ILLINOIS POLLUTION CONTROL BOARD
May 20,
1993
THOMAS
3.
KONKEL,
)
Petitioner,
v.
)
PCB 92—145
(Enforcement)
CITY OF CREST HILL,
)
Respondent.
THOMAS
3.
KONKEL, PRO SE, APPEARED AS COMPLAINANT;
THOMAS COWGILL, OF BLOCK, KROCKERY, CERNUGEL
AND
COWGILL APPEARED
ON BEHALF OF RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by G.
T. Girard):
On October
7,
1992,
Thomas
3. Konkel filed a complaint
against the City of Crest Hill (Crest Hill),
located in Will
County,
Illinois.
The complaint alleged that Crest Hill violated
Sections 12(a),
(b),
(C),
(d),
(f)
and Section 13(a)(7,8) of the
Illinois Environmental Protection Act
(Act).
Hearing was held on
December 21,
1992,
at the Will County Court House, Joliet,
Illinois.
No members of the public attended.
Both parties
declined to submit written briefs, choosing instead to make an
oral summary of their arguments at the close of hearing.
(Tr. at
112,
113.’)
STATUTORY
FRAMEWORK
Complainant’s authority to bring this action derives from
Section 31(b)
of the Act which states in pertinent part that:
“Any person may file with the Board a complaint.., against any
person allegedly violating this Act....”
Section 31(c)
states in
pertinent part that
“.
.
.the burden shall be on the Agency or
other complainant to show either that the respondent has caused
or threatened to cause air or water pollution or that the
respondent has violated or threatened to violate any provision of
this Act....”
The subsections of Section 12 that complainant alleged were
violated read in pertinent part as follows:
‘The hearing transcript will be cited as “Tr.
at
Petitioner’s Exhibits will be cited as “Pet.
Ex.
“.
Respondent’s Exhibits will be cited as “Res.
Ex.
“.
U:
t~,2O56
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2
No person shall:
a.
Cause or threaten or allow the discharge of any
contaminants into the environment in any State
so as to
cause or tend to cause water pollution in Illinois,
either alone or in combination with matter from other
sources,
or so as to violate regulations or standards
adopted by the Pollution Control Board under this Act;
b.
Construct,
install,
or operate any equipment,
facility,
vessel, or aircraft capable of causing or contributing
to water pollution,
or designed to prevent water
pollution,
of any type designated by Board regulations,
without a permit granted by the Agency,
or in violation
of any conditions imposed by such permit;
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;
d.
Deposit any contaminants upon the land in such place
and manner so as to create a water pollution hazard;
f.
Cause, threaten or allow the discharge of any
contaminant into the waters of the State
...
without
any NPDES permit
..
.
Section 13(a)
of the Act gives the Board statutory authority
to adopt regulations to promote the purposes and provisions of
this section.
Specifically, Sections 13(a)(7)
and
(8) allow the
Board to adopt regulations concerning alert and abatement
standards relative to water pollution episodes and requirements
for the inspection of equipment that may cause or contribute to
water pollution.
Since these are statutory prescriptions for the
Board on what type of regulations the Board may adopt,
it is not
possible for Crest Hill to be in violation of these statutes.
Therefore,
in relation to the complaint, the Board will consider
only the allegations that Crest Hill violated Section
12(a)(b)(c)(d)(f)
of the Act.
BACKGROUND
On October 29,
1992,
the Board set this matter for hearing
and ordered Crest Hill to provide the Board with information on
what relationship there is between a prior case,
Dutton v. City
of Crest Hill
(45 PCB 523, March 19,
1982,
PCB 79—110) and the
instant complaint.
Specifically, the Board requested a statement
on the geographic locations involved in both areas and any
interconnections of the sewer system.
(HL:.2-1J562
3
The Board’s Opinion and Order in PCB 79-110 found that Crest
Hill had violated Rules
601(a)
and 602 of the Board’s Water
Pollution Rules and Section 33(c)
of the Act.
In essence, Crest
Hill failed to adequately maintain sewer lines resulting in
overflows of the sewers.
Crest Hill was ordered to cease and
desist from further violations and submit a reinediation plan for
approval by the Board.
