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