ILLINOIS POLLUTION CONTROL BOARD
October 3, 1972
ILLINOIS NATIONAL BANK OF SPRINGFIELD,
Trustee of Trust No. PL 3478
)
v.
)
#
72—300
ENVIRONMENTAL PROTECTION AGENCY
)
Robert Cohen, for the Illinois National Bank of Springfield,
Thomas J. Immel, Assistant Attoirney General, for the
Environmental Protection Agency
Opinion of the Board (by Mr. Currie):
This petition seeks a variance to permit the connection
of several properties to municipal sewers in Springfield.
The initial petition covered 113 acres of housing develop-
ments and an estimated discharge of 400,000 gallons per
day. An amended petition was later filed specifying the
petitioner’s priorities in the event the variance could be
granted only in part. The Agency had imposed a ban on fur-
ther sewer permits in this part of Springfield (southwest)
because of an alleged overload of the sewers transporting
wastes from that area to the treatment plant, which was it-
self alleged to be overloaded. The Agency’s amended re-
commendation, in that regard, alleged that “Agency investi-
gators had observed raw sewage and sewage related solids
flowing in the streets of southwest Springfield from sur-
charged manholes in the affected area on April 20 and 21,
May 29, and July 9, 1972 following rainy weather.” The
record supports the allegations as to both sewer and plant
overloads, with raw sewage bypassed to streams and to storm
sewers, and flowing in streets (R 76-78).
In what we infer may have been a direct result of the
Agency’s connection ban, significant steps have been taken
by the responsible municipal authorities to alleviate the
problem, and the Agency has modified its position in con-
sequence:
Since the filing of the original petition in this
cause, the District has erabarked on a program to
eliminate excess storm water from the sewers tributary
to the Outer. Park Drive interceptor sewer. The Agency
estimates that excess storm water flow of 1.8 mgd has
been eliminated from one tributary sewer and that an
additional 1.2 mgd should be disconnected by December
1,
1972.
. .
5
—
585
—2—
The Agency has determined, on the basis of the Dis-
trict’s program and the results achieved to date, that
the overload problem of the Outer Park Interceptor
Sewer has been substantially alleviated and is now
willing to issue conditional installation permits for
construction in the area tributary to the sewer, with
connections to be permitted when the overload at the
treatment plant is eliminated.
The overload is expected to be eliminated by March 4, 1972.
See Amended Recommendation, pp. 4, 3; R. 46-68, 77. The
plan for sewer improvements is detailed in Exhibit 3A; it
includes diversion of surface water from a shopping center,
disconnection of downspouts, replacement of leaky laterals
and the testing, cleaning, and sealing of sewers. We commend
this program to the attention of other communities with
similar problems, as it effectively demonstrates that sig-
nificant improvements in sewers determined to be inadequate
can be achieved in a relatively short period.
As a result of these improvements in the sewer situation,
the Agency has in fact issued “install only” permits upon
request for lots within the affected area and states its
intention to issue similar permits whenever asked. (Amended
Recommendation, pp. 6-7; R. 80-81, 83-84, Exs. 8, 9)
.
Ex-
cept to the extent that it has been alleged and proved that
such a permit would be inadequate to serve the petitioner’s
needs, the petition must be treated as moot in light of the
changed circumstances.
No contention is made that actual construction of build-
ings has commenced upon the property in question, although
preparatory work such as the installation of roads and utilities
has been done (R. 11-12)
.
The record is quite clear that
nobody is ready to connect to the sewers today:
Q In the event construction were begun now, Mr.
Hurwitz, on both the IDA project and the Viking Pro-
ject, or any other projects, any other unsold lot in
your estimation, what would be the construction time
for apartments?
A Approximately eight (8) months from the time of
starting.
Q Do you anticipate that anything would be concluded
or that sewer connections would bexequired before May
1st, 1973?
A No.
(R. 22)
5
—~
586
—3—
Thus there is no present need to tap into the City
sewers; what is needed, and what was originally denied, was
permission to construct the sewer extensions serving the
development itself, which need be tapped into the municipal
sewer only after construction of the buildings jg completed,
which will not be before May 1973. Permission to construct
the sewers has been or will be granted upon request, with
connection not to be accomplished until additional treat-
ment capacity is provided, which is expected to occur in
March 1973. As the Agency says with regard to one lot, this
situation “appears to be one in which an ‘install, only’
permit is called for and would serve the needs of the parties
while preventing any risk of additional pollution.” Amended
Recommendation, p. 6. Construction may proceed with assurance
that, if all goes well with the treatment plant improvement
plan, a connection may be had when needed; the public is
protected against additional pollution in the event that the
improvement plan meets an unforeseen snag. It seems entirely
appropriate that the risk of such a snag in most cases
should be borne by the developer who makes the business
judgment to proceed, rather than by the innocent public.
There is no contention that a conditional permit is
inadequate to serve the purposes of the petitioner for any
but two portions of the tract in question, and as to other
portions the petition must therefore be dismissed as moot.
The two portions over which the petitioner expresses con-
tinuing concern are the so-called Viking and Illinois Housing
Development Authority lots, which we discuss separately.
