleges hardship as a result of
    litigation
    pending
    in Circuit Court involving the deannexation of “Outlot H”
    as a result of the inability of the developers of “Outlot H” to
    obtain
    sewer connections
    (Pet.
    Ex.
    #17 and R.
    93—4),
    The City
    has also had to expend public
    funds to defend itself in that
    :3uit
    arid
    to pursue this petition for variance,
    Again,
    these costs are
    not the sort of costs which establish an arbitrary or unreasonable
    hardship.
    These costs are at present speculative at best and any
    judgment against the City may well he passed on to the 7~gency
    (which has been impleaded)
    if the restricted status
    is found
    to have been improper.
    Money spent in pursuing this variance
    cannot be regarded as hardship in that all petitioners would
    have such
    a “bootstrap” claim.
    Fourth,
    the developer’s hardship is self—imposed.
    LLK
    purchased the property two years
    after the imposition of
    restricted status,
    such that it knew, or should have known,
    that
    44—28
    3
    development could not take place until the restricted status
    was lifted.
    LLK should certainly have made inquiries regarding
    the sewage treatment capabilities, though they did not
    (R.
    16—17).
    Fifth,
    the imposition of restricted status based upon
    violations of
    interim limitations which were imposed upon the
    City’s STP under
    a federal enforcement compliance
    letter cannot
    support a finding of arbitrary or unreasonable hardship
    in this
    case.
    In a variance proceeding
    the issue before the Board is
    whether the Board’s rules or orders work an unreasonable hardship
    upon the petitioner as applied, not whether restricted status was
    properly imposed years earlier.
    The City has attempted to show
    that its interim limitations are more stringent than surrounding
    communities, but that is not the issue and such testimony is,
    therefore,
    immaterial and will not be considered by the Board in
    that these other communities were not shown to have been in a
    substantially similar situation.
    Thus,
    there has been no showing of any hardship other than
    that which necessarily follows from the imposition of restricted
    status.
    That being the case,
    any environmental harm will out-
    balance
    it.
    The Board finds that the STP’s discharges are well
    in
    excess of general
    standards,
    and that any increase beyond present
    levels will cause additional harm and should be discouraged.
    The
    Board,
    therefore, denies the requested relief.
    This Opinion constitutes
    the Board’s findings of fact and
    conclusions of law in this matter.
    ORDER
    The City of Marquette Heights
    is hereby denied variance from
    Rules
    604(b)
    and 962(a)
    of Chapter
    3:
    Water Pollution,
    and its
    petition in PCB 81—15 is hereby dismissed.
    IT IS SO ORDERED.
    I, Christan
    L. Moffett,
    Clerk of the Illinois Pollution
    Control Board, hereby certify that the above Opinion and Order was
    adopted on the
    ‘~S’4’
    day of
    1)
    ri’~-c
    ~
    —,
    1981 by a vote
    of ~
    Ut
    ~
    )
    ~
    .
    Christan L. Moffe~,rClerk
    Illinois Pollution~C~ntrolBoard
    44—29

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