ILLINOIS POLLUTION CONTROL BOARD

January 14,

1976

AMERICAN NATIONAL BANK

&

ALVIN

W.

DEJONG,

Petitioners,

v.

)

PCB 75—75

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

Alvin W.

DeJong, Attorney,

appeared for the Petitioners;

John

T.

Bernbom, Attorney, appeared for the Respondent.

OPINION AND ORDER OF THE BOARD

(by

1’lr.

Zeitlin):

Petitioners American National Bank,

as trustee under Trust

No.

23251,

and Alvin

W.

DeJong,

individually, originally filed a

Petition for Variance on September

9,

1974,

in case No. PCB 74-334,

seeking relief from Environmental Protection Agency

(Agency) actions

denying the Wheaton Sanitary District

(Wheaton) permission

to issue

certain permits

to Petitioners.

On September 12,

1974, this Board

found

that Petition inadequate and ordered an Amended Petition be

filed.

Subsequent

to the filing of an Z’~mendedPetition on

October

16,

1974,

the Board again found information lacking and on

October 24,

1974,

again ordered that farther additional

information

be submitted.

The Agency’s Recommendation in PCB 74—334 was filed

on December

2,

1974.

On January 16,

1975,

the Board dismissed

PCB 74—334.

Petitioners’ Motion to Reinstate PCB 74—334,

filed February

5,

1975,

was granted in a Board Order dated February 14,

1975,

to the extent

that the Board took the Motion and the earlier Petition and Amended

Petition as the instant case,

and renumbered

it

PC13 75-75.

The

Agency’s Recommendation in this case was filed on March

13,

1975.

A hearing was held on August

13,

1975,

at which no testimony was

taken, although the parties submitted

a Stipulation of Fact.

After denying Petitioners’ Motion for Oral Argument

in an Interim

Order dated September

18,

1975,

the Board on September 29, 1975,

entered a further Interim Order remanding the matter for an additional

hearing and the submission of evidence on specified issues.

The

required hearing was held November

12,

1975, at which time considerable

new testimony and evidence was received.

19—641

---

—2—

Although none of the pleadings submitted by Petitioners so

state,

it is plain that the relief sought here is

variance from

Rule 962 of the Water Pollution Regulations,

which prohibits the

Agency

from

issuing permits for the construction or operation of

wastewuter sources

or sewers where such source or sewer would cause

or contribute

to violation of the Act or other portions of the Water

Pollution Regulations.

PCB Regs.,

Ch.

3: Water Pollution.

Petitioner

seeks to construct and operate a Denny’s Restaurant,

which will result

in

a load upon the Wheaton Sanitary District sewage treatment plant

(STP)

of approximately

80 population equivalents

(PE).

The Agency has

had the Wheaton STP on critical review since

1972,

based on its findings

that the Plant could not meet applicable effluent limitations.

Petitioners based their case for Variance on four major points:

1.

The proposed restaurant will have a very

slight impact on the STP effluent,

if any;

the very

low PE load generated will

in fact be reduced by the

installation of a grease trap or,

if necessary, holding

tanks.

2.

The Wheaton STP

is a

“borderline” case and

usually approaches the applicable effluent limitations,

when the limitations are not in fact met.

3.

The Wheaton STP has now been approved and

funded for major expansion.

Constructior~onmajor

expansion which will provide more than sufficient

capacity is expected

to start in January,

1976, with

completion scheduled within 600 days thereafter.

It

is also expected that ongoing construction will provide

significant additional capacity at the STP within 400

days,

or by early

1977.

Petitioners’

restaurant project

will not be completed before fall of 1976,

if the

requested variance is granted

(R.68).

4.

As

a result of representations made by an

employee

of the Respondent Agency,

it

is estopped from

denying Petitioner

a permit for construction and

operation of its restaurant

as a wastewater source.

SpecificaLLy~ as

a result of statements made by an

Agency Official to Petitioner DeJong in the Chicago

office of the Agency,

to the effect that the Wheaton

STP would

imminently be granted 5,000 additional PE

in permit issuing authority,

which statements Petitioners

relied on, Petitioner DeJong expended in excess of $29,000

on improvements to the site of the proposed restaurant,

including grading and installation of a sewer connection.

19—642

---

—3—

Petitioners have shown considerable hardship which may result

if the Variance is not granted, and have adequately borne their

burden of showing that the environmental harm likely to result from

the grant of the Variance is in comparison very small.

While we agree with the Agency that Petitioners’

claim that the

restaurant should be allowed

in this instance because its discharge

will have no measurable effect on the STP effluent

is not sufficient

to allow the grant, we also agree with the Petitioners that the

restaurant’s

impact will be slight.

Petitioners’ claim of

“no

measurable effect”

is fallacious.

As the Board has held in analagous

cases,

if the STP

is violating effluent standards, any additional

load

will contribute

to such violation.

See,

e.g., Cohn~T EPA, PCB 75-102,

17 PCB 321

(1975), and cases cited. ~

~h Tho~

asaso

held that

where the additional load

is small,

and the period of time short, a

sufficient showing of hardship will allow the grant of a Variance from

a “Sewer Ban.”

See, e.g.,

Nixon v.

EPA,

PCB 75-354

(October,

1975);

Hawthorne Lodge

V.