The petitioner has contracted to sell a part of the
land to the Viking Corporation, which has .spent about
$100,000 in preparatory work such as “plat specifications and
legal actions” but had not commenced actual construction of
buildings at the date of the hearing (R. 22-23, 31). A
construction permit for sewers was initially denied, but a
conditional permit was later granted, and Viking is “pro-
ceeding with the conditional permit” (R. 23, 31-33). The
petitioner states that it anticipates that Viking will on
the basis of the conditional permit release it from its
obligations under the contract of sale and admits that
upon receipt of such a release the variance request for
the Viking lot would become moot (R. 33, 92-93). We agree
with the argument of the Agency that, whether or not such
a letter is received, a variance for the Viking lot is
“completely unnecessary in light of Viking’s apparent in-
tention to proceed” (R. 75)
.
No one has any remaining dis-
pute with the Agency regarding this lot; the sole question is
whether the petitioner will continue to be subject to legal
action in the event that the treatment plant improvements
are delayed, and in the further event that such delay causes
injury to Viking by postponing its ability to connect. On
the facts presently before us the variance petition regarding
5
—
587
—4—
the Viking 1~tis essentially moot, and it must also be
dismissed without prejudice.
The final ~tract in question is to be developed, with
financial assistance from the Illinois Hiusing Development
Authority (IrmA), to provide housing for elderly persons
and for others of moderate income requiring government
subsidies to afford adequate housing (R. 15-16). IHDA
has issued a commitment for such assistance provided satis-
factory permits can be obtained from the Environmental Pro-
tection Agency (R. 14; Ex. 6)
.
The IRDA has made clear that
if such permits are not forthcoming the commitment will be
withdrawn and the money spent outside the area (R. 21-22).
IHDA has also made clear that it must secure, on or before the
Initial Closing Date for the project (October 30, 1972)
“the written authorization of the Environmental Protection
Agency permitting the Development to construct necessary
sewer lines and hook on and utilize disposal facilities”
(Ex. 6) (emphasis ours)
.
Thus the IHDA will not proceed
on the basis of the conditional permit offered, and the con-
troversy over issuance of an absolute permit allowing connection
by a date certain is still ripe.
The evidence as to the need for housing for the elderly
in the Springfield area is compelling (R. 38-43). The
Springfield Housing Authority, with respect to a waiting
list, “quit counting at eight hundred” (R. 41). The Agency
acknowledges the need and the likelihood that the absence
of an install-and-connect permit may deprive Springfield of
the needed housing. In Patricia Development Corp. v. EPA,
#71-161, 2 PCB 469 (Sept. 16, 1971)
,
we allowed connections
for persons who had entered into contracts to build homes with
federal assistance, even though construction had not commenced
at the time the connection ban was imposed, because of the
great need for public-aid housing. At the same time we
denied variances ifor persons whose contracts had been enter-
ed into after the ban, saying they should have applied to
receive the same aid in another place not subject to the
ban:
“Persons not committed at the time of the sewer connection
ban were on notice that they must look elsewhere to
build new homes.”
See also the application of these principles in Lewis v. EPA,
#72—208, 5 PCB
(Aug. 22, 1972). It is not wholly clear
from the evidence just when the IHDA commitment letter was
sent (it is undated, but the Agency’s Amended Recommendation
dates it June 20, 1972, prior to the July 12 announcement
of the sewer ban)
,
or when contracts for construction were
entered into (Ex. 1 says as of Sept. 11 that “the contractor
is ready to begin constructionu).
5
.,-
588
—5—
An additional fact, however, makes it unnecessary for
us to decide whether the above circumstances would be sufficient
without more. As observed by the Agency, the project can-
not be constructed before May of 1973 at the earliest, and
by that time, barring unexpected difficulties, the treat-
ment plant problem as well as the sewer problem will have
been solved. The Agency concludes that
“the risk that completion and connection of the IHDA
project will cause violations of the Act or of applicable
regulations is minimal.
. . .
Since the risk of
pollution is small, the need for housing of this
type in Springfield is substantial, and the risk
of losing the available financing is immediate,
the Agency recommends that with respect to the
IHDA lot, petitioner’s variance be granted and that
the Board direct the Agency to issue to Petitioner
a letter which will satisfy the requirements of
paragraph 4(c)(15) of IHDA’s Commitment Letter.”
We agree. To deny the variance would require the
small risk of delay in providing additional sewage treat-
ment
to be borne by the IHDA and thus by persons greatly
in need of housing; IHDA’s insistence that it safeguard
the utility of its limited funds to maximize the housing
it can provide for such people appears to us justifiable
under the circumstances.
ORDER
1. Illinois National Bank of Springfield, Trustee of
Trust No. PL 3478, is hereby granted a variance to
permit connection of the IHDA lot, as described in
the petition as amended, to the appropriate sewer or
sewers by a date certain.
2. In all other respects the petition is hereby dismissed
as moot, without prejudice.
I, Christan Moffett, Clerk of the Pollution Control Board,
certify that the Board adopted the above Opinion this______
day of October, 1972, by a vote of_____________
5
—
589