ILLINOIS POLLUTION CONTROL BOARD
July 25, 1974
)
SPRINGFIELD
MARINE
BANK
)
)
)
v.
)
PCB 74-117
)
)
ENVIRONMENTAL
PROTECTION
AGENCY
)
)
MR. JOHN H. SQUIRES
and MR. HARVEY
B. STEPHENS, of BROWN, HAY,
and STEPHENS, appeared on behalf of Petitioner;
MR.
HANK
HANSEL
and
MR. DELBERT
HASCHEMEYER
and MR. JOHN REIN,
appeared
on behalf of
the
Environmental Protection Agency;
OPINION OF THE BOARD
(by Mr. Dumelle):
On June
28,
1974
the Board entered an Order denying
the Variance Petition filed by Springfield Marine Bank as
Trustee.
Due
to the exigencies of time, the Board did not file
an Opinion accompanying the previously issued Order pursuant
to Procedural Rule 408.
Petitioner, Springfield Marine Bank,
as Trustee for
Trust #51-0419-0 filed a Petition for Variance on April
1, 1974.
The Environmental Protection Agency (Agency) filed a Recommenda-
tion to Deny the requested variance ‘on May 3,
1974.
At a
Pre-Hearing Conference held on May
8, 1974 between the Parties
and the Hearing Officer, May 28 and May 29 were set as original
hearing dates.
These original hearing dates violated Procedural
Rule 406 which requires that public notice be issued at least
21 days prior to the date of the Hearing.
Therefore, over
Petitioner’s objection, the Hearing Officer rescheduled the
hearings to June
19, 1974, which allowed for proper notice to
be issued.
Petitioner objected and expressly reserved his
right pursuant to Section 38 of the Environmental Protection
Act to require final action by the Pollution Control Board
within 90 days after the date of filing of the Variance
Petition.
Petitioner correctly stated that the June 19, 1974 hearing
date was more than
70
days beyond the date of filing of the
Original Variance Petition, which also violated Procedural
Rule
406.
This
90-day
requirement
found
in
Procedural
Rule
13—193
-2-
406 is designed to insure that Petitioners will be able to
proceed to a hearing and furnish the transcript
of such hearing
to the Board in time
for deliberation and decision prior to the
90-day decision period. Petitioner was not prejudiced by the
rescheduling, as the Board decided the variance request prior to
expiration
of the 90-day period.
Counsel for Petitioner represented to
the Board,
at
the Board Meeting on June
27,
1974,
that he had filed the
entire transcript and record of the hearings regarding his clients
Variance request, and that he was reserving his right to a deci-
sion within 90 days.
The 90-day decision period expired on
June
30,
1974.
The Board had
scheduled
a two day Board meeting
to last until June
28,
1974.
The Exhibits presented at
the
hearing were not filed with
the Clerk
of
the Board until June 28,
1974,
After complete review of the
transcripts on June
27,
and examination of the Exhibits
on June
28,
1974,
the Board voted
to deny Petitioner the requested
relief.
Petitioner
seeks
a Variance from the
ban
on
further
sanitary
sewer extensions
in the southwestern
area of the City of Springfield,
which was imposed by the Agency pursuant to Rule
21(a)
of Chapter
3: Water Pollution Regulations
of the Illinois Pollution Control
Board
(Water Pollution Regulations).
If granted such
a variance,
Petitioner would be able
to obtain an Operating Permit for a sanitary
sewage extension to enable the connection of
107 sing1e~fami1y
residences
located
in what
is known
as
the Westchester Addition
in
the
southwestern
area
of
the
City
of
Springfield,
Sangamon
County,
Illinois.
Petitioner
serves
as
trustee
under
an
Illinois
land
trust,
The
beneficial
interest
in
that
trust
is
held
by
a
joint
venture
known
as
the
Westchester
Trust;
the
participants
of
which
are
seven
indivi
duals
and
one
addi tional
joint
venture
(R,
39)
,
As
agreed
among
the
parties
at
the
Pre-
Hearing
Conference
stage,
no
evidence
was
allowed
to
he
introduced
at
the
Hearing
in
reference
to
individual
financial
hardship
upon
the
individual
joint
venturers
caused
by
the
sewer
ban
(R.
21)
Therefore,
the Board had to weigh the economic hardship imposed
upon the Westchester Trust
against the public hardship.
