ILLINOIS POLLUTION CONTROL BOARD
    November 15,
    1973
    MR.
    &
    MRS.
    RAYMOND RIFFLE
    COMPLAINANTS
    v.
    )
    PCB 73—190
    PCB 73—191
    (Consolidated)
    DAVID N. NARTIS and CITY OF
    LOCKPORT,
    RESPONDENTS
    MR.
    EDWARD
    D.
    KUSTA,
    ATTORNEY,
    in behalf of
    MR.
    & MRS.
    RAYMOND
    RIFFLE
    MR.
    FRANCIS
    A.
    DUNN,
    ATTORNEY,
    in behalf of DAVID N. MARTIS
    MR. EUGENE
    J.
    KORST,
    ATTORNEY,
    in behalf of
    the CITY OF LOCKPORT
    OPINION
    AND
    ORDER OF THE
    BOARD
    (by
    Mr.
    Marder)
    This is
    an enforcement action filed by citizens,
    Mr.
    and
    Mrs.
    R.
    Riffle,
    against both David
    N.
    Martis
    and the City of Lockport.
    Two
    separate
    complaints
    were filed on May
    4,
    1973.
    The cases were
    consolidated and set
    for hearing
    June
    28,
    1973.
    Mr.
    and Mrs.
    Raymond Riffle are private citizens
    residing
    at
    220
    Jefferson
    Street,
    Lockport,
    Illinois.
    The
    Environmental
    Pro-
    tection Agency was notified of this matter and
    of
    the hearing sched-
    uled.
    In a letter
    to the assigned hearing officer they
    indicated
    their desire not to intervene.
    Complainant alleges the following:
    Against David
    N.
    Martis:
    Connecting and servicing
    an 8-unit,
    2-bedroom per unit apartment building prior to Environ-
    mental Protection Agency approval for sewer connection
    as required by the Environmental Protection Act.
    Viol-
    ation was alleged from November 4,
    1972,
    to the date of
    this complaint.
    Against the City of Lockport:
    Allowing the connection of
    illegal sewer line from an 8-unit apartment building
    at 212 Jefferson Street, Lockport,
    Illinois.
    Complain-
    ant alleged that the city must upgrade sewer line prior
    to issuance of Environmental Protection Agency permit
    on said building.
    In both actions Complainant seeks both disconnection of the
    sewer line in question and penalties applicable under the Environ-
    10
    —81

    —2—
    nental Protection Act.
    At
    a prehearing conference a Motion to Dismiss the Complaint was
    filed by the City of Lockport.
    Said motion alleged deficiencies be-
    cause the complaint did not conform to the provisions of Sections 31
    A and B of Title
    8 of the Environmental P~otectionAct.
    Section 31
    B
    states in part that:
    “Any
    person may file with the Board a complaint, meet-
    ing the requirements of Subsection
    (a)
    of this Sect-
    ion.”
    Section
    31
    (a)
    states in part that:
    “...,
    which shall specify the provision of this law or
    the rule or regulation under which such person
    is said
    to be in violation,
    and a statement of the manner in,
    and the extent to which such person is said to violate
    this law or such rule or regulation..
    ~1~
    In response to this motion
    (R—9),
    Complainant’s counsel argued
    the motion and stated that:
    “These are lay people that drafted this
    complaint.”
    It is true that lay people drafted the complaint;
    it is also true
    that at some time thereafter counsel was retained to represent Com-
    plainant.
    During the above-mentioned prehearing conference,
    counsel
    as much
    as admitted that the complaint was a “bad one” by stating to
    the City of Lockport that they had violated Section 12, Paragraphs
    A,
    B,
    and C of the Environmental Protection Act and asking the hear-
    ing officer to include this allegation as
    an amendment to the com-
    plaint
    (R.
    11).
    In response Mr. Korst
    (counsel for the City of Lockport) suggest-
    ed that the complaint was bad and that perhaps an amended complaint
    would be in order.
    Respondent also stated that,
    “There was no waiv-
    er on my part of any formality in the complaint,
    absolutely none.”
    From the above exchange the Board finds that:
    1.
    A complaint was filed and accepted by the Board.
    2.
    A motion to dismiss was filed by the City of
    Lockport.
    3.
    Complainant, because of the points raised in the
    motion to dismiss, attempted to correct its com-
    plaint,
    thereby noting its deficiency.
    4.
    Complainant failed to file a formal Motion to
    Amend Complaint,
    and must th~reforestand on its
    original complaint.
    5.
    The motion to dismiss
    raises valid legal points.
    The Board feels
    that Respondent’s motion to dismiss is valid.
    The
    unrebutted points stand as
    a viable reason for dismissal.
    10
    82

