ILLINOIS POLLUTION CONTROL BOARD
October
22,
1981
STEVEN DRAKE, ET AL.,
)
)
Petitioners,
)
v.
)
PCB 81—54
tLLINOIS
ENVIRONMENTAL
PROTECTION AGENCY
)
and THE CITY OF PONTIAC,
)
)
Respondent.
ROY M.
HARSCH AND JOANNA C.
NEW,
MARTIN, CRAIG, CHESTER &
SONNENSCREIN, APPEARED ON BEHALF OF PETITIONERS,
BRUCE
L.
CARLSON APPEARED ON BEHALF OF THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY, and
C.
THOMAS BLAKEMAN, THOMPSON, STRONG & BLAKEMAN, APPEARED ON
BEHALF OF THE CITY OF PONTIAC.
OPINION AND ORDER OF THE BOARD
(by J. Anderson):
This matter comes before the Board on a petition for variance
filed April
10, 1981 by Steven Drake, Susan Drake,
Lowell Drake,
Lenora Drake,
William F.
Brady, and Nancy K.
Brady,
a partnership
(Brady).
Brady seeks variance from Rule 962 of Chapter 3:
Water
Pollution in order to obtain authorization for construction and
operation of a sewer extension tributary to the sewage treatment
plant
(STP) owned and operated by the respondent City of Pontiac
(City).
On May 15, 1981,
the Illinois Environmental Protection
Agency (Agency) recommended variance be denied.
As the Agency
and the Board had received objections to the petition, hearing wa~
held in Pontiac on August 17,
1981.
In addition to the testimony
and exhibits presented by each of the parties, testimony and
exhibits were received from seven Pontiac residents speaking on
behalf of themselves and their neighbors.
Variance is requested to provide sewer service to a combined
sewer for a planned unit development to be called the Winston
Churchill Apartments.
The project is ultimately designed to con-
sist of five apartment buildings,
12 units each,
of which 11 are
to be two—bedroom apartments and
1 to be a one bedroom apartment.
The complex is to be located on a 98,556 square foot lot, formerly
the site of Winston Churchill College, and before that the Pontiac
Township High School.*
This property, vacant since the college
*The new high school still discharges to the North Street
sewer
(R. 286).
43—543
2
building was torn down “sometime after”
1971, occupies most of a
block bounded by Michigan Avenue to the north,
Locust Street to
the east, Indiana Avenue to the south,
and Main Street to the west.
The site has a higher elevation than most of the surrounding area,
which is one of Pontiac’s older residential neighborhoods
(R.
12-
13, 169, Drake Ex.
2).
The permit application for the project,
received by the
Agency on December 23, 1980 and denied by
it on March 16,
1981,
estimates the total sewage flow from the project’s
5 buildings
as
a whole to be 17,200 gallons per day (gpd), or roughly 172 P.E.
Each building then would discharge an estimated 34,440 gpd or
roughly 34.4 P.E.
Construction of the entire project was
anticipated to be completed by April
1,
1983
(Drake Ex.
7—8).
One of the five buildings is complete, and,
since March 26, 1981,
has been connected to an existing sewer stub found on the site
during construction.
A water bill for the 62 days preceding
July 16, 1981 showed the residents’ daily water usage averaged
1315 gallons
(Drake Ex.
9).
Drake argues that no construction
or operation permit is needed for this building, which is claimed
to fall within the Rule 951(b) (2)
and 953(a)
exceptions for a
sewer “designed and intended to serve a single building and
eventually treat or discharge less than an average of 1500 gallons
per day of domestic sewage”.
Alternatively, he petitions for
variance to allow issuance of permits for the completed building
and the
4 yet-to-be constructed.
At the outset,
the Board rules that, having reviewed the
evidentiary objections raised by the parties, the Hearing Officer’s
decisions are sustained.
CHRONOLOGY OF EVENTS
On
February 23,
1979 the Pontiac sewage treatment plant was
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.E.
It was in fact plaôed on critical review April
6,
1979
(IEPA Ex.
3—4).
In May of 1980, builder Stephen Drake, his wife, his parents,
and his friends the Bradys entered into a contract to purchase the
Winston Churchill site,
with the intention to construct rental
apartments for resale to investors
(R. 13,
42).
On May 17,
1980, Drake petitioned the City for a change in
zoning,
as the site’s existing R—3 zoning would not allow develop-
ment of the project as described above.