~

16,

1975); Macoupin v.

EPA,

P~B75—273

(Oct.

9,

1975)

The Agency witness at the second hearing agreed with Petitioners’

contention

that the Wheaton STP

is a “borderline” case, and that

it

usually meets or exceeds the applicable standards for its effluent,

(R.73).

The Agency also agreed that the quality of effluent from the

Wheaton STP often exceeds the water quality

in the receiving

stream

upstream of the discharge,

(R.70,

71)

.

While the record is not

entirely clear as to the efficacy of the grease trap to be used by

Petitioners,

it is clear that this will have some effect

in reducing

the amount of contaminants generated by the restaurant,

(R.38,48,62-65).

In addition, Petitioners have agreed that,

if necessary,

they will

construct holding tanks for the restaurant,

and discharge to the

Wheaton Sanitary District’s sewers

(and therefore to the STP)

only

during off-peak-load hours,

(R.65,66).

These facts

do lead to the conclusion that the additional

load

placed on the “borderline” plant will indeed be small.

That conclusion,

taken with the uncontroverted testimony by

a representative of the

Wheaton Sanitary District that the STP

is now beginning a major

expansion,

increasing the plant capacity from 53,000 PE to 89,000 PE,

(R.

17) within~thenext 600 days,

(R.46-48),

lead to the conclusion

that the additional load which Petitioners’

restaurant will add to the

existing problems with the STP effluent will be both minute and short-

lived.

In addition,

it

is expected that many customers using the

restaurant will b~from nearby apartments also tributary to the Wheaton

STP,

(R.33).

In essence,

the environmental damage which might be caused

by the grant of the Variance

is minimal.

19— 643

---

That minimal environmental damage

is then measured against the

considerable hardship which would result to Petitioners

if the

Variance is denied.

While the necessity of foregoing the use of

land in this situation is,

in itself,

insufficient,

(See,

e.g.,

Weinstein,

et al.

V.

EPA, PCB 71-107,

122,

192,

2 PCB

(197ITTT,

the

situation here is readily distinguished.

Petitioners here stand the

risk of losing financing commitment for the restaurant project,

(R.42),

and have foregone the use of permits to construct much larger projects,

with

a PE of up to 2,000,

in order to continue with the restaurant

project,

(Stip.

p.4).

While we need not decide whether the principle

of estoppel would be sufficient here alone

as grounds for the Variance,

we do find that statements by the Agency that the Wheaton STP would be

allowed a considerable number of additional PE has added considerably

to Petitioners’

hardship.

In granting this Variance,

we shall set a condition which may

require that Petitioners fulfill their offer

to construct holding tanks

for the restaurant.

Based on Petitioners’ estimate that the restaurant

will be completed

in Fall,

1976,

and the Wheaton Sanitary District’s

estimate that considerable additional capacity may be available within

400 days,

(R.47), we feel that

it would serve no purpose to impose a

holding tank requirement as an absolute condition.

Instead, we shall

require that the Agency evaluate the progress on the Wheaton STP in

September,

1976,

and

if

in the Agency’s judgment sufficient additional

capacity to handle the load generated by Petitioners’

restaurant will

not be available by July

1,

1977,

Petitioners shall,

as they offered

at the hearing,

(R.65), construct suitable holding tanks to the Agency’s

specifications.

This condition will,

we feel,

prevent the restaurant

from adding to the STP’s violations of the applicable effluent standards

for any unreasonable period.

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 Petitioners,

American National Bank and Alvin

W.

DeJong, be granted a Variance from

Rule 962 of Chapter 3:

Water Pollution,

of the Pollution Control Board’s

Rules and Regulations,

to construct and operate as a wastewater source

a “Denny’s Restaurant”

as described in the foregoing Opinion,

subject

to the following conditions:

19— 644

---

—5—

1.

Petitioners

shall,

by September

1,

1976, obtain

and forward to the Environmental Protection Agency a

summary report on the progress of

tlie Wheaton Sanitary

District Sewage Treatment Plan expansion project.

If,

in

the opinion

of the Environmental Protection Agency

said project will not provide sufficient capacity by

July

1,

1977,

such that Petitioners’ restaurant will add

to any violations of this Board’s Rules and Regulations,

Petitioners shall,

by November

1,

1976,

construct suitable

holding tanks for the wastewater from said restaurant,

such holding tanks

to meet such specifications

as the

Environmental Protection Agency may require;

the Board

retains jurisdiction

in this matter until November

1,

1976.

Petitioners, American National Bank and Alvin

W. DeJong,

shall,

within thirty

(30) days of the date of this Order, execute and forward

to the Environmental Protection Agency, Control Program Coordinator,

2200 Churchill Road,

Springfield,

Illinois 62706, a certificate of

acceptance

in the following form:

I,

(We),

__________________

having read

the Order~rihe Illinois Pollution Control Board

in case No. PCB 75-75, understand and accept said

Order, realizing that such acceptance renders all

terms and conditions thereto binding and enforceable.

SIGNED

TITLE

DATE

Mr. James Young abstained.

I, Christan L. Mof

Control

Board,

adopted

on

the

of

of the Illinois Pollution

ion and Order were

by a vote of

______

Christan L. Motte~

Illinois Pollutio

trol Board

19—

645