ILLINOIS POLLUTION CONTROL BOARD

July

20,

1978

RALPH

KORTE

CONSTRUCTION

COMPANY

)

INCORPORATED,

Petitioner,

v.

)

PCB

78—103

ENVIRONMENTAL

PROTECTION

AGENCY,

)

Respondent.

THOMAS A. HILL OF

MATEYKA AND

HILL,

APPEARED

FOR

THE

PETITIONER;

REED NEWMAN,

ASSISTANT ATTORNEY

GENERAL, APPEARED

FOR THE RESPONDENT.

OPINION

AND

ORDER OF THE BOARD

(by Mr. Dumelle):

This case

is before the Board as part of a tentative settle-

meñt

in the related enforcement proceeding, PCB 77-275.

Petitioner

is requesting a variance from Rules 604(b)

and 962 of Chapter

3:

Water Pollution Regulations.

As part of a Joint Motion for Waiver

of Hearing, the parties have submitted a Stipulation of Facts.

Petitioner Korte was the developer for a small industrial

park located on the northwest edge of the City of Highland.

Petitioner

constructed,

without

the

required

permits,

two

sewer

extensions

to

serve the park.

The construction

and

use

of

these

extensions

are

the

subjects of the enforcement proceeding against

Korte.

There

are

presently

nine

businesses

using

these

extensions,

and

it

appears

that

these

establishments

had

no

knowledge

that

the

extensions

were

built

without

the

appropriate

permits.

Some

of

these

businesses

have

moved

from

downtown

Highland

locations

and

thus

create

a

transfer

of

load

rather

than

an

additional

load

on

the

system.

Only

domestic

sewage

is

entering

these

extensions.

Each

business

is

small,

employing

only

a

few

people,

and

under

existing

Board

rules,

each

business

could

have

individually

connected

with

the

existing

system

without

applying

for

construction

or

use

permits.

31-101

---

—2—

The

present

Highland

Sewage

Treatment

Plant

is

on

Restricted

Status

and

is

severely

overloaded

resulting

in

frequent

bypassing

and

a

poor

quality

effluent.

The

City

was

first

placed

on

Restric-

ted Status by the Sanitary Water Board in 1969, and again by the

Agency

in 1971.

The STP consists of a trickling filter facility

with

design

hydraulic

and

BOD

loading

of

0.55

MGD

and

7000

PE,

respectively.

The

plant

discharges

into

a

small

branch

of

Sugar

Creek,

a

tributary

of

the

Kaskaskia

River.

The

Kaskaskia

is

noticeably

degraded

below

the

Highland

plant.

The

City

is

currently

constructing

a

new

1.2

MGD

(3.0

MGD

design

maximum

flow)

plant

which

is

expected

to

be

completed

in

late

surmrier

1978.

As

the

Agency

notes

in

its

Recommendation,

removal of the restricted status is not certain to occur upon

completion of the new facility.

The Agency has issued “construct

only” permits for certain developments and some of the data from the

Agency’s evaluation survey indicates that Highland may still have

no capacity remaining.

Of course,

if the new facility is fully

approved, then this variance will be no longer needed.

Petitioner claims that denial of this variance

will

cause

arbitrary and unreasonable hardship.

In support of this conten-

tion, Korte points to the imminent completion of the new STP and

the small load increase on the system.

Petitioner also cites

engineering reports which indicate that soil conditions make indi-

vidual septic systems an undesirable and impractical alternative

to using the existing extensions.

In addition,

the Petitioner

alleges that there will be no environmental impact from the small

increase in the sewage system’s load.

Finally, Korte alleges

that separate sewer connections for each of the businesses involved,

while technically feasible, would have been economically unjusti-

fiable.

The Petitioner feels that the construction of the subject

sewer extensions represented a rational and economical approach to

waste

disposal.

The Agency recommends

granting

the

requested

variance

and

indicates that no incremental degradation will occur as a result.

The Agency also indicates that upon completion of the new STP

the

environmental

degradation

of

the

stream

should

be

discontinued.

The

Board

agrees

with

the

Agency

that

the

granting

of

this

variance

is

warranted.

Nevertheless,

this

should

not

be

construed

as

approval

of

the

Petitioner’s

course

of

action.

The

Board’s

rules

are

written

specifically

to

protect

the

public’s

health

and

welfare.

When

a

sewage

system

is

placed

on

Restricted

Status,

it

is

not

done

arbitrarily,

but

with

the

ultimate

aim

of

protecting

31-102

---

—3—

the health of the community and the environment.

No developer

can proceed to construct unauthorized extensions in flagrant

disregard of the Board’s rules, merely because the developer

feels compliance

is “economically unjustifiable.”

Cases of

economic hardship are dealt with under the Act in the form of

variance proceedings in advance of construction.

In balancing hardship and environmental harm,

the Board will

not consider self-imposed hardship.

However,

in. this case,

the

Board is aware that a real hardship will be placed on those

businesses using the extensions,

should they be forced to dis-

connect.

Alternative means of sewage disposal are not readily

available, and the current domestic discharges do not pose a

significant additional burden on the system.

In light of these

facts and the imminent completion of the new STP, the Board finds

that an arbitrary and unreasonable hardship would be imposed on

the users

if the variance were denied.

As the Agency noted in its Recommendation,

a variance from

Rule 604(b)

is unnecessary, and a variance from Rule 962 will

allow the Agency to issue the necessary permits for these exten-

sions.

For these reasons,

the Board dismisses the requested

variance from Rule

604 (b).

This Opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

It is the Order of the Pollution Lontrol Board that:

1)

Petitioner’s request for a variance from Rule

604(b)

of Chapter

3:

Water Pollution Regu-

lations

is dismissed.

2)

Petitioner’s request for a variance from Rule

962 of Chapter

3

is granted.

3)

Petitioner shall modify the sewer extensions,

known as the M. Matter Subdivision and Korte

Route 40 Sewer Extension,

to conform to the

design, operation and maintenance criteria of

the Board,

if such modifications are deemed

necessary by the Agency.

31-103

---

—4—

4)

Within 45 days of the adoption of this Order, the

Ralph Korte Construction Company, Incorporated

shall execute and forward to the Illinois

Environmental Protection Agency,

2200 Churchill

Road,

Springfield, Illinois 62706 a Certification

of Acceptance and Agreement to be bound

to all

terms and conditions of this Order.

The

45 day

period shall

lie held in abeyance during any

period this matter

is being appealed.

The form

of said. certification shall be as follows:

CERTIFICATION

I

(We),

having read

and fully understanding the Order of the Illinois Pollution

Control Board in PCB 78-103 hereby accept said Order and

agree to be bound by all of the terms and conditions thereof.

SIGNED____________________________

TITLE___________________________

DATE_______________________________

I, Christan L. Moffett,

Clerk of the Illinois Pollution

Control Board, hereby certify the ab ye Opinion and Order

were adopted on the~b1’-__dayof

,

1978 by

a vote

of

~

.

~stanL.?4off

Q~j~

Illinois Pollution

trol Board