The Pontiac City Council
(Council) referred the petition to the Pontiac Area Planning
Commission
(Commission) for its recommendation on June
2,
1980.
On August 27, 1980, the Commission,
following the Council’s
refusal to accept an earlier commission approval, approved~the
43—544
3
plan “subject to the City and Developer’s reaching a solution to
drainage of storm water from the area to be developed”
(Detering
Ex. 1).
This qualification was in apparent answer to three citizen
objectors who voiced concern about additional
loading to an already
overloaded sewer, as well as to preliminary calculations of the
City’s consulting engineer Harold
E.
Frye of Farnsworth
& Wylie.
In
an August 22, 1980 report presented to the City Council, Frye had
stated that the existing sewer was inadequate to handle stormwater
run-off from the existing site,
and would be insufficient to handle
that from the proposed improvement
(R. 113).
In previous efforts to facilitate approval, Drake had had
his own consulting engineers, Vegryzn, Sarver
& Associates,
Inc.,
redesign the project to increase the amount of unpaved area and
to cause the project’s sanitary flow to be directed into not
1 but
2 existing combined sewer
lines.
After the August 27 meeting,
on Drake’s behalf, his engineers completed a design for a 19 acre
area storm sewer drainage system.
The cost of the system, approxi-
mately $111,000, was to be spread by special assessment, of which
Drake’s share would be $10,000, the rest to be borne by other
area residents and the City.
This plan was presented to the City
Council on October
6, and rezoning was approved.
The plan was
discussed again at the October 20 meeting, at which over 50
residents appeared in protest.
On November 17,
1980 the City Council enacted the zoning
re—classification ordinance
(R. 14—15,
111—117,
319—322,
Drake
Ex. 3—5,
19—20).
However, the special assessment plan was never
implemented by the City, apparently because of property owner
opposition
(R.
117).
On November 18,
1980 Drake purchased a City Building permit
and commenced construction the next day (Drake Ex.
6,
R.
19).*
Rule 604(f) of Chapter
3 requires that an STP owner notify
individuals requesting connection that the plant has been placed
on critical review or restricted status.
Drake testified that
neither he nor his consulting engineers had been notified of the
critical review status during the proceeding
7 months although
permit requirements were mentioned during a City Council meeting.
However,
it was the testimony of both Eugene Sarver and Robert
Russell of Vegryzn, Sarver & Associates,
Inc.,
Drake’s consultant
since late summer,
1980 that the firm was aware of the plant’s
critical review status
(R.
96,
104).
The firm believed that
sufficient hydraulic treatment capacity for the project’s 172 P.E.
nonetheless existed because of its knowledge that the Agency had
issued other permits during 1979 and early 1980
(although not
since then)
(R.
104,
160), and because of a representation of
Harold Frye at a City council meeting that the plant had 3,000
P.E.
remaining capacity
(R.
103).
~While
the petition
(Drake Ex.
1) and the permit application
(Drake
Ex.
7)
list December 1,
1980 as the construction start
date, the Board resolves the conflict in favor of Drake’s direct
testimony.
4 3—545
4
There was no testimony that Drake or his engineers had
contacted the Agency concerning the plant~scritical review status
prior to November 18,
1980.
The Agency’s Critical Review List,
required to be published and available upon request pursuant to
Rule 604(a), had showed. the plant as having zero reserve capacity
beginning June
30, 1980
(IEPA Ex,
5).
On November
21, 1980,
Agency employee Kenneth Bauman telephoned
Drake’s attorney, Ron Fellheimer, to advise him of and to discuss
permit requirements relating to the Winston Churchill project
(R. 186—187, Drake Ex,
2,
Item 8).
No permit application having
been received by December
1, Mr. Bauman thereupon called engineer
Russell.
During that conversation, Mr. Bauman expressed Agency
concern regarding the treatment plant’s capacity, which was
described as zero, as well as sewer capacity
(R. 187—189,
198,
Drake
Ex.
2
#9).
Mr. Bauman sent Mr.
Russell
a “follow—up”
letter
summarizing the conversation on December 18,
1980
(IEPA Ex.
1).
On November 25,
1980, Drake had submitted his Agency permit
application to the City for its review and processing
(R.
19,
94,
Drake
Ex.
7).
The application was received by the Agency on
December 23, with an attached letter dated December 16 signed by
Mayor Joseph
S.
Trainor,
The letter states that “there is adequate
capacity in the combined sewers serving this property to handle
the dry weather flow”
but
noti to handle storm run-off from this
area.”
