ILLINOIS POLLUTION CONTROL
BOARD
December
9,
1971
E.
N.
MAISEL
& ASSOCIATES,
a Partnership,
v.
)
PCB 71—285
ENVIRONMENTAL PROTECTION AGENCY
JOHN
F.
GRADY,
ATTORNEY FOR E.
N. MAISEL
& ASSOCIATES
KENNETH
A. MANASTER, ASSISTANT ATTORNEY GENERAL FOR THE ENVIRON-
MENTAL PROTECTION AGENCY
OPINION OF
THE
BOARD
(by Mr.
Kissel):
On September
24,
1971,
E.N.
Maisel
& Associates
(“Maisel”)
of
Oak Park,
Michigan,
filed
a petition for variance with
the Board in
which
it asked permission to connect
a sanitary waste line
to the
North
Shore Sanitary District
(the “District”)
for
a K-Mart store
it
is
contemplating building in Waukegan, Illinois.
The petition
alleges that if the variance
is granted, Maisel has made an agree-
ment with
a car wash owner that the car wash dealer will completely
discontinue his operations
and will no longer discharge
to the
District’s
sewers.
The Agency filed
a recommendation with the Board
on November
12,
1971, and stated that
if the
facts
in the Petition
are
true and if the Board could be assured that
the car wash would
shut
down,
the “granting of
the variance
in this matter will aid
the efforts
of the
North
Shore Sanitary District to bring
the
effluent from its Waukegan Sewage Treatment Plant
into compliance
with existing Regulations”.
Subsequently,
the Agency filed its
final recommendation which urges
the Board to grant
the variance.
The hearing was held on November
13,
1971,
in Waukegan,
Illinois,
before John Levin, Hearing Officer.
Maisel
is
in the business of building K-Mart stores for the
Kresge Company.
Actually, Maisel builds and owns
the store and
leases the building
to Kresge
to operate
a K—Mart.
Maisel wants
to
build
a K—Mart on Belvediere Road near Green Bay Road
in Waukegan,
Illinois.
The store will be about 105,000 square feet and will have
a department store,
a grocery
store,
a garden shop,
a restaurant
(which will accommodate
80 people)
and an auto accessories shop
(in
which
no
gas will be pumped, but oil will he changed).
The store
will
employ
a total
of about 180 to
200 people, but only 70 will be
in
the
store at
the same
time.
It
is expected that the store will
generate
sales taxes
in the amount of $400,000,
$100,000 of which
will go to
the City of Waukegan.
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253
Originally, Maisel was
going to buy land from a Mr.
Kenneth
Smitala of 1524 West Sheridan Road
in Waukegan,
Illinois, who
is
the ownder of
a gas station and a
truck and car wash on
I3elvidiere
Road.
Maisel,
however,
did not purchase
the
land from Smitala,
but
did enter
into an agreement with Smitala
that for
a
fee Smitala would
agree to close his truck
and car wash,
if and when Maisel was granted
the right to connect its sanitary system onto the District’s facili-
ties.
Smitala further agreed that if he were to disconnect his sewer
line, he would not open his truck and car wash again until
he was
aranted permission by the District to connect to its facilities,
as
any new person seeking connection would receive permission.
Smitala
computed that his truck and car wash has been used over 35,000 times
for the period between January
1,
and April
15,
1971.
Each time it
is used,
it runs for
3-3/4 minutes and uses
3-1/2 gallons of water
per minute.
This means that during this period Smitala used 482,380
gallons
of water.
For those 105 days,
then,
the truck
and car wash
operation used 11,542 gallons
per day.
This, he
said,
is
a typical
period for use of his facility.
Maisel’s witness calculated
that the daily flow from the K—Mart
store
into the sanitary system would be
3397 gallons.
The only
flow
to the system would be sanitary wastes.
All of the wastes from the
other operations
in
the
store will be disposed of differently.
The
waste
from the automotive
shop will be collected
in
a holding tank
and the waste
from the restaurant and butcher shop will collect in
a
grease
trap.
Both
the grease trap and the oil holding tank will be
emptied by
a scavenger service
and the contents disposed of the the
scavenger.
