ILLINOIS
POLLUTION CONTROL BOARD
October
14,
1971
ENVIRONMENTAL PROTECTION AGENCY
v.
)
PCB 71—109
)
WILLIAMSON COUNTY HOUSING AUTHORITY
Frederick
C.
Hopper for the Environmental Protection Agency
James Bleyer for the Williamson County Housing Authority
Douglas Ingold for the Colp Residents Improvement Association
Opinion and Order of the Board
(by Samuel
R. Aldrich):
The Williamson County Housing Authority
(“Housing Authority”)
owns
and operates a public housing project located in Colp,
Illinois.
On May
13,
1971, the Environmental Protection Agency
(“Agency”)
filed
a complaint against the Housing Authority alleging violations of one
or more of
the following:
Section
10 and 11 of the Sanitary Water
Board Act,
Section 12 (a),l2
(b),
12
(c), and
12
(d)
of the
Environmental Protection Act.
On May
24,
1971,
a petition to intervene
was submitted by the Coip Residents Improvement Association
(“CRIA”),
a nonprofit corporation composed of residents
of the Colp housing
project.
The CRIA entered
a complaint against the Housing Authority
alleging the
same violations of water pollution regulations as those
complained of by the Agency.
In addition,
a violation of Section
9(a)
of the Environmental Protection Act
(“Act”) was alleged.
The evidence
substantiates
several
of the charges and we will order
that
a money pen-
alty be paid.
We will also require Respondent to take steps to ensure
that no further violations occur.
Before considering the merits of the
case,
it
is necessary to consider
a number
of issues raised at the hearing by counsel for the Respondent.
First,
the Housing Authority denies that the Agency has complied with
the rules for the issuing of
a complaint.
The basis for this alle-
gation
is apparently that a number of informal contacts occurred
between the Agency and Respondent
in which the likelihood of
legal
action was discussed,
However,
a written notice, together with
a
formal complaint, were served upon Respondent
as reouired by Section
31(a)
of the Act.
We find that the Agency has fully complied with
the rules.
Respondent
further alleges that the Act is unconstitutional
and violates
the due process clause of the United States Constitution and the
Constitution of the State of Illinois.
We find these allegations to be
deficient in that Respondent
fails to specify how it is denied due
process by the Act.
The issues of constitutionality and due process
have been dealt with elsewhere
(EPA v.
Granite City
Steel (~o., PCB 7O~34,
March
17,
1971).
There we noted that “.~the statute does
not a~olv in
any case
in which
its application would be unconstitutional.
~pond-~
ent’s argument
is wholly without merit.
2
619
Respondent next denies that the Attorney General of the State of Illinois
is the proper party to bring action against it.
Here Respondent
is
simply mistaken.
The complaint was
in fact filed not by
the Attorney
General but by
the Agency,
in accordance with Section 31(a)
of the Act.
We hold, however,
that it is entirely legal and proper for the Attorney
General
to bring action or
to intervene
if he chooses.
We note
further Rule
303
(b)
of the Board’s Procedural Rules which states that
“Misnomer of
a party is not
a ground
for dismissal, but the name of any
party may be corrected
at any time.”
Thus, even
if the complainant had
been misnamed we would not dismiss the complaint.
The Housing Authority further alleges that the Attorney General of the
State of Illinois
acts both as
a
judge and jury
in the instant case and
demands that the Attorney General be disqualified from the proceedings.
Such statements reveal
a serious misunderstanding of the situation.
Section 33
(a)
of
the Act provides that the final determination in
enforcement cases is
to be made by the Pollution Control Board.
The
Office of the Attorney General provides legal assistance
to the Agency
in presenting enforcement cases before the Board.
We reject Respondent’s
demand that the Attorney Generalbe disqualified.
Respondent next denies that the Southern Illinois Legal Aid Society,
Inc.,
which provided attorney feed
for the CRIA,
has any standing to appear
in the proceedings and says that the Society
is federally funded and
in effect receives
funds similar to those received by the Agency.
The Housing Authority further states that it is being tried by
a
“conspiracy of governmental agencies.”