Drake was not sent a copy of this letter
(IEPA Ex.
2).
It must also be noted that in December, 1980~ a settlement
of an enforcement case against the City and its treatment plant
operation was accepted by the Board IEPA v.
City of Pontiac,
PCB 78-124
(December 19,
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
included.
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 BOD~and TSS loadings in the compliance plan
established in PCB 18—214,
2)
the plant was receiving BODr
loadings of 17,280 P.E,,
an organic load in excess of its~design
capacity of 16,000
P.E,, and
:3)
the critical
review status because
of lack of hydraulic capacity imposed April
6,
1979 (City Ex.
3).
On March 16,
1981,
Drake’s permit application was denied by the
Agency,
for reasons of the above mentioned organic overloading on
the plant
(Drake
Ex.
8).
During the time
in which his application was being prepared
by his engineers and processed by the City and the Agency, Drake
continued construction of his first building.
There
is no evidence
that he contacted either the City or the Agency for information
concerning his application during this period.
During excavation,
he uncovered one of the sewer stubs which had serviced the old
high school on the perimeter of the planned building.
Therefore,
Drake did not construct a sewer extension,
planning to connect the
new building through the old stub,
at the foundation
(R.
23).
43—546
5
At
some
point
during
the
coimtruction
period,
water
saving
features
were incorporated into the buildings design.
In addition
to installing water saving toilets and showerheads,
Drake did
not install garbage disposals and placed washing machines in one
area rather than in each apartment
(R.
22).
In early March, Drake began to advertise for tenants for the
nearly—completed building.
An open house was held March 15 and 16,
1981 which was attended by 150 people and which resulted in rental
of many of the units.
On March 26,
1981,
eight days after Agency denial of the
permit,
Drake authorized connection of the building to the sewer
stub.
The building’s
first occupants moved in on March
29, 1981
(R.
24).
No permit denial appeal was filed.
Drake had not applied for required City sewer and occupancy
permits prior to connection and tenanting of the building.
The
City sent a notice of these violations
to Drake on April
3, and
directed that the building be disconnected within 24 hours.
Drake
failed
to
do
so.
On June 17,
1981 the City filed suit against
Drake in the Circuit Court of the 11th Judicial Circuit, Livingston
County.
This case,
£~
of Pontiac v. Steve Drake et al.
No.
810V143,
will continue to pend until resolution of this variance
petition
(City
Ex.
7,
R.
85).
After the units in the completed building were fully occupied
(at present 30 tenants
:in the 12 units),
the average daily water
usage was measured at 1315 gallons, based on a single July,
1981
water bill
(R.
22, Drake
Ex,
9).
This building’s discharge is
into the Chicago Street sewer,
It
is also proposed that another
of the planned buildings eventually be connected to this sewer,
with the other three to be connected through another existing stub
to the Locust Street sewer.
Both sewers are tributary to the
North Street trunk sewer,
On April
22,
1981, two homeowners on chicago Street
experienced major basement flooding containing raw sewage and
related debris during a relatively
l:Lght rainfall.
Each normally
keeps a plug in the basement drain, and each had not previously
experienced sewer surcharging of the magnitude of that event.
Surcharge events were also reported in May and August
(R.
122—123,
136—137, Kinas Ex.
1—2),
Finally, throughout the course of summer,
the City had
continued to pursue upgrading of its STP through the Construction
Grants Program.
In July,
1981, the Agency issued a permit for
“interim” improvements to increase the plant’s organic capacity
to 2300 P.E.
Construction contracts have been advertised for bids.
This project is scheduled to be completed approximately one year
from its inception
(H.
286,
296).
Sewer maintenance programs,
involving cleaning of interceptor sewers and removal of sewer
blockages has continued.
It was recommended to the City by STP
43—547
6
operator
Dave
Sullivan
that the North Street trunk sewer be
televised
to
determine
the cause of a significant
blockage
in
it
which
severely
affects drainage in
the
area
surrounding
the
Winston
Churchill
complex
(R.
296-301).
However,
no explanation
was
given
as
to
potential
funding
sources
of,
or
a
timetable
for,
repair
of
this
sewer.
DRAKE’S ARGUMENTS AND THE AGENCY’S RESPONSES
The Rule 951(b)(2) exceptions and Starcevich
Drake argues that no variance is necessary, based on the
fact that the one period of measurement of the discharge from
the completed building is approximately 13
P.E.
