ILLINOIS POLLUTION CONTROL BOARD

July

6, 1978

ENVIRONMENTAL PROTECTION AGENCY,

Complainant,

)

v.

)

PCB 77—299

)

CITY OF HAVANA,

a municipal

corporation,

Respondent.

Steven Grossmark and George W.

Tinkham, Assistant Attorneys

General, appeared on behalf of Complainant.

Don Boggs, Lemmer,

Boggs, Knup~el& Krabum, appeared on

behalf of Respondent.

OPINION AND ORDER OF THE BOARD

(by Mr.

Young):

This matter comes before the Pollution Control Board

(Board)

upon a Complaint filed on November 18,

1977,

by the

Environmental Protection Agency

(Agency) against the City

of Havana

(City).

The Complaint charges the City with

installing a six inch sewer to a four inch main on or about

March

15, 1977,

and operating it thereafter without the

necessary permits

in violation of Rule 951(a)

and 952(a)

of Chapter

3:

Water Pollution Rules and Regulations

(Rules)

and Section 12(b)

of the Environmental Protection Act

(Act).

On December 14,

1977, Complainant filed its First Re-

quest to Admit Facts with the Board which was served upon

Ralph Elliott, Mayor of the City of Havana, and Ms. Jo

Woodward,

the City Clerk, by certified mail on or about

December 12,

1977

(R. p24, Pet. Exh.

#1).

The Respondent

City did not reply within the 20 days required under Procedural

Rule 314(c)

nor on any occasion prior to the hearing.

Under

Procedural Rule 314 Cd), all requests for admission including

every essential alleqation in the Complaint, are deemed ad-

mitted for the purposes of this

pend~igaction

(Exh.

1).

The

Board will review the evidence in the record and will consider

all factors

in mitigation and

in aggravation before exercising

the penalty provisions of the Act.

31-19

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—2—

Hearing was held in this matter on January

5, 1978,

in Havana,

Illinois.

On the opening of this hearing,

a

question arose concerning the competency of Don Boggs,

attorney of record for the City, since his position as

City Attorney had officially terminated on December 31,

1977

(R.

p4).

The City had appointed another attorney

to replace Mr. Boggs, but the designate had not assumed

responsibilities on the date of this hearing.

The record

also indicates that the Hearing Officer had not received

a continuance motion from any representative of the

Respondent prior to this hearing.

The Board,

therefore,

finds that the Hearing Officer properly proceeded with the

attorneys of record at this hearing with provisions for

any interested person to testify

(R. p4-l6).

The evidence in this record shows that certain employees

of the City of Havana installed approximately 300 feet of

six inch sewer line under

“A” Street

Ofl

March 15,

1977, in

place of a four inch line that was causing back—up problems

to homeowners in the vicinity

(R.

p32, p34).

At one end, the

six inch sewer line was connected at an elbow without a

manhole to

a four inch line serving two homes;

this sewer

line also received wastewater from a

third

home at a separate

connection.

At the other end, the six inch sewer line dis-

charged to a manhole attached to 40-50

feet

of four inch

sewer line which flowed into a fifteen or eighteen inch sewer

trunkling leadir\g to the Havana sewage treatment plant

(R.

p32-SO,

Exh.

*3).

Other testimony indicates that the sewer

line was

to be operational from the March

15, 1977, installa-

tion date through the date of this hearing

CR. p45).

Mr. Charles Feliman, Manager of the State Permit Unit

for the Agency, testified that the City of Havana had not

obtained a permit for the above—described installation before

the date of construction

(R. p64-65).

Mr. Fellman further

stated that the Agency would not issue a construction permit

in this case because of Respondent’s failure to install

a

manhole at each elbow connection and its use of six inch

sewer line instead of the eight inch required by the Agency

for sewers serving more than one home

(R. p69-70).

Mr. Fellman

also pointed out that since the original construction,

the

City of Havana had obtained a construction permit for the

installation of an eight inch sewer line serving some five

homes including the three served by this six inch sewer line

(R. p65, p75—6)

In view of this evidence and the admissions in this

record,

the Board finds the City of Havana in violation of

Rules 951(a)

and 952(a)

of Chapter

3 and Section 12(b)

of

the Act for constructing and operating this

six inch sewer

line without the necessary permits.

31-20

---

—3—

In mitigation, the City presented testimony that its

employees considered this placement of 300 feet of sewer

line as repair work requiring no Agency permits

CR.

p53).

This conclusion was reached without consulting the City

Engineer

(R.

p57-8,

p154) or others familiar with Agency

permit procedures.

Other testimony has indicated that

operation of the six inch sewer line to the date of the

hearing has caused no environmental damage and that a

fill—up or back-up is unlikely

CR. p55—74a).

The record shows that the City was properly informed

of correct permit procedures for it to file for

a construction

permit on November 21, 1977,

to replace the six inch sewer

line installation

CR. p76, p118).

Disputes appear in the record concerning the ownership

of the sewer line.

Affidavits from three City employees

who installed the sewer stated that they believed that the

sewer line in question was

a private sewer not owned by the

City of Havana

(Exh.

#4).

This belief is supported by

testimony of a plumber in the City of Havana

CR. p162-3)

and by Mayor Ralph Elliott

CR.

p152,

Exh.

#4).

Other testi-

mony from the Chairman of the City Council’s Water and Sewer

Committee and the Agency suPports the finding that the City

of Havana owns,

operates, and maintains the sewer system

located under

its public streets

CR. p94, p119).

While the

ownership policies of Havana sewer system are in dispute,

the evidence submitted to this record will not overturn

Respondent’s admission in this action that the City of

Havana

is the owner and operator of the sewer system located

within the City limits

(Exh.

#1).

In considering Section 33(c)

factors of the Act,

the

Board finds that an improperly installed sewer line is of

doubtful value which diminishes significantly in the event

of a back-up or other malfunction.

The City’s present

administration has aptly demonstrated that a properly per-

mitted sewer

is technically practicable and economically

reasonable to install before there are any indications of

problems with

the six inch line.

Under usual circumstances, the Board would impose a

penalty as necessary to aid in the enforcement of the Act

to discourage and eliminate future substandard sewer installa-

tions

in contravention of the regulations and the permit re-

cuirements.

In this particular instance, the City may be

more victim that perpetrator of

these violations.

The record

indicates that the current Mayor brought this matter to the

attention of the Agency

CR.

p148),

and the City Engineer, who

stated that he had no knowledge of this improper installation,

31.21

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—4—

would not have approved it, and further testified that this

unpermitted sewer was installed in violation of City ordi-

nances

(R.

p161).

In view of the foregoing,

since the persons responsible

for this illegal installation are not directly before us, the

Board does not feel that the purposes of the Act would be

served by imposition of a penalty against the City

for viola-

tions found herein.

This Opinion constitutes

the Board’s findings of fact

and conclusions of law in this matter.

ORDER

The City of Havana is found to have violated Rules

951(a)

and 952(a) of Chapter

3:

Water Pollution Regulations and

Section 12(b)

of the Environmental Protection Act.

The City of Havana shall cease and desist further viola-

tions of the Board Rules and the Act in the operation of the

inch sewer line described in detail

in the Opinion within

days of the date of this Order.

IT

IS

SO ORDERED.

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control Board, hereby certify the

bove Opinion and Order were

adopted on the

~“

day of

~

1978 by

a vote

Christan L. Mof’1~~k,Clerk

Illinois Pollution Control Board