At the hearing on December 21,
1992,
in
the instant case,
Crest Hill presented testimony and exhibits to
delineate the geographic locations involved in PCB 79-110 and the
current case,
and interconnections in the sewer system
(Tr.
at
66—77 and Res. Ex.
1,
2).
The Board will consider these issues
within the context of the case discussion which follows.
FACTS
Complainant, Thomas Konkel,
resides at 1911 Nicholson
Street, Crest Hill,
Illinois.
Mr. Konkel purchased the property
in 1989.
(Tr.
at 17.)
On September
9,
1992, complainant’s
basement filled with water during a rainstorm,
from approximately
3:30 p.m. until 10:00 p.m.
(Comp.
at
3,
Tr. at 8.)
The basement
was equipped with a sump pump, which was running during the rain
event,
yet the incoming water overflowed the sump pump.
(Tr.
at
13.)
The basement has an area of 1800 square feet and filled
with water to a depth of at least 12 inches.
(Tr. at 12.)
At
the hearing on December 21,
1992,
Mr. Konkel testified that there
were no more flooding episodes since September 9,
1992.
Konkel testified that on the evening of September
9,
1992,
during the severe basement flooding episode, he witnessed a fire
truck of the Lockport Fire Protection District pumping water out
of the manhole at the intersection of Elsie and Nicholson.
(Tr.
at 39-42.)
The hole is labelled “lBS” on Respondent’s Exhibit
Number
2
(Tr.
at 42), which
is the diagram labelled “City of
Crest Hill,
Illinois, Crest Hill Sewerage System”.
In addition to his testimony, Konkel offered into the record
26 photographs which were entered as Petitioner’s Exhibits 1-26.
(Tr.
at 58.)
ISSUES
There are two major issues in this case.
The first issue
concerns the influx of water into Mr. Konkel’s home.
The second
issue involves determining what person or entity is responsible
for the pumping activity on September 9,
1992, when Konkel
observed Lockport Fire Protection District equipment being used
to pump out of the sewer system onto the streets of Crest Hill.
Basement Flooding
UI ~2-U563
4
Mr. Konkel alleges that raw sewage flooded his basement
during the severe rainstorm on September
9,
1992.
(Comp. at
3.)
Mr. Konkel entered
26 photographs into evidence
(Pet.
Ex.
1-26)
that purported to show the flooding and sewage in his basement.
The occurrence
of the flooding was not contested by the City of
Crest Hill.
Mr. Konkel further maintains that several
photographs show evidence of raw sewage in his basement.
These
include Pet.
Ex.
13
(Tr.
at 27),
and Pet.
Ex.
9,
10,
17, and
18
(Tr. at 30).
The City of Crest Hill did not contest the occurrence of raw
sewage in Mr. Konkel’s basement.
In addition, the attorney for
Crest Hill,
Mr. Cowgill,
indicated in his closing statement
(Tr.
at 119)
that “the influx of sewage into the basement of Mr.
Konkel’s home...” was one of the two major issues of this case.
The occurrence of raw sewage in Mr. Konkel’s basement on the
afternoon and evening of September 9,
1992, was not disputed.
In
view of the testimony and evidence,
the Board finds that water
and raw sewage flooded Mr. Konkel’s basement on September
9,
1992.
Mr. Konkel also alleged that contact with the raw sewage
while cleaning his basement was related to a subsequent three—
week illness.
(Tr. at 36—38.)
His physician,
Dr.
Saur, required
him to go through a series of shots and warned against further
contact with raw sewage.
(Tr. at 37.)
Mr. Konkel stated that he
had a written statement about his condition from Dr.
Saur;
however, Mr. Konkel did not produce the statement at hearing.
(Tr.
at 37.)
The Board finds that there is not enough evidence
in the record to connect Mr. Konkel’s illness to the basement
flooding episode, but notes that contact with raw sewage is
indisputably a potential health risk.
Mr. Konkel also alleged that sewage backs up through his
toilets on a daily basis
(Comp. at
3)
and that there had been one
other basement flooding episode since he purchased the home
in
1989.