The building’s
design estimated discharge of 34.4 P.E. should be disregarded,
he asserts, and the 951(b)(2) exception for single buildings
discharging less than 15 P,E. applied instead.
He further contends that this 13
P.E.
figure will be
representative of the discharge from the other
4 planned buildings.
Since each of the buildings would eventually discharge less than
15 P.E., each could be hooked into an existing sewer stub
without
permit,
based upon the analysis employed in Starcevich v.Pollution
Control Board,
78
Ill. App.
3d 700,
397 N.E.
2d 870
(3rd Dist.
1979).
The Agency believes that Drake’s reliance on Starcevich is
misplaced,
as that Opinion itself makes clear that the distinction
between
design
and
actual
flow
was
not
at issue.
As the court
stated
“it is conceded not only that discharge from each of
the buildings is less than 1500 gallons but also that
the total discharge from all of the buildings
is less
than
the
amount
permitted.”
397 N.E.
2d at 872.
The interpretation of whether actual
flow alone, as opposed to
design flow and then eventual discharge, was intended to determine
the applicability of the Rule’s permit exemption then becomes a
matter of first impression.
In the Agency’s opinion, the integrity of its permitting
process,
as well as due process rights of builders, would be
impaired if actual post—construction, post hook—on measured average
Elows are to be considered as determinative of whether construction
and operation permits should have been applied for in
the
first
place.
If the Agency’s design criteria are not used to determine
the exemption’s applicability,
“potential permit applicants would
have to estimate
ultimate
flows
at their peril...with
the
possibility
that
a
violation
of
the
permit
requirements
would
suddenly
arise
beginning
from
the
date
when
construction
or
operation began”
(Agency Br. at 15).
In this context,
the
43—548
7
Agency notes that water use patterns in the Drake building could
easily
change to increase the
flow,
either before the proposed
sale through increased occupancy by rental to tenants with larger
families, or afterwards by
a new owner’s installation of individual
washers and garbage disposals,
Environmental Impact
In response to Drake’s questioning, Agency engineer Thomas
McSwiggin stated that addition of Winston Churchill’s sanitary
flows would, from a practical standpoint, have “no measureable
or significant increase on either the sewage treatment plant
operations,
the effluent from the sewage treatment plant, the
Vermillion River, and basement back—up or sewer overflows”
(H.
234).
Testimony from City engineer Frye and Drake’s engineer
Sarver indicate that the existing combined sewers can accept the
projected sanitary flows from the apartments
(H.
308-309, Drake
Ex.
16).
Drake therefore contends that the addition of new flows
to the existing sewers and STP are “de minimis”, and that variance
should be granted,
The
Agency
counters
that,
while
the
increase
in
flows
might
not
be
measureable,
the
condition
of
Pontiac’s
treatment
plant
and
combined
sewers
is
such
that
no new flows should
be
permitted.
The
STP
has,
at
times,
exceeded
the
elevated
limits
granted
in
PCB
78—214
(IEPA
Ex.
6),
but
is
currently doing well
(R.
239,
240).
In
March,
1981
it had an actual organic load in
excess
of
design
capacity,
with
1705
P.E.
still
outstanding
in
permits
authorizing
hook-on.
Testimony
presented
by
the
Agency’s
Stephen
Baldwin
indicated that in January—February 1981, the plant effluent was
causing pollution of the receiving stream.
The effluent itself
contained “a moderate amount of turbidity and also tiny visible
suspended
particles,”
while
black
colored,
septic smelling bottom
deposits were observed in the river bottom downstream of the
plant’s discharge
(H. 257—260).
While the Agency concurs that the
interim
plant
improvements
should
improve
the
plants
performance,
it
reminds
the
Board
that
the
improvements
may
be
inadequate
if
and when completed.
The
Agency
views
any
addition to the combined sewers as
posing
“a
significant
threat
to
public health and safety.”
Although
conceding
that
the effect of additional
flows
might
not
be measureable, Mr. McSwiggin did testify that “the combined
sewer overflow would possibly be greater, the total volume,
possibly
longer
in
duration,
basement
back—ups
could
result
in
a
greater
depth
of water
in the basement”
(R.
217).
The Agency
cites testimony of homeowners Robert Kinas and Mrs. James Hoover,
as proving that overflows have increased in number and duration
since
Winston
Churchill’s
sanitary
connection
to
the
Chicago
street
sewer
(R.
122—123,
128,
136—137).
