ILLINOIS POLLUTION CONTROL BOARD
September
3,
1981
H.J. BERGMAN BUILDERS, INC.,
and THE CITY OF PONTIAC,
)
Petitioners,
v.
)
PCB
81—67
tLLINOIS ENVIRONMENTAL PROTECTION AGENCY,
)
Respondent.
CHARLES W. KOHR, MATHIS, SLOAN, LITTLER & KOUR, APPEARED
ON
BE!Th~
O~’PETITIONER BERGMAN,
BRUCE
L.
CARLSON APPEARED
ON
BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by J.
Anderson):
This matter comes before the Board on the petition for
variance filed April 29,
1981 by H.J. Bergman Builders,
Inc.
(Bergman).
On May
1,
1981 the Board ordered joinder of the
City of Pontiac
(City);
on May
14,
1981 Bergman filed an amended
petition verifying service of process on the City pursuant to
Procedural Rule 305(a).
On June 15,
1981 the Illinois Environ-
mental Protection Agency
(Agency)
recommended that variance be
denied.
The hearing requested by Bergman was held July
23,
1981.
Bergman petitions for variance from Sections 12(h) and 39(a)
of the Environmental Protection Act and Rule 962(a)
of Chapter
3: Water Pollution in order to obtain 7ermits to construct and
operate a sewer extension to serve a proposed Farmers Home
Administration (FmHA) funded 16 unit multi-family rural rental
housing project
to be constructed in Pontiac,
Illinois.
The
City was joined as a necessary party, as the owner of the sewage
treatment plant to which the sewer
is tributary.
The expected
additional P.E.
loading to the City’s North Street sewer and its
plant is
36 P.E,
from the proposed
2 buildings,
each containing
4 one bedroom and
4 two bedroom apartments.
Although petitioners did not provide the Board with hearing
transcripts until September 1,
1981,
this action is being given
expedited consideration in view of the fact that the Board’s
decision will determine whether Bergman receives $510,000 in FmHA
funding, obligation of which must be finally approved before
the close this month of the current federal fiscal year.
As
the balance of equities in a variance petition of this sort
43—299
2
is dependent on the timing of events,
initially a “bare-hones”
chronological approach will be taken toward
the presentation of
facts.
CHRONOLOGY OF EVENTS
Bergman is a specialist in FmHA construction and has
participated in some 60 to 70 such projects
(R. 17—20).
Beginning
in January,
1979,
it initiated FmHA—required housing market
studies in Pontiac.
Receiving FmHA approval of need, Bergman
proceeded to select a site and in September,
1979 petitioned the
City Council for a special use permit for that site
(Pet.
7).
Although the original site is not the subject of this petition,
as Bergman’s option lapsed before the site could be purchased,
the subject is germane.
On February 23,
1979 the Pontiac sewage treatment jñant
~za’;
notified it might be placed on the Agency’s critical review list
because it had reached 95
of its hydraulic
load capacity of
21,300 P.R.
It was
in
fact placed on critical review April
6,
1979
(Resp.
Ex.
3).
Rule 604(a)
of Chapter
3 requires that a
treatment plant owner notify individuals requesting connections
that the plant has been placed on critical review or restricted
status.
This
individual notice is required by Rule 604(a)
to
be published by the Agency.J
Bergman was not informed by the
City of critical review status at that time, or
in September,
1979.
In March,
1980 the current site was proposed to
FnHA
for
its approval,
the property optioned and monies deposited
(Pet.
7).
The Agency’s March
31,
1980 quarterly Critical Review List,
of
which Bergman was unaware,
listed Pontiac as having zero remaining
hydraulic capacity
(Rec.
5,
Resp.
Ex.
7).
In May, 1980 final
site and building plans and an application for financing were
submitted to FmHA (Pet.
7).
It should be noted that
in May,
1980 the Board rendered a
decision on a Bergman petition for variance concerning another
FmHA financed project, HJ. Bergman Builders
Inc.
V.
IEP1~,
PCB 79—264
(May
1,
1980J.
in
that action, the Board granted
variance to allow connection of a 32—unit project to the sewage
treatment plant of the City on Monmouth, which was on critical
review status at the time Bergrnan’s permit application was denied,
and which soon after was placed
on
restricted status.
