ILLINOIS POLLUTION CONTROL BOARD

July 25, 1972

CONGREGATION AM ECHOD

)

# 72—202

ENVIRONMENTAL

PROTECTION

AGENCY

Dissenting

Opinion

(by

Mr.

Currie):

Am Echod sought a variance from our prohibition of new

sewer connections tributary to overloaded treatment plants in

the North Shore Sanitary District (League of Women Voters

v.

EPA,

#70—7, March

31,

1971)

,

asking to connect a one—family

residence to

a Waukegan sewer.

We dismissed the petition as

moot on the ground that we had allowed the

District

to

grant

additional connections on the basis of treatment plant improve-

ments.

North Shore Sanitary District v.

EPA, #71-343, March

2,

1972; Congregation Am Echod

v.

EPA,

#72—lI, April

4,

1972.

A

second petition was then filed, alleging that the District

coulã

not allow the connection because

the

sewer

transporting

wastes

to the treatment plant was itself overloaded.

The

Agency

re-

commended that the variance be granted because of hardship but

affirmed that the sewer was overloaded.

We ordered the parties to submit more information:

It

is our responsibility to balance the hardships of

a

variance denial against the harm that would occur if the

variance were granted.

We cannot intelligently do

so on

the present record, for we do not know the effect of

adding the wastes

in question to an already overloaded

sewer.

If,

for example, the variance would mean raw

sewage in somebody~sbasement7

a very great hardship indeed

would be required to justify a grant.

We therefore post-

pone decision pending receipt of additional information from

the parties as

to the adverse effects of allowing the

connection sought.

The petitioner~sresponse was that it was the Agency that

had originally designated the sewer as inadequate,

for reasons

undisclosed;

that the Agency apparently considered the effect

of an additional connection de minimis, since it had recommended

a grant of the variance; and

that

consultations

with

City

officials

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led to the conclusion that there was adequate capacity during

dry weather but that storm water infiltration caused overflows

to occur “when there is an exceptionally heavy rain.~ The

Agency disagrees with the assessment of an added connection

as

de minimis but adheres to its recommendation that the variance be

granted because the alleged hardship is “unique and severe.”

The

Agency gives us no facts as to the effect of the proposed connection~

saying only in general terms that

sewers designated

as inadequate to transport additional

wastewater were so classified because they are subject to

excessive flows from storm water runoff during periods

of wet weather.

These excessive flows result in illegal

bypassing of untreated wastes into the waters of the state

and/or sewer backups sending untreated wastes into the

homes of various individuals.

.

.

.

Any connections to these

inadequate sewers should be closely scrutinized and limited

since the number of such connections to these sewers is

bound to make the situation worse for individuals already

adversely affected

during

periods

of

wet

weather.

The alleged hardship if the connection

is refused, which is

not disputed,

is that

the Congregation~srabbi, who now lives

a

mile from the temple, suffers from a leg disability that makes it

difficult for him to walk and for religious reasons will not ride

in motor vehicles on the Sabbath.

The Congregation has built

him a home near the temple and wishes to connect it to the over-

loaded sewer to relieve his burden and that of his wife, who also

finds walking difficult during inclement weather,

in getting to

and

from

religious

services.

Our task is to balance this hardship, which granting the

variance

would

alleviate,

against

the

harm

to

others

that

the

grant would cause.

The test

is a strict one.

The statute

requires

a

showing

by

the

petitioner

that

compliance

with

the

law would impose an “arbitrary or unreasonable hardship,”

and

this Board has variously said that the cost of compliance must be

“wholly disproportionate to the benefits”

or must ‘1substantially

outweigh”

them.

See,

e.g., EPA

V.

Lindgren Foundry Co.,

#70-1

(Sept.

25,

1970)

(Opinions of Messrs. Currie and Kissel)

.

The

statute

is

clear

that

the

burden

of

proof

is

on

the

petitioner

to

show the cost of compliance

is arbitrary, and this includes

the

bur-

den of proving the adverse effects of granting the variance would

be small in comparison.

E.g.,

Norfolk

&

Western

Ry..

V.

EPA,

#70—41

(March

3,

1971)

In

our

opinion

of

June

20

we

expressed

our

concern

over

the

virtually complete lack of information before

us

as

to

the

adverse

effect of granting this requested variance and gave the parties an

opportunity to rectify it.

Unfortunately,

we know essentially no

more now than we did then.

The Agency has given us

its repeated

---

conclusion

that

it

views

the

adverse

effect

of allowing the

connection

as

small

in comparison with the hardship of having the

rabbi and his wife continue to walk the mile to and from the tem-

ple.

We value the

Agency’s advice,

as we are directed to do

under the statute, but the decision is for us to make, and we

cannot make it without the facts.

No one told us what will

actually happen

if an extra 300 gallons of waste per day,

as alleged

in the petition, are put into this overloaded sewer at times of

heavy rain.

If present conditions are such that a two-inch

storm falls 200 gallons short of putting raw sewage into someone’s

basement, then making this connection would mean that in such a

storm there would be 100 gallons of sewage in that basement that

otherwise would not be there,

Nothing in the papers before

us in any way rules out ~thispossibility.

Since the burden

is on

the petitioner to prove its case,

and since there is no evidence

to the contrary, we must assume that the connection would mean

sewage in otherwise clean homes.

And that,

I think,

is a prospect

we cannot view with anything less than horror.

I cannot say

it is clearly preferable

to put raw sewage in some innocent person’s

home than to have

a man with a bad leg walk to work and back on

days when his religion counsels him not to ride.

No mention has been made by the parties of

the twin

constitutional provisions protecting freedom of religion and for-

bidding the establishment of religion.

Even after rereading the

Supreme Court’s most recent explication of these clauses, which

appears to require special privileges for persons with religious

restrictions in certain narrow circumstances Wisconsin v.

Yoder,

92 Sup,

Ct. 1526

(1972),

I cannot believe that freedom

of religion goes so far as to include the right to injure innocent

people by putting raw sewage into their homes.

M~ichpublic attention ha~been focused on the problem of

sewaqe treatment,

and we have repeatedly stressed in our decisisons

the paramount importance of assuring that sewage treatment plants

are upgraded to provide the necessary degree of treatment,

See,

e.g.,

In re Water Quality Standards Revisions,

#R 71-14

(March

7,

1972);

League of Women Voters

v. North Shore Sanitary District,

supra.

The present case,

however, brings to light a problem of

potentially equal importance that has not been so prominently in

the public mind.

It does little good to build exotic facilities

to treat sewage if the sewers are too small to take the sewage

there to be treated,

Wastes discharged to an overloaded sewer,

as the Agency tells us in its supplemental recommendation in the

present case, overflow untreated into

a stream, or are backed into

someone’s home,

or,

as we saw in an earlier case

(School Building

Commission v.

EPA,

#71—247

(Oct.

18,

1971)),

into the streets.

The public health risks of such

a situation are obviously intoler-

able and inexcusable.

The answer to the problem of overloaded

sewers is not to grant variances allowing the problem to get worse;

it is to build decent sewers as fast as

is humanly possible.

It

is imperative that public pressure,

as well as the pressure of

refusing

additional

connections, he brought with all strength to

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bear

upon

those

municipalities

and

other governments responsible

for inadequate sewers in order to eliminate this disgraceful

situation,

I

believe

the

variance

should

be denied.

I,

Christan

Moffett,

Clerk

of

the

Pollution

Control

Board,

certify

that Mr. Currie submitted the above dissenting

Opinion

this

25

day of July,

1972,

5

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