ILLINOIS POLLUTION CONTROL BOARD
October
3,
1972
CINNAMON CREEK ASSOCIATES
v.
)
#
72—377
ENVIRONMENTAL PROTECTION AGENCY
THOMAS
I. SIMPSON
v.
)
#
72—368
CINNAMON CREEK ASSOCIATES et al
Opinion & Order of the Board on Motion for Emergency Disposition
(by Mr. Currie)
Cinnamon Creek,
as all parties concede, made a connection
to
a Waukegan sewer in the summer of 1971,
after the entry
of our order forbidding such connections because of the
unsatisfactory condition of the sewage treatment plants
in the North Shore Sanitary District, League of Women
Voters v.
NSSD,
#70-7,
1 PCB 369
(March 31,
1971)
.
The
question is what we should do about it.
This question was first raised by
a variance petition,
#72-340,
seeking permission
to utilize the connection on
grounds of hardship.
We dismissed the petition without
prejudice for failure to allege the inability to obtain
a permit under North Shore Sanitary District
V.
EPA,
#71—343,
3 PCB 541 and 697
(Jan.
31 and March
2,
1972)
which allowed
a number of connections because of improve-
ments at the treatment plants.
Cinnamon Creek Associates
v.
EPA,
#72-340,
5 PCB
(Aug.
22,
1972)
.
There follow-
ed the filing of Simpson’s complaint asking us~toorder
disconnection; Cinnamon Creek’s motion for suminary~judg—
ment in its favor;
Simpson’s admission of the facts
alleged by Cinnamon Creek; the filing of an amended variance
petition reciting that no permit can be had because the
sewer to which the connection was made has itself been
disignated as overloaded pursuant to our decision in
#71-343; and a motion for expedited consideration because
of the alleged need to proceed
with
construction before
winter.
The Agency’s recommendation, which is favorable
to
the
petition,
was
received
by
telephone
Seotember
26~
—2—
No hearing has been held.
The immediate question is whether the relevant facts
are sufficiency clear to enable us to dispose of these cases
without hearing.
A detailed consideration of the law and of
the present record
is necessary.
1.
Actions Taken Before the Sewer Ban
In a long line of cases beginning with Wachta
V.
EPA,
#71-77,
2 PCB 117
(July 12, 1971), we have allowed connections
to be made despite our general ban orders in cases in which
actual construction of the builaings to be connected has been
completed or substantially begun prior to the date the ban
was imposed.
As explained in our opinion in Illinois National
Bank of Springfield
v.
EPA, #72—307,
5 P03
(Oct.
3,
1972),
in which a number of the precedents are cit~and discussed,
actual building construction prior to the ban indicates not
only the commitment of substantial resources in good faith
expectation that a connection may be made, but also the
significant risk,
as is alleged in the present case, of dam-
age to the partly completed structures from vermin,
vandals,
and weather.
Even in such cases, recognizing that each
case depends upon its own peculiar facts, we have refused to
hold that the timely commencement of construction in it-
self will always suffice for a variance,
for we must balance
the harm from a denial of a connection against the serious-
ness of the pollution threat in the event the connection is
allowed.
See Illinois National Bank v.
EPA, cited above.
Nevertheless,
if buildings are actually built before
a ban
is imposed,
a case can be made for granting a variance
without hearing
if the Agency suggests no risk of serious
pollution in its recommendation.
On the other hand, we have consistently distinguished
sharply between actual construction of buildings and pre-
paratory site development such as the installatiDn of streets
and sewers.
In the Wachta case a varaince was granted as
to seven homes already constructed but denied as to other
lots in which streets and sewers had been installed at
considerable expense.
Enjoyment of the fruits of preliminary
expenditures, as we have observed,
is not necessarily lost
if immediate use of municipal sewers is denied;
it may be
merely postponed,
since architectural plans, streets, and
sewers may still he there when the ban is lifted:
“Petitioner
has expended approximately $60,000 for the purchase of the
land and for development costs, none of which will be lost
to
it
if
it is obliged to wait until the sewage situation
in Mattoon has been ameliorated.”
Pyramid Mobile Estates,
Inc.
v.
