ILLINOIS POLLUTION CONTROL BOARD
February
5,
1981
KENIDEN KONSTRUCTION,
INC.
Petitioner,
v,
)
PCB 80—201
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
~)PINION AND ORDER OF THE BOARD
(by
1.
Anderson):
This matter comes before the Board on the petition for
viriance filed October
31,
1980,
as amended December
8 and 16,
1980 by Kenden Konstruction,
Inc.
(Kenden).
Although Kenden
originally requested a hearing,
it withdrew its request after
the filing on January
16,
1980 of the Recommendation
of the
Illinois Environmental Protection Agency
(Agency) supporting the
variance.
This decision
is being given expedited consideration
in accordance with the Board’s Order of January
22,
1981.
Xenden seeks variance from Rule 962(a)
of Chapter
3:
Water
Pollution
in order to receive a sewer construction and operation
permit for 8 single family dwellings,
generating an estimated
total of 3,200 gallons per day of sewage,
to be developed in the
Westminster Subdivision,
City of Darien, DuPage County, Illinois.
The sewer would be tributary to the Marionbrook Treatment plant,
which is owned and operated by DuPage County.
This plant has been
on restricted status since April
30,
1979,
after notification to
DuPage County of the pendancy of such action on March
19,
1979.
Kenden
had
previously
received
a
two—year
construct
and
operate
permit for this sewer project, which expired on Septem-
ber 21,
1980.
Construction of sewers was not and has not
commenced,
according to Kenden, because of the “rapid escalation
of home mortgage rates together with the general recessionary
conditions of the economy as well
as the uncertainties of
M~rionbrook’srestricted status”
(Am.
Pet.
3,4).
Kenden’s alleged hardship is financial.
The property, when
purchased for $125,000 in 1978,
was mortgaged for 24 months for
that amount to First Federal Savings and Loan.
In October,
1979
Kenden sold one lot outright and entered into sales contracts
for two more:
each lot is to be delivered in a “fully improved
state,” which includes sewer connections.
Petitioner states that
the loan was not paid in February,
1980 when due, and that First
40—429
2
Federal
has stated that
if the loan was not paid
iu full
by
January
1,
1981,
that
it would foreclose on the property or
re~uirethat
it be deeded the property by Kenden
(in lieu of
foreclosure).
Kenden states that
its inability to furnish “fully
improved”
lots will subject it
to breach of contract suit by the
“outright” purchaser,
and will render
it unable to “close” the
two other contracts.
Foreclosure would cause Kenden to lose
the
benefit of the following expenditures:
$70,000 in development
costs,
$5,000 in engineering costs,
$1,800 in real estate taxes,
and $3,000
in legal
fees
(2d ~m. Pet.
3—4),
Kenden asserts
that
if variance is granted, construction will
be
commenced immediately.
It anticipates that
no sewage will be
discharged into the sewer for a minimum of one year after completion
of construction
(date unspecified).
It finally suggests that
the
3200 gpd flow
is minimal
in
relation to the plant’s
flow,
so that
the environmental impact would be minimal.
The Agency does not comment on these hardship allegations.
It supports grant of variance because of the small discharge
involved and the fact that a prior permit had been issued.
However,
the Agency places greater importance on the entry of
the DuPage County Circuit Court’s Order in People of the State
ofIllino~__ç~n~ypf DuP~~No
.
80MR43~2,which in part
provides for the upgrading of the Marionbrook plant,
and the
phasing
in of connections t6 it for persons who had previously
received Agency construct only or construct and operate permits.
The Agency recommends that variance be granted “subject
to
the
provisions” of that Order.
Under most circumstances, the Board might view the hardship
of
the Petitioner as,
a) hardship experienced by anyone whose
property improvements are delayed by the imposition of restricted
status,
and b) as aggravated by the Petitioner’s own actions,
especially as
it entered into the three sales contracts
after
restricted status was imposed, and then failed to commence con-
struction while that permit was
in effect.
However,
as the
records
in other actions concerning the Marionbrook plant have
made clear
(e.g. WiUowbrook~
Cor.v.
IEPA,
PCB 80—58,
July
3,
1980, Corporate_West,
Inc.
et al,
v.
IEPA, etal,,
PCB 80-
96 to 100
consolidated,
A~
t’7,Tt9)
period~
preceding
and following imposition of restricted status on Marionbrook was
one of considerable confusion, uncertainty, and imperfect if not
conflicting communications,
Thus, the Board takes cognizance of
the climate
in which Kenden’s decisions were
made.
Given this
climate, and given the imminent foreclosure of the property in-
volved, the Board finds
that,
under these individual
circumstances,
denial of variance would impose an arbitrary or unreasonable
hardship.
Variance from Rule
962(a)
of Chapter
3:
Water Pollution
is therefore granted.
The Board is unclear as
to the meaning
of
the Agency’s suggestion that variance be granted
“subject to” the
provisions of the Order in
80MR432,
hut for the reasons expressed
in County of DuPage,
PCB 80—160, January
22,
1981 the Board declines
to explicitly condition this variance on that Court Order.
40—430
3
ORDER
1.
Petitioner, Kenden Konstruction is hereby granted a
variance from Rule 962(a)
of Chapter
3:
Water Pollution, to
allow issuance of a sewer construction and operation permit
for
8 single family dwellings in the Westminster Subdivision, City
of Darien,
DuPage County,
for which EPA Permit No.
1978—H!3—2114
had been issued in
1978,
2.
Within forty—five days of the date
of this Order,
Petitioner shall execute and forward to the Illinois Environmental
Protection Agency, Enforcement Programs
(Water Pollution),
2200
Churchill Road,
Springfield, Illinois
62706,
a Certificate of
Acceptance and Agreement to be bound to all terms and conditions
of this variance.
This forty-five day period shall he held in
abeyance for any period this matter is being appealed.
The form
of the certificate shall he as
follows:
CERTIFICATE
I,
(We),
____
___,
having
read
the
Order
of
the
Illinois
Pollution
Control
Board
in
PCB
80—201,
dated
____
____,
understand
and
accept
the
said
Order,
realizing that such acceptance renders all terms and
conditions
thereto
binding and enforceable,
Petitioner
By:
Authorized
Agent
Date
IT
IS
SO
ORDERED.
I
Christan
L.
Moffett,
Clerk
of
the
Illinois
Pollution
Control
Board,
hereby
certify
that
the
above Opinion and Order
were
dopted
on
the
~
day
of
___,~,
1981
by
a
vote
of
___.
/
~----—~-
-
Christan L.
Moffett, Clerk
-
Illinois
Pollution
Control
Board
40—43 1