ILLINOIS POLLUTION CONTROL BOARD
September
23, 1983
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
v.
)
PCB 79—231
CITY OF ALTAMONT,
a municipal
corporation; and GERALD VAN ALST
an individual; and GERALD VAN ALST
)
JOHN VAN ALST, and RICHARD ACKERMAN,
)
a partnership,
Respondent.
MR. REED NEUMAN, ATTORNEY AT
LAW,
APPEARED FOR THE COMPLAINANT.
MR.
THOMAS F.
TAYLOR OF TAYLOR AND TAYLOR, APPEARED FOR RESPONDENT
GERALD VAN ALST.
MESSRS.
DALE
F. WOLFF AND JAMES
M.
EDER OF DALE
F. WOLFE AND
ASSOCIATES APPEARED FOR RESPONDENT CITY
OF ALTAMONT.
OPINION AND ORDER OF THE BOARD
(by J.D.
Dumelle):
On November
6,
1979k
the Envirom.en~alProtectinn
Agency
(Agency)
filed a complaint against the City of Altamont
(Altamont),
population 1,929,
and an individual,
Gerald Van Alst
(Van Aist).
On September
30,
1980, the Agency submitted an amended complaint.
Hearings were held on October
21,
1981,
March
22,
1983, and
July 12,
1983 in the City Hall,
Altamont,
Illinois.
The Agency’s
closing brief was filed August 22,
1983.
The complaint charges that Altamont and Van Alst* caused
or
allowed the construction of
a sewer system connecting two
eight—unit apartment buildings
t.o the City’s sewer system without
obtaining
or applying for a construction permit
from
the Agency.
The Agency claims this violates Section 12 of the Environmental
Protection Act
(Act) and old Board Rule 951(a), currently
35
Ill.
Adm.
Code 309.202, Water Pollution.
*
The amended complaint added two new individuals,
John Van Aist
arid Richard Ackerman.
The Agency admits there
is no evidence of
violation against them (Closing Br., p.1).
54-75
—2—
Section 12 of the Act provides,
in pertinent part:
“No person shall:
c.
Increase the quantity or strength of any discharge of
contaminants into the waters,
or construct
or install
any sewer or sewage treatment facility or any new
outlet for contaminants
into the waters of this State,
without
a permit granted by the Agency;..
.“
35 Ill.
Adm. Code 309.202, Construction Permits, provides in
pertinent part:
“Except for treatment works or wastewater sources which have
or will have discharges
for which NPDES Permits are required,
and
for which NPDES Permits have been issued by the Agency:
a)
No person shall cause or allow the construction of any
new treatment works, sewer or wastewater source or
cause or allow the modification of any existing treat-
ment works,
sewer or wastewater source without a con-
struction permit issued by the Agency, except as provided
in paragraph
(b).
b)
Construction permits
shall not be
required for the
following:
2)
Any treatment works,
sewer or wastewater source
designed and intended to serve
a single building
and eventually treat or discharge
less than an
average of 1500 gallons per day
(5700
1/day)
of
domestic sewage;
or,..”
FACTUAL HISTORY
In June,
1977, Van Alst initiated the construction of two
eight—unit apartment buildings, known as the Parkview Heights
Apartments,
in the City of Altamont
(R.
13).
The building permits
allowing construction of these buildings were approved by the
Altamont Mayor and City Commissioners on October
13,
1976,
and
May
2,
1977
(R.
92—96).
On July
27,
1977,
an Agency
field engineer
inspected the property and observed the building construction,
an
open trench,
and plastic sewer
line either going toward or
connected to the City sewer
(B.
35).
The Agency field engineer
spoke with Van Aist and the Mayor of
Altamont,
informing them
that a permit from the Agency was needed for this activity,
no
permit had been issued, and that such a permit probably could not
be issued because their existing sewage facility was on restricted
status
(R.
36—38).
On July
30, 1977,
the Agency Regional Manager
54-76
—3—
wrote the Mayor and Council o~ A1.tamont,
informing them that a
permit was needed,
none had been issued,
and none could be issued
while Altamont was on restricted status
(Ex.
B).
Aitarnont passed
an Ordinance on July 27,
1977,
which prohibited an existing waste
stream from a slaughterhouse
(Ex.
5), and Altamont’s engineering
contractor wrote the Agency requesting approval of the apartments
based on removal
of the slaughter house
(Exhibit C).
On October
17,
1977,
the Agency denied the request by letter to Altamont’s
engineering contractor with
a copy to Altamont
(Ex.
D).
In
March of
1978, Van Alst obtained a permit from the City to connect
to the sewers and did so before June,
1978
(R.
14,20).
Beginning
around July,
1978, the apartments were occupied and sewage flowed
from them
to the Altamont sewer system
(R.
15,20).
Because of unique circumstances,
the case relating to Van Aist
will be discussed separately.
DISCUSSION
From the facts of this case,
a violation of
35 Ill.
Adm.
Code
309.202 will occur if one or both of two situations occurred.
The first situation
is where either of the two apartment buildings
was designed
to discharge 1500 gallons per day or more of domestic
sewage to the municipal sewage system.
The second situation is
where the sewer
line connecting to Altarnont’s sewer system carries
flows from more than one building.
No violation would occur if
each apartment building was separately connected to Altamont
sewer system and each building was designed to produce less than
1500 gallons per day of domestic sewage.
