ILLiNOIS POLLUTION CONTROL BOARD
July 24,1975
FIRST UNITED NATIONAL CORPORATION,
Petitioner,
V.
)
PCB 75—196
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
OPINION AND ORDER OF THE BOARD
(by Mr. Dumelle):
Petitioner,
r~irstUnited National Corporation
(hereinafter
First United),
filed a petition on May
8,
1975 seeking a
variance from the ban on further sanitary sewer connections
in the southwestern area of the City of Springfield.
First
United owns and operates the George Lindsey Family Steak
House,
located at 2731 South MacArthur Boulevard
in Springfield.
This restaurant facility was previously connected to the
Springfield sewer system without first obtaining a permit
from the Environmental Protection Agency
(Agency).
The
Agency placed thi~sewer system on restricted status on July
12,
1972 due to iLadequate sewage handling and treatment
capacity.
An Agency recommendation to deny the variance was
filed on May
9,
1975.
No hearing has been held.
Although First United’s petition does not address the
public injury that would be imposed by a grant of
the
variance,
as required under Ru1.~401(c)
of the Board Procedural Rules,
we take notice that the southwestern area of Springfield has
long been plagued by sewer overflows and basement flooding
during periods of rainfall,
The occurrences and environmental
and health consequences
of this problem have been so well
documented in oth#~rvariances cases1 that we need not reiterate
them here.
No allegation has been made
in
the petition that
~-Seee.g.,
First National Bank
v.
EPA, PCB 72—301,
5
PCB
649
(October 10,
1972)
and PCB 74—298,
14 PCB 723
(December
19,
1974)
Illinois National Bank of Springfield
v.
EPA, PCB
72-300,
5 PCB 585
(October
3,
1972); Viking Investment Co.,
v.
EPA,
PCB 73-236,
5 PCB
637
(October 10, 1972); and Springfield Marine
Bank
v.
EPA, PCB 73—348
10 PCB 347
(December
13,
1973)
(dissent at 10 PCB
519)
and PCB 74—117, Order at
12 PCB
667
(June
27,
1974)
,
Opinion at 13 PCB 193
(July 25,
1974)
18
—
187
—2--
these problems have ceased.
On the contrary,
the Agency
Recommendation
indicates that the Springfield Sanitary
District’s
application for federal grant
funds to upgrade
its sewer system has not yet been approved by the United
States Environmental Protection Agency.
Based on tentative
plans to begin construction
in June,
1977,
as set forth
in
the Sanitary District’s grant application,
it will be at
least several ye&rs before adequate sewer capacity
is available
in the MacArthur area.
Petitioner’s
facility has a seating capacity of
200.
The Agency,
using a formula
(attributed to Mr. William
Grills of the Illinois Department of Public Health)
of
35
gallons of waStewater per day per seating space,
estimates
that the facility
i.~ expected to generate 7000 gallons per
day of sewage.
The Agency further notes that this exceeds
the level required in Rule 951(b) (2)
of Chapter 3
(Water
Pollution Regulations), which provides
that wastewater
sources designed and intended to serve a single building to
discharge less than 1500 gallons per day of domestic sewage
are exempt from t~epermit requirement.
Actual water usage readings for the facility, obtained
from the City Water Light and Power Company,
are as follows:
fletering
Meter
Usage
Daily Ave.
Meter Reading Date
Period, Days
Reading
Unit
Gal.
Use gpd
January 27,
1975
32
1131
70
52,500
1640
February 25,
1975
29
1191
60
45,000
1552
March 21,
1975
23
1239
48
36,000
1565
April
24,
1975
34
1322
83
62,250
1830
Total
118
261
195,750
Daily Ave.
(118 days)
1658
The Agency accounts
for the discrepancies between projected
and actual water usage by noting that the projected figure
is based on maximum capacity available.
It is also noted
that all figures, including the monthly averages, exceed the
1500 gpd limitation provided in Rule 951(b) (2).
First United purchased the property on which the restaurant
is located on January
9,
1973.
A contract was entered into
with B.T. Kavanagh on July 30,
1973,
to construct the facility.
Construction was completed in April,
1974, and the restaurant
has been in constant operation since that date.
Under the
contract,
the contracLor was required to “service and pay
for all permits, governmental fees and licenses necessary
for the proper execution and completion of work, which are
applicable at the time bids are received.”
18
—
188
—3-.
First United contends that it was unaware of the necessity
of obtaining a permit from the Agency, and assumed that the
contractor had obtained all necessary permits.
The contractor
did in fact obtain a permit for a sanitary sewer connection
from the Springfield Sanitary District.
Such permit, attached
to the petition as
Exhibit
1,
is dated November
30,
1973.
The Agency cannot explain why such a permit was issued by
the Sanitary District in view of the restricted status of
the sewer system in the MacArthur area.
The fact remains
that it was incumbent on First United to obtain a permit
from the Environmental Protection Agency, pursuant to Rule
951 of the Water Pollution Regulations, before beginning
construction on its restaurant facility.
Ignorance of this
permit requirement can be no excuse for non—compliance.
Moreover,
the Agency points out that First United should
have known of the restricted status of the sewer system,
since
it was highly publicized in the Springfield area.
Furthermore,
it should be noted that the area was placed on
restricted status almost six months before the site was
purchased and over one year before the construction contract
was entered into.
Petitioner
furtther contends that curtailment of its
operation would create a severe and onerous financial burden,
resulting
in an a~’bitraryand unreasonable hardship.
It
alleges that the
:ost of the facility, including purchase,
construction,
fixtures and equipment,
totals approximately
$372,188.
It carries a $150,000 construction mortgage on
the facility and employs approximately thirty-three people.
Although First United alleges a severe financial burden,
there is no evidence that individual investors in First
United would suffer
an
irreparable financial
loss which
would result in bankruptcy.
Furthermore, we have consistently
held that a denial of
a variance
is not an order to curtail
operations;
rather,
it
deprives
a petitioner of protection
from an enforcement action.
Abex Corporation, ANSCO Division
v.
EPA,
PCB 73-523,
11 P03 477,
478
(March
7,
1974); Mobil Oil Corporation
v.
EPA, PCB 73—56~ 11 PCB 499,
500
(March
7,
1974)
.
Finally,
we note that First. United has the option to pursue a remedy
at law against
its contractor for any damages resulting from
a breach of its contractual agreement.
The Board,
after weighing the economic hardship to the
petitioner against the environmental and health hazards to
the public,
finds that petitioner has failed to establish an
arbitrary or unreasonable hardship which would allow the
Board to grant the requested relief.
18
—
189
—4—
One
final matter remains to be considered.
The Agency
suggested that one possible solution to the petitioner’s
problem might be
Lo install a holding tank to control flow
to the sewer system during periods of precipitation. The
record
is inadequate to determine if such an approach would
be feasible or warranted here, but the petitioner
is free to
further develop such alternatives with the Agency or before
the Board in an appropriate proceeding.
This Opinion coastitutes the Board’s findings of fact
and conclusions of law.
ORDER
Petitioner’s request for a variance from the Agency-
imposed restricted status sewer system is denied.
IT IS SO ORDERED.
I, Christan L.
Moffett, Clerk of the Illinois Pollution
Control Board, hereby c
tify the above Opinion and Order
were adopted on the
~Q
day of July,
1975 by a vote of
s-p
Christan L. Moffe~, C
r
Illinois Pollution Control Board
18—190