EPA, #71—154
(Sept.
16, 1971);
see also Wagnon v.
EPA,
# 71—85,
2 PCB 131
(July
26, 1971).
5
—
598
—3—
Although the
Z~ency’srecommendation in the present
case, evidently based upon allegations in the petition, con-
cludes that “construction commenced prior to March
31,
1971,” it appears clear that the supporting information
does not refer to the construction of the buildings them-
selves.
Although paragraph
8 of the amended petition alleges
that the
contractor,
in reliance on
a building permit issued
by the City of Waukegan,
“moved onto the site in mid-January,
1971,
and commenced construction work,” the permit itself
referred only to preparatory activities:
“1.
Earth moving
2.
Construction of on—site water retention basins
and lakes
3.
All underground utilities including:
(a)
Electric
(b)
Storm Sewers
(c)
Sanitary Sewers
(d)
Water
(e)
Gas
4.
Seven building excavations
5.
Interior roadways
6.
Footings, piers and foundation walls for seven
buildings.”
Moreover,
in its motion for judgment on the citizen complaint
Cinnamon Creek state.s that it was after the sewer ban was
imposed that it “installed the sewer connection and commenced
construction”
(Motion for Summary Judgment, paragraph
6)
We therefore find an absence of allegations sufficient to
bring this case within the Wachta doctrine insofar as that
case strongly favors the grant of variances for buildinqs
under construction when the ban was ordered.
The extensive
allegations of hardship because of preliminary activities
are similar
to the hardships we found insufficient in the
Wachta case,
and we cannot determine without a hearing whether
the actual hardships involved justify a varaince
in light of
the particular facts of the present cases,
including the
effect of the additional wastes upon the sewer in question.
2.
Actions Taken Since theSewer Ban.
The next question is whether actions taken since the date
of the sewer ban entitle Cinnamon Creek to relief without
a
hearing.
The amended petition alleges, and the attached
photograph
(Exhibit U) confirms,
that Cinnamon Creek has now
“commenced erection of solid masonry walls,” although for
how many buildings we cannot without testimony be certain.
5
—
599
As noted above, had construction proceeded this far before
the ban was imposed, we would grant the variance unless the
result would be very serious pollution.
But the relevant
date for commencing construction
is before, not after the
ban is imposed.
If
the ban is to have any meaning, we must
hold,
and we have held,
that in general one who commences
construction after
a connection ban is imposed does so at
his peril; any hardships resulting from actions taken after
that date must be regarded as self-inflicted and entitled to
no considerations.
To hold otherwise would put it in
the power of any potential developer to avoid the ban simply
by defying
it.
See Cook v.
EPA, #72-178,
5 PCB
(Aug.
29,
1972)
Cinnamon creek alleges without contradiction, and we
accept as
a fact,
that it began construction and made the
sewer connection only after requesting and receiving from the
North Shore Sanitary District assurance that, because Cinnamon
Creek held
a permit to build the sewers that had been issued
before the sewer ban,
the ban did not apply to Cinnamon Creek.1
In Glovka v. North Shore Sanitary District,
471-269,
3 PCB 647
(Feb.
17,
1972)
,
we explicitly held that the issuance of
a
permit
prior to the imposition of the ban did not make the
ban inapplicable:
The March 31,
1971 sewer ban prohibited sewer connections
irrespective of any pre-existing permits granted by
the
State or the District itself.
The order was unequivocal,
plenary and without exception.
The same reasoning applies to permits issued by the City of
Waukegan.
We further found that the District had acted de-
liberately and inexcusably in giving an erroneous interpre-
tation of the
order:
The Village of Lake Bluff, by its repeated inquiries
of the District, was seeking sanction for what both
undoubtedly knew violated the letter and spirit of the
March
31, 1971
sewer ban.
There
is no question that the
District took upon itself, unilaterally and in direct
defiance of the Board’s order, jurisdiction
to allow
violation of the law by authorizing the Village of Lake
Bluff
to permit sewer connections.
The District was penalized $5,000 and ordered to revoke all
similar authorizations in Lake Bluff and to cause disconnection
of any taps actually made pursuant to such authorizations.
