ILLINOIS POLLUTION CONTROL BOARD

August 22, 1972

CINNAMON CREEK ASSOCIATES

)

v.

)

#72—340

ENVIRONMENTAL PROTECTION AGENCY

Opinion & Order of the Board (by Mr. Currie)

This petition seeks a variance to allow the connection

of a new apartment complex to sewers in Waukegan despite our

order forbidding such connections in League of Women Voters

v. North Shore Sanitary District, ~70-7 (March 31, 1972).

The petition alleges expenditures for land purchase and for

building plans incurred before the ban was imposed, facts

which we have found insufficient if proved to support a

variance since the enjoyment of those expenditures is not

foregone but merely deferred. See, e.g., Monyek v. EPA,

#71—80 (July 19, 1971)

;

Wagnon v. EPA, *71—85 (Aug. 5, 1971)

It is further alleged that additional sums were spent after

the ban was imposed in reliance upon the Sanitary District’s

erroneous interpretation of our order as not applying if a

building permit had been issued before the ban. See Wachta

v. EPA, *71—77 (July 12, 1971); Glovka v. NSSD, #71—269

(Feb. 17, 1972)

.

In Glovka, because of expenditures in good

faith reliance on the advice of municipal officials who should

have known better, we held an individual who had made an

illegal connection would not be required to disconnect; the pre-

sent case asks us, as does Cook v. EPA, *72-178, which is to

be decided August 29, to apply or extend that reliance

principle here. The large number of apartments here involved

(nearly 250) increases the hardship if a connection is denied

and also the pollution is one is granted; it may bring about

a greater duty of inquiry into the legality of a connection,

since we cannot delegate authority to local officials to

undermine or repeal our orders. The issue is ~ difficult

one on which a hearing would be appropriate.

However, the petition overlooks our orders in *71-343,

North Shore Sanitary District v. EPA (Jan. 31 and March 2,

1972)

,

which allowed a number of additional connections to

Waukegan sewers based upon treatment plant improvements.

5

—

245

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—2—

There is here no allegation that permits have been sought

and denied, or that the apartments are tributary to over-

loaded sewers that are exempt from the #71—343 variance.

There is only the allegation that a hypothetical refusal

of a permit by the Agency would cause unreasonable hardship.

In view of the relaxation of the ban in #71—343, without

an allegation that there has been such a refusal there is

no indication that a variance is needed. The petition is

therefore dismissed for failure to allege facts sufficient,

if proved, to justify the relief sought. See, e.g., Chester-

field Development Corp. v EPA, #71-378 (March 2, 1972).

I, Cl-tristan Moffett, Clerk of the Pollution Control 3oard,

certify that the Board adopted the above Opinion & Order

this 22nd. day of August, 1972, by a vote of

4w—c