Storm
run—off
from the
pro ject into the Chicago and Locust
street
sewers,
then
to
the
43—549
8
North
Street
trunk,
affects
an
area
where
5UL~.dL~LyiILy
problems
during
and
before
the
summer
of
1981
were
the
subject
of
testimony.
Pauline
Acklin,
who
lives
on
Locust
street
just
north
of
North
street
testified
concerning
bi—weekly
overflows
of
a
manhole
at
that
location
in
June,
July
and
August,
1981,
Despite
a
300
pound
lid
on
the
manhole,
“every
time
it
rains”
the
sewer
discharges
“Kotex,
tampons,
chunks
of
detergent...prophylactics,
some
B.M.
solid
matter
or
what,
and
toilet
paper.”
Mrs.
Acklin
herself
cleans
up
this
material,
hoses
down
the
street
and
spreads
lime
to
neutralize
the
resulting odors,
Mrs.
Acklin is particularly
concerned
because
the
street
is
a
route
to
a
grammar
school.
She
noted
that
“One
of
the
little
girls
picked
up
a
prophylactic
and
said,
here,
I
found
a
halloon...I
have
grandchildren,
and
the
first
thing
they
want
to
do
is
wade
in
the
water”
(R.
171—172).
City Council Member Betty Pouliot testified that she has seen
the Locust street manhole cover suspended in
the
air by the force
of
the
sewage,
and
has
seen
another
cover
at
North
and
Walnut
lying
at
some
distance
from the manhole,
After one surcharge
event in the immediate area,
she testified that raw sewage had
spewed into a baseball diamond in Lions Park,
Children were
prevented from playing in the park long enough to allow City
workers, contacted by Mrs. Pouliot, to spread lime.
Mrs. Pouliot
further noted that one home in her ward is being undermined by
the
continued
surcharging
of
the
North
Street
sewer
(H.
176—177).
While agreeing that Pontiac’s combined sewer surcharges are
not new, and that the City has been working on its sewers,
the
Agency insists that no new flows should be added to these over-
loaded sewers.
Feasible Alternatives
Drake states that he has already implemented some measures
to minimize sanitary flows and stormwater runoff, by means of the
afore—described
building
design
and
n~i-rnr~tinn
changes.
His
proposed
storm
sewer/special
assessment
project
has
not
been
implemented
by
the
City.
Another
plan,
involving
use
of
orifice
restrictors
in
existing catchbasins to retard entry of
stormwater
flowing
from
the
property
into
the combined sewers has
also
not
been
implemented
(H.
322—321),
At
hearing,
it
was
also
suggested
that
vigorous
enforcement
of
the
City’s
existing
but
allegedly
ignored ordinance banning downspout
~
would
retard
entry
of stormwater into the collection system
(H.
324—326).
Since denial of the permit, Drake’s engineers have considered
options
for
the
handling
of
sanitary
sewage.
Septic
fields
are
said
not
to
be
a
feasible
option,
despite
the
fact
that
the
site
has
a
good
percolation
rate,
because
of
in
iFfir~i~nF
property
available
to
handle
the
waste
generated
from
all
five
buildings
(R.
98).
43—550
Drake has also rejected the option of installation of a
sanitary holding tank,
to he pumped out daily for hauling and
treatment.
Grounds for rejection revolve around the fact that
if
the
tank
is
not
properly
serviced, even in inclement
weather,
by
a
reliable
waste
hauler,
that
material in the tank could become
septic
(R.
98—99).
Concerning
these
various
alternatives, the
Agency
notes
that
orifice
restrictors
might
have little practical
effects.
Debris
may already be retarding inflow,
and ponded water might well only
find its way into other inlets
to the same problem sewers.
Drake
alleges
that
both Pontiac and the Agency have
engaged
in “reprehensible” conduct with respect to the Winston Churchill
application (Drake
Br.
p.
27),
Pontiac failed ~
comply with
the notice requirements of Rule 604, regarding both its critical
review status,
and the notice of impending
critical
review
status
received March
6,
1981.
Pontiac did not provide Drake with a copy
of
the
letter
it attached to his permit application.
The City had
requested that a meeting held March 31,
1981 with the Agency con-
cerning the plant be “closed”.
Thus,
Drake could not be present
(R.
238,
Drake
Ex.
18),
Finally, the City’s suit to require
disconnection of Winston Churchill because of violation of
ordinances
was
said
to
have been Thu the advice of the Agency”
(Drake
c,r.
