ILLINOIS POLLUTION CONTROL
BOARD
September 21,
1978
ZIMCO
ENTERPRISES,
DIVISION
)
of
ZINCO
METALFAB,
INC.,
Petitioner,
)
V.
)
PCB 78—104
)
ENVIRONMENTAL
PROTECTION
AGENCY,
)
)
Respondent.
MR. ROBERT F.
KAUCHER, MEYER
AND
KAUCHER,
APPEARED
FOR THE PETITIONER;
MR.
REED
NEUMAN, ASSISTANT ATTORNEY GENERAL,
APPEARED
FOR
THE
RESPONDENT.
OPINION
AND
ORDER OF THE
BOARD
(by Mr. Dumelle):
Petitioner filed this variance petition pursuant to an
Agreement to Settle in a related enforcement proceeding, PCB
77-276.
Petitioner is requesting a variance from Rules 604(b)
and 962 of the Board’s Water Regulations.
The parties have
jointly waived a hearing in this matter.
Early in 1975, Petitioner constructed two sewer extensions
in the City of Highland:
one 62-foot, 8—inch extension to serve
one family and, one 480-foot extension to serve eight families
living in two 4-family units.
Petitioner constructed these
extensions without
applying to the Agency for the required permits,
but did receive authorization for this construction from certain
Highland city officials.
The construction and use of these
extensions are also the subjects of the enforcement proceeding
against Petitioner.
Highland’s sewage treatment plant
(STP)
is severely overloaded
and has been on Restricted Status since 1969.
Highland is currently
expanding its STP, and completion is scheduled for sometime during
the summer of 1978.
The Board is very familiar with the problems
created by Highland’s Restricted Status since it recently reviewed
a similiar variance petition in Ralph Korte Construction Co.,
Inc.
V.
EPA, PCB 78-103; July 20,
1978 (hereinafter cited as Korte).
As the
Board noted in Korte,
it is uncertain whether the City of Highland
will be taken off Restricted Status with the completion of the
new STP.
If the Restricted Status were removed however, this
variance would become moot.
31—489
—2—
In Korte, the Board noted that Petitioner Korte had con-
structed sewer extensions in flagrant disregard of Board rules.
Nevertheless, the Board felt constrained to grant the variance,
because a denial would have imposed a real hardship upon the
nine small businesses which innocently used the unlawfully con-
structed sewer extensions.
A similiar situation exists in the case at hand.
Nine
families have been using the sewer extensions for the past three
years, and they would be put to great financial expense if they
were forced to disconnect.
The estimated cost of $2,400 per
family for the disconnection, replacement septic systems, and
reconnection
(upon completion of the new STP) cannot be justified
in light of the imminent completion of the new STP.
The Agency
noted in its Recommendation that environmental degradation
occurred when the extensions first went into use, but, with the
completion of the new STP, environmental degradation should be
discontinued.
The Board must emphasize, as we did in Korte,
that this
variance is being granted because of the real hardship which would
be imposed upon the users of these extensions should they be forced
to disconnect, and not because of any self-imposed hardship on the
Petitioner.
Granting of this variance should not be construed as
Board approval of Petitioner’s course of action.
Indeed, we find
Petitioner’s reliance upon the City’s authorization naive at best.
No city official has ever been able to grant variances from the
Board’s Regulations.
Cinnamon Creek Association v. EPA and Thomas
I.
Simpson v. Cinnamon Creek Association, PCB 72—377,
368;
5—597.
In balancing hardship and environmental harm,
the Board
finds that the granting of the variance from Rule 962
is warranted,
but a variance from definitional Rule
604(b)
is unnecessary.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
It is the Order of the Illinois Pollution Control Board
that:
31—490
—3—
1.
Petitioner’s request for a variance from Rule 604(b)
of Chapter
3 is dismissed.
2.
Petitioner’s request for a variance from Rule 962 of
Chapter
3
is granted, subject to the following conditions:
a.
Petitioner shall file a thorough, complete
application for an operating permit with the
Agency within
60 days of this Order.
b.
Petitioner shall modify the sewer extensions to
conform to the design, operation and maintenance
criteria of the Board, if such modifications are
deemed necessary by the Agency.
c.
Within 45 days of the adoption of this Order, the
Zirnco Enterprises, Division of Zimco Metalfab,
Inc. 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 be 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 78-104 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
pinion and Order were adopted on
the
~
day of
~
,
1978 by a vote of
V-(~
Christan L. Moff~
~,
Clerk
Illinois Pollutjo
ontrol Board
31—491