ILLINOIS POLLUTION CONTROL BOARD
    November 29,
    1979
    FARMERS and MERCHANTS BANK
    of Highland as Trustee of
    Trust No.
    756,
    Petitioner,
    v,
    )
    PCB 79—155
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    )
    Respondent.
    ROBERT BAREWIN, ATTORNEY AT LAW,
    appeared on behalf of the
    Petitioner.
    PATRICK J. CHESLEY, ASSISTANT ATTORNEY GENERAL, appeared on
    behalf of the Respondent.
    OPINION OF THE BOARD
    (by Mr. Dumelle):
    Petitioner requested a variance from Rule 962(a)
    of
    Chapter
    3: Water Pollution
    in order to obtain a sewer connection
    permit for a proposed apartment complex being developed by
    Ralph Korte Construction Co. Inc., the beneficiary of a
    trust for which Petitioner is trustee.
    On November 15,
    1979,
    the Board ordered the denial
    of Petitioner’s variance
    request. This Opinion states the rationale supporting the
    Board’s Order.
    Riverton, a village of
    2,000 people located in Sangamon
    County, has been on restricted status since July 21,
    1978.
    The Village has been awarded a Step
    1 grant to do an Infiltration
    Inflow study which
    it is presently conducting.
    Petitioner,
    after receiving approval for financing from the Farmers Home
    Administration
    (FmHA),
    purchased land on November 29, 1978
    as a site for a new
    4 building,
    32 units apartment complex.
    The Agency cannot issue a sewer connection permit to the
    Petitioner while the Village
    is on restricted status unless
    the Board grants Petitioner a variance.
    Farmers and Merchants Bank asserted that the developers
    were unaware of the Village’s restricted status when the
    land was purchased.
    Petitioner accurately pointed out that
    the Village did not appear on the Agency’s restricted status
    list until April 1979, more than eight months after the
    Village was placed on restricted status.
    Petitioner stated
    ~—1
    7Q
    —2—
    that the list was reviewed prior to the purchase of the
    property and that the land would not have been purchased if
    the developers had known of the Village’s restricted
    status.
    (R68).
    The Agency’s restricted status
    list, however,
    contained a caveat that the list was being continually
    revised and that the Agency should be contacted for a final
    determination,
    With this warning,
    the developers could not
    in good faith have relied solely upon the restricted status
    list as a statement of the Village of Riverton’s
    status.
    The fact that the Village’s name did not appear on subsequent
    lists was irrelevant.
    The developers should have checked
    with the Agency before purchasing the land.
    Had the developers
    even contacted the Village prior to purchasing the property,
    they would have been informed of the Village’s true status.
    Any hardship resulting from the purchase of the land, therefore,
    is self—imposed.
    Furthermore, most of the $70,000 invested
    in the project was for legal and planning fees which would
    be recovered
    if the project was ever completed at a later
    date.
    Petitioner also argued that no environmental harm would
    result if the sewer line were connected.
    Petitioner stated
    that the inflow and infiltration problems that caused the
    Village to be placed on restricted status had been eliminated
    by the installation of a new section of sewer pipe.
    Testimony,
    however,
    indicated that basement flooding occurred after the
    repairs.(R145..152,160).
    The Board, aware of the extensive
    property damage and the threats to health and safety occasioned
    by basement flooding, does not wish to allow the possibility
    of increased future basement flooding.
    Petitioner’s promise
    to install
    a larger sewer pipe in a section of the Village
    of
    Riverton’s
    sewer system, without presenting any data on
    the effectiveness of such a repair,
    is not sufficient to
    convince the Board that basement flooding would be abated.
    Petitioner also asserted that denial of the variance
    would impose hardship on the citizens
    in the Riverton area.
    Petitioner stated that the FmHA only approved financing when
    there was a genuine need for housing
    in the area.
    The
    Agency in its Recommendation, however, indicated that the
    FmHA determined a need for only two or three units
    in the
    area as opposed to the 32 contemplated by Petitioner.
    The
    Agency further explained that the FmHA approves loans when
    there
    is an indication that enough units could be rented to
    assure payment of loan installments.
    Approval of the loan,
    therefore,
    did not necessarily demonstrate that
    a 32 unit
    housing complex was actually needed in the Riverton area.
    Although Petitioner’s variance request was denied,
    a
    new variance request may be filed.
    Petitioner,
    in any
    subsequent variance requests, should submit technical data
    supporting the effectiveness of any sewer improvements it
    will
    be willing to make.
    Because flooding is occurring
    36—180
    —3—
    downstream for the proposed apartment complex during rainy
    weather,
    Petitioner should investigate the use of holding
    tanks
    (see christian County Housing Authority v. EPA, PCB
    77—16,
    25 PCB 471 and
    25 PCB 709).
    This Opinion constitues the findings
    of fact and conclusions
    of law
    in this matter.
    Mr. Werner dissents.
    I, Christan L. Moffett,
    Clerk of the Illinois Pollution
    Control Board, heFeby certify the above Opinion was adopted
    on the
    ________________
    day of
    ~
    1979 by a vote of
    J~
    c~L~L2~
    Christan L. MoffetiI,,f~t~erk
    Illinois Pollution c~!trolBoard
    36—181

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