    —3--
    The Board on the basis of the above dismisses the City of
    Lockport from this action.
    The
    remaining
    Respondent,
    Mr.
    David
    N.
    Martis,
    did
    not
    file
    any such motion.
    Because a complaint was filed, accepted by the
    Board, and unchallenged, this action will continue.
    At the hearing of June 28, 1973, the following facts were
    stipulated to:
    1.
    Mr. and Mrs. David Martis, Respondents herein,
    are the owners of an apartment building locat-
    ed at 212 Jefferson Street in Lockport, Illin-
    ois.
    2.
    Construction of this building began in October
    of 1972 and was completed in March of 1973.
    A
    sewer
    line
    for
    said
    building
    was
    connected
    in
    November of 1972.
    3.
    At the time construction of the building began,
    Mr. and Mrs. Martis obtained all necessary
    building permits from the City of Lockport; how-
    ever,
    an
    Environmental P!~otectionAgency per-
    mit was never obtained.
    A conditional permit,
    #l973-HB-605, was granted to David N. Martis
    on April 9th,
    1972.
    4.
    The building in question was designed for
    8
    units of
    3 apartments.
    Each unit has two bed-
    rooms.
    Presently
    5 units are rented;
    8 people
    presently occupy this building.
    5.
    The sewer line
    is
    72
    feet of 6-inch sanitary
    service sewer pipe and presently is in operation.
    6.
    Environmental Protection Agency permit #l973-HB-
    605 specifically forbids operation of the sewer
    connection until a downstream obstruction is re-
    moved.
    The City of Lockport is in the process
    of removing this obstruction.
    Present waste
    discharge in question is insignificant to the
    total loading of this line and the system, ac-
    cording to Mr. Gordon McCluskey, Director of
    Public Works of the City of Lockport.
    The above stipulation clearly admits to the fact that
    a
    violation did indeed occur.
    The only issue to be decided by the
    Board is:
    Are there sufficient mitigating circumstances to elimin-
    ate or reduce a monetary penalty which would normally be imposed under
    such
    a set of circumstances?
    Respondent claims
    (R.
    18) that in
    a contract drawn with
    Gene Burla
    (contractor)
    a clause was provided that it was Burla’s
    sole responsibility to obtain all permits.
    The question of obtain-
    ing a permit ran into a number of snags
    as witnessed by the exhibits
    10—83

    —4—
    filed:
    Comp.
    Exhibit
    #3
    -
    Letter from Environmental Pro-
    tection Agency to City of Lockport asserting the
    need
    for a permit
    (November 13, 1972).
    Resp.
    Exhibit
    #1
    -
    Letter from Environmental Pro-
    tection Agency to Respondent’s contractor, stating
    that a permit was not required (March 29, 1973).
    Comp.
    Exhibit
    *4
    -
    Conditional
    Permit
    April
    9,
    1973.
    Comp.
    Exhibit
    #2
    -
    Letter from Environmental Pro-
    tection Agency to Respondent’s contractor, correct-
    ing information included in Resp. Ex.
    1
    (May
    1,
    1973)
    Comp.
    Exhibit
    #1
    -
    Copy of Board Order PCB 73-144 denying
    petition for sewer ban variance.
    From the above it is clear that the sequence of events is muddled.
    However,
    it is still clear that
    a violation did indeed occur.
    This
    complaint
    was
    filed
    because
    Complainant
    wanted
    to
    be
    insured
    that
    she
    would
    not
    have
    sewage
    or
    water
    pollution problems in conn-
    ection with her property
    (R.
    21).
    This is
    a valid fear.
    Although a
    monetary penalty was asked,
    it
    is the Board’s feeling that relief
    from the problem was Complainant’s main concern.
    Fortunately such
    relief has occurred.
    A letter was filed July
    3,
    1973,
    by the City of Lockport, stating
    that the obstruction in the city sewer line has been removed, and that
    the potential backup problem has been removed.
    The only other point of interest is that at no time did Complainant
    suffer sewage backup
    as
    a result of the illegal hookup.
    Because of the rather confusing facts
    involved, and the fact that
    no pollution actually occurred and the problem has been resolved, the
    Board finds no value in imposing a harsh penalty on the Respondent.
    A violation, however, did occur, and a token penalty must be imposed
    to deter further occurrences
    of this nature.
    This Opinion constitutes the findings of fact and conclusions
    of
    law of the Board.
    ORDER
    IT IS THE ORDER of the Pollution Control Board that Respondent,
    David N.
    Martis,
    shall pay to the State of Illinois the sum of $100
    10—84

    —5
    within
    35 days from the date of this order.
    Penalty payment by cert-
    ified check or money order payable to the State of Illinois shall be
    made to:
    Fiscal Services Division,
    Illinois Environmental Protection
    Agency,
    2200 Churchill Road,
    Springfield, Illinois 62706.
    IT IS SO ORDERED.
    I, Christan L. Moffett, Clerk of the Illinois Pollution Control
    Board, certify that the above Opinion and Order was adopted by the
    Board on the
    /~~‘
    day of
    ~
    ,
    1973, by a vote of
    _____
    to
    ~
    10 —85

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