Petitioner began in 1962 to develop the Westchester Addition
through sixteen steps
(R.
25).
The first
15 parts,
or additions,
to
the Westchester Addition were completely developed by October
1971
(R.
41), and all
lots within the 15 parts have been sold.
Therefore,
Petitioner seeks the current variance to allow
it
to proceed to develop
the 16th and final part of the Westchester
Addition.
The Board finds initially that the Hearing Officer erred in
excluding the previous tax records as
to income produced by the
13
—
194
-3-
Trust o~ithe total Westchester Project.
Petitioner states that
they are making no claims as
to hardship on the first 15 additions
(R.
163).
This
is
because
all lots in the first
15 additions
within Westchester Addition have been sold.
In weighing the
hardship imposed upon the Petitioner by the Agency sewer ban,
the
income over
the life of the project
is
a very relevant factor when,
as
in the present
case, we are dealing with the ability to finish
the last step
of the total project.
The Agency was allowed
to
introduce evidence consisting of
the
1972
and 1973 income tax
forms
for the Trust
(Agency Exhibit
7).
The 1972 taxable income
for the Trust amounted to $213,721.00
(R,
239);
the 1972 taxable
income was shown
to be $94,183.00
(R.
239);
and a $10,000.00
loss was projected for 1974
(R.
251).
Regardless of the Hearing
Officer’s error in excluding the previous years’ taxable
income,
the record is
clear that Petitioner has failed to prove
an
economic hardship imposed upon the Trust which would warrant
the granting of the requested variance,
For the two years
in which the data were provided,
the taxable
income totals
$307,904.00.
The introduction
of the Trust income for the years
prior to
1972 would only serve
to further support the Board’s
denial of the Variance Request and therefore
the Hearing Officerts
error
is not
a critical factor in our decision.
The Board rejected Petitioner’s
claim that
the Agency ises-
topped
from denying Petitioner
an Operating Permit.
Petitioner
based
its activities upon reliance of
a letter sent by the
Agency
to the Springfield Sanitary District
(District)
on
August
29, 1972
(Petitioner Exhibit
8).
This
letter outlines
steps which the District had taken and proposed
to take
to
remove excess
flow from the Outer Park Sanitary Sewer Drainage
Area,
and
based upon these projects the Agency stated it would be
able to issue
a limited number of “Conditional Installation Sewer
Permits” which would
allow the connection of new sewers to the
system
when
the sewage treatment plant
is completed and in operation.
The
Board has addressed the question of reliance upon
this letter
in
two previous opinions which
rejected the doctrine of detrimental
reliance
(
in’ In
stment
Cor
oration
v.
EPA,
PCB
73-236 (Order
August 30,
1973, Opinion September 6,
1973)
and Springfield Marine
Bank v.
EPA, PCB 73-348 (December 13, 1973)).
THT~Agency letter
was sent
to the District not
to Petitioner.
Petitioner received
a copy sometime after August
29, 1972
(R.
69).
Mr.
Charles
Johnson, Manager of the Westchester Trust, stated that after he
had obtained a copy of the August
29, 1972 letter, he directed
his
engineers
to
apply for a Conditional Installation Sewer
Permit
(R.
72).
Mr. Johnson stated,
however, there were no
commitments or statements
in the August
29, 1972 letter which
led him to believe
that he would be immediately granted an Opera-
ting Permit
as soon as
he received a Conditional Installation Sewer
Permit
(R.
73).
He
further
stated
that
he
understood
that
a
Conditional
Installation Sewer Permit
is not the same
as an
-4-
Operating Permit
(R.
73).
The Agency questions the reasonableness qf the reliance of
Petitioner upon the August 29,
1972
letter in that
it was sent
to
the District not to Petitioner; and therefore, Petitioner
should
have examined other correspondence and events preceding and
following the issuance
of Petitioner’s Exhibit
8,
Mr. Johnson
stated that all he needed was the August
29 letter
(R.
188)
The Board agrees with the Agency’s contention.
Petitioner’s Exhibit
8 refers to letters of August
11 and August
23,
1972 from the
District, which outlined the future steps
to be taken by
the
District to relieve the sewer over1oa~problem,
The August 29,
1972 letter did not
lift
the sewer ban but merely warned the
District that continued issuance of Conditional Installation
Sewer Permits would depend on fu~rtherprogress
in relieving the
overload
problem
in
the
Outer Park Drive Area.