Section
310(a)
of
the Board’s
Procedural Rules allows the Hearing Officer to permit any person to
intervene in an enforcement proceeding either when
the applicant might
be adversely affected by
the Board’s final order or when
the applicant’s
claim and the enforcement proceeding have
a question of
law or
fact in
common.
Clearly,
both conditions are met
in the instant case.
Section
32
of the Act permits any party to an enforcement hearing to be repre~
sented by counsel and places no restriction on
the source of
funds by
whichcounsel
is remunerated.
Moreover,
the Agency does not receive
direct financial support from the federal government
as Respondent
alleges.
The Agency merely disperses federal funds to other parties
for the purpose of pollution control.
The allegation of
a “conspiracy”
is completely unfounded,
Finally, Respondent demands
a trial by
jury,
contending that since
the
Agency in its complaint requests
a money penalty,
a
jury trial is
guaranteed by
the Constitution of the State of Illinois an~by
the
United States Constitution.
This argument was refuted in an earlier
case
(~
~
PCB
70—38, May
3,
1971).
There
we held with extensive citation of federal and state authorities that
the imposition of money penalties does not constitute
a criminal
sanction necessitating
a
jury trial.
2
—
620
We now consider the merits of the case.
It
is appropriate first to
describe the events which culminated
in the present situation.
Construction of the housing project began in 1968
(R.
144).
The orig-
inal request to the State called for
a three-stage oxidation disposal
system.
This was dropped when
the Village of Colp, which was not then
served by sanitary sewers, assured the Housing Authority that
a
municipal sewage disposal system would be completed by the time
the
housing project was finished
(R.
144).
The Housing Authority intended
to connect the housing project to the municipal system at that time
(R.
125).
Because of financial difficulties encountered by the
Village,
the municipal system was not completed when anticipated.
As
a result,
the Housing Authority applied
to the Sanitary Water Board
for a permit to install
the three-stage Oxidation pond with effluent
chlorination facilities.
A permit was granted in February of 1969
(EPA Ex.
1).
Only the first stage was ever installed
(R.
147).
In
place of the original three-stage lagoon system, Respondent installed
an extra—large single holding lagoon believed adequate for two years
and committed part of the money thus saved
to assist the village in
expediting the municipal
system.
In February of 1970
the Sanitary
Water Board ordered the Ho~isingAuthority
to complete
its treatment
facilities according to permit specifications.
The project was
to be
completed by May 15,
1970
(EPA Ex,
5).
The three-stage system was
:iot
completed by that date, however.
In May of
1971 the Environmental
Protection Agency filed
a complaint against the Housing Authority.
At
this point the Housing Authority decided to close the facility and in
fact issued eviction notices
to the tenants
(R.
156).
The notices
were later rescinded,
however,
after the Housing Authority was informed
by
the Agency that no additional penalty would be sought if the
facility were
to remain open
(R.
157,
167).
At the time’of the
hearing on June
29, 1971, wastes from the housing project were still
being treated in
a single lagoon.
The municipal system had still not
been completed, although construction was begun in May of this year
(EPA Ex,
4).
It was anticipated that the system would be completed
and in operation within
90 days,
that
is, by September
29,
1971
(R.
117).
There can be no doubt that the Housing Authority has violated the
terms of the permit granted it by the Sanitary Water Board.
It is
indeed unfortunate that the Village was delayed in completing its
treatment facilities,
Connection of the housing project to the munic-
ipal system will provide the best long-term solution to the project’s
waste problems.
Nonetheless,
the Housing Authority’s procrastination
over the past
two years cannot be excused,
We are aware that the
Housing Authority relied upon a false
hope
that it could attach
to the
municipal system before
a problem arose but we
feel that it was
the
responsibility of the Housing Authority to complete and use
its
own facilities until such time as
the municipal system became operational.
Respondent was in violation of Section
12
(b)
and 12(c)
of the Act.
2
~ 621
ine
recorci
inciicates that the single lagoon operated satisfactorily
for about one year
CR.
101,
150).
A witness for the Agency testified
that on October
28,
1969, he observed seepage of material from the
lagoon in two places
CR.
44).