One exception was made to this sweeping order, and on
this exception Cinnamon Creek places heavy reliance.
Six
building permits had been issued pursuant to District
authorization to Nilles,
Inc.,
and two sewer connections
for individual homes had been made by Nilles before the
5
—
600
—5—
Glovka case was filed.
“Because of the apparent good faith
reliance on the acts of the District and the Village,”
the
Board held,
“connections made by Nilles,
Inc. prior to ser-
vice of this complaint are excepted from this order” of
disconnection.
Cinnamon Creek argues that its situation
is similar and that, because Nilles was not required to dis-
connect,
it should be affirmatively authorized
to use the
sewer connection it made, presumably before the Glovka case
was filed.
The present case
is by no means on all fours with that
of Nilles.
First, we did not hold that Nilles was free
to discharge sewage through the connections that he had made;
we held only that he was not required to incur the additional
expense of making a physical disconnection.
The issue was
what remedy to order for violations proved in an enforce-
ment case, not whether a variance should be granted to allow
additional wastes to the treatment plant.
Nilles’s right
to discharge sewage was not settled one way or another
by the Glovka decision.
Second, we dealt in Nilles’s case
with the
connection of two homes to the sewer system;
we deal
here with seven buildings containing
a total of 245 apart-
ruents.
Cinnamon Creek’s own estimate of the load to be
added to the municipal sewer
is 36,750 gallons per day.
As we said in our opinion when we dismissed the original
petition in this case,
“the large number of apartments
here involved (nearly 250)
increases the hardship if
a
connection is denied and also the pollution if one is granted.”
Cinnamon Creek Associates v. EPA, #72-340,
5 PCB
(Aug.
22,
1972.
The possible adverse effect of the additional
wastes contemplated by the present petition is orders of
magnitude removed from that
in Nilles;
even if actual use
of the Nilles connection had been authorized,
the precedent
would therefore not have been controlling.
Furthermore, as also noted in our prior opinion, the
large
number
of apartments here involved “may bring about
a greater duty of inquiry into the legality of a connection,
since we cannot delegate authority to local officials
to under-
mine or repeal our orders.”
It is one thing to hold that the
ordinary man in the street, or even the builder of two
houses,
is entitled to rely exclusively upon the opinion of
municipal officials as to the meaning of an order issued by
another governmental body, and can be in good faith in so
doing.
it is quite another to imagine that the developer
of an apartment complex containing over two hundred units
costing over four million dollars to build could be
so
naive.
Cinnamon Creek could hardly have believed the District
was in
a position to give authoriative interpretations of
our orders; ordinary prudence would seem to have suggested
to men of good
faith and judgment that the way to ascertain
one’s rights before making extensive expenditures in con-
structing such a huge project wasby filing
a petition for
5
—
601
—6—
variance,
as was done in the Wachta case.
We cannot avoid the
suspicion,
on the
facts presently before us, that Cinnamon
Creek may have determined to push ahead with its project on the
basis of assurances that would not have been found adequate by
men of good faith and judgment with responsibility for such
large sums of money,
in hopes either that the ban would be lifted
or reversed before construction was finished or that the Board
would take pity and grant a variance after Cinnamon Creek had
crawled out on
a limb.
If such was the case Cinnamon Creek pro-
ceeded at its own risk and the hardships created by its subse-
quent construction of walls that are in danger of collapsing
are of its own making.
We do not so find without giving the
opportunity for proof at a hearing, but the conclusory
allegation of
“good faith” is not enough to dispel our doubts
without a hearing.
3.
The Second Sewer Ban Decision.
Thus Cinnamon Creek’s position,
in this regard,
is much
like that with which we dealt in Cook v.
EPA, #72-178,
5 PCB
—
(Aug.
29,
1972)
,
in which
a builder had proceeded
to construct a home with knowledge that the sewer ban had been
imposed, gambling on the possibility that it would,
as pre-
dicted by local officials,
be lifted in the near future.
In
fact the ban was relaxed after construction began because of
treatment plant improvements, but there as here the relaxation
was of no help to the petitioner because it did not extend
to sewers with inadequate capacity to carry the wastes to the
treatment plant.