The basis
for granting
a variance under the Environmental
Protection Act is that compliance with
the law would impose
“an
arbitrary or unreasonable
hardship.
Here Maisel
seeks
a variance
from an order of the Board entered on March
31, 1971,
in which
the
Board barred
any sewer connections
to
the already overloaded
facilities of the North
Shore Sanitary District.
See Paragraph
7
of
the Order in the League of Women Voters of
Illinois, et a?
v.
North Shore Sanitary District,
PCB 70—7,
et seq,
decided March
31,
1971.
In considering whether
there
is
an “arbitrary or unreasonable”
hardship,
the Board has
said many
times that
it will balance the
public good against the private good,
but will weigh heavily in favor
of
the public
good.
Here,
on balance,
we believe
that the public
will be benefited by
the novel scheme proposed by Maisel.
In the
first place,
the waste
load
to
the Clavey treatment plant will be
lessened.
The truck and car wash accounts
for more than 11,000
~aIions
of waste
per day,
and the new K-Mart estimates that it will
onl: discharge about
3400 gallons
per day into
the District’s
sewer system.
Testimony
in
the North Shore Sanitary District
case,
supra,
revealed that the Clavey Road plant was hydraulically over-
loaded and any relief provided to that plant will indeed be
a
benefit,not only to the Skokie River,
but to
the neighbors
as well.
In
the second place
the Clavey plant will also be aided be-
cause
of the change in the type of waste
that would be discharged
into
the sewer system.
The
truck and car wash discharges deter-
gents
and wax while
the K—Mart discharges solely sanitary waste.
The latter is,
according to
a witness,
“easier to treat”.
In the third place,
the community will be bene:fited because
of
the increase in sales
tax revenues which will be gained by
the
City and
the increased number of
jobs at the K-Mart.
Almost 200
people will be employed
at K-Mart, while
the truck
and car wash
is
a self service system and employs very few.
All
in all,
the Maisel plan is
a good one.
~e will,
therefore,
grant
the variance, but there will be some conditions imposed.
rrhe
first condition
will be that Smitala will be made
a party
to this
case
and therefore be directly bound
by the order of the Board
to
disconnect his discharge line
to the sewer.
While we do not dis-
count
the fact that Smitala has by contract agreed
to disconnect
his
discharge
line, we
feel that
this is
an obliciation he should make
with
the entire State of Illinois and not
just one other person.
Another condition
will be
that Smitala agree
to physically
disconnect his
line to the
sewer.
He testified that
this was pos-
sible,
and to do
so will protect against those in the future who may
want to surreptitiously reconnect at some
future
time.
Also,
Smitala will be required to post
a bond with
the
State
guaranteeing that neither he,nor his assigns, will connect
to the
District sewer without first getting
a permit from the District,
and
other agencies who may have jurisdiction.
This opinion constitutes
the findings of fact and conclusions
of law of the Board.
OR
D ER
Upon consideration
of
the evidence in
the record of proceedings,
the petition for variance
of Maisel
is hereby
granted,
subject
to the
following conditions:
1.
The wastes to be discharged by
the K-Mart store
shall
be general
sanitary wastes
in
the volume indicated in
the record,
and shall not include discharges from the
restaurant, butcher shop and the auto accessories
stora,
2.
Smitala shall be made
a party to this case and he
shall
agree to be bound by the order of this Board
as
is applicable to him.
He
shall also agree that
this order shall be binding on his heirs and assigns.
3.
The K—Mart discharges shall not occur until Smitala
has disconnected his truck
and car wash discharge
line from the
sewer.
Smitala shall take those steps
outlined in the record to physically separate his
sewer
line from that of
the District.
Smitala shall
not discharge any wastes whatsoever into that line
until he has received
a permit from the North
Shore
Sanitary District to reconnect
his sewer line.
4.
Smitala shall post
a bond in the amount of $50,000
with the Environmental Protection Agency guaranteeing
that he will comply with the order of this
Board,
herein.
I,
Christan Moffett, Acting Clerk of the Pollution Control
Board, certify that tl~Board adopted the above Opinion and Order
this
~
day of
~-~t-~’L~
,
1971.
Christan~Mp~-fett,
Acting ~ler1c
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