Petitioner’s Conditional Installation Sewer Permit contains
four conditions which are relevant regarding the question of
Petitioner’s reliance upon the August
29, 1972 letter.
Condition
#2 states that hookup to the existing sewers shall not be
completed without
an Operating Permit from the Agency (Petitioner
Exhibit
11),
Condition #3 requires that the installation of
the
new sewers stop
10
feet from existing sewers
so that hookup to
the existing sewers would be prohibited
until
an Operating Permit
was received (Petitioner Exhibit
11).
Condition #4
states that
the accompanying permit issuance letter and the permit itself does
not revoke the critical review status regarding the District--the
sewer ban
(Petitioner Exhibit
11).
Mr. Johnson testified
that
he saw the permit,
read the permit,
and understood
the
language
contained
in
all
four
conditions
(R,
77).
Mr.
Johnson
directed
his
engineers
to
request
an
Agency
Waiver
of
the
burdensome
re-
quirement
of
Condition
#3
which
resulted
in
Petitioner
having
to
leave
holes
in
their
developed
streets
so
as
to
be
able
to
connect
the
new
sewers
to
the
existing
sewers
(R,
78).
ra
a
letter
dated
November
16,
1972,
the
Agency
denied
the
Waiver
oF
Condition
#3
(Petitioner
Exhibit
12)
The
request
and
denial
of
a
Waiver
of
the
burdensome
Condition
#3
should
have
provided
an
early
warning
to
the
Petitioner
that
an
Operating
Permit
would
not
be
forthcoming
unless
the
reasons
which
precipi
tated
the
sewer
ban
were solved,
Petitioner stated after obtaining the Conditional
Installation
Sewer Permit that
it entered into contracts
for the construction
and installation of sanitary sewers,
curbs, sidewalks,
streets,
water mains, and other improvements
in the
16th addition
(R.
79).
Petitioner’s Exhibit
24 shows
that
the expenses as
of the date of
hearing on addition #16 constitute $373,544.06 plus
interest
(R.
113).
13
—
196
-5-
Petitioner further alleges that the purchase of the Spaulding
Orchard Farm for $676,760.00 constitutes
a further hardship to
be weighed by the Board because Petitioner would need further land
to develop when the 16th addition would be completed
(R.
122),
However,
Mr. Johnson testified that the May, 1973 purchase had
two functions, either development or investment
(R.
209).
He
further testified that the actions regarding the 16th addition
do not prohibit the development of the Spaulding Farm
(R.
209).
Therefore,
the Board rejects
the contention that the purchase
price or interest incurred on the purchase loan should be used
in weighing the hardship imposed upon Petitioner by the sewer ban
which affects
the Westchester 16th addition,
In further support,
the Spaulding Farm
is currently being utilized by Petitioner on
a share-farming basis
and rental of a farmhouse on the property
(R,
223).
Petitioner
contended
that
the
flow
originating
from
the 16th addition would have only a minimal affect on sewer
overflows,
basement
flooding, or bypasses of raw sewage
(R,
354).
As
a further argument, Petitioner alleged that because most of the
sewer problems occur upstream from the junction between the sanitary
sewer extension which serves
the Westchester Addition and the
Outer Park Drive Sewer,
that the addition of the flow from the
Westchester 16th addition would not aggravate
the problem.
Agency witnesses testified that
any additional
flow would aggra-
vate the problem
(R.
612),
The Board agrees with the citizen
witness who commented that
if
a sewer system cannot serve the
existing flow without surcharging,
then any addition to that
sewer system downstream from the point of surcharge would result
in
an additional surcharge equal
to the amount of flow added below
the point
of
surcharge
(Public Session,
p.
20),
It
is
a funda-
mental engineering principle that
if
a conduit
is
flowing at
capacity
to
the
point
where attempts
to add additional
flow cause
it
to
hack
up
and
overflow;
that
the
introduction
of
any
additional
quantity
of
flow wIll
cause
the
exclusion
of
the
like
quantity
upstream
from
such addition,
A sewer
can
only
transport
so
much
Flow
unless
the
pressure
head
or
gradient
is
increased,
or
friction
factors reduced.
The Board rejects Petitioner’s
argument that
because
its
flow
enters the Outer Park Sewer downstream
from the
majority of the
sewer
surcharging
and
basement
flooding
problems
that
such
upstream
sewer
surcharging
and basement flooding are
Irrelevant,
Testimony of
the
two
Agency
witnesses,
Mr.