Bergman
first
learned
of
problems
concerning
the
Pontiac
plant
at
a
City
Council
meeting
in
December,
1980
(R.
72),
at
which an enforcement action against Pontiac apparently was
discussed, IEP~v.
City
of Pontiac, PCB 78—124
(December
18,
1980).
In that case, the City stipulated to several violations,
including failure to meet the BOD5 and TSS limitations of the
Board’s Rules.
A detailed compliance plan was stipulated to ~nd
43—300
3
accepted by the Board.
At hearing, Bergman’s treasurer Eugene P.
Couglon,
testified that
“I don’t recall...that
prior
to that
December council meeting, did it ever come up that we needed a
permit”
(R.
73).
Bergman states in its petition and testimony that it had been
acting in reliance on a sewer permit previously issued to the
developer of the “Illini Subdivision” in which Bergman’s proposed
and optioned site is located.
This developer,
Pontiac Held Corp.,
was issued a two—year permit allowing sewer connections
for 39
P.R. on May 10,
1979.
(This permit lapsed in May,
1981 without
being used.)
Plans and specifications submitted in connection with
this lot show that the sewer extension was
to serve lots 135,
136,
137, and 138, although the permit does not so state on its face.
As Bergman’s project has an estimated loading of only 36 P.E.,
if the permit were transferable,
no problem would have occurred.
Bergman’s optioned site does not, however, contain these four
lots,
and the permit is not transferable.
In addition, Bergman’s
optioned site would discharge into a sewer
line different than
the line into which Lots 135—138 would discharge
(Resp.
Ex.
2,
R.
200—215).
In either February or March,
1981 FmHA “obligated”
approximately $510,000 in loan funds
for the Bergman project.
On February
5,
1981 the Agency received Bergman’s application
for sewer permits.
On March
6,
1981,
the Agency issued a “Notice
of Impending Restricted Status” to the City, citing 1) that the
plant was not meeting the BOD5 and TSS loadings established
in
PCB 78—214,
2) the plant was receiving BOD5 loadings of 17,280
P.R.,
and organic load in excess of its design capacity of 16,000
P.R., and 3) the critical review status because of hydraulic
capacity imposed April
6,
1979
(Resp.
Ex.
3).
On March 23,
1981
Bergman’s permit was denied by the Agency.
The reasons for denial
listed in the letter essentially restate the reasons listed above
(Pet.
Ex.
D).
BERGMAN’S HARDSHIP
Economic Effect
In support of its allegation that denial of variance would
impose an arbitrary or unreasonable hardship, Bergman makes several
arguments.
It is uncontroverted that if Bergman is not allowed to
connect to the City’s sewer system,
it will be ineligible
for the
$510,000 FmHA loan,
since FmHA policy requires connection to any
existing community sewer system.
While this alone would be
insufficient to support a grant of variance (Bergman,
supra, at 2),
it is also Bergman’s unchallenged testimony that this FmHA project
is “all we have projected for the year of 1981,
from here on in”
(R.
26).
Bergman’s “field people” have been laid off since
approximately June,
1981, waiting to begin work on the Pontiac
project.
While Bergman has submitted other project applications
43—30 1
4
to FmHA,
President Herbert J. Bergman stated that it is FmHA belief
that “none of them will be funded at all before some time in 1982”
——
dependent of course on the level of funding FmHA itself receives
in the new federal fiscal year.
The effect of variance denial
on
the company was described simply as “devastating”.
In addition to loss of future
funds, Bergman states that it
has to date spent upwards of $28,500 pursuing the Pontiac project
($4500 site selection,
$8900 market studies administrative,
$10,000
architectural/site plans 4,000,
legal fees $1,000, building permit,
and other unquantified)
(Pet.
8,
R.
24,
25).
While Bergman does
not explicitly state when most of these expenditures were made, he
believes that all were made
in reasonable reliance on information
available to him.
Reasonable Reliance
Bergman believes that his reliance on the Pontiac Held permit
was reasonable, based on the developer’s own assertions that
adequate P.E.
had been “reserved”
for the subdivision and therefore
the project.
When made aware of the critical review status of the
City’s plant, he relied on the City’s opinion that the plant had
or soon would have capacity
to accept his effluent,
as would the
sewers
*
Bergman called David L. Sullivan, superintendent of the
City’s treatment plant,
as a witness
in support of its position.