Ex.
21,
Item
18),
implying some had faith on the City’s
part.
The
Agency,
for
its part,
is charged with violation of its
internal
Guidelines
for Notification of Restricted Status,
or
Critical
Review
Pursuant to the Re u
em
of Rule 604 of
Cl~~er_3:,W~r
PoUu~2n
r
ilations of the Illinois Pollution
Control
Board
(Drake
Ex.
21—21),
While its critical
review
lists
had
been
distributed
to
persons on the Agency’s mailing
list, and
to
the
Illinois
News Service, the Agency had not published them
in
the
Board’s
Environmental
Reister
guideline
IV(2)(a),
In
addition,
Drake charges,
the Agency should have placed the plant
on
critical
review
for
organic purposes,
as well as hydraulic
purposes, once the organic problem was discovered.
Once the
plant’s capacity was listed as zero for any purpose,
the
Agency
should
not
have
continued to issue permits, and should have placed
the
plant
on
restricted
status, consistent with Parts
II
and
III
of the guidelines
(Drake Br.
28),
Drake also states that he received differing opinions from
Agency
personnel
regarding necessity of obtaining a permit, based
on the fact that conversations with Agency personnel indicated
yes, hut newspaper quotes indicated otherwise
(H.
59—60).
These
divergent opinions were said to revolve around Rule 951(b)(2)
as
interpreted by the Starcevich court.
Thomas McSwiggin testified
that the Agency “disagreed with the decision” and was “probably
not following that decision to the letter”
in making its permitting
decisions
(H.
255—256).
L3
3—551
10
Drake believes that, viewing these circumstances in concert,
it is obvious that he “has been treated arbitrarily and cavalierly
by the Agencyt’
and presumably by the City of Pontiac
(Drake Br.
at 28).
Although the argument is not fully developed,
the thrust
of
Drake’s
various
points
would
seem to be that variance should
he
granted
to
deter
the
Agency
and
the
City
from
repeating
such
“outrageous
conduct”.
It is the Agency’s position that, despite any alleged non-
compliance with Rule 604(d) by itself or by Pontiac,
that Drake
should reasonably have been prompted to contact the Agency early
on in the project’s life.
As early as late summer,
1980,
Drake’s
engineer Russell was aware of critical review status and was aware
of organic problems, even if only related to sludge handling
problems
(H.
148,
160—161).
The City did advise Drake of permit
requirements during the zoning discussion
in October,
1980, even
before the Agency’s Mr. Bauman called Drake’s attorney on November
21 and December
1,
1980,
Drake’s failure to inquire about permit
requirements under these circumstances is thus viewed as
“shockingly cavalier”
(Agency Br.
at
5).
Economic Hardship
Drake alleges arbitrary and unreasonable economic hardship
will
fall on the Pontiac community and on the partnership if
variance is denied.
The alleged community hardship involves both
loss of jobs, trade, and taxes due to failure to complete the
entire project, as well as loss of the planned housing units.
Partnership hardship involves loss of monies already expended,
as well as anticipated profits.
It is alleged that failure to complete Winston Churchill
will involve loss to the community of the wages of some 30 to 40
building tradesman for about one year,
in addition to those of
several part—time building management and maintenance personnel
.zhose hiring can be anticipated upon the project’s completion.
~owever, in Drake’s view,
the loss to Pontiac of additional middle—
income, multiple family,
rental housing units
is of equal
if not
greater
significance.
Studies
performed
by
the
Pontiac
chamber
of
Commerce
in
1979
and
1980
have
indicated
a
shortfall
of
rental
housing within the City of
all
types.
This
problem
is not antici-
pated to be soon corrected,
as only
7 residential building permits
have been issued in Pontiac in 1981
(H.
47—49,
325, Drake
Ex.
12—15).
Drake further alleges that,
if
variance
for
the
completed
building is not granted, his 30 current tenants will be hardpressed
to find comparable housing
in the Pontiac area
(H.
30).
As to itself,
Drake alleges that denial of variance for the
one completed and five projected buildings would “place the Drake
partners on the verge of bankruptcy.”
As of the date of hearing,
over $400,000 was borrowed for acquisition of land and for con-
struction
costs
for
the
completed
building;
interest
expended
on
43—552
11
the construction loan by itself had come to $12,700.
Engineering
and attorney’s fees incurred in 1981
had
amounted
to
$14,800
with
$7,000
more
anticipated
as
a
result
of
this
variance
proceeding
(Drake
Ex.