On another occasion he observed that no
overflow structure had been provided and that the contents of
the
lagoon were discharging to a ditch through
a pipe
CR.
46).
Laboratory
analysis indicated that the discharge exceeded
the limits for BOD
and suspended solids specified by Rules and Regulations SWB—l4
(EPA EX.
3).
On June
28,
1971,
the same witness again observed seepage of material
from the lagoon and what appeared
to be septic domestic sewage present
in a natural drainageway
CR.
48).
He further testified that
a failure
of the dike surrounding the lagoon was
a possibility if heavy surface
runoff into the lagoon were
to occur
CR.
49).
Another witness for
the Agency testified that the ditch into which material was seeping
is connected to Hurricane Creek, which in turns joins the Big Muddy
River
CR.
68).
Julius Steinmarch, Executive Director of the Housing
Authority, denied
that any seepage could reach streams or waterways
of the State
(R.
160).
Nevertheless,
the evidence indicates that a
violation of SWB-l4 did occur and that
a threat of water pollution
did
exist.
We
find Respondent has violated Section 12(a)
of the Act.
Testimony was presented that the lagoon has been unsatisfactory in
other respects:
a source of mosquitoes
CR.
92,
104,
106,
114),
and
a danger to young children since it was fenced on three sides only
(R.
104,
112).
Gladys Berdette,
President of
the CRIA, testified
that on several occasions sewage backed up from the lagoon into her
home
(R.
92).
However,
Frank Caliper, who installed and has maintained
the plumbing at the housing project,
stated that
this occurred
because residents placed items
in the sewer which should not have
been put there
CR.
128).
The most common complaint voiced at the hearing concerned odors
emanating from the lagoon
(R.
92,
103,
104,
108,
114).
Mr.
Caliper,
who is mayor of Colp,
stated that conditions at the housing project
with regard to odor were very similar to those which existed else-
where in the Village
CR.
130).
The
fact that there are other sources
of objectionable odors
is no reason that the residents of the housing
project should have
to live with odors from the lagoon.
Clearly,
an
intolerable situation has existed at the housing project,
and there is
reason to believe
the lagoon has been in large measure responsible.
We find Respondent has violated Section
9(a)
of the Act.
For this
and other violations previously mentioned we will assess
a penalty
of
$500,
We now consider what action can be taken
to ensure that no further
violations will occur.
We agree with counsel for the Agency who
expressed the view that continuance of the housing project is
an
important goal
CR.
9).
Closure of the facility is certainly an
unsatisfactory solution to
the problem at hand.
Lawrence Line, whose
2
—
622
engineering firm was hired by
the Village of Colp for its sewage
treatment project,
testified that the municipal system should be
completed within 90 days,
that
is, by September
29,
1971
CR.
117).
Accordingly,
the question of further use of
the existing lagoon by
the Housing Authority is in all probability moot.
By the date our
order
is entered the municipal system should be
in operation and
capable of receiving wastes from the housing project.
We will order
Respondent to verify that such
is indeed the case.
To ensure that
the lagoon in question
is no longer used we will order that its con-
tents be transferred to the municipal treatment facilities
and that
it then be filled and graded back
to the original contour.
This opinion constitutes the Board’s findings
of fact and conclusions
of law.
ORDER
1.
By November
1,
1971,
the Williamson County Housing Authority
shall submit to the Environmental Protection Agency and to
the Pollution Control Board
an affidavit indicating whether or not
the human wastes from the Colp Housing Project are at that time
being treated by the sewage treatment facilities of the Village
of Colp.
2.
By December
1,
1971,
the Williamson County Housing Authority
shall cause the contents of
its existing lagoon to be trans-
ferred to the sewage treatment facilities
of the Village of
Colp,
and shall further cause
the lagoon to be filled and graded
back to the original contour.
3,
The Williamson County Housing Authority shall, within
35 days
from the date of entry of this order,
submit to the State of
Illinois the sum,
in penalty, of
$500.
I,
Regina E.
Ryan, Clerk of the Pollution Control Board, hereby
certify that the Board adopted the above opinion and order this
14
day of October
1971.
~
2
—
623