ILLINOIS POLLUTION CONTROL BOARD

August 14,

1986

BRAVO-ERNST DEVELOPERS,

)

Petitioner,

)

v.

)

PCB 86—10

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY

arid COUNTY

)

OF DUPAGE,

Respondents.

OPINION AND ORDER OF THE BOARD

(by B. Forcade):

This matter comes to the Board on

a January 16,

1986,

Petition for Variance filed by Bravo—Ernst Developers

(“Bravo—

Ernst”).

Supplemental filings were made by Bravo—Ernst on either

the Board or the Illinois Environmental Protection Agency

(“Agency”)

on March

5,

1986, March 31,

1986, April 10, 1986 and

May 20,

1986.

No hearing was held.

The Agency Recommendation

that the Board deny the requested variance was filed July 15,

1986.

Bravo—Ernst has requested

a variance from 35

Ill. Adm. Code

Section 309.241,

to allow

it

to connect

a proposed development,

the Macedonian Heights Subdivision,

to sewers owned

by the DuPage

Utility Company (“DUC”) with ultimate discharge

to the DuPage

County Department

of Public Works

(“DPCDPW”)

Lisle—Woodridge

sewage treatment plant.

The segment of

the sewer

system owned

by DUC is presently on

restricted

status.

During the period that Bravo—Ernst has owned

the subdivision property the Lisle—Woodridge STP has been put on

and taken off restricted status,

but

it

is the current restricted

status of DUC which now prevents

sewer connections

to the

subdivision.

The DUC system has been experiencing problems with

broken sewers,

basement back—ups, manholes surcharging and

illegal downspout connections.

The Macedonian Heights Subdivision,

as proposed, would be

comprised of 12 single family dwellings located at the

intersection of 59th Street and Dover

in unincorporated DuPage

County.

The facts

in this

proceeding are extremely lengthy and

convoluted but a brief description

is appropriate.

Bravo—Ernst

purchased the property in question for development purposes on

April

1, 1977.

At that time neither

the DUC sewers nor

the

DPCDPW sewage treatment plant were on restricted

status.

Also,

Bravo—Ernst had been assured that DUC was capable and willing to

accept sewage from the Macedonian Heights Subdivision

(Petition,

72-30

---

—2—

Exhibit C).

On March 30,

1978, Bravo—Ernst made formal

application to DUC but the application was rejected.

Bravo—Ernst

filed an action before

the Illinois Commerce Commission seeking

an order requiring DUC

to provide service.

However, while that

action was pending DUC’s sewers were placed

on restricted

status.

Bravo—Ernst’s 1981 attempt

to secure sewerage from the

Lisle—Woodridge sewage treatment plant were similarly frustrated

by the imposition of restricted status.

In evaluating

a request

for variance,

this Board must

balance any arbitrary or unreasonable hardship suffered by

petitioner,

if variance were denied,

against the potential for

environmental harm.

The Board believes the Agency has succinctly

stated Bravo—Ernst’s hardship:

Bravo—Ernst

has

been

unable

to

develop

its

property

for

the

last

nine

years

through

no

fault

of its own...The developers of this tiny

subdivision

have

become

enmeshed

in

a

bureaucratic

morass

of

unusual

complexity.

They

have

been

faced

with

two

areas

of

restricted

status,

two

state

agencies

arid

three

utility

companies.

They

have

had

to

bear

not

only

the

carrying

costs

on

this

property

and

the

costs

of

proceeding

through

the above—described

maze,

but the frustration

of

clearing

each hurdle

in

their path only to

find

another

one

in

their

way.

It

is

the

agency’s

opinion

that

because

of

the

exceptional

circumstances

involved

in

this

case,

if

the developers

could

show that their

proposed

subdivision

would

not

aggravate

existing

sewer

problems

then

denial

of

this

variance

would

constitute

arbitrary

and

unreasonable

hardship.

(Recommendation,

pp.

5—6)

The Board agrees that except for

the environmental

consequences, denial of variance would constitute arbitrary or

unreasonable hardship.

The proposed Macedonian Heights Subdivision

is located

generally at

the southeast corner

of

a residential area whose

sewers flow to the northwest.

In

a 1978 Order

(Petition,

Ex.

B),

the ICC found

that in dry weather,

the sewage system runs at

about 50

capacity;

however,

in wet weather,

about five days per

year,

the system has

a considerable overload problem which leads

to sewage back—ups

in the homes of the Meadows Subdivision (along

the western edge of the service area).

The Agency notes recent

complaints of sewage back—ups

in basements

in the area.

Also,

the Agency contacted one of the complaining citizens who

confirmed sewage back—ups as

recently as November 1985.

72-31

---

—3—

Additionally,

the Agency has been informed

of manhole surcharging

in the area.

Bravo—Ernst’s proposed development would be

directly tributary to these problem areas.

In summary,

the record discloses and

the Board finds that

basement back—ups and manhole surcharging

in the Meadows

Subdivision are pervasive and severe,

that these problems

continued

as recently as two months before

the present petition

for variance was filed,

and that Bravo—Ernst’s proposed

development would be directly tributary

to the problem area and

would exacerbate the problem.

Further,

the Board finds that the

back—ups and surchage problems are certain to continue as long as

DUC fails

to identify and correct the illegal sewer connections

(sump pumps and drains) which cause

the problem.

The Board

is

aware that raw sewage back—up in

a basement presents problems of

the spread of disease and electrocution,

as well

as property

damage.

Regardless of the economic hardship suffered by Bravo—

Ernst,

the Board finds that

its hardship

is not sufficient

to be

arbitrary

or unreasonable in

light of the increase in the health

and safety risk to the people

in the Meadows Subdivision.

Consequently,

the Board, on balance, denies the petition for

variance.

This Opinion constitutes

the Board’s findings of fact and

conclusions

of

law on this matter.

ORDER

Bravo—Ernst Developers’

request for variance from 35

Ill.

Adm. Code Section 309.241

is denied.

IT

IS SO ORDERED.

I, Dorothy M. Gum, Clerk

of the Illinois Pollution Control

Board, hereby certify that the above Opinion and Order was

adopte~~on

the

,‘~/-~

day of

______________,

1986,

by

a vote

Dorothy M. ‘Gunn, Clerk

Illinois Pollution Control Board

72-32