I LLINOIS

POLLUTION

CONTROL

BOARD

November

10,1976

FNVIRONMENTAL

PROTECTION

AGENCY,

Complainant,

v.

)

PCB

75—219

EGON

K.

KAMARSAY,

an

individual,

and

UNION

HILL

HOMEOWNERS

ASSOCIATION,

a not—for-profit corporation,

Respondents.

Ms. Marilyn

B.

Resch, Assistant Attorney General, appeared for

the Complainant;

Mr. James W.

Morris,

appeared for Respondent Kamarasy;

Mr.

J.C.

Feirich,

appeared

for Respondent Union Hill Homeowner’s

Association.

OPINION AND ORDER OF THE BOARD

(by Mr. Dumelle):

The original complaint in this matter was filed by the

Environmental Protection Agency

(Agency)

on May 28,

1975 against

Respondent Egon Kamarasy,

On motion of Respondent Kamarasy

this

Board,

on August

7,

1975, ordered the Union Hill Homeowners

Association

(Union Hill)

joined as

a third-party respondent

in

this matter

in order

to facilitate

a complete determination of

the controversy and to avoid a multiplicity of actions arising

from the same facts.

On October 23, 1975 a hearing was held

in

the Jackson County Courthouse,

in Murphysboro,

Illinois at

which Union Hill specially appeared for the purpose of contesting

jurisdiction.

Contrary

to

the Board’s August

7,

1975 Order,

Union

Hill

had

not

been

properly

joined

as

a

party

res~:ondcnt

by

proper

service

of

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The Board

Lherc

confirmed

its prior finding

LhaL Union Hill

was necessary for the complete adjudication of this cause and

that its presence

as

a party respondent was necessary for the

proper protection of the environment.

On May 3,

1976,

Assistant Attorney General Reiland filed the

Agency’s Amended Complaint which added Union Hill

as a party

respondent in this cause,

However,

the Amended Complaint did

not charge Union Hill with any violation of the Act or Board

Regulations, nor did it seek any relief against Union Hill.

On May 17,

1976 Respondent Kamarasy filed a Motion to Compel

Agency

to Comply with Interim Order of the Board, alleging that

complainant’s failure to seek relief against Respondent Union

24

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187

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Hill was in violation of the Board’s March 26,

1976 and August

7,

1975 Interim Orders.

The Board must deny this motion because it

cannot compel

a Complainant to prosecute

a Respondent.

The

issue of whether this failure f:csrosecute is

a violation of

Section

31 of the Act

is not properly before the Board.

A second hearing was held pursuant to the Board’s March 25,

1976 Interim Order.

The obvious purpose for this hearing was

to

provide

the Board with all facts necessary to completely resolve

the issues

in this cause and fashion a remedy which will be

effective

in protecting Rocky Branch Creek and Cedar Lake Reservoir

from the alleged pollution.At the May 20, 1976 hearing Union Hill

stated that no proper issue

in this matter concerned Union Hill

(R.

128)

While Respondent Union Hill admits every allegation contained in the

Amended Complaint,

Respondent Kamarasy denies the alleged viola-

tions

(R.

133).

The hearing closed with no additional evidence

concerning who,

in

fact,

is the owner of the subject sewage treat-

ment facility.

THE MERITS OF THE CASE

With the procedural background already given,

the Board will

next discuss the merits of this case.

The Amended Complaint alleges that Respondent Kamarasy

owns_and/or operates a sewage treatment lagoon which serves a

portion of the Community of Union Hills Subdivision and treats

only domestic wastes.

The lagoon is known as Lake Lilac.

(The

original Complaint alleged that Respondent Kamarasy was

the

owner.)

The effluent from this lagoon is discharged

into Cedar

Lake Reservoir via Rocky Branch Creek.

The Complaint further

alleges that effluent from this lagoon violated Rules 404(a),

405, and 1201 of the Board’s Water Pollution Regulations and

Section 12(a)

of the Act.

These alleged violations relate

to suspended solids,

fecal coliforms, and operation without

a

certified operator, respectively.

The record contains no sub-

stantial debate concerning whether the above—stated regulations

were violated.

Based upon the

testimony

and

exhi

hi t~s in

this

case the Board

ii rids

t:hat

Lhc viola lions occurred

.

The real

issue

is

as to who shall

he

I iablv Fort hes’ violations.

The record contains sufficient evidence

to establish that

Respondent Kamarasy

is an owner of the sewage treatment

lagoon.

He constructed and paid for the lagoon and obtained permits

for

the construction of additional lagoons.

Mr. Kamarasv owns

part of the land upon which the lagoon is located

(R.

56,

57)

.

He

did sign a permit application as “owner”

(R.

60)

.

However, Mr.

Kamarasy stated at the October 23 hearing that although he had

begun construction, after obtaining permits, of additional

24

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188

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—3—

lacoons

to improve treatment of the sewage, he nevertheless had

no responsibility

to do so and had therefore discontinued work

on the system

(R.