Mr. Sullivan explained that it was his opinion that in April,
1979 when critical review began, that the plant was
in fact
hydraulically and organically “ri9ht at the design limitations”
(R.
98).
The hydraulic and organic overloads were attributed
in part to the largely anticipated continuing large volume and
nature of the effluent received by the City from Interlake Steel,
as well
as the largely unanticipated increase in the volume and
concentration of the effluent received from the Pontiac Correctional
Center.
Since 1979,
however, the City has been negotiating with
both entities to achieve hydraulic and organic reductions
in their
effluent.
Discharge Monitoring Reports submitted by the City to
the Agency for the months February,
1980 to February,
1981 bear
out Mr.
Sullivan’s opinion that these and other efforts to improve
plant loading and performance were in part successful; during this
period,
the actual hydraulic
loading was 1.43 million gallons per
day (mgd),
or 65
of the 2.3 mgd design capacity.
However, the
BOD5 loading was 16,694
P.E. or 104
of the 16,000 P.E. design
capacity, while the SS loading was 15,260
P.E. or 95
of the
16,000 P.E. design
(Resp.
Ex.
6).
The City
is actively pursuing
upgrading of the facility through the Construction Grants Program.
In July,
1981, the Agency issued a permit for “interim” improve-
ments to increase the plant’s organic capacity
to 23,000 P.E.
This project would be completed approximately one year from its
initiation.
The date is uncertain, however,
as it is contingent
on receipt of state funding
(the status of which was not
explained).
(R.
99,
103)
43—302
5
Mr. Sullivan also testified that there were in fact problems
with the City’s sewer and drainage systems.
The North Street
combined sewer,
to which Bergman’s effluent would be tributary,
has overflow problems which would not be addressed by the interim
plan
(R.
102—103).
The North Street sewer
“is a tremendously
large interceptor
sewer that has been prone to flooding” in part
from rise in levels of the Vermillion River.
It
is believed that
this sewer, which
is a
2’
X
3’
elliptical brick sewer built circa
1890,
overflows because of one or more major blockages.
The
existence of blockages is surmised from observation that past a
certain section containing
4 railroad crossings the sewer flows
only half full,
when after 1½ inches of rain sewers tributary to
it are surcharging
(R.
115—116).
In addition to routine cleaning,
the City anticipates investigating the sewer
for blockages with
the possibility of making extensive repairs.
There is no projected
time schedule or stated funding source for North Street sewer work
(R.
95—97).
Bergman does not address the sewer problem in detail, arguing
only
that
the
proposed
36
P.E.
addition
to
the
sewer
will
have
minimal additional effect.
Bergman strongly argues that his
reliance on probable sewer capacity was rendered even more
reasonable by permitting decisions made by the Agency during the
critical review period.
Since April,
1979 the Agency has issued permits allowing 1705
P.E.
to be added to the Pontiac plant——including the permit issued
to Pontiac Held.
A permit to add 1,000 of these P.E. was issued
to one facility, Caterpillar Tractor Co., on July
22,
1980,
afte.r
the Agency had listed capacity in March, 1980 at zero.
While
Bergman himself was unaware of and never requested the Agency’s
critical review
lists,
lists during this period did not reflect
permits issued as they should have been consistent with Agency
practice.
Which,
if any,
of these permits may have lapsed without
use as did Pontiac Held’s,
and which have been used and sewers
connected,
is not contained
in the Agency’s files
(R.
154—155).
Based on these facts, Bergman essentially argues that it is
inequitable to deny it a permit to add
.2
to the plant’s total
load during the same critical review period
in
which one permit
alone added 6
to the total.
Housing Need
Finally, Bergman argues that variance denial would impose a
hardship on the City, which has FmHA determined need for housing
in the size and income range to be provided by Bergman’s project.
Seth Marvin,
manager of an FmHA project near Bergman’s site,
verified that his experience was that the demand particularly for
one bedroom units
far exceeded the supply
(R.
6-16).
The City
itself did not address this hardship argument made in its behalf.