James
C.
Frost
and Abraham
H,
Loudermilk, Jr.,
graphically
points out that the
problems which resulted in
the original Agency sewer ban in
July of 1972
and
the
discontinuance of
the issuance
of Conditional
Installation Sewer
Permits
in
March,
1973,
still
continue
to
-6-
exist
(Agency Exhibits
12 and 16),
Both of these Agency witnesses
testified regarding the large number of incidences of manhole
surcharging, bypass of sanitary wastes
into storm sewers
and
District pumping of sanitary waste into
a storm sewer channel
whenever it rains
in the Outer Park Drive Area,
Mr.
L.K.
Crawford, the District Consulting Engineer, testified
at length regarding the basement backups, overflow of manholes,
sewer surcharging, sewage treatment plant bypassing and other
problems associated with excess flows occurring after storms.
He presented a detailed history of the steps the District has
undertaken to alleviate the problems
in the Outer Park Drive
Area.
These projects consisted
of
investigating
bottlenecks
in the sewer system
(R.
280);
a campaign
tQ disconnect downspouts
from the sanitary sewers
(R.
283)
;
dye
tests which show the
interconnection of storm and sanitary sewers
(R.
285);
the use of
polymer addition to increase the flow capacity of the Outer Park
Drive Sewers
(R.
295);
an active campaign to seal
the joints
in the sewer pipes which would allow infiltration of groundwater
(R.
301); and other activities by the District.
Mr. Crawford
testified that at
the time of August and September,
1972, during
wet weather
flow periods, there did not exist adequate capacity
in the Outer Park Drive Sewer System and further stated that
everybody knew that the manholes overflowed in the area
(R.
461),
He
stated that the previous projects undertaken by the District
have not solved the problem completely
(R.
404),
He additionally
testified that at the time the District approved
Petitioner’s
Conditional Installation Permit Application that he was not asked,
nor did he give any advice
to the District on sewer capacity
regarding the individual permit application
(R.
446).
In fact,
sometime between July and September,
1972, Mr. Crawford suggested
that
any
program
the District would carry out to solve the problem
would
be
both
time
consuming and costly
(R.
442).
The
District
and
Mr.
Crawford
began
work
on
a
project
which
would have moved 2,2 mgd of flow, from
the Outer Park Drive Sewer
to the Fayette Sewer
(R.
339),
However,
Mr. Crawford testified
that the District ordered him to stop work on the project when
the
Agency
refused
to
guarantee
a
prior
lifting
o:F
the
sewer
ban
based
upon
the
District’s
presentation
that
it
would
solve
the
sewer
transport
problem
on
October
12,
1973
(II.
350,
351).
The
Board
finds
that
the
sewer
transport
problems
and
discharge
of
sanitary waste into storm sewers and storm channels continues
to
exist
as
of
the
date
of
the
hearing
and
that
the
original
reasons
for
the
Agency’s
imposition
of
the
sewer
ban
in
July,
1972
continue
to
exist.
This
finding
is
based
upon
the
testimony
presented by the two Agency witnesses
(Agency Exhibit
12
and
16),
the testimony presented by Mr. Crawford and
the citizen testimony
regarding
the effects of these problems
in the
area.
13—
198
-7-
In’ reaching this determination to deny the Variance request
to the Petitioner, the Board evaluated the hardship to the public
which exists and would be aggravated by the additional flow generated
within the Westchester 16th addition,
The hardship the public
endures
in the southwestern portion of Springfield, which
is served
by the Outer Park Drive Sewer occurs whenever rainwater enters
the sanitary sewer
in such quantity so as
to exceed the carrying
capacity of the sewers tributary to the sewage treatment plants,
The testimony of Agency witnesses Frost and Louderinilk graphically
portray the surveillance record regarding sanitary sewers over-
flowing from April
20, 1972 until the date of the hearing
(Agency
Exhibits
16 and 12).
Mr.
Crawford testified that there have been
sewer transport problems in the area for
30 years
(R.
271).
As
will -be further set out below,
citizens testified
at the public
hearing portion of the
record
that
for
as long as they have lived
in
the
area,
that
they
have experienced sewer problems.