(Tr. at 15.)
As evidence of the alleged “sewage back-up
through toilets on a daily basis”
(Comp.
at
3) he offered
Photograph
3
(Pet.
Ex.
No.
3)
and a description of the dirt in
the toilet.
(Tr.
at
33.)
In regards to the earlier basement
flooding episode, he testified that water came up through a drain
hole in the basement and led to a small accumulation of
a “couple
of inches out of the hole....”
(Tr. at 15.)
An examination of
the photograph does show residue on the toilet.
However,
it is
not clear from the photo that the residue is a result of sewer
back—up.
Further, the water from the drain hole could have been
from another source.
The Board finds that there is insufficient
evidence in the record of a sewage “back—up” into Mr. Konkel’s
toilet on a daily basis.
A factual finding in the March 1992
flooding episode alleged by Mr. Konkel,
is not necessary in this
case since the September flooding was severe, well—documented,
and uncontested.
Therefore, we can now proceed to determine
~,
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5
responsibility for the September
9,
1992,
influx of water and raw
sewage into Mr. Konkel’s basement.
Mr. Konkel maintains that his basement was flooded with
water and raw sewage on September 9,
1992,
and that the sewer
system should be structurally corrected so that his home will not
be contaminated again
(Comp.
at 4).
He also argues that the
pumping he witnessed on September 9,
1992,
is evidence that there
is
a problem with the sanitary and sewer system of Crest Hill.
(Tr. at 114—116;
Pet.
Exh.
20—25.)
He contends that he witnessed
raw sewage being pumped onto the streets.
(Tr.
at 34;
Pet.
Exh.
at 20—25.)
Crest Hill argues that apparently the flooding of Mr.
Konkel’s basement is due to an illegal connection of Mr. Konkel’s
perimeter drain tile into the sanitary sewer system.
(Tr. at
121.)
Crest Hill supports its argument by noting that Mr. Konkel
described the basement flooding as originating at the sump pump.
(Tr. at 121.2)
The sump pump in a basement should be part of
a
system designed to convey water from a groundwater collection
system, including the basement perimeter.
Mr. Konkel testified
that people he hired to work on his downspouts and rain gutters
confirmed that his home footing drains are connected into the
sump.
(Tr. at 53.)
Crest Hill argued that sewage could only
flow back through a sump pump if there was an illegal connection
to the sanitary sewer.
Crest Hill called as a witness, John Djerf,
a licensed
professional engineer in Illinois.
Mr. Djerf testified on the
engineering specifications of the Crest Hill Sanitary System.
He
also described a video produced by television inspection of the
eight—inch sanitary sewer
in the vicinity of Mr. Konkel’s service
connection to the system.
The video was entered as Respondent’s
Exhibit No.
4.
(Tr. at 93.)
Mr. Djerf provided commentary,
while viewing the video
(Res.
Ex.
No.
4)
at hearing, on the condition of the service connecting
to Mr. Konkel’s home at 1911 Nicholson.
(Tr. at 90-92.)
Mr.
Djerf’s testimony upon viewing the video indicated that the
service to Mr. Konkel’s home was probably a six—inch connection.
(Tr. at 91,
97.)
According to Mr. Djerf,
it was difficult to
2The Board notes that Mr. Konkel’s testimony about the
origin of floodwaters
in his basement is not consistent.
At one
point, he testified that the sewage entered through “my toilets,
my sinks, my
suinp pump hole”
(Tr. at 8).
At another point,
Mr.
Konkel testifies that the sewage was “coming from the toilet and
from the sump pump.
It was overflowing the sump pump is what it
was doing.”
(Tr.
at 13.)
In later testimony,
Mr. Konkel was
talking about the basement toilet and stated,
“This
is the same
toilet that raw sewage came out of on September”.
(Tr. at 33.)
Li
L~.2-3565
6
determine the grade of the service connection from the eight—inch
sanitary sewer to Mr. Konkel’s house.
(Tr. at 91.)
Mr.
Djerf testified about the eight-inch sewer line between
1911 Nicholson and its interception with manhole 1B5 at Elsie
Avenue.
He stated that it appeared “to be in reasonably good
condition.
