ILLINOIS POLLUTION CONTROL BOARD
March 17, 1977
Mr.
J.
D.
TURNER,
)
)
Petitioner,
PCB 76—240
v.
)
ENVIRONMENTAL PROTECTION AGENCY,
)
Respondent.
OPINION AND
ORDER OF THE BOARD
(by Mr.
Zeitlin):
This matter is before the Board on a Petition for Variance
filed by Petitioner J.
D. Turner on September 27,
1976.
That
Petition was filed with the Board by Mr. Turner in response to
various communications between himself and the Environmental
Protection Agency
(Agency).
Specifically,
the Agency informed
Mr. Turner by letter that because of an existing Restricted Status
applicable
to the City of Girard, no sewer connection permit could
be issued
for
a mobile home park proposed by Mr. Turner.
Although received late, the Agency Recommendation in this
matter,
filed December
7,
1976, disputed certain allegations
in
Mr.
Turner’s Petition,
and raised issues of fact to be decided
before
a Variance could be granted.
Specifically, the Agency
disputed the existence of the hardship necessary for a Variance
grant,
and alleged that Petitioner proceeded with sewer connections
without a permit during the pendency of his Variance Petition.
On
December
16,
1976,
the Board entered an Interim Order authorizing
a hearing for the resolution of contested matters.
On
Janwiry
6,
1977,
Mr. Turner filed
a waiver
of
the 90-day
decision period set by the Environmental Protection Act.
Mr.
Turner also stated that he wished to,
“Petition for the provision
of cost of a transcript at a hearing...”
The Board thereupon further
deferred consideration of the matter, and instructed the Clerk to
contact the Hearing Officer and the Petitioner regarding further
information concerning Mr. Turner’s Petition for Board payment of
hearing costs.
Although Mr. Turner’s Petition for Board payment of costs was
plainly
inadequate,
and the record indicates that no further infor-
mation
in
this regard was received, that issue has been mooted by
subsequent events.
Principally, no proper hearing was held.
25-103
—2—
Pursuant to proper notice,
the Hearing Officer set a hearing
to be held in the City of Girard on February
8,
1977.
Although the
Agency was represented by counsel
at that hearing, and Mr. Turner
appeared pro se,
Mr. Turner neither expanded upon his petition for
Board payment of hearing costs, nor provided a court reporter.
As
a result,
the Board has before it only the Hearing Officer’s summary
of events which transpired at the February
8,
1977
“hearing.”
While
this procedure
is plainly inadequate under the Procedural Rules, we
do not find that any further hearing will be necessary on the matter.
The Board
finds
that,
in light of Mr. Turner’s failure
to provide
a court reporter or an adequate petition for Board payment of cost,
and his subsequent actions
(including the filing of an additional
Amended Petition), our decision on the stipulated pleadings
in this
matter will not be prejudicial to Mr. Turner.
Any possible prejudice
has been waived by his own actions.
Mr. Turner’s mobile home park was constructed in an area recently
annexed
to the City of Girard.
Mr. Turner’s original Petition
contained copies of the annexation ordinance and the permits applied
for and obtained by him in connection with construction of the park.
Mr. Turner obtained permits from the Illinois Department
of Public
Health for the construction of sewers within the mobile home park,
and from the
City
of Girard for connection to the city’s sanitary
sewer
system.
Unknown
to Mr.
Turner,
however, the latter permit
from the City of Girard was effectively without
force:
The City of
Girard was at that time
(and still
is) under Restricted Status impos
by the Agency.
The reason for Girard’s Restricted Status
is detailed in
a prior
record before the Board, Brethren Home of Girard v.
EPA, PCB 75-193
(July
24,
1975).
As noted there, the sewage treatment plant of the
City of Girard receives at least
4
per cent more than its designed
average loading during normal periods of operation,
and has additional
problems,
including bypassing during wet weather.
For additional
information, our Opinion and the record in Brethren Home of Girard,
supra,
should he consulted.
Th
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City
of: Girard indicaLes
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t
,
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Lhu
eirliest
construction resulting
in compliance by the City of Girard will not
be completed until at least one year past July
30,
1978
-
the earliest
date feasible for the award of a Step III construction grant by the
Agency.
Stipulated Exhibit Q, February
8,
1977.
Based against the likelihood of environmental harm as shown in
Brethren Home of Girard, we must balance any hardship shown by Mr.
Turner in his
(pro se) pleadings.
Mr. Turner alleges that he has
invested his life savings and has incurred a considerable mortgage
in this mobile home park.
His allegation that, absent the income
from the mobile home park, he would lose the property on default,
is uncontested.
Exhibit J to Mr. Turner’s Petition of September 27,
1976,
indicates that the State Bank of Virden holds
a mortgage on
Mr. Turner’s development in the amount of $66,200.00.
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—
104
—3—
The possible environmental damage to be weighed against this
alleged hardship is decreased somewhat, however,
in a further Amended
Petition filed by Mr. Turner on February
18, 1977.
In that Petition,
Mr. Turner reduces his request for Variance from 29 mobile home
spaces to 14.
In addition, Mr. Turner notes that he has installed
a pump station holding tank with 5,000 gallon capacity, which would
be run only during periods of low flow into the Girard sewage treat-
ment plant.