43—303
6
THE AGENCY’S ENVIRONMENTAL
ASSESSMENT
Plant Effluent and Receiving Stream Quali~
Stephen E. Baldwin, an Agency Environmental Protection
Specialist,
testified as
to
his observations concerning the
plant’s discharge and the Vermilion River during an inspection
on January
27,
1981.
Upstream of
a discharge point,
no
sign of
degradation was observed.
The effluent discharged from the
plant contained
“a substantial quantity of tiny suspended solid
particles, and ...moderate turbidity”.
Downstream of the dis-
charge,
unnatural “black colored septic smelling bottom deposits”
were observed.
These
same conditions, as well as a gray colored
slime growth or sewage mold and minor localized foaming, were
observed a year before on February 13—14,
1980
(R.
128—129).
In
addition to discharging treated effluent, the City also
can discharge untreated combined sewer overflow into the river
at two discharge points north of the plant
(R.
126—127).
It can
be inferred that during the wet months when plant hydraulic
overload has been measured to have occurred
(Resp.
Ex.
5), that
such untreated overflow is directly discharged into the river.
It is the Agency’s position that aggravation of the river pol-
lution problem by the permitting of Bergman’s project should not
be allowed.
Sewer
problems
Much of the Agency’s case at hearing related to the condition
of the City’s sewers and problems related thereto.
In the City
of Pontiac Facilities Planning Report, Wastewater Treatment Plant
Ex2ansion—Phase
II,
the City’s consulting engineers reported that
“During dry weather there are no known problems in
the City attributable
to infiltration.
Some sewer
backups do occur in dry weather but is usually due
to
collapsed or root-bound service
lines.
During
storms,
basements flood
in
ten to fifty percent of the City
depending upon the Vermilion River water level.
The
major bottleneck to drainage of the north areas during
web weather
is the
North
Street
2’
X
3’ elliptical
trunk which flows at full capacity even during small
storms,
backing
up sewers in tributary areas,
In the
northeast subdivision
(shown on Figure 3—1 as area A)
Resp.
Ex.
1A
there is evidence that footing drain
discharge is causing backup of sanitary sewers during
wet weather.
More work needs
to be done
to determine
extent of the connections and identify means of
relief
(Res.
Ex.
1,
p.
3—5,
6).
Bergman’s project
is tributary to the North Street sewer, and is within
the area within which backups occur.
43—304
7
Agency files contain 1980 reports of complaints concerning
flooding, draining,
and basement backups incidents
(R.
146—147).
The effects of such incidents were graphically described in the
testimony of Mrs.
Betty Jane Pouliot,
a long term resident of
Pontiac and alderman of Pontiac’s 1st Ward for the past six years.
In addition to personally observing sewer problems, Mrs.
Pouliot
is the recipient of complaints from her constituents.
Mrs. Pouliot
has personally observed two manholes
on
or near North Street whose
covers blow off “everytime there is an inch of rain”.
Of a cover
located at North and Walnut,
Mrs.
Pouliot states
“Now,
I
haven’t
seen it as high as
they tell me it goes,
I’ve only seen it about
three feet into the air.”
When the covers
lift,
“raw sewerage
(sic)
spills out into the street onto the berm”, and even flowed into a
neighboring park.
Heavier covers have not been installed because
“this will force the sewerage back into the homes.
And there have
been cases of even floors buckling because of the sewerage under-
neath the homes.”
Mrs. Pouliot stated that the relatively recent
installation of storm sewers and initiation of sewer maintenance
programs have not solved these problems, which have occurred as
recently as July,
1981.
The Agency believes that addition of any loading to the sewer
could increase the frequency or duration of surcharge events,
even
if minimally.
The presence of sewage and sewage related debris
is
said to pose a serious threat to public health and safety,
as well
as being a nuisance.
The Agency therefore urges the Board to deny
the requested variance.
BALANCE OF EQUITIES
As
in many of the Board’s recent Rule 962(a) variance cases,
the facts as presented show that many parties have mishandled
environmentally unsound situations
for years at a stretch.
While
the City would seem to be making progress in handling the problems
of its plant,
it is remiss in failing to notify Bergman of its
critical review
status
in April,
1979.
While placement of a
treatment plant on critical review status does not in itself
preclude Agency issuance of additional connection permits,
the
Board seriously questions the soundness of some of the Agency’s
permitting decisions, particularly those that allowed additional
P.R.
to be added to the load
on
Pontiac’s plant after
the Agency
listed remaining plant capacity at zero.