The
Agency’s
sewer
ban,
or
imposition
of
critical
review
status
on
the
District,
was
based
on
sanitary
sewer
overflows,
basement
flooding,
a~d the
District’s
Spring
Creek
sewage
treatment plant
being
overloaded
beyond
design average flow,
Following
periods
of
rainfall,
the
sanitary sewers serving
the
Outer
Park
Drive
area
are filled in excess of capacity,
this
results
in
sanitary
sewage-overflowing
manholes
located
above
and
below the point of Petitioner’s interconnection with the Outer
Park Drive
Sewer
(Agency Exhibit
12, page
5,
6,
and
8),
This
overflowing
of
the
manholes
located
along
Outer
Park
Drive,
results
in lakes or pools of sanitary sewage being formed which,
in turn, restrict and limit traffic along Outer Park Drive
(Agency
Exhibits 14 and 15).
The force of the water
contained
in
the
sewers
has caused flows
from mere seepage to founts
or geysers which have
reached
1-1/2
feet
in
height
(Agency~Exhibit
16,
page
10),
On
numerous
occasions
the
force
of
water
has
completely lifted or
blown
the
manhole
covers
off
of
a
manhole (Agency Exhibit
12 and
16).
Mr.
Loudermilk
testified
that
he
has
observed
“children
playing
on
a
barricade
erected
over
manhole
number
37
in
such
a
manner
that
the
children
could
have
drowned if they had fallen
into
the
opening”
(Agency
Exhibit
16,
page
8).
The
sanitary
sewage
which
overflows
to
the
manholes
contains
bits
of
food,
toilet
tissue,
and
fecal
material,
and
possesse~
a
decidedly
se~ràge-type -odor
(Agency
Exhibit
16,
page
4
and
8).
The
overflows
of
sewage
from the manholes were contained in impoundments surrounding
the
manholes, flowed out into the lawns
in which the manholes are
located
(Agency
Exhibit
12,
page
4),
and
flowed
into
the
open
stormwater channel which
parallels Outer Park Drive
(Agency Exhibit
16, page 5).
In addition to this indirect overflow into the open
paved
stormwater
channel,
the
District
has
undertaken
a
procedure
where
they
pump
sanitary
sewage
from
the
Outer
Park
Drive
sewer
into
the
stormwater
channel
at
the
intersection
of
Lowell
and
13
—
199
-8-
Outer Park Drive
(R,
397, and Agency Exhibit 16, page 5),
Agency Exhibit 13
is a group of photographs which graphically
portray the geysering and overflow caused by the lack of adequate
capacity
in
the Outer Park
Drive
sewers,
Citizen
witnesses
testified that teenage children swim
in
this paved stormwater channel which contains the sanitary
sewage
as outlined above
(Public Session, page
38 and 72),
Agency
Exhibit
13
are photographs taken of children swimming
in
this
ditch,
Mr.
Loudermilk
further
testified
that
“sewage
overflowing from manholes discharges
into storm sewer inlets
along the
Outer
Park
Drive
area
and
discharge
is
to
a
paved
channel
which
parallels
Outer
Park
Drive,
This
paved
channel
discharges
into
a natural drainageway,
thence
to Jacksonville
branch
and
thence
to
Spring
Creek,
a
tributary
to
the
Sangamon
River”
(Agency Exhibit 16, page 11),
This overflow of sanitary
sewage flows
through both Washington and Passfield Parks on
its
way to the Sangamon River,
Such sanitary sewer overflow can
interfer with and degrade
the water quality of the
lakes
contained
iii.
these parks,
Mr.
Loudermilk,
an Agency
Civil Engineer) concluded after
numerous observations and investigations that there does not
appear to be any visual improvement in the situation regarding
manhole overflows
as
the result of the District or City’s
action
to date
(Agency Exhibit
16,
page 11),
He further stated,
“Based upon my observations
of overflowing
manholes
along the southwest interceptor prior to and after
intersection with the flow from the Outer Park Drive
sewers,
it is my opinion that any additional discharge
of
sewage to the southwest interceptor will result in
more flow at ahigher pollutional concentration reaching
Jacksonville Branch Creek during periods of heavy pre-
cipitation.
This flow will reach the Creek either through
overflowing manholes,
sump pumps removing backup sewage
from basements,
or by discharging
at the Washington
Street
overflow structure”
(Agency Exhibit
16,
page 11),
In
addition to the overflowing of manholes ~theproblems
are
-
caused by the inadequate capacity of the sewers in the Outer
Park
Drive
Area,
These
sanitary
sewers
back
up
into
a
large
percentage
of the basements
in the area,
(See Hearing Officer
Exhibits
-
),
The transcript of the hearing of the public
session
held at 7:30 p.m.
on June 20,
1974
is replete with
the citizen testimony regarding such backups.