.
.
.
The light roots that were encountered would be
common on lines of this age.
They did not appear to be of a
nature that with sic
cause a blockage if closed down”.
(Tr. at
95.)
Mr.
Djerf further testified about the water elevations that
would be needed to cause a back—up at Mr. Konkel’s service
connection.
(Tr. at 95-97.)
He testified that the water would
have to be approximately seven feet deep at manhole lB5 before
it
would affect Mr. Konkel’s property at 1911 Nicholson.
(Tr.
at
96—97.)
After considering the testimony and exhibits in this case,
the Board does not find sufficient evidence that a design flaw in
the Crest Hill Sanitary Sewer was responsible for the water and
sewage flooding into Mr. Konkel’s basement on September
9,
1992.
Pumping Onto the Street
Mr. Konkel’s testimony and photographs provide evidence that
equipment belonging to the Lockport Fire Protection District
pumped water and sewage out of manhole lBS onto the street.
(Tr.
at 10,
30,
31,
34,
40,
41,
42; Pet.
Exhs.
20,
21,
22,
23,
24,
25.)
According to Respondent’s Exhibit #1, entitled “City of
Crest Hill,
Illinois, Crest Hill Sewage System”, the manhole
where Mr. Konkel observed the pump operating, labeled lBS at the
corner of Elsie and Nicholson streets
(Tr. at 42), opens into the
sanitary sewer system.
Therefore,
there
is ample evidence that
water in the sanitary sewer was being pumped onto the street on
the evening of September
9, 1992~ This is clearly a violation of
Sections 12(a),
(b),
(c),
(d)
and
(f)
of the Act.
Crest Hill argues that the evidence shows that Lockport Fire
Protection District may be in violation, but there is no evidence
that the City of Crest Hill was involved.
(Tr. at 120.)
Crest
Hill maintains that it should not be responsible for a violation
by another entity.
(Tr. at 120.)
Despite the arguments of Crest Hill,
there is ample evidence
in the record to find Crest Hill in violation.
The activities of
the Mayor of Crest Hill on the evening of September 9,
1992,
provide such evidence.
Mr. Konkel stated that Photograph 25
(Res.
Ex.
25)
showed the Mayor involved with the pumping
activity.
(Tr. at 31.)
The Mayor was dressed
in a fireman’s
uniform.
(Tr.
at 39—41.)
Despite the fireman’s uniform, there
is nothing in the record to indicate that the Mayor was not
acting in his official capacity as a legal representative of
Crest Hill on that evening.
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7
At minimum,
Crest Hill is in violation of Sections 12(a)
and
(f)
of the Act.
Both subsections state that “No person shall:
cause,
threaten,
or allow the discharge of any contaminant....”
Crest Hill
is the owner of its sanitary system.
The Board has
previously found that merely allowing an activity to occur
is
sufficient cause for a finding of violation.
(IEPA v.
Bill
Hammond, April
22,
1993,
AC 92-62,
—
PCB
_.)
The Board finds that Crest Hill
is in violation of Section
12(a)
and
(f)
of the Act by allowing the discharge of water and
raw sewage pumped from manhole lBS onto the street on the evening
of September
9,
1992.
In addition, the Board finds that Crest
Hill is in violation of a prior Board Order,
issued October
4,
1979,
in a case entitled Dutton v. City of Crest Hill
(PCB 79—
110).
In that decision, Crest Hill was ordered to cease and
desist from further violations of Rules 601(a)
and 602 of Chapter
3, Water Pollution.
In fashioning a final order in an enforcement case,
the
Board
is directed to consider the factors outlined in Section
33(c)
of the Act.
Section 33(c)
of the Act provides that:
In making its orders and determinations,
the Board
shall take into consideration all the facts and
circumstances bearing upon the reasonableness of the
emissions, discharges,
or deposits involved including,
but not limited to:
1.
the character and degree of injury to,
or
interference with the protection of the
health, general welfare and physical property
of the people;
2.
the social and economic value of the
pollution source;
3.
the suitability or unsuitability of the
pollution source to the area in which it is
locate,
including the question of priority of
location
in the area involved;
4.
the technical practicability and economic
reasonableness of reducing or eliminating the
emissions,
discharges or deposits resulting
from such pollution source; and
5.
any subsequent compliance.
