ILLINOIS POLLUTION CONTROl. BOARD

SPRINGFIELD MARINE BANK

as Trustoc of Trust I~51—O239—O

Petitioner,

PCB 73—348

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

DISSENTING OPINION OF MR. HE~SS

Petitioner’s hardship is not all self—)mposed. Major ex-

penditures were made prior to the Agency decision in July 1972

ho impose a sewn connection ban. The Agency letter of August 29,

1972

granting a “conditional installation”

permit led

to

further

expenditures by the Petitioner.

Elements of

es Loppel are present

this case. The July 1972 docision to ban further sewer connections

was a decision of the ~nvironmental Protection Agency. The August

1972 decision to Issue conditional permits was also a decision of

the Environmental Protection Agency, and seemed to remove the ban.

An omployac of the Agency, ~4r. Abraham Loudermilic, testified:

Q. “What I’m

hearing

the ban

pletion

trying to

officer th

was lifted

of the new

get at, you are telling the

at it was your opinion that

by this letter upon the corn-

sewer plant, is that right?”

A. “Essentially, 

yes.”

(R. 157)

Q. “So your testimony is

to lift 

the ban when

based upon an assump

mation received from

A. ~That’s right.”

that that letter was intended

the new plant was completed,

tion of the truth of the inior—

the City?’

Q. “Or from the Sanitary District?”

January 3, 1974

A. “That’s right.’1 (R. 

171)

—2—

If the Agency employees thought

Petitjq~ier not entitled to that same

a degree of clairvoyance on the part

possessed by EPA employees?

the ban had been lifted, is

understanding? Do we require

of Fetitioner which is not

‘the majority state that Petitioner took a business risk. This

is

true. 

Ho gambled that the sewer improvements would operate “as

designed” (See Condition No. 3 of the permit) If the “design” was

inadequate the Agency should have detected that error prior to

issuing an installation permit, If the Agency intended to prevent

use of the sewer when constructed and operated “as designed” it

should never have issued a conditional permit which wou.d induce

Petitioner to make further expenditures. Impflcit in 

thp

issuance

of a conditional permit is the understanding that an operating permit

will be issued within a reasonable

period of time.

my opinion, the Petitioner sho

connect 27 homes to the sewer. That n

reasonably be developed in the next co

help Petitioner to avoid any financial

result from

the

misunderstanding of the

are making investments in the area

clearly stated; because Petitioner

August

1972 letter as a 

relaxation

hardship to Petitioner which accomp

would allcw a limited number of con

clear statement should be made rega

should be to the effect that no fur

allowed, nor will conditional perrai

the sewer system has been found to

load

(PC~

73—216)

ay that this

of homes

ikincj case.

costs of at least $384,000, a

unreasonable to require that

gs in place.

sanitation problems which accomnany

It is entirely proper for

the usage of such a sewer.

However,

t be so unclear in its meaning as

harU~liip on the part of those who

Because the sewer ban was not

could reasonably rely upon the

of the ban; and because of the

anied this state of confusion I

nections.

At the same time, a

rding the future.

That statement

tlier sewer connections will be

Ls be issued until such time as

This case is not substantially

different from Viking

in which we allowed the sewer connection.

The

majority s

case 

is different because there has been no construction

whereas construction was substantially complete in the 

However, this Petitioner has incurred

substantial hardship. It seems to me

this hardship take the form of buildin

uld be granted the right to

umber is all that could

nstruction season and should

problems which

might 

otherwise

Agency action.

would

until

put ?e

should

for the

of that fact and

the overloading o

governmental agen

that governmental

lead to confus

Although I would allow this limited number of connections I

clearly state that

further 

connections will not be authorized

the sewer system can handle the additional load.

This should

titioner on notice to avoid adding to the financial burden and

remove any misunderstanding or possible questions of estoppel

future.

The sewer is ‘verloaded.

There is ample evidence

of the health and

C a sewer system.

cies to restrict

action should no

lOfl

dud

rLnancidl

be adequate to handle the additional

—3

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control hoard hereby certify that the Above Dissenting

Opinion was submitted by Mr. ienss or. the 10th day of

January, 1974.