ILLINOIS POLLUTION CONTROL BOARD

October

4,

1979

CORPORATE WEST DEVELOPMENT, INC.,

and COUNTY OF DUPAGE,

Petitioners,

v.

)

PCB 79—163

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

OPINION OF THE BOARD

(by Mr.

Dumelle):

Petitioner Corporate West Development,

Inc.

(Corporate

West)

requested a variance from Sections

12 and 39 of the

Act and Rules 951,

952, and 962 of Chapter

3: Water Pollution

to construct and operate a sewer connection from

a proposed

hotel

site

to the DuPage County Department of Public Works

Lisle—Woodridge sewage treatment plant.

This plant has been

placed on restricted status.

The Agency recommended that a

variance be granted to allow construction of the sewer

extension with operation conditioned on a number of factors.

No hearing was held. At an emergency meeting on September

13, 1979 the Board granted a variance to construct and

operate the requested extension subject to conditions.

This

Opinion supports the Board’s Order.

On November 20,

1975 the Agency issued a permit to

Corporate West which authorized the construction and operation

of

a sewer extension to carry 42,000 gallons of wastewater

per day.

By July 28,

1977 Corporate West had obtained

permits from the Village of Lisle for two office buildings

which consumed 6,000 gallons

of the 42,000 gallon allocation.

On October

5,

1978 Corporate West entered into a contract

with Fireside West Development Company

(Fireside)

to sell 15

acres of property to build a hotel and restaurant facility.

The contract included a warranty that adequate sewerage

would be available.

On May

31, 1979 the Agency notified

DuPage County

(the county) that the Lisle—Woodridge plant

was on restricted status and had no additional capacity.

On

July 24,

1979 Corporate West was informed by the Agency that

an additional permit would be required to construct and

operate the connecting

lines for the hotel.

Since the plant

was on restricted status,

this permit could not be issued.

Corporate West and the Agency disagree on whether or

not an additional permit is needed, but this

is not a permit

denial appeal.

Corporate West has requested a variance

because Fireside will not proceed to a closing until the

35—487

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—2—

matter

is resolved.

Fireside must execute

a loan commitment

in the near future and the hotel franchisor needs

a demonstration

that all necessary financing has been obtained.

Corporate

West needs a large payment from Fireside

($1.1 million) by

the end of this year to avoid excess interest payments on an

outstanding loan of $6 million.

Corporate West claims that

construction, already underway, must continue so that the

hotel

is under roof before winter makes outdoor work impractical.

Corporate West admits that although the Lisle—Woodridge

plant

“

.

.

.

is not necessarily hydraulically overloaded

the plant’s discharge has recorded violations of its

NPDES permit.

Corporate West claims that all hydraulic and

organic overloadings will be corrected by the construction

of an interim expansion of 1.0 million gallons per day

(MGD)

and a permanent expansion of 04 MGD by the county within

the next year and

a

0.3 MGD interim expansion by the Village

of Lisle.

In addition Corporate West points

to additional

plans by the county to permanently expand the plant and the

fact that an additional 0.032

MGD

from the hotel will have

no measurable impact on the 6.94 MGD plant.

Corporate West’s hardship

in this matter consists of

economic losses

it would suffer

if the project

is placed in

jeopardy.

Corporate West claims that this hardship

is

rendered arbitrary and unreasonable when it is balanced

against reliance on a previously issued permit and the fact

that projected expansions may precede the completion of the

hotel.

In its Recommendation,

the Agency claims that Corporate

West has never obtained connection permits for the two

office buildings.

The Agency first notified the county of

pending restricted status on April

25, 1979 and actual

designation on May 31,

1979 pursuant to Rule 604(a) of

Chapter

3: Water Pollution.

The Agency’s

latest data show

that from July 12 to July 31,

1979 the flow from the plant

averaged 7.16 MGD,

indicating hydraulic overloading.

The

Agency believes that outstanding permits exist which would

authorize an additional 1.7

NIGD.

The Agency cites discharge

monitoring reports which show that both the Lisle and Woodridge

plants have exceeded NPDES standards for BOD, Suspended

Solids,

and Ammonia Nitrogen consistently from August,

1978

through June,

1979.

The Agency

is aware of the county’s

commitment to expand the Woodridge plant with an additional

1.4 MGD by September 15,

1980 but has not been advised of

any plans by Lisle.

The Agency recommends that

a variance be granted which

would allow construction of the sewer

lines but that operation

be conditioned upon:

1)

an order from the Board directing

the county to complete the 1.4

NIGD

expansions and any other

necessary expansions and,

2)

a similar order from the

Circuit Court for the 18th Judicial District

in pending

litigation.

The Agency also asks that this variance be

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—3—

limited to the connection from the proposed hotel

arid

that

variance relief from

Rules

951 and 952 be dismissed.

In

a Response, Corporate West claims that the Agency’s

requested conditions are unreasonable on three counts.

First,

it has

no control over the actions of the Circuit

Court.

Second,

any additional variance requests should be

handled by the Board when they arise.

Third,

financing may

be withheld if

a cloud remains over Corporate West’s or

Fireside’s right to operate the hotel

sewer connection.

The Board concludes that denial of

a variance would

constitute arbitrary or unreasonable hardship.

Corporate

West appears

to have proceeded in good faith reliance on a

42,000 gallon per day allocation made in 1975.

Since the

contribution from

the

hotel

is small

in relation to the

total plant flow and since the county is proceeding to

remedy the plant’s shortcomings, the chance for any measurable

environmental damage appears slight.

The Board sees no

reason to tie this matter to any future variance petitions

since they can be evaluated individually at a later date.

The county was named as

a Respondent throughout this proceeding,

but has never been joined formally.

The Board has

named

the

county as

a Petitioner in the Order because its interests

are more closely aligned with Corporate West’s than

with

the

Agency’s. The county has been ordered to perform the necessary

expansions and operation of the sewer connection is contingent

upon a similar order from the circuit court because the

Board was advised at its emergency meeting that the county

had agreed to this action.

In general,

the Board

is

extremely

reluctant to condition its order upon a court action with

which it

is not familiar.

Similarly, Corporate West stated

its agreement with these actions.

The Board felt it would

be inappropriate to require the county to execute a certification

because time was of the essence.

The Board’s Order has not addressed Petitioner’s requests

for relief from Section 12 of the Act since a variance from

Rule

962 renders statutory relief unnecessary.

Relief from

Section 39 and Rules

951 and 952 are similarly not addressed

since there has been no showing that Corporate West should

not be required to comply with those permitting procedures.

This Opinion constitutes the Board’s findings of fact

and conclusions of law in this matter.

I,

Christan L. Moffett, Clerk of the Illinois Pollution

Control Boa

s1~

hereby certify the a ov

Opinion was adopted

on the

________________

day of

______________,

1979 by a

vote of

______

—____

Christan L.

Moffett, /~k

Illinois Pollution CoT~folBoard