Cook’s petition was denied on the ground
that he had taken the risk that the ban would not be lifted and
had lost;
he and not the public should bear the burden of his
erroneous prediction.
What was true of
a small individual
builder like Cook, with only
a single home to connect to the over-
loaded sewer, would appear to be true in spades of
a large
developer like Connamon Creek:
Having knowingly taken a calculated
risk for business advantage,
it should bear the loss when
things go sour.
In Bender v. EPA, 472—324,
5 PCB
—
(Oct.
3,
1972)
,
we
have taken another look at the Cook doctrine.
Like Cook,
Bender began construction knowing he could not connect un-
til the ban was lifted;
he admitted he assumed the risk that
the treatment plants would not be improved to the Board’s
satisfaction in time to permit us to relax the ban by the
time he was ready to connect.
He pointed out, however, that
he did not anticipate
at the time he began construction that
the inadequacy of the sewer itself,
of which he had no
knowledge,
would be taken by the Board as a reason for refusing
to lift the ban insofar as it applied to his part of Waukegan.
His position with respect to the sewer problem as contrasted
with the treatment plant problem, was the same as if there
had been no ban based upon the plant’s inadequacy; and we
have allowed connections where construction began prior to
5
—
602
—7—
the imposition of a ban based on the inadequacy of the
sewer
itself.
Illinois National Bank of Springfield v.
EPA,
~72-3O7,
5 PCB
—
(Oct.
3,
1972)
.
Bender agreed he
should be held
to the risk he voluntarily assumed; but
that risk,
he said, was that the plant improvements would
be delayed, not that an unforeseen sewer problem would
arise.
In the case of
art individaul like Bender, constructing
his own home in his spare time and contributing only a
small amount of additional waste to the sewer, we were con-
vinced by this argument, and the variance was granted.
It is possible that Cinnamon Creek is in the same
position as Bender,
since it too allegedly began construction
at a time when the sewer ban had been based exclusively
upon treatment plant problems and since the continuation of
the ban is based upon a later designation of the sewer it-
self as inadequate.
Whether a sophisticated developer with
millions of dollars at stake and a potential addition of
multiple thousands of gallons per day of waste should be
given such benefit of the doubt in determining the precise
scope of the risk assumed is an question we cannot presume
to answer in the abstract without a hearing to determine the
precise facts relating to Cinnamon Creek’s legitimate ex-
pectations
at the time and the effect of the discharge on
the sewer.
It is worthy of consideration that so
to hold
would place those who proceed in the face of an explicit
sewer ban in more favorable position than those who
acquiesce in the law.
4.
The Effect of
the Discharge.
As we have repeatedly held,
it is an essential part
of the petitioner’s case to plead and prove facts to demonstrate
that the adverse effects of a variance grant will be great-
ly outweighted by the hardships of
a denial, see,
e.g.,
Decatur Sanitary Dist,
v.
EPA, #71—37,
1 PCB 359
(March
22,
1971),
and our procedural rules are explicit in requiring
a statement of
the
anticipated adverse effects of the
discharge.
PCB Regs.,
Ch.
1, Rule 401(a) (2)
,
There is
very little in the petition on this question, although an
in-depth exploration of the extent to which admitting an
additional 36,750 gpd to an already overloaded sewer would
result in more raw sewage in streets and basements is an
obviously critical part of the balance we must make in this
case.
See the
extensive factual examination of this
issue in Cook
v.
EPA, cited above.
Cinnamon Creek’s
allegations on this point revolve around the construction
of
a stormwater retention pond that allegedly will avoid
any worsening of the present problem.
The extent of that
problem
is not discussed.
5
—
603
—8—
Paragraph 13 of the amended petition recites that
“petitioners constructed
a large water retention basin,
which functions to contain storm water during peak rain-
fall periods, consisting
of about seven acres
.
.
.
Exhibit C is a consulting engineers’ report indicating
that this basin will provide retention capacity for “300
of the additional run-off which will result from the develop-
ment of this project area,”
By reducing stormwater run-
off from the area,
it is opined, the basin s~ill“reduce
flooding and the attendant hydraulic load on the City’s
existing sanitary collection system in the vicinity of the
development during rainstorms.”