In particular,
the
following cross examination of the Agency field engineer,
Larry Eastep, by the attorney for Van Aist,
Mr.
Taylor,
shows
both violation situations have occurred:
“By MR.
TAYLOR:
Q.
What
I understand
from you, Mr. Eastep,
if there would
have been two separate sewer lines connected, one for each of the
buildings,
that wouldn’t have fallen within the criteria of needing
a permit?
A.
That still would have fallen because of the loading
from each building.
You see, each building would have had eight
units
arid conceivably could hold more than 15 persons which is
the other requirement which
is 1500 gallons per day so each building
itself could have triggered
the requirement for a permit.
Q.
You said
“could,” then maybe it might not have?
A.
Well,
they didn’t build it that way.
If they had in fact
built two buildings with two connections,
then there would have
been two permits required.
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—4—
MR.
TAYLOR:
I think that’s all.”
Also,
Altamont has admitted that the effluent generated by the
two buildings and passed to the Altamont sewer system was in excess
of 1500 gallons per day
tR.
15,20),
Clearly, the connection was
prohibited by 35
Ill. Adm.
Code 309.202 without
a permit.
The Agency granted no permit
(R.
37,39).
Having found the sewer connection in violation of Section 309.202,
Altamont’s culpability depends on whether it caused or allowed such
construction.
The Mayor of
Altamont, during the relevant time
period, testified that the buildings could not have been constructed
without a building permit from Altamont, nor could they have been
hooked up to the sewer system without a permit
(B.
116).
Altamont
issued those permits
(B.
14,
20),
thus Altamont is in violation of
35
Ill. Adm. Code 309.202.
In mitigation,
Altamont claims to have believed the buildings
were
to be connected to the sewer system separately,
and that
each would generate less than 1500 gallons per day due to the
high proportion of elderly people
in the buildings
(R.
109-110).
While
this may at least partially mitigate the actions of Altamont
prior to being informed by the Agency that the connections were
illegal,
it does not mitigate their subsequent actions.
On July 27,
1977, an Agency field engineer told the Altamont mayor these
sewer
lines were not permitted
(R.
36—38),
and in a July 30,
1977,
letter
the Agency Regional Manager informed the Mayor and Council the
activity was prohibited
(Ex. B).
In March of
1978,
Altamont
issued the permits allowing hook—up to the sewer system
(B.
14,20).
iri
today~sOrder thc Board finds Altamont in Violation of Section
309.202,
and orders Altamont to Cease and Desist from issuing
construction permits or sewer connection permits in violation of that
Section.
The Board fines Altamont $1,000 for that violation.
VAN ALST,
ET
AL
The defendants, Gerald Van Alst,
John Van
P.1st,
and Richard
Ackerman present other problems.
First, the P~qencyadmits there
is
no evidence against John Van Alst and Richard Ackerman.
(Closing
Br.
p.
1).
Accordingly, they are dismissed.
Concerning Gerald Van
P.1st,
the Agency filed a Request for
Relief from Automatic Stay
in the U.S. Bankruptcy Court for the
Southern District of Illinois
(In Re:
Gerald Van Alst,
BK—80—30738) with a copy to the Board.
That document recites that
Gerald Van Aist filed a Petition
in Bankruptcy on December 29,
1980,
and that an automatic stay prohibits further proceedings
in this enforcement case
(also see
R.
54-55 at which this matter
54-78
*5—
was discussed).**
The Board has not received notification
of any additional action on the bankruptcy petition or the
Request for Relief from Automatic Stay.
Without knowing the disposition,
if any,
of the Attorney
General’s request for relief of stay in the Bankruptcy Court the
Board must assume that the statutory bar to proceeding
in this
case continues in effect.
In the interest of judicial economy,
the Board dismisses Van
P.1st, without prejudice,
with leave
for
the Agency to refile at some future date when the Board can
proceed.
This Opinion constitutes the Board’s findings of facts and
conclusions
of law
in
this matter.
**
Moreover, the
record
shows that Van Aist’s attorney died
during the pendency of this enforcement case and that his law
partner did not inherit Van
P.1st as a client,
has no files
in
the office concerning Van
P.1st and is otherwise unable to
provide the parties or Board with information on Van
P.1st
(R.
70—74).
The partner withdrew from the case
(R.
75).
ORDER
1.
The Board finds the City of Altamont in violation of 35
Ill. Mm.
Code 309.202.
2.
The City of Altamont shall Cease and Desist from approving
building permits and sewer connection permits in violation
of
35 Ill.
Adm.
Code 309,202,
3.
The City of Altamont shall pay
a penalty for the violation
noted,
in the amount of $1,000,
Within fourty-five days
of the date of this Order, the City of Altamont shall pay,
by certified check or money order payable to the State of
Illinois, the penalty of $1,000 which is to be sent to:
Illinois Environmental Protection Agency, Fiscal Services
Division,
2200 Churchill Road,
Springfield, Illinois
62706.
4.
John Van
P.1st and Richard Ackerman are hereby dismissed,
with prejudice.
5.
Gerald Van
P.1st is hereby dismissed, without prejudice.
IT IS SO ORDERED,
I,
Christan L.
Moffett, Clerk of the Illinois Pollution
Control Board, hereby c~tifythat the above Opinion and Order
was adopted
on~,
the ___________day
of
____________________,
1983
byavoteof~.
V
Christan L. Mof1~k~,Clerk
Illinois Pollution Control Board
54-79