ILLINOIS POLLUTION CONTROL BOARD
September 15,
1982
UTE WILLUTZKI,
)
Complainant,
V.
)
PCB 81—136
VILLAGE OF LOMBARD and JAMES
S.
NOBLE,
)
Respondents.
MS. UTE WILLUTZKI APPEARED PRO SE.
MS. RITA ELSNER APPEARED ON BEHALF OF THE VILLAGE OF LOMBARD.
MR. JAMES K. YOUNG APPEARED ON BEHALF OF JAMES
S.
NOBLE.
OPINION AND ORDER OF THE BOARD
(by
I. Goodman):
On August 31,
1981 Ute Willutzki filed a Complaint
alleging violations of the Act and Chapter 3:
Water Pollution
by James
S.
Noble.
An Amended Complaint naming the Village of
Lombard (Lombard) as an additional respondent was filed on
October 16,
1981.
On March 19,
1982 the Board denied Noble’s
February 11,
1982 Motion to Dismiss, and on May 27,
1982 denied
his Motion for Reconsideration of
that denial.
Hearings took
place on May
3 and 24, 1982~ Noble did not appear at the
May 24,
1982 hearing.
The initial Complaint alleged that new evidence had become
available since Noble was granted variance from Rule 962(a)
of
Chapter
3 on March 19,
1982 in Noble v.
Illinois Environmental
Protection Agency, PCB 80-215.
That variance allowed construc-
tion and operating permits to be issued for a sewer
extension to
service a twenty—unit condominium planned by Noble.
Variance
was subject to two conditions:
1.
installation of water—saving devices; and
2.
implementation of the sewer use offset plan
submitted by Noble in the variance petition.
Willutzki alleged that the potential sewer connection
would violate Section 12(a) of the Act and that an affidavit
submitted by Noble as Petitioner in PCB 80-215 was inaccurate.
48-143
2
The
Complaint offered three incidents of flooding since the
variance was granted as evidence that Rule 602(b) of Chapter 3,
which prohibits overflows from sanitary sewers, was
violated
and the affidavit was incorrect in alleging that the storm
sewer
had no back—up
problems,
Willutzki requested that the variance
granted Noble be
revoked.
The Amended Complaint realleged these violations.
In
addition, Lombard was alleged to have violated Rule 601(a),
Malfunctions, of Chapter
3 due to the overflows.
As amended,
the Complaint also charged Lombard with causing or allowing dis-
charge of contaminants in violation of Section 12(a) of the Act
should it
permit Noble to connect to the already malfunctioning
sewer system.
Again,
the relief sought was revocation of the
variance granted,
and that Lombard be enjoined from allowing
any additional
connections
to the sewer
system.
At
hearing, Willutzki testified along with seven other
witnesses.
Nancy
Manna testified that she had taken pictures
on March 17,
1981 of
the combined sewer located at Main and
Grove Streets,
Lombard,
The photographs
(Compi.
Ex.
1) depicted
a hole in the sewer
line
(R,
10),
Arthur
Allen,
a
professional
hydraulic
engineer for forty years, testified that he had also
witnessed the
hole in the combined sewer at Main and Grove
(R.
25).
He also
submitted a written statement and summarized its
contents (Compl.
Ex.
2).
The statement entitled “Effects of
Condominium
Construction and Sewer Charges at
Main and Hickory
Streets, Lombard”
had originally been presented to the Lombard
Planning Commission,
It summarized the sewer surcharging
problems and hypothesized
as to the sewer system’s structural
defects.
It also pointed out possible defects
in the offset
plan devised by Noble to obtain the variance~
Of the remaining witnesses, only Peter Davis testified to
a specific incidence of flooding in March,
1982.
Photographs
depicting the same were admitted into evidence
(Compi.
Ex.
3).
The remaining testimony was offered in opposition to the
variance granted Noble in a prior proceeding rather than a
proof of violations attributable to Lombard~soperation of its
sewer system.
Through
cross-~examination,it was determined that the three
incidences of flooding listed in the Complaint were
not based on
Willutzki’s personal knowledge but rather from interviews she
conducted based on information contained in another lawsuit filed
against Lombard,
Cross—examination of
Peter Davis revealed that
the flooding he experienced was an isolated incident
(R.
105—106).
Although the Board is aware that the Lombard sewer system
is inadequate and
subject to malfunctions,
it finds that the
evidence submitted
in this case is insufficient to hold Lombard
in violation of Section 12(a) of the Act or Rules
601(a) and
602(b) of Chapter 3.
48~144
3
The Complaint alleged that Noble violated Rules
601(a)
and 602(b).
Since Noble has not connected his sewer extension,
pursuant to the variance,
this is an improper allegation.
The principal allegation in the Complaint was that Noble’s
sewer extension posed a threat of environmental harm, in viola-
tion of Section 12(a),
The testimony and the Complaint sought
to have the variance revoked due to the potential harm it may
create.
Noble argued that this collateral attack on the variance
and its conditions was improper coming much later than 35 days
after the variance was granted.
Variance was granted by the Board in PCB 80-215 only after
sufficient proof that the proposed extension would not create
problems additional to those already experienced by the Lombard
sewer system and that, without the variance, Petitioner Noble
would suffer arbitrary and unreasonable hardship.
The variance
granted was not intended to correct the problems related to the
sewer system.
The water—saving and offset conditions were imposed
to assure that the status quo would be maintained and possibly
improved, despite any additional loadings due to the condominium
unit.
Due to the variance,
James Noble now stands in the same
posture as his neighbors.
He is no more in violation of
Section 12(a), or Rules
601(a) and 602(b), then they are in
utilizing the Lombard sewer system.
Until and unless he exer-
cises the variance granted in PCB 80—215 contrary to the terms
set out therein, he has not violated the Act or Rules 601(a)
and 602(b).
It should be noted that an enforcement proceeding alleging
new evidence possibly could overturn a variance granted by this
Board,
if it serves to discredit evidence offered during the
variance proceeding.
In this instance, Willutzki offered testi-
mony of flooding and photographs
(Compl.
Ex.
1) to discredit an
affidavit offered as evidence in PCB 80—215.
That affidavit,
which was before the Lombard Planning Commission and only an
Exhibit in the variance proceeding before the Board, attested
to the working condition of the 48 inch storm sewer, whereas
Complainant’s Exhibit #1 pictured alleged defects in the com-
bined sewer line.
The testimony offered by Willutzki’s witnesses
did not directly attribute the alleged flooding to the storm
sewers.
Furthermore,
in granting the variance, the Board was
aware of the problems existing in the Lombard sewer system, and
found that the conditions imposed would assure that these
problems would not be aggravated.
Based on the record in this case the Board concludes that
James
S. Noble is not in violation of Rule 601(a) or 601(b) of
Chapter
3, or Section 12(a) of the Act.
48-145
4
This Opinion constitutes the Board’s findings of facts and
conclusions
of law in this matter.
ORDER
The Village of Lombard and James S. Noble are not in
violation of Section 12(a) of the Environmental Protection Act
(Ill.
Rev.
Stat.
1981,
ch.
111½, §1012(a)), Rule 601(a)
or Rule
602(b) of the Board’s Chapter 3:
Water Pollution.
IT IS SO ORDERED.
I, Christan
L. Moffett, Clerk of the Illinois Pollution
Control Board,
hereby certify that t e above Opinion and Order
were adopted on the )~~“dayof
,
1982
by a vote of
~
~
Illinois Pollution Control Board
48-148