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