ILLINOIS POLLUTION CONTROL
BOARD
February 25,
1993
GOOSE
LAKE
ASSOCIATION,
)
)
Complainant,
)
)
v.
)
PCB 90—170
(Enforcement)
ROBERT J.
DRAKE,
SR., and
)
FIRST
BANK
OF JOLIET as
)
TRUSTEE, Trust No.
370,
)
)
Respondents.
JAMES
W.
HOMAN
APPEARED
ON
BEHALF
OF
COMPlAINANT,
AND
PAUL
E.
ROOT
APPEARED
ON
BEHALF
OF
RESPONDENTS.
OPINION
AND
ORDER OF THE BOARD
(by J.
Anderson):
On August 30,
1990, Goose Lake Association (Association)
filed a complaint with the Board.
The complaint named Robert J.
Drake,
Sr.
(Drake) and the First National Bank of Joliet as
Trustee,
Trust
No. 370
(FNB), as respondents.
Hearings were held
on November
4 and 5,
1991, and on December 4,
9 and 12,
1991,
in
Morris,
Illinois.
The Association filed its post—hearing brief
on February 24,
1992.
Respondents filed their response brief on
March 23,
1992.
The Association filed its reply brief on April
10,
1992.
There were members of the public present at the
hearing.
In its complaint,
the Association alleges that the sewage
system proposed for respondents’ development (Botomika) will
pollute the adjoining lake in violation of Sections ll(a)(1),
11(b), and 12(a)—(d)
of the Environmental Protection Act (Act),
415 ILCS 5/11(a) (1),
11(b),
l2(a)—(d)
(1992).’
In its petition,
the Association requests the Board to enjoin respondents from
further developing Botomika until a sewage disposal system for
that property is proposed that will not be a serious pollutant to
the lake and adjoining well water.
In its post-hearing briefs,
the Association requests the following relief:
order respondents
to cease and desist all further activities; order Grundy County
(County) and respondents to cease and desist from the issuance of
any further sanitary permits until there are adequate ground
water levels and more thorough approval and maintenance
provisions; order respondents to fill roadside drainage ditches;
order respondents to cease and desist from all development
1These sections of the Act were previously codified at Ill.
Rev.Stat.
1991,
ch.
111½,
pars. 1011(a)(l),
1011(b), 1012(a)—(d).
0139-01351
2
activities and the issuance of sanitary system applications; or
order respondents to install a community waste treatment facility
and fill the ditches.
For the reasons expressed below, the Board finds that
neither Mr. Drake nor PNB have violated Sections ll(a)(1),
11(b),
or 12(a)
-
(d) of the Act.
PROCEDURAL HISTORY
As previously stated, the Association filed its complaint on
August 30, 1990.
On August 31,
1991, respondents filed a motion
to dismiss and a memorandum of law in support of their motion.
Respondents’ motion was premised upon the assertion that Mr.
Drake had no ownership interest in Botomika, that the controversy
was the subject of a lawsuit pending in Grundy County Circuit
Court (circuit court), and that the Board lacked the authority to
grant injunctive relief.
On September 14,
1990, the Association
filed its response to respondents’ motion to dismiss.
On
September 21, 1990, the Association then filed a supplement to
its motion to dismiss.
On October 25,
1990, the Board denied
respondents’ motion to dismiss and accepted the case for hearing.
More specifically, the Board found that the case was not
duplicitous in light of the fact that the suit in the circuit
court had been dismissed.
The Board also stated that it would
rule on respondents’ motion to dismiss Mr.
Drake when it decided
the case and that it construed the Association’s request for
injunctive relief as a request for a cease and desist order.
On January 23,
1991, the People of the State of Illinois,
Grundy County
(People), filed a petition to intervene in this
matter.
On January 31,
1991, respondents filed an objection to
the People’s petition to intervene.
On February 11,
1991, the
Association filed its response to the petition to intervene.
On
February 13,
1991,
the People filed a reply to respondents’
objection as well as an amended petition to intervene.
On March
4,
1991, the hearing officer issued an order denying the People’s
motion to intervene but allowing the People to file an amicus
curiae brief limited to the issues raised at hearing or by
stipulation between the Association and respondents.