11).
Drake states that,
as it had planned to sell the buildings
rather than retaining them as an investment,
it cannot wait to
complete the project until
the Pontiac plant is completed.
It
projects
that
the
current
building
will
operate
at
an
$1,800
monthly
net
loss,
and
states
that
it
has
borrowed
$5,000 to $10,000
monthly to keep the project intact.
Drake states that no further
construction
financing
can
be
obtained
unless
and
until
a variance
is
granted,
and
that
there
will
be
no
interim
funds
available
to
finance
its
current
mortgage
and
other
loan
repayments.
Other
partnership
real
estate
holdings
would
have
to
be
sold
to
cover
these debts,
“probably”
resulting in bankruptcy
(H.
28-29, 40—42,
r)rake
Ex.
11).
The
Agency
argues
that,
in
any
event,
expenditures
made
prior
to
rezoning
on November 17,
1980
are
irrelevant
to
proof
of
hard-
ship in this proceeding, as they had no assurance of ability to
construct their project, citing
H.
Elliot Polister
V.
IEPA
and
City of
St. Charles,
PCB 80—164 (February
19,
1981) at
3.
~ny
hardship caused by expenditures made after that date are viewed
as being self-imposed, in view of Drake’s
failure to investigate
the
permitting
situation,
and
his
decision
to
connect
his
building
to
the
sewer
system
without
a
permit.
BALANCE OF EQUITIES
The threshold question obviously is whether variance
is
necessary
at
all.
To
resolve
this question, the Board must
define
the
scope of the Rule 951(b) (2) permit exemption,
in
exercise
of
its
Board’s
quasi—legislative
function.
See
IEPA
,_~ontr~o~_Brd,
et
al.,
No.
54131,
slip
op.
at
9-11
(Ill.S.Ct.
Sept.
30,
1981).
The
Board
itself
has
not
previously
addressed
the
question
as
to
whether
design
criteria
versus
actual
discharge
is
determin-
ative
of
Rule
951(b)(2)’s
permit
exemption,*
However,
the
Board
finds that only through use of design criteria as the determinative
factor is the exemption reasonably easy and certain of application
by
potential
permittees
and
the
Agency.
The
exemption’s
purpose
was to lighten the administrative burden on potentially small
dischargers
and
the
Agency’s
permitting
section,
and
not
to
create
a nightmare of regulatory confusion
see
Peoplev._Keeven,
68
Ill.App.3d
91,
385
N.E.2d
804,
811—812
(5th
Dist.
1979) (upholding
constitutionality of Rule 951).
The Board hardly intended to
frame
a
rule
which
could
be
applied
only
after
a
“fait
accompli”.
*The
substance
of
current
Rule
951(b)(2)
was
first
adopted
as
Rule 901(b)(2)
in R71-14,
and provided in pertinent part,
an
exemption
for
(continued
next
page)
43—553
12
Yet, even were the Board to have otherwise defined the scope
of this exemption, the evidence presented concerning actual water
usage of the present occupants would have been insufficient to
allow the Board to determine if the
exemption
applied.
A
single
water bill
for the months of May and June does not establish, with
sufficient certainty,
what a ouilding’s actual water use patterns
would be, and certainly would not apply to the buildings yet to he
built, occupied and sold.
As the exemption does not apply, variance is necessary, and
the Board must evaluate the merits of this action.
The Board has
recently adjudicated another variance petition seeking a hook—on
to the Pontiac STP in H.J. Bergman Builders,
Inc. and The City of
Pontiac v. IEPA, PCB 81-67
(September
3, 1981).
It would seem to
have been an understatement to have remarked there that “many
parties have mishandled environmentally unsound situations for
years at a stretch”
(p.
7).
It has become abundantly clear that
“although
combined sewers are a problem all over Pontiac,
(it
does
not want to limit
its
growth unless absolutely necessary”
(IEPA Ex.
2, Pontiac letter of 12/16/80).
Pontiac has encouraged
development while acting inconsistently both towards potential
developers and its current residents.
As to the Agency, while
the Board appreciates the magnitude of its workload, the record
indicates an unsettling lack of consistency in its decisions and
actions as they relate to critical review and pending restricted
status, as well as notice and permitting during those periods.