Citizens testified
that every year for the past 15 years they have experienced
sewer backups (Public session, page 25),
Citizens testified
that every year the problem seems to get worse
(Public
session,
page
66 and 73)
as
the farmland in the area is converted to
residential use
(Public session, page 42).
Citizens testified
13— 200
-9
regarding the presence of oaor
evcry
time
there
is
a
backup
(Public
senior
page
26)
Citizens testified regard ng four arches o
so”..,tas’ ‘aste oac’ng ~p
ito
‘h~ba~mentw”lct reqbs”e’ ~se
Lt)vel
ng ot fecec
and
paper
Pub1.~C
session
page 37)
Cther
‘itizens testified regar’ ng ~te
rutrng
of a f.,nisted baser
nt
re-leettoral ro a caused a’, the oaci’sp of sanitary
aste
Public
sass_on, oage
1)
Cit zen te~tittedregarding the
ft cesstty
to oust
vater frog
•ie ire~ r 4h cii tt wu enterng ‘he -aseTe-’
t
th.. sap
pap
~ em a~orox,’natet 2 a.m
.o
‘
a
an
o’i
~‘ezrngs
4loti g a raan
Pubi c
-
sd
r
page
6
)“
i’d one c6aizen alleged,
i
d
a
icart
itt c~c
-
veaL
g
r ‘e
cnich
ertere
4
her
ase”ient
Puol4c
assiun
ge
74,g
te,,timony presented
at. t.e
tearing indscatea that citizens
3
iav~ cc
tam
remedaes
thich
hey
‘nay
under
talce
to
ntnimizc
or
oreven’
,.he
najorit,
of
the
p4obiens
outlined
in
tie
above
paragraph
I
ese
~nstst
o?
insti
ii
g
plugs
:~
basement
.raiis
and washing
aac.hine
~rains
Tie
plug
prevents
the
c.i:ect
backup
of
sanitary
sewage
tnt~ basements
Joiever,
once
a
plig
is
tistalled,
the
tsZC.TS
cannot do suc’i normal functions sich as laundry
use of
basement to.1.lets, or basement
csean
up (Public seasion, page 40
and
o3,,.
Bccause the p ug prohib.ts the backup
irto
the basement,
the
1oc4tng 3f the
sanita-’y
sewers in the street causes a btildup
of pressure in the citizen
a
sanitary sewer leading from their homes.
This cat.sec failires in the seals in the sewer joints which in turn
results in the oackuv of sanitary sewage
.nto the ground surrounding
the sever Lead~ngfrom the house to the st:eet
and
backup ‘under
the base’nent floor.
This backup into the ground causes basement
floors to crack
(R. 617
and
Public sessiot page 33,
50, 52, and 70),
This cracking results :n basement flooding even though plugs
are installe4
‘r
ne draan.
This flooding has necossitated the
need to inctall siam pu—ps
it
surrouLding citizens hones (Public
sessiov
pa~es.5,
$2,
#9,
52,
aria
74).
The pro5lers. caned by the ina~equacyof the sever capacity
in the Outer Park
,.aei
reslt
ii,
economic, jhysical,
and
public
healt. hardshps
to ‘nose who live in the area.
The economic nsrds’n~
:s demonstrate,!
0
me cit’zen who testified flat the backup
of
at~rhas
ace
r~anre
&
ii
‘t
to
dry
o
tt
air
conditioning
fans
and
no
ors,
nsa..
~
rachiae
a
tors
and
dryer
notars
at
consilerable
expense
(Pubic scssion, page 26)
Other citizens testified as to
other economic problems ~uch as the destru-tton of personal articles
sto’ed in the basement (Public session, page 45).
In addition to
the damage caused, citizens were forced to expend money for sump
pumps and other remedial steps
(Public session, page
49).
One
citizen
testified
that
he
had
a
plabing
estimate
that
ranged
between
$1,000
and
$1,500
to
correct
the
problem;
which
did
not
include the cost to replace
shrubbery
and fences which would be
necessary following the plumbers work (Public session, page 26).
