ILLINOIS POLLUTION CONTROL BOARD
    December 13, 1973
    )
    )
    SPRINGFIELD MARINE BANK
    )
    as Trustee of Trust #51-0239-0
    )
    )
    )
    v.
    )
    PCB 73-348
    )
    )
    ENVIRONMENTAL PROTECTION AGENCY
    )
    )
    MR. W. JOSEPH GIBBS, appeared for Springfield Marine Bank
    MR. LARRY R. EATON, ASSISTANT ATTORNEY GENERAL, appeared for
    the Environmental Protection Agency
    OPINION AND ORDER OF THE BOARD (by Mr. Dumelle):
    A variance petition was filed by the Springfield Marine Bank
    (“Bank”) on August 20, 1973 for variance from an Environmental
    Protection Agency (“Agency”) sewer ban in Springfield. Extensions
    were granted to the 90-day period on October 3, 1973 and November 20,
    1973 until today. Public hearing was held in Springfield on
    November 5, 1973.
    The land for which variance is requested is a residential
    subdivision of 103 lots totalling 41.1 acres (R. 43) located in the
    southwest portion of Springfield in the Sherwood Addition. The
    lots which are to be offered for sale at prices of $7,000 to
    $8,000 (R. 46) would total 33.1 acres and the remaining 8.0 acres
    would be used for a park. The petition estimates an average
    daily discharge of domestic waste water of 56,600 gallons per day
    based upon 5.5 persons per dwelling unit and 100 gallons per
    capita per day.
    The petition states that the land was purchased on December 22,
    1971. A Conditional Permit was issued by the Agency on December 22,
    1972. On April 13, 1973 the Agency denied an application for an
    Operating Permit on grounds that both the sewage treatment plant
    receiving the waste and the sewage collection system were overloaded
    thus violating Rule 921 of the Water Pollution Regulations.
    The Agency’s recommendation filed October 3, 1973 is for
    denial. It outlines the chronology of events in Springfield as
    follows:
    10
    347

    July 12, 1972
    Agency notified City of Springfield
    and Springfield Sanitary District that
    -further sewer permits could not be
    issued in southwest Springfield.
    August 29, 1972
    Agency announced issuance of “Conditional
    Installation” permits on basis that 3.0
    MGD of stormwater -flow would be eliminated
    -from sanitary sewerage system in the Outer
    Park drainage area by December 1, 1972.
    December 22, 1972 A “Conditional Installation” permit was
    issued to \Iredenburgh Home Building Company,
    the contractor for the development at issue.
    March 15, 1973
    The Agency notified the Springfield Sanitary
    District that neither “Conditional Installa-
    tion” or Operating Permits would be issued.
    April 13, 1973
    Denial issued for Operating Permit in this
    case.
    The Agency’s Recommendation details City and District programs
    to mit:igate stormwater infiltration in the Outer Park
    Drive
    drainage
    area. It also states that the newly opened Sugar Creek (South)
    sewage treatment plant has not relieved completely the bypassing
    experienced at the oldeT~p~TiTgCreek (North) sewage treatment plant.
    The injury to the public as detailed by the Agency is an
    aggravation of dowmstream sewer overflow and basement flooding
    conditions during wet weather periods. The Bank’s development would
    connect to the Springfield Sanitary District’s Southwestern
    Interceptor (36-inch sewer) through the Outer Park trunk sewer
    at Outer Park Drive and Cherry Road.
    Details as to manholes along Outer Park Drive overflowing onto
    streets are given by the Agency with dates from March 6, 1973 through
    August 13, 1973 and listing from 2 to 15 manholes. Th~overflows
    are said to enter an open, paved stormwater channel in front of the
    Ben Franklin Middle School. Children have been observed playing,
    swimming and lying in the sewerage contained in this channel
    (Respondent Ex. #4, R. 189). The Agency also states that this
    same storm channel, containing sanitary sewage from the overflowing
    manholes, flows through Washington Park and Pasfield Park and
    thence to Spring Creek and the Sangamon River.
    The basement flooding in the Outer Park area is causing
    property damage and electrocution
    hazards, plus health hazards
    from the viruses of hepatitis
    and polio and from salmonella.
    10
    — 348