***
In considering the aforementioned factors, the Board notes
that,
as this was a temporary “source”,
Section 33(c)(2),
(3)
and
4
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(4) are not applicable.
The record indicates that the pumping of
sanitary flow onto the street occurred only on September
9,
1992,
therefore,
the city has subsequently complied with the Act and
Board regulation.
(Section 33(c) (5)
of the Act.)
Although
pumping raw sewage onto the street is
a significant health
threat, there is no indication in the record that the pumping
resulted in health problems in the area3.
However, the health
risk of such a possibility of contact with raw sewage
is
significant.
(Section 33(c)(l).)
Therefore, the Board finds that
a remedy to insure that the type of action does not occur in the
future is necessary.
Having found a violation,
the Board must now proceed to a
consideration of what remedy
is appropriate.
The Board may order
any number of remedies in an enforcement action including
ordering Crest Hill to cease and desist from violation or
ordering a civil penalty.
To determine the level of civil
penalty, the Board must consider the five factors given in
Section 42(h)
of the Act before determining the level of civil
penalty that may be warranted.
Section 42(a)
and
(b)
of the Act
allow the Board to assess
a civil penalty not to exceed $50,000
for each violation and an additional civil penalty not to exceed
$10,000 for each day during which the violation continued.
SECTION 42(h)
FACTORS
Section 42(h)
provides:
In determining the appropriate civil penalty to be
imposed under subdivisions
(a),
(b) (1),
(b) (2),
(b) (3),
or
(b) (5)
of this Section, the Board is authorized to
consider any matters of record in mitigation or
aggravation of penalty,
including but not limited to
the following factors:
1.
the duration and gravity of the violation;
2.
the presence or absence of due diligence on
the part of the violator in attempting to
comply with the requirements of this Act and
regulations thereunder or to secure relief
therefrom as provided by this Act;
3.
any economic benefits accrued by the violator
because of delay in compliance with
requirements;
3Nr. Konkel testified to health problems, but related that
to the back-up in his basement.
(Tr. at 36-38.)
01
L~2-OEj63
9
4.
the amount of monetary penalty which will
serve to deter further violations by the
violator and to otherwise aid in enhancing
voluntary compliance with this Act by the
violator and other persons similarly subject
to the Act; and
5.
the number, proximity in time,
and gravity of
previously adjudicated violations of this Act
by the violator.
The record indicates that the pumping occurred only on the
night of September 9,
1992.
(Section 42(h)(1).)
The record also
indicates that Crest Hill has taken several steps to cure
problems which previously resulted in a finding of violation.
(Section 42(h)(2).)
However,
there
is no evidence that Crest
Hill reaped economic benefit by its action on September 9,
1992.
(Section 42(h)(3).)
Further, the previous violations of the Act
occurred over
10 years prior to this violation.
(Section
42(h) (5).)
Crest Hill has previously been found in violation of the
Act.
Since that violation,
Crest Hill has taken steps to correct
the problem and has followed the dictates of the previous Board
order for over 10 years.
Therefore,
the Board finds that a fine,
in this instant matter, would not aid in the enforcement of the
Act.
The Board will refrain from fining Crest Hill on this
violation and directs Crest Hill to cease and desist from further
violation of Section 12(a)
and
(f)
of the Act.
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10
ORDER
The City of Crest Hill is directed to cease and desist any
or all actions resulting in violation of Section 12(a)
and
(f)
of
the Environmental Protection Act.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act
(415 ILCS
5/41
(1992)) provides for the appeal of final orders of the Board
within 35 days.
The Rules
of the Supreme Court of Illinois
establish filing requirements.
(See also 35
Ill.
Adm. Code
101.246, Motion for Reconsideration.)
I, Dorothy N. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above opinion and order was
adopted on the
~
day of
~-~-1
,
1993, by a vote of
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(I
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~orothy
M. G~4~n,Cle’rk
Illinois Pollution Control Board
0
I~.2-O570