13—201
-10-
Another citizen raised the valid point that the individual
economic
and
other
hardships
faced
by. the
approximate
900
homes
in the area, when totalled together
redcta substantial economic
figure (Public session, page 27).
Another.citizen questioned
the resulting effect on the resale value on the homes in the
area from the sewer back up problems
(Public session, page 61).
The Board finds that this citizen testimony, when examined as a
whole, graphically illustrates
the
economic interference caused
by the inadequate carrying capacity of
the
Outer Park Drive sewers.
While little evidence is detailed in the record regarding
the public health menace resulting from sanitary sewage overflow
and
sewage .backups into basements, .the parties entered a Stipulation
which
reads:
“The parties hereby stipulate that exposure to
sanitary
sewage
overflow
and
sewage
from
basement
backup
represents
a
significant
health
hazard,
particularly
to young children
in
that
such
exposure
may
contribute
to
aggravate
or
cause
a
number
of
communicable
and
enteric
diseases,
such
as
typhoid
or
hepatitis.
However,
as of the time of the
Stipulation no testimony has been introduced to show
such diseases have actually occurred in the subject sewage
area”
(R.
431).
In numerous previous opinions dealing with the overflow or
backups into basements of sanitary sewage, the Board has dealt
at length with the public health hazard resulting from both
bacterial and viral infections, as well as potential electrocution
hazards.
One
citizen testified that teenage boys swim in the
paved
stormwater
channel
which
Agency
Witnesses
have
testified
contained
the
overflow
from
manholes as well
as the pumping of
sanitary sewage from District sewers (Public session, page 72).
She
testified
that
the
boys
swim
in
the
ditch
and
that
they
dive
head
first
into
the
ditch
(Public
session,
page
72).
She..further
testified
that
small
children
come into the, area whenever the manhole
overflow
problems
occurs
to
observe
the
“pretty
fountains”
(Public
session, page
72).
and
she
had
observed
little
girls
cup
their
hands and drink the water from the
“pretty
fountain”
(Public
session,
page
73).
Other citizens testified that children are
constantly playing in the storm drainage ditch where the overflow
goes after each rain (Public session, page 38).
This testimony,
in addition to the previously alludel
to
testimony regarding the
fact the paved channel eventually flows to City parks
and
thence
to the Sangamon River, constitutes substantial public health
risks for which the Agency properly imposed a sewer ban in July,
1972 and for which the Board must give great weight when weighing
variance requests which would add to the risks.
After reviewing
and
ultimately
rejecting
Petitioner’s
claim that he.is entitled to an Operating Permit based on the
August
29,
1972 letter to the
District
and
after
giving
weight
to
Petitioner’s
economic
hardship
versus
the
public’s
environmental
13—202
-11-
hardships,
the Board examined two
additional
areas.
The
first
area
is
that of Petitioner’s allegation that to deny it an
Operating Permit or
a Variance would be arbitrary in that the
Board
has
granted
variances
and
the
Agency
has
granted
permits
for certain developments located within the same area as
Petitioner~sproposed 16 addition
(R.
138).
The Board has granted
a limited number of variances which resulted in the Agency
granting Operating Permits pursuant to orders of the Board in
four previous cases.
Variances were granted in two cases where apartment
buildings were constructed
before the effective date
of the
Agency-imposed sewer ban
on July 12,
1972
(First National
Bank of
S
Pin field
Trustee of Trust #30l0PPCW~72-301,
cto er
I
,
1
an
inois
ational Ban
o
rin field
Trustee of~Trust#13-03
v,
,
B
-
,
cto er
,
72)).
~
following the precedent
that, in weighing the hardship on an individual
case
by
case
basis,
to disallow connection when the actual building con-
struction had commenced prior to
a sewer ban order would impose
an arbitrary and unreasonable hardship.
In
Illinois
National
Bank
of
S
rin
field
Trustee
of Trust
~
PCB 72-3 0, Octo er
3,
1
72,
the Boar
grante
a variance wilidE would ultimately provide housing for elderly
persons and for other persons of moderate income requiring
government subsidies to afford adequate housing; where the
land in question was to be developed with financial assistance
from the Illinois Housing Development Authority.
In that case
it was represented that there existed a dire need for public
and government subsidized housing and that the Illinois Housing
Development Authority would withdraw its support money
if
a
permit to install
and operate could not be issued,
Based upon
these facts,
the Board in PCB
72-300 found the requisite hardship
and granted a variance.
