ILLINOIS POLLUTION CONTROL BOARD
September 2~,1973
)
ENVIRONMENTAL PROTECTION AGENCY
)
)
)
V.
)
PCB 73-72
)
)
JOHN POPP and GEORGE KACKERT, d/b/a
)
KACKERT ASSOCIATES,
and KACKERT.
)
ASSOCIATES,
a partnership
)
)
)
MESSRS.
FREDRIC
FT. ENTIN and RICHARD COSBY, Assistant Attorney
Generals, appeared on behalf of the Complainant;
MESSRS. GEORGE
P. KACKERT and JOHN POPP,
appeared on their own
behalf.
OPINION AND ORDER OF THE BOARD
(by Mr.
Dumelle)
The Environmental Protection Agency (Agency)
filed
a
complaint on February 23,
1973,
alleging
that John Popp and
George
D.
Kackert, Respondents,
the owners and operators
of
a housing subdivision located in Yorkville,
County
o:F Kendall,
Illinois, have violated several sections of the Environmental
1rotection Act
(Act)
and the Illinois Pollution Control Board
Rules and Regulations
(Water Pollution Rules),
adopted
pursuant
to the Act, by constructing, installing, connecting
and operating
a sanitary sewer system from September
6,
1972 until February 23,
1973 w thout the required permits being obtained from the Agency.
~ unique situation presents itself in that
the Respondents
clai~’ that they would have initially been issued a permit had the
Agency not improperly issued
a permit
to an earlier developer.
The Agency admits that they issued
a permit
to
a developer based
upon a report issued by the Yorkville-Bristol Sanitary District
(District) which
listed the Yorkville-Bristol Sewage Treatment
Plant
(Plant)
to have
a capacity of four thousand population equiva-
lent
(P.E.)
when the Agency~s
own
records showed that plant
had a capacity of two thousand one hundred PE.
Agency personnel
stated that had they known of their error, they would not have
issued the prior permit which exhausted the reserve capacity of
the Plant.
Flad the Agency not issued the prior permit,
the
Agency through Mr.
Darrill Bauer,
an engineer employed by the
Agency,
testified that Respondent’s permit application would
probably been given final approval as
it was the next permit
application received and would not have exceeded the capacity of
the plant.
However,
the prior permit was issued with the stipula-
tion that the individual units not be connected or operated if the
9
—
283
-2-
plant
were overloaded.
The
acts
in this
case
are
that
the
Respondent
applied
for
a
permit
to
construct
and
connect
a
sanitary
sewer
system
on
June
15,
1972.
Respondent
proceeded
with
the
construction
and
connect:i.on
to
an
existing sewer
line
during
July
of
1972
which
was prior
to receiving
any
response
from the Agency.
On
August
10,
1972
the
Agency
rejected
the
permit
because
it
lacked
the
signature
of
the
presiding
officer
of
the
District.
The
Agency’s
letter
to
Respondents’
engineer
stated
that
correction
of
the
signature
omission did not necessarily
mean
that
the
permit
would
be
forthcoming.
The
Agency’s
letter to the
Respondents
did
not
contain
the
above
warning,
Respondents
obtained
the
signature
and
resubmitted
the
application
on
Septenhe
r
19,
1972.
Sometime
during
the
application
process
the
Agency
learned
of
their
earlier
error
in
plant
capacity
and
thus
rejected
on
November
19,
1973
the
Respondents’
permit
application
when
it
was
received
in
proner
form
based
upon
the
plant
not
having
any
reserve
capacity.
Respondent
in
December,
1972
after
notice
of
denial
based
upon
lack
of
capacity
and
denial
of
an
occupancy
permit
from
the
Yorkvilie
City
Council,
based
upon
failure
to
obtain
Agency
permits
allowed
the
occupancy
of
four
out
of
the
twenty-
six
units
with
operation
o:E
the
sanitary
sewers.
The
record
(PCB
73-72)
is
not
clear,
but
it
appears
on
page
59
that
the
District,
through
its
engineer,
then
submitted
additional
data
to
show
that
the
plant
had
a
h:igher
rated
capaci
ty
than
that
shown
on
the
Agency
records.
Subsequently
the
developer
who
held
the
prior
permit
which
exhausted
the
reserve
capacity,
scaled
down
the
scope
of
his
development
so
that
there
would
be
enough
capacity
at
the
plant
to
adequately
handle
the
Respondents’
development.
After
resubmittal
by
the
Respondents,
the
Agency
issued
a
permit
on
March
30,
1973.
It
is
not
clear
from
the
record
(page
39)
what
type
of
permit
was
issued.
It
is
the
finding
of
the
Board
that
the
Respondents
have
from
September
6,
1972
until
February
23,
1973
violated
Section
12(c)
of
the
Act
and
Rule
901(a)
of
the
Water
Pollution
Rules
by
con-
structing
a sanitary sewer without obtaining the necessary construc-
tion
permit
from
the
Agency.
The Board also finds
that
the Res-
pondents have violated Section 12(h)
of the Act and Rule 902
of
the Water Pollution Rules
by operating or allowing to be operated
the san:itary sewer without obtaining
an operating permit from the
Agency.
The
Respondents
have
essentially
built
a
development
and
installed the sewer system, and then sought
a permit
to do
what
was
already
done.
From the special
facts presented in this case
9
—
284
-3-
the Board has not levied the maximum fine of $10,000 for each
violation and $1,000 per day for each day each violation occurred.
The total fine could amount to approximately Three Hundred Seventy-
Six Thousand Dollars for the violations present in this
case.
While equity might tend to motivate the Board toward allowing
a
developer the economic benefit of operating
a sanitary sewer system
once
the development
is built and the sanitary sewer system in-
stalled, the Board would clearly be within reason if it were
to levy
the full or
a substantial portion of the fine
in the case of the
developer who willfully builds and then applies for the necessary
permits.
The Board also suggests that
in the future that the Agency
include in any technical deficiency letter or permit denial letter
based upon
a technical deficiency language to the effect that
complying with the requests made in such
a letter should not be
construed as an indication that upon resubmittal
of the application
that
a permit will be imminent.
Such a clause should tend
to warn an
applicant that his permit has not been reviewed upon the merits
and should help prevent
some of the confusion found in this
case.
The Board’s order in this
case
is based in part upon the
fact that
at full occupancy
the development will consist of twenty-
six units with
a projected load of
65 P.E.
This
small load should
have
a minimal effect upon the marginally overloaded plant.
The
Agency did not present any data
as the plant’s effluent characteristic
or its impact upon water quality in the receiving
stream.
ORDER
The Pollution Control Board orders that:
1.
The Respondents shall
apply for and obtain the necessary
Construction Permit for their development if not previously
obtained.
~.
The Respondents shall
apply for and obtain the necessary
Operational Permit for their development if not previously
obtained.
3.
The Respondent shall pay to the State of
Illinois, within
35 days
after receipt of this Order the sum of $500.00
as
a penalty for violation of provisions
found in the
9
—
285
-4-
Board’s
opinion.
Penalty payment by certified 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, her by certify the above Opinion and Order w re
adopted on the
~b
day of September,
1973 by
a vote of
—o
Christan L.
Moffett,4~4’1erk
Illinois Pollution ~k’itrolBoard
9
—
286