Failure to include the
fact of issuance of such permits on the critical review list is
also questionable, as it frustrates the purpose of such lists,
which is
to keep interested parties as
“up
to the minute”
as
possible concerning a problem plant.
However,
these omissions do not serve
to exculpate Bergman’s
failure to investigate the status of the City’s plant and sewer
system.
While the Board might consider such failure reasonable
prior
to
1980,
it is the Board~sopinion that a reasonable person
who had encountered problems concerning
sewer permits on one
4 3—305
8
project,
would
take
all
steps
necessary
to
ensure
that
no
such
unwelcome surprises
would occur during
the
course of
a later
project.
The PCB
79—264 petition to allow
connection
of
the
t4onmouth project was
filed December 13,
1979 and decided May
1,
1980.
It was in
March,
:L980
that.
Bergman applied for
FmHA
funding for this
project without having checked
with the Agency
concerning permit
needs and possible problems.
It was a full year
later
before
Bergman
contacted the Agency~
Bergman
states
in
his
petition that
it
is now too late in the design and
funding process
to
redesign
his
project
to fall
into Rule 95l(b)(2)
of Chapter
3,
which provides that permits are
not required for single buildings
discharging
1500 gpd or less
(Pet.
6).
Had earlier attention been
paid to the permit question, design changes may have been possible.
While early reliance on
the Pontiac Held permit was
certainly
understandable,
failure to confirm transferability with the Agency
ceased to be reasonable
after May
1,
1980
if not before.
While
loss of FmHA
funding will have considerable adverse effect
on
Bergman,
the Board
reminds Bergman that
it was
warned that “denial
of federal
funding or lack of other access to
funding does not
constitute an
arbitrary or unreasonable hardship,
especially where
a project is a proposed
one,”
~
supra,
at
2,
The Board
finds that Bergman’s
economic hardship
is
largely of its
own
making,
and can be
afforded little weight.
The weight given to
the allegations of
potential hardship to
the City’s middle—income
residents and would be
residents is over-
balanced by the actual
hardship which has been
and will continue
to be imposed
on residents experiencing the health
threats and
nuisance of sewage
backup.
Denial of variance to
Bergman
certainly will
not stop North Street sewer
back—ups, or clean
up
‘the Vermilion River,
it is also the case that
Bergman’s proposed
additional
loading
is not
in and of itself great, but the
hydraulic and organic
loadings will aggravate
existing problems
even if minimally,
an occurrence which the Board
does not favor
Cit~ofAssum2~~v.IEPA,
PCI3
80—223
(February
19,
1981)
at
2.
As to the increase to the plant itself,
the Board
continues
to conclude
that while
‘the additional
flow expected from
the
project
may
appear small
in relation to the total
flow
handled
by the ....plant,
“lines must be drawn somewhere
even
though
such successive
increase
in
t:he
load in a
sewer may have
minimal
effect (Sp4~~ieid_MarineBank
v.
Pollution Control
Board
(1975),
27 Ill.App.ed 582,
327 N,E.2d 486,
491).”
Wiliowbrook_Devel22ment
Corporation v.
Illinois ProtectionAenc
(198:L),
92 Ill.App.3d
1074,
416
N.E,2d 385,
392.
Variance
from Rule 962(a)
is therefore denied for failure
to
prove
existence
of an arbitrary or unreasonable hardship
and,
certainly,
as balanced against the water pollution
situation in
Pontiac.
43—306
9
ORDER
Variance
from Rule 962(a) of Chapter
3:
Water Pollution to
allow issuance
of a permit to construct and operate sewers
to
service
8 proposed apartment units to be constructed in Pontiac,
Illinois is
hereby denied.
IT
IS SO
ORDERED,
J.
Dumelle
concurred.
I,
Christan
L.
Moffett, Clerk of the Illinois
Pollution
Control Board,
hereby certify that the above Opinion
and
Order
was
adopted on
the
~i’
day of
~
1981
by
a
vote
of
‘.
~
/‘
£~‘~i~_~-
~,:-~-~---~-
Christan
L, Moffett,,C’lerk
Illinois Pollution
Control
Board
43-~307