    -3--
    The Petitioner, in testimony, stated that the full 102
    lots were not at issue since 22 have access to an existing
    sewer which is not under the sewer ban (R. 28, 29). Of the
    80 lots remaining, the Petitioner is willing to build on 1/3
    of them each year (about 27 lots per year).
    The exact monetary hardship to the Petitioner is not
    absolutely clear from the record. The purchase price of the
    total land is given as $209,270.00 at an interest rate of 9-1/2
    (R. 35). At the time of the imposition of the sewer ban by the
    Agency, the full land purchase price and engineering costs of
    $2,340.00 was incurred. The total cost of the 102
    home
    sites
    in
    the park area is given as $531,954 (Petitioner’s Ex. #1),
    which would include the land costs, engineering costs, and
    improvement costs. Petitioner states that the “Total Cost
    to Develop” is $521,354 (Petitioner’s Ex. #1). A further
    deduction for the cost of the 8 acres of park land would give
    $490,572 as the cost for developing 102 home sites minus costs
    attributable to the park. Petitioner stipulated that the total
    cost could be reduced by a factor of 80/102 which corresponds to
    the number of sites covered by the sewer ban (R. 45, 46); this
    would give $408~905as the total cost of developing the 80 sites.
    By applying a factor to the costs minus all park costs, the total
    costs would be $384,762.
    It is not clear what portion of the costs were incurred
    during the short period of time Petitioner held a “Conditional In-
    stallation Permit.” Mr. Richard Gibbs testified that at the
    time of the hearing $363,000 had been spent out of the total
    costs and that Petitioner was obligated to pay the balance (R49).
    (R. 49). Mr. Gibbs further testified that some “half million
    dollars” in building materials had been inventoried for the
    development (R. 36). No evidence was presented showing the
    possibility of liquidating that proportion of the building materials
    not used in the construction of 22 homes through the Vredenburgh
    Lumber Company or other
    suitable outlet.
    Petitioner’s development is in the same area as the apartment
    development which was the subject of a prior variance petition in
    Viking Investment Corporation v. EPA, PCB 73-236, (Order of
    August 30, 1973; Opinion of Septemb~r6, 1973). The Board granted
    Viking a variance to connect the 19 apartment buildings with
    320 apartments because, in that case the actual building con-
    struction was substantially complete. In the present variance
    petition, there has been no construction of the homes.
    10
    349

    —4
    -
    In Viking
    we treated at length the doctrine of reliance,
    which we rejected. A “Conditional Installation” permit is just
    that and is not an operating permit. Petitioner’s own engineer,
    Robert E. Oglesby, initialled the eight conditions to a grant
    of a conditional permit found on page 3 Petitioner’s application
    for a “Conditional Installation” permit (Respondent Ex. #1, Page 3).
    Condition 3 states:
    The Agency will not grant permission to operate until:
    a) the receiving sanitary district, municipality or other
    owner notifies the Agency that it has completed construction
    of the additional or upgraded facilities that serve as the
    basis for the grant of this limited permit and that the
    additional facilities have been placed in operation and are
    operating as designed; and b) the Agency has inspected
    these facilities in operation and notifies the owner in
    writing that the facilities are actually operating success-
    fully as designed.
    Condition 5 states:
    Since the Agency will not grant permission to operate until
    the conditions set in paragraph 3 above have been met, the
    installation of sewers under this permit and any related
    real estate improvements are done solely at the applicant’s
    risk.
    The developers took a business risk by proceeding to install sewers
    and streets with only a “Conditional Installation” permit.
    The citizen testimony as to property damage is full and
    persuasive (R. 77-144). Instances are reported of appliances
    damaged and “geysering” of sewage from manholes.
    We deny the variance without prejudice. The building materials
    “inventories” for the development can undoubtedly be sold or used
    at locations not under a ban.
    The ultimate solution to the problem
    appears to be adequate sewer relief capacity.
    And as we said in
    Viking:
    The parties involved in the sewer problem are the
    City of Springfield and the Springfield Sanitary District
    and they are not before us in this case. We urge that
    they bend every effort to solving the sewer transport
    problem by infiltration correction and/or polymer usage
    as soon as possible.
    This opinion constitutes the Board’s findings of facts
    and conclusions of law.
    10
    350

    -5-
    ORDER
    The variance is denied without prejudice.
    IT IS SO ORDERED.
    Mr. Henss dissents.
    I, Christan L. Moffett, Clerk of the Illinois Pollution
    Control Board, hereby certify the above Opinion and Order were
    adopted on the
    J34~t
    day of I)ecemher, 1973 by a vote of
    ~I-I
    (1
    Christan L. Mof~ett, C~k
    Illinois Pollution Coiét’~ol Board
    10
    351

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