ILLINOIS POLLUTION CONTROL BOARD

May 3, 1972

ABC GREAT STATES, INC.

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v.

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#

72—39

ENVIRONMENTAL PROTECTION AGENCY

Opinion and Order of the Board (by Mr. Currie):

Great States owns a building in Aurora containing

“a theatre, a bowling and billiard academy and three stores.”

It alleges that it first learned on September 29, 1971, that

“the toilet fixtures in the building were connected to a storm

drain which discharges directly into the Fox River.” Great

States’ petition, received February 3, 1972, requested a variance

to allow continued discharges until February 29, when the situation

allegedly would be corrected. An attached addendum extended the

requested compliance date to March 15 on the basis of a letter

received from the consulting engineers employed to prepare plans

and specifications. In a letter received March 20 Great States

requested a further extension to April 15, 1972, because the work

had allegedly proved “quite complicated.” The Agency thereafter

filed a complaint (# 72-165) against Great States on the basis

of the continuing discharge, and a hearing will be held in the

near future on that complaint. The Agency’s recommendation in the

variance case, received May 3, argues that “petitioner was aware

of this problem at least from September, 1971 through January,

1972, but no progress was made toward correction until after

threat of prosecution.” The Agency further charges that Great

States has been “dilatory” is “requesting additional time to

complete corrective work which could have been completed months

ago,” and “intends to amend its petition and request additional

time.” The Agency asks that no extension be allowed beyond March

15.

Substantial factual issues are presented with respect to

the question of unjustified delay. There comes a time when the

discharge of raw sewage into a public stream designated for recreation-

al purposes must stop. Great States alleges it has acted with diligence

to surmount a difficult problem, justifying the delay from

September to February because of the need to obtain permission

to dig on adjoining land owned by others. We think proof at a,

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471

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hearing is necessary to demonstrate, if such be the case,

that Great States is entitled to permission to discharge raw

sewage. On the facts before us we find it difficult to believe

it can take upwards of six months to connect a single building

to a nearby sewer if the party proceeds with all due speed.

Great States has not proved it is entitled to a variance, for

the record suggests, as EPA argues, that any hardship that

Great States will suffer from enforcement of the law may be

self-inflicted. The variance is accordingly at this point

denied, without prejudice to such further proof as may be

presented by way of defense to the pending enforcement case.

The denial of a variance is not in itself an order

to shut down. We cannot, however, on the facts before us afford

a shield against the pending prosecution. All the issues raised

by the present petition may be raised in defense of the

complaint.

The petition for variance is hereby denied.

I, Christan Moffett, Clerk of the Pollution Control Board, certify

that the Board adopted the above Opinion and Order of the

Board this 3 day of May, 1972, by a vote of

0

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