The report concludes on
an optimistic note:
We have no data available which would indicate hydraulic
loads onthe existing sanitary collection system prior
to the construction of the project and we know of
no method of mathematical computation which would
relate the
improvement in the storm disposal system
directly to a reduction of the hydraulic loading
conditions
in the sanitary collection system.
However,
it
is not unreasonable,
in our opinion,
to assume
that the volume of storm water not entering the sanitary
collection system by virtue of the construction of the
storm retention facilities will exceed the volume of
additional dry weather flow that will be discharged
to the system by this development.
Having asserted that the only problem with the sewer is
during wet weather,
the report thus concludes that no
harm will be done.
On anything resembling close observation this promising
conclusion, which is elevated to the status of fact in the
petitioner’s allegations
(amended petition,
11 23(b)),
reveals itself as no more than a blind guess.
It should
be noted at the outset that the basin will not retain
the sewage generated by the apartments at Cinnamon Creek,
as was proposed in Mars Devel. Corp.
v.
EPA,
4 71-218,
2 PCB 689
(Oct.
26,
1971);
it will retain only stormwater
that would otherwise run off from the land.
It
is being
built,
as the report says,
to capture
“the additional run-
off which will result from the development of this project
area”—— presumably because the paving over of portions of
the land will make storm runoff greater than it was before.
The basin is to capture this additional runoff, and some
of the
original runoff,
to aid in flood control.
If the
sew~ into which Cinnamon Creek has tapped were
a combined
sanitary and strom sewer into which all the captured runoff
would otherwise have run, the retention of an amount of
original runoff greater than the amount of sewage dis-
charged from the project would demonstrate that the net
effect of construction would be a reduction in the
5
—
604
—9—
frequency and quantity of overflows,
though not of their
pollutant concentration.
But there is no such allegation.
The apartments are to discharge into what the report describes
as a “sanitary collection system,” not a combined one, and
the report makes clear the inapplicability of such a sim-
ple formula
to the present case.
It is plainly implied that
the storm water is expected to go elsewhere,
and the estimated
effect of
the
retention basin is based upon assumptions
as to the present degree of accidental infiltration of a
certain portion of stormwater from this local
area into
sewers meant to carry only domestic wastes.
No facts whatever
are given to substantiate the “assumption,” which so happily
coincides with the builder’s wishes, that the reduction in
infiltration will more than counterbalance the added wastes
from the apartments themselves.
For all that is alleged
or proved,
the overload problem might be caused entirely
by illegal connections of stormwater sources directly to
the sanitary sewer elsewhere in Waukegan, and if that were
the case stormwater retention at Cinnamon Creek would be of
no value at all insofar as the sanitary sewer problem is
concerned.
Cf. Illinois National Bank of Springfield
v.
EPA,
*72—300,
5 PCB
(Oct.
3,
1972)
We think Cinnamon Creek should he given the opportunity
to prove its contention that no significant net wet-weather
load would be placed on the sanitary sewer if the variance
were granted, but we do not have adequate information before
us today to support either that claim or the clearly relevant
allegation, see Illinois National Bank of Springfield v.
EPA, #72—300,
5 PCB
—
(Oct.
3,
1972)
,
that the city’s program
for sewer improvements will soon relieve the situation.
5.
Conclusion.
We are asked to dispense with
a hearing on the ground
that time
is of the essence.
We have stated at length why
we believe we do not have the facts to enable us to render
an informed decision without hearing.
We think the impor-
tance of an early decision is
a consideration that should
have been taken into account by Cinnamon Creek itself in
determining when to file its variance petition.
The sewer
ban order was entered a year and a half ago,
the decision to
continue the ban for overloaded sewers
in January~ofthis
year,
the Glovka decision making clear that a prior permit
did not afford an exception in February, and the Agency’s
designation of the inadequate sewers was made in April.
Yet
Cinnamon Creek, which now is in such a hurry for a decision,
waited until August to file its first variance petition.