Mr. Turner also alleges in this most recent Amended
Petition that less than 50 per cent of the residents of his mobile
home park would be
“new to the community.”
We are left to infer
that the remainder, being local residents, would not represent an
additional load upon the sewage treatment plant.
A final issue to be considered in the weighing of the alleged
hardship against the possibility of environmental harm is the good
faith of Mr. Turner and the reasonableness
of his action to date.
First, Mr. Turner alleges that he proceeded with construction of
the mobile home park
-
without an Agency permit
-
in the good faith
belief that no Agency permit was necessary.
He alleges that he spoke
with at least three employees of the Agency, who referred him to
the Department of Public Health for appropriate permits, but did
not inform him of the Agency permit requirement.
Although several
affidavits were submitted by the Agency stating that none of the
individuals concerned have any memory of discussion with Mr. Turner,
the possibility that such discussions were had nonetheless remains.
See, Amended Agency Rec., February 22,
1977,
Ex.
A,
¶6; Ex.
B,
¶6;
E~T
C,
¶6.
Nor is
it clear from the permit issued by the Illinois
Department of Public Health that additional permits from the Agency
would be necessary.
See, Ex.
G of February 8,
1977,
¶10.
Further,
the permit issued by the City of Girard contains no limitation with
regard to Agency permits.
Id., Exhibit H.
In determining Mr. Turner’s good faith, it is finally necessary
to note that he has apparently allowed the connection of two mobile
homes to the sewer system during the pendency of this Variance
proceeding.
Id.,
Ex.
T.
Such actions cannot be condoned.
However,
in weiqhinq all the above factors, the Board finds
it
entirely possible that Mr. Turner could have,
as he alleges, relied
on the various permits which he did receive when making
a substantial
investment
in the mobile home park.
Although all persons are charged
with knowledge of the law,
including this Board’s Regulations,
it
would seem that Mr. Turner has arrived at his present situation as
a result of simple inadvertency, as opposed to bad faith.
Under
the circumstances,
we do not feel that Mr. Turner’s actions were
unreasonable, and we will not find that the hardship alleged in this
matter is self—imposed.
And, although
Mr.
Turner has stipulated,
Exhibit
T,
that he allowed two trailers to connect to the sewer
system during the pendency of this matter,
which action we cannot
condone, we do not find that this constitutes sufficient bad faith
-
under the circumstances
-
to significantly affect our decision here.
25-105
—4—
Weighing the various factors, we find that Mr. Turner’s allega-
tions of hardship are sufficient to support the grant of the requested
Variance
(as amended February 18,
1977), without significant danger
of environmental harm.
See, Ex.
U.
We shall grant the limited Variance requested by Mr. Turner
in his most recent Amended Petition.
The Variance grant will be
strictly conditioned,
so as to minimize the possibility of environ-
mental damage.
Finally, the Board recommends that the Environmental Protection
Agency examine the possibility that such permit issuance by munici-
palities on Restricted Status might constitute violation of the Act
or this Board’s Rules and Regulations.
If that is the case, prose-
cution of past or future violators may prevent the recurrence of such
situations.
This Opinion constitutes the findings of fact and conclusions
of law of the Board in this matter.
ORDER
IT IS THE
ORDER
OF THE POLLUTION CONTROL
BOARD that:
1.
Petitioner
J.
D. Turner be granted a Variance from Rule
962 of Chapter
3: Water Pollution, of this Board’s Rules and Regula-
tions for the construction and connection of a mobile home park in
the City of Girard, Illinois, tributary to the City of Girard’s
sanitary sewer system,
subject to
the following conditions:
a.
No more than fourteen
(14) mobile homes shall
be tributary to the Girard sanitary sewer system until
the completion of Step
III grant funded construction of
the Girard sewage treatment plant.
b.
Petitioner shall maintain a pump station holding
tank of 5,000 gallons capacity, said pumps
to be operated
only during periods of low flow into the Girard sewage
treatment plant and only between 11:00 P.M. and 6:00 A.M.
c.
If at any time the pump station procedure affects
the efficient operation of the Girard sewage treatment plant,
Petitioner shall have his 5,000 gallon capacity holding tank
pumped by other legal means until the Girard sewage treat-
ment plant
is capable of assuming Petitioner’s waste volume.
25-106
—5—
2.
Petitioner shall, within thirty
(30)
days of the date
of this Order,
submit a Certificate of Acceptance, in the format
shown,
to the Environmental Protection Agency at the following
address:
Environmental Protection Agency
Control Program Coordinator
2200 Churchill Road
Springfield, Illinois
62706
CERTIFICATE OF ACCEPTANCE
I,
(We), _________________________
having read
the Order of the Illinois Pollution Control Board in
case No. PCB 76-240, understand and accept said Order,
realizing that such acceptance renders all terms and
conditions thereto binding and enforceable.
SIGNED
TITLE
DATE
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify the above Opinion and Order were
adopted on the
fl4’~
day of /)7i~i~(
,
1977, by
a vote of 4(~
Christan L. Moffet~’Clerk
Illinois Pollution Control Board
25
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107