In Vikin
Investment
Corn an
v.
EPA, PCB 73-236,
September 6,
1973
(re erre
to
y
etitioner as
an
e Tree),
the Board granted
a variance to
a petitioner who had spent an excess
of $4,000,000.00
on the construction of an apartment complex.
I~1
that
case,
all
of the buildings had been essentially constructed,
In contrast
to the apparent position of PetitionQr, the Board has not previously
granted
a variance
in any Springfield sewer ban case with the
exception of PCB 72-300 where the subject buildings have not
been constructed,
Petitioner admits
that there has been no construction beyond
roads,
sewer lines, water mains and other utilities
(R.
26),
In repeated past
cases
the Baord has held that construction must
have been substantially completed in order
to justify the
granting of
a variance (See e.g. ~pnv.
EPA,
PCB
71-85;
13
203
-12-
~~v,EPA
PCB 71-80; Fei e v, EPA
PCB
72-192, Lobdell and
Hall v,
EPA, PCB 72-511;
an
S rin
ield Marine Bank v~EPA
P~~7~3~L
Petitioner makes no
a 1egat~ont
at van alism or
other destruction of the in-place improvements has occurred
(R,
151).
Petitioner states some fear that unknown children
might place foreign objects
in the existing sewers (R~ 151).
This vague
threat of possible future vandalism is not sufficient
to warrant the grant of a variances
In
Wachta and Mota v, PCB and EPA, PCB 71-77,
the
Court helT
attlTeocti’ineoequitable
estoppel applies
to administrative agencies.
In the Wachta decision,
the
Petitioner had been granted
a permit to both install
and
operate sewers by the Pollution Control Board’s predecessor,
the State Sanitary Water Board,
Applying the doctrine
of equitable
estoppel,
the Court
held that
the Board and the
Agency were stopped from withdrawing the sewer
connection permit
which had earlier been granted by the State Water Board,
The
Board notes
that the Wachta decision is not controlling because
in
the present case,
the Springfield Marine Bank
as Trustee was
merely ;issued a Conditional Installation Permit which does
not necessarily guarantee the issuance of
an
Operating Permit,
The Board,
in
summation,
has denied Petitioner’s variance
request because
the
economic
hardship to
the land trust,
not
the
hardship
to
the
individual
beneficiary
owners,
does not
outweigh
the
h.arm
to
the
public
and
the
environment
caused
by
the continued sewer overflows
and basement backups.
•The Board
finds, contrary to Petitioner’s
allegation
of
minimal
impact,
t.hat
the principle of
a sewer ban or critical
review status
is
to
limit
or
prohibit the aggravation
of
an already bad situation,
The record
in
this case
is replete with testimony regarding
the environmental and health problers caused by the overloaded
sewers and sewage treatment plants,
Petitioner has
failed
to
prove that its hardship outweighs
the public hardship and therefore
the Board denied Petitioner’s requested variance.
The Board in denying Petitioner’s Variance does not prohibit
the
development
of
the
sixteenth
addition;
but
rather
delays
that
development
until
such
time
as
the
sewer
transport
problems
have
been
solved,
The
Westchester
Trust
has
fully
developed
fifteen other parts
of the total Westchester Addition since 1962,
A variance or permit denial appeal reversal which allows
the connection to an overloaded sewer or sewage treatment plant
is unique and should be contrasted to other variances~ The granting
of relief from a sewer ban has
no
time limits as once connection
is
made,
it
is made forever,
No one, not the local sanitary
district or the Agency,
will
ever argue
that
the allowe~c6nnec-
tion should be disconnected at some
future date,
The--Board in
other variances from regulations or the Act is limited to variances
that entered
a statutory maximum of one year
(or fIve years
13
*
204
-13-
in the case of
dIschargers
who
must
obtain
a
National
Pollutant
Discharge Elimination System Permit
(NPDES).
Thus,
such
variances
are subject ~toperiodic Board review;
such
is not
the
case
In
a
sewer
ban
variance.
This Opinion constitutes the Board’s findings
of fact
and
conclusions
of
laws
Mr~Henss abstained.
I, Christan
L, Moffett, Clerk
of the Illinois Pollution ç~ntrol
Board, hereby certify the above Opinion was adopted on the ~~~day
of July,
1974 by
a vote
of
4—a,
IllInois Pollution
trol Board
13
*
205