67).

From all of these facts it is evident that Respondent

Kamarasy had exercised such control over the lagoon as

is normally

incident to ownership.

The record also supports the allegation

that he is in fact the operator of this treatment system.

The

Board finds that Respondent Kamarasy is an owner and operator of

the subject sewage treatment lagoon.

That lagoon has been found

above to be in violation of various Board Regulations and the

Act.

There

is no doubt that Mr. Kamarasy has caused or allowed

those violations

to occur whether

as owner or operator or both.

Respondent Kamarasy’s desire to deny any legal duty

to operate

the lagoon will not absolve him from liability in this case.

Even

if done under no legal obligation and out of purely humanitarian

motives,

the owner or operator of a sewage treatment facility

must not cause or allow violations of Board Regulations or the

Act.

However,

the question of ownership and duty must be consi-

dered in the fashioning of a just and reasonable remedy.

The issue of the ownership of the lagoon is not resolved

in

the record, nor is the Board empowered to find against

a Respondent

when no prosecution has been undertaken.

Therefore,

this Order

must be limited to Respondent Kamarasy.

However, the very reason

for Ordering Union Hill joined as a Respondent was

to completely

resolve these issues,

Union Hill has not seen fit to aid the

resolution of the issue; nor has the Agency.

For this reason

kt

has been very difficult to fashion a remedy

in this cause.

There

is testimony regarding the efforts

of Mr. Kamarasy to con-

struct a new treatment system

(R.

65).

This system, which serves

about

30 homes

(R.

55) will,

in the opinion of the Agency’s Regional

Supervisor of Field Operations,

meet the requirements of Board Regu—

lations and the Act upon its completion

(R.

50).

The record contains no factual reason why Mr. Kamarasy

had not been able to complete construction by the time of the

hearing on May 20,

1976.

The Board has found

that

Mr. Kamarasy

is

the

owner

and

operator

of

the

presenL

inadequate

Lrcatment

facility.

The

Board

cannot

determine

the

vol

diity of any

alleged

contractual obligations which Mr. Kamarasy may have

to the residents

of Union Hill.

Neither can the Board absolve the individual

homeowners hooked up to Mr. Kamarasy’s lagoon from responsibility

for any pollution caused.

Those homeowners are not parties

to this

Complaint.

The issues of contract law and third party liabilities

belong in the Courts.

However, the Board does have the authority to order the owner

and operator of a pollution source to cease and desist from viola-

tions of the Act.

Such an order will have a relatively little

24

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189

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economic impact upon Mr. Kamarasy considering the potential of

polluting Cedar Lake, which

is

a reservoir and public water supply

for the City of Carbondale

CR.

16).

The cost of completing the

new sand filter system is estimated at $5,000.00

(R.

66,51)

and

the project would take less than two weeks

CR.

51,66).

There

is no doubt that Mr. Kamarasy could have completed the

project by or shortly after the October 23, 1975 hearing.

However,

he chose to stop work because of the issues of responsibility for

finishing the system

CR.

67)

.

The Board is unable

to find that

delay to have been in bad faith.

There is insufficient information

in the Record for the Board to find otherwise.

Considering the factors stated in Section

33(c)

of the Act,

the Board finds the character and degree of the injury to

the environment to substantially outweigh the value and suitability

factors regarding the instant treatment system.

The completion

of the new system is both technologically practicable and

economically reasonable.

However, the Board does find that

under the particular facts of this case a substantial penalty

is not warranted.

A penalty of $500.00 should be sufficient,

in conjunction with the cease

and desist order,

to aid in the

enforcement of the Act,

The Board finds that

45 days from the date

of this Order is ample time

for Respondent to have the new treatment

system completed and operational.

This Opinion constitutes the Board’s findings of fact and

conclusions of

law.

Mr. Young and Dr. Satchell abstained,

ORDER

1.

Respondent Egon Kamarasy is hereby found to have violated

Rules 404(a),

505,

and 1201 of the Board’s Water Pollution

Regulations and Section 12(a)

of the Act.

2.

Respondent Eqon

K. Kamarasy shall cease and desist the

aforesaid violations within

45 days of the date of this

Order.

3.

Respondent Egon

K. Kamarasy shall pay as a penalty for the

aforesaid violations the sum of $500.00

to the State of Illinois.

Payment shall be made by certified check or money order within

35 days of the date of this Order to:

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190

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IT IS SO ORDERED.

—5—

State of Illinois

Fiscal Services Division

Agency

Springfield,

Illinois

62706

I, Christan L.

Moffett,

Clerk of the Illinois Pollution Control

Board(

hereby certify

the

above Opinion and Order were adopted on the

__________day of November,

1976 by a vote of

~3-o

Illinois

Pollution

1 Board

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