ILLINOIS POLLUTION CONTROL BOARD
    February 19,
    1981
    JOHN S.
    BURNS,
    )
    Complainant,
    v.
    )
    PCB 80—31
    VILLAGE
    OF WESTERN SPRINGS,
    )
    Respondent.
    MR.
    JOHN R.
    HIEBER APPEARED ON BEHALF OF THE COMPLAINANT.
    MR.
    ROBERT A.
    KNUTI APPEARED ON BEHALF OF THE RESPONDENT.
    OPINION AND ORDER OF THE BOARD
    (by J
    .
    D.
    Dumel le):
    John
    S. Burns filed the complaint in this matter on February
    14, 1980,
    alleging that the Village of Western Springs has
    violated Rules
    601(a), 602(b),
    602(d)(2) and 602(d)(3) of Chapter
    3 of the Board’s Regulations:
    Water Pollution, and Sections
    11(a)(1),
    12(a) and 12(d) of the Environmental Protection Act
    (Act).
    Hearing was held on October 21,
    1980.
    No members of the
    public were present.
    Final briefs were filed on February 18,
    1981.
    The basis of the complaint is a series of floods which have
    occurred on Mr. Burns property between August 25,
    1972 and August
    10,
    1980 (R.15—69).
    Mr. Burns testified that after a bad storm
    on August 25,
    1972, his basement flooded with water, toilet paper,
    and human waste.
    This was caused by a back—up of a toilet in his
    basement.
    His exterior land at 4419 Clausen Avenue was completely
    covered in water
    (R.
    15—17).
    A similar back—up occurred on
    September 17,
    1973, after which he removed his basement toilet
    (R.17—18).
    Water had also entered his basement through the
    basement windows
    (R.26).
    On April
    3,
    1974, again during a heavy
    rain, water entered his basement through the sump pump,
    the
    windows,
    and the back door (R.29).
    During this event Mr.
    Burns
    also testified to water and paper coming up through a manhole near
    his property (R.31).
    Similar events occurred on August 11 and
    September 24, 1974;
    April
    18 and 19,
    1975; June 12, 1976;
    and on
    various other dates through and including August 10, 1980
    (R.32-69).
    However, on a few of these occasions water did not enter his house,
    and only during the June
    12, 1976 occurrence did he observe water
    coming up through the street manhole
    (R.47), and he did not
    testify to human wastes.
    However, water in his yard was
    sometimes as much as 12—18” deep (R.47 and 69).
    Photographs
    supplement much of this testimony.
    40—495
    —2—
    At the close of complainant’s case, Western Springs moved
    for dismissal.
    For the reasons given below, that motion is
    granted with respect to Rules 601(a)~602(b), 602(d)(2),
    602(d) (3)
    and Sections 11(a)
    and 12(d) of the Act.
    A violation of Rule 601(a) cannot be found against Western
    Springs because it was not shown to own or operate a treatment
    works,
    and,
    therefore, could not have operated it improperly
    (R.160).
    A violation of Rule 602(b) cannot be found because there was
    no showing of excess infiltration, nor of the conveyance of less
    than the maximum praticable flow.
    Further, Western Springs has a~
    combined sewer system rather than separate sanitary sewers in the
    pertinent area such that there could not have been overflows from
    sanitary sewers
    (see Comp.
    Ex.
    11,
    pp.
    11 and 18).
    A violation of neither Rule 602(d)(2)
    nor 602(d)(3) cannot
    be found since those rules simply establish compliance dates for
    Rule 602(c) of which no violation is alleged.
    Section 11(a)
    of the Act cannot be violated in that
    it
    simply expresses legislative intent.
    Section 12(d)
    is also inappropriate in that any deposits
    created upon the land were intended to pass through the sewer
    system in the first place and only threaten to return to that
    system.
    Thus, the only possible violation which remains is that
    activity proscribed by Section 12(a) of the Act,
    That section
    generally disallows water pollution which is defined in Section
    3 as contamination of waters of the state.
    Waters of the state
    is in turn broadly defined to include “all accumulations of water.”
    While
    some exceptions have been established by the Board from
    this broad definition,
    none of those exceptions include waters
    which are in areas accessible to the public, as are the waters in
    this case.
    Thus, when the combined sewer flow is discharged from
    street manholes into rainwater on the street, water pollution is
    caused and section 12(a) has been violated. That
    is what has
    happened in this case.
    Dr. William Bauer, an expert witness
    testifying on behalf of Western Springs, testified that the
    sewers had backed up and that they held both sanitary wastes and
    storm water
    (R.175—176
    and 180—181),
    Thus,
    the Board finds that Western Springs has violated
    Section 12(a)
    of the Act, but also finds that no penalty should
    be imposed.
    Testimony indicates that neither human wastes nor manhole
    back—ups have been observed during flooding incidents since June
    12, 1976,
    and it may be that pollution of these surface waters in
    this fashion has not occurred since that time.
    Further testimony
    indicates that even when the sewers back—up, the sanitary sewage
    is diluted by a factor of ten to twenty times by the storm
    water flow (R.181).
    This would be diluted even more by surface
    40—496
    —3—
    water ponding.
    Thus, the possibility of injury to the public due
    to contamination of this water is not great except for children
    wading in the water or playing amid sewage materials remaining
    upon the land.
    Secondly, the technical feasibility and economic reason-
    ableness of eliminating or reducing the pollution is questionable.
    Western Springs has decided, based upon a study done by Mr. Bauer,
    that its policy regarding flooding should be to accept the present
    system
    (Comp.
    Ex.
    9 and R.
    178).
    Additional testimony indicates
    that if Western Springs were to expend up to one million dollars
    to upgrade its system,
    ponding would be only slightly reduced
    (R.142-144).
    However, it may well be economically reasonable to
    eliminate or reduce the sanitary sewer component of that ponding
    (R. 160).
    Third, the Board does not question the value of the sewer
    system or its location.
    However, ponded water contaminated
    by sewage in an area available for public use diminishes that
    value.
    Therefore,
    the Board will order that Western Springs
    cease and desist from such violations and that it work with
    the Agency to determine and implement changes in its sewer
    system to eliminate the surcharge of human wastes into ponded
    street surface waters.
    This Opinion constitutes the Board’s findings of fact
    and conclusions of law in this matter,
    ORDER
    1.
    The Village of Western Springs has violated Section
    12(a) of the Environmental Protection Act.
    2.
    Within 180 days of the date of this Order, the Village
    of Western Springs shall cease and desist from violating
    Section 12(a) of the Act.
    3.
    Within
    90
    days of
    the
    date of this Order, the Village
    of Western Springs shall
    submit a compliance plan
    acceptable to the Environmental Protection Agency to
    eliminate the surcharge of human wastes into ponded
    street surface waters.
    IT IS SO ORDERED.
    Joan Anderson abstains.
    40—497
    —4—
    I, Christan L.
    Moffett, Clerk of the Illinois Pollution
    Control Board, hereby cprtify that t e above Opinion and Order
    was adopted on the
    /~?~Th
    day of
    _____________,
    1981 by a
    vote of
    4—o
    Christan L. Moff~
    Clerk
    Illinois Pollutio
    ntrol Board
    40—498

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