Yet,
it is also the fact that “a party claiming the benefit
of an estoppel cannot shut his eyes to obvious facts, or neglect
to seek information that is easily accessible,
and then charge
his ignorance to others” Willowhrook Development ~
IPCB,
92 Ill.App3d 1074,
416 N.E,2d 385,
391 (1981),
There is
sufficient evidence to prove
‘that Drake has done both.
Drake
(footnote continued)
“any...sewer
that
is
designed
and
intended
to
serve
a
single building and eventually...transport the sewage
of 15 or less persons..
,“
R71—14,
4 PCB 5,
29
(Order,
March
7,
1972).
The
accompanying
Opinion
makes
no
direct
comment
on
the
substance
of this Rule.
In
R73—11,
12,
Rule
951
was
adopted
in
its
current
form.
The
supporting
Opinion
notes
only
that
former
Rule
901
“was
modified
to
read
‘an
average
of
1500
gallons
per
day
of
domestic
sewage’.
This
change
was
premised
upon
a
population
equivalent
of
100
gallons
per
person,
which
equates
15
or
more
persons to
1500
gallons
per
day
of
domestic
sewage.”
R73—11,
12,
14
PCB
661,
679
(Opinion, December
5, 1974).
43—554
13
did
not
contact
the
Agency
concerning the plant,
even though 1)
his
engineers
were
aware
of
critical
review
status
in
summer,
1980
and
2)
he
was
informed
about
permit
requirements
at
City
Council meetings in October,
1980.
Upon receipt of rezoning on
November
17
and
issuance
of
a
City
building
permit
November
18,
Drake commenced construction without even having filed an appli-
cation with the Agency,
let alone having waited for the Agency’s
answer.
Construction continued even after an Agency employee, on
his own initiative, contacted Drake’s attorney November 21,
1980
and
his
engineer
December
1,
1980
to
discuss
a
permit
application
and
potential
permit
problems.
The
Board
finds
that
Drake’s
continuation of construction was certainly unreasonable after
November 21,
1980,
if not from its very start.
The Board finds that Drake’s economic hardship is of its
own making.
To find otherwise would be to reward Drake for a
successful
flouting
of
the
permit
system.
The Board does not find
any
credible
evidence
that
the
unpermitted hook—on was made in
good—faith reliance on a reasonable interpretation of an arguable
Board rule.
That there is an indication that the building
discharges less than 1500 gpd seems entirely fortuitous,
in the
absence of pre—hook—on consultation between Drake’s and the
Agency’ s engineers.
Drake
has
not
convinced
the
Board
that
he
has
no
interim
sewage disposal options.
That holding tanks require proper
servicing and maintenance may render them more costly than a
direct hook—on, but does not render them infeasible.
As to the
completed building, there
is no evidence that a septic field
cannot be constructed to service that building only.
Drake also alleges hardship to his current tenants if they
are forced to find substitute housing.
The Board finds that,
given the availability of the above described sewage disposal
options, that possible imposition of this particular hardship
would lie in Drake’s control, and
so should be afforded little
weight.
Here,
as
in
Bergman,
the
weight
given
the
potential
hardship
due to loss of additional middle income housing to the City is far
outweighed by the actual hardship which has been and will continue
to be imposed on residents experiencing the health threats and
nuisance of sewage back-up.
The mere building of Winston Churchill
on a vacant lot has increased storm run-off that, doubtless in
conjunction with its illegal connection to an overloaded sewer
line, has been proven to have increased sewer discharging.
It
would appear that to the Chicago,
Locust, and North Street sewer
lines there can be no “de minimis” additions.
Indeed, as the
Board alluded to in Bergman
(at p.
8), even if additions to these
sewers and to the STP could be considered “de minimis”, the Pontiac
situation is one in which the line against any additional loading
must
be
drawn
by
the
Board,
whether
or
not
the
City and/or the
Agency concur.
43—553
14
Variance from Rule
962(a)
is accordingly denied for failure
to
prove
an
arbitrary
or
unreasonable
hardship,
particularly
as
balanced
against
the
City’s
water
pollution
problems
resulting
from the marked insufficiency of its sewers and treatment plant.
ORDER
Variance from Rule 962(a)
is denied.
IT IS SO ORDERED.
I,
Christan
L.
Moffett,
Clerk
of
the
Illinois
Pollution
Control Board, herq~ycertify that the above Opinion and Orde; was
adopted on the
~
of
-~t-t~
,
1981 by a vote of
~
C4~LL~
i/~d,4~L
Christan L. Moff~l, Clerk
Illinois
Pollution Control Board
43—556