Had
time really been of the essence, Cinnamon Creek could have
come before us some time ago,
so that we would have had time
to ascertain all the relevant, facts before acting on the
petition.
5
—
605
—10—
Instead these proceedings have been pressed at
the last minute,. according to the petitioner’s own
estimate,
in great haste.
The first response to our
dismissal for inadequate information,
on grounds that had
been made clear in decisions dating back for five months
(e.g., Robert E. Nilles,
Inc.
v.
EPA,
#72—97,
4 PCB 123
(March 28,
1972)
,
was the filing of a citizen suit, followed
within three days by a motion for summary judgment to which
a response admitting the facts as Cinnamon Creek alleged
them was filed on the very same day.
At the developer’s request
we sought and obtained the Agency’s views within fifteen days,
and the telephoned, cryptic recommendation we received shows
the haste with which the Agency was forced to work in preparing
its response.
Cinnamon Creek’s counsel appeared before the Board on
September 26 to urge an immediate decision.
Informed that the
law requires passage of
21 days for citizen comment on the
variance petition, he offered to withdraw it to enable the
Board to pass immediately on the issue as raised by the
acquiescent citizen’s complaint.
We could not grant Cinnamon Creek the relief it seeks
on the
basis of the citizen complaint alone.
Should we re-
fuse to order disconnection as requested by the complainant,
that would not give
Cinnamon Creek the right
to use its
connection, for reasons stated above.
Nor are there sufficient
allegations, much less proof, in the.citizen case to indicate
the hardships claimed to justify the grant of a variance;
there is only reliance on the Nilles case, which we have held
cannot help Cinnamon Creek without the proof of additional
facts at a hearing.
More important,
the requirement that we allow
21 days
for public comment in variance cases expresses an important
policy that we not allow deviation from pollution require-
ments without giving the affected public the right to have
its say.
That policy is not lightly to be undermined by
disposing of the same issues on the basis of
a friendly
citizen suit that frustrates the spirit of the rule.
We
have already received a comment from the Lake County Health
Department of possible adverse effects if the connection is
approved.
We view this as a statement in opposition to the
variance, which requires us to hold
a public hearing under
section 37 of the Act.
We think it would be in disregard
of our obligation under that section to moot the hearing by
passing on the same issue in the meantime on the basis of
the citizen complaint.
5
—
606
—11—
Finally, although the developer’s factual allegations
are conveniently admitted by the cooperative Mr.
Simpson,
that is by no means the same as having them proved in a
public hearing.
Even when the Environmental Protection
Agency is complainant, our rules require that the Board
independently evaluate the case rather than blindly accepting
settlements agreed to by the parties.
PCB Regs, Ch.
1,
Rule 333;
see GAF Corp.
v.
EPA, #71-11,
5 PCB
—
(Oct.
3,
1972)
.
We can do no less when a citizen is complainant,
lest a procedure intended to provide for increased enforce-
ment against polluters be perverted into an instrument for
whitewashing them.
For us to accept stipulations uncritically
in such cases would enable anyone engaged in illegal
activities
to insulate himself from prosecution by find-
ing a complacent citizen to institute a paper complaint
against him and then to admit away all the facts.
Be-
cause of the importance of the present case,
the haste
with which it has been pursued, the remarkable harmony
of action between complainant and respondent, and the
inadequacy of the agreed facts
to enable us to make
a reasoned decision, we think Cinnamon Creek must be put
to its proof.
The motion for emergency disposition is hereby
denied and the two cases are consolidated for a prompt
hearing.
Under the authority of EPA v. City of Spring-
field,
#70-9,
PCB_
(May 26, 1971), we think the
21-day notice ~T~en for the hearing initially set on the
citizen complaint satisfies the statutory requirement of
notice to allow time for citizens to prepare comments
on the responsive variance petition.
A hearing may be
held upon brief public notice of time and place.
I, Christan Moffett,
Clerk of the Pollution Control Board,
certify
tha’~.the Board adopted the above Opinion
& Order
this
..S ~
day of October, 1972, by~avote of
-.~..
~
(~.
~
!~
~,I
;//~
~
5
—
607