On March 26,
1991,
the Association filed a motion to add the
County as an additional defendant in the case.
On March 28,
1991, respondents filed an objection to the Association’s motion.
In addition to objecting to the Association’s motion, respondents
alleged that the Association was an intervenor—defendant in the
circuit court action and was bound by a settlement agreement
reached therein.
On April
8,
1991, the Association filed a reply
to respondents’ objection.
On April 11,
1991, the Board issued
an order granting the Association ten days to file additional
information about the issues raised in the circuit court case
before ruling on the Association’s March 26,
1991 motion.
On May
0139-01452
3
6,
1991, the hearing officer in this matter denied the
Association’s motion to add the County as a party.
On May 9,
1991, the Board issued an order stating that because it did not
receive any information regarding the circuit court case,
it
would accept the matter for hearing.
On May 15,
1991,
respondents filed a motion seeking to have the Board reconsider
its May 9,
1991 order.
On June 6, 1991,
the Board issued an
order denying the motion.
On August 17, 1992, the Association filed a motion asking
the Board to supplement its proofs with aerial photographs and
letter opinions or to reopen the proofs so that it could submit
the new information and allow respondents the opportunity for
cross—examination.
On August 25,
1992, respondents filed a
motion requesting the Board to grant it a 25-day extension to
file a response to the Association’s motion.
On September 17,
1992, the Board issued an order noting that respondents’ request
for a 25—day extension was moot because respondents filed a
response on August 28,
1992.
The Board also denied the
Association’s request to reopen or supplement its proofs.
BACKGROUND
Botomika is a subdivision located in a rural area of Grundy
County,
Illinois, referred to as Goose Lake.
Goose Lake consists
of approximately ten subdivisions and includes the following
three private lakes:
Lincoln Lake, Beaver Lake, and Goose Lake.
Goose Lake residents use the lakes for recreational purposes.
There are currently approximately 600 residences located in Goose
Lake.
All of the residences treat their domestic sanitary waste
by means of private sewage disposal facilities.
Botomika is located on 96 acres immediately adjacent to the
southern portion of Lincoln Lake,
the largest of the three lakes.
There are 54 one-acre lots in the subdivision,
26 of which front
the lake while the remainder are set back from the lake.
In 1987, FNB filed an application with the County for
approval of the preliminary plat of subdivision for Botomika.
The Association intervened in the subdivision proceedings and
opposed Botomika during the planning commission’s public
hearings.
In December 1987, and following hearings in late 1987,
the Grundy County Board (County Board) voted to reject Botomika’s
preliminary plat.
Subsequent to the County Board’s rejection,
FNB filed suit
in circuit court against the County to obtain approval of the
plat.
The Association intervened in that suit as a defendant and
was a participant in the proceedings.
After the 1989 trial,
a
judgment was entered in favor of FNB.
The County and the Association appealed the circuit court’s
0139-01453
4
judgment.
The appellate court reversed the circuit court’s
decision and remanded the matter for “weighing” the evidence
rather than applying an “arbitrary and unreasonable standard” to
the County’s actions.
First National Bank of Joliet.
as Trustee
under Trust No.
370. et *1.
v. County of Grundy. et al.
(3rd
Dist.
1990),
197 Ill. App. 3d 660, 554 N.E.2d 1089.
On May 18,
1990, the County and FNB entered into a
settlement agreement that provided for the approval of Botomika’s
preliminary and final plate and regulated the private sewage
disposal facilities to be installed in the subdivision.
The
settlement terminated the litigation between FNB and the County
and resulted in the County Board’s approval of Botomika’s final
plat.
On September 26,
1991, the appellate court dismissed its
case.
On May 18,
1990, the Association filed a complaint against
FNB, Robert W. Drake, Jr., Thomas E. Drake, Michael J. Drake, and
Robert W. Drake, Sr.,
as Trustee of the Katherine Lucille Ammer
Family Trust,
in the circuit court to enjoin development of
Botomika.
On September 30,
1990, the circuit court dismissed the
case.
On April
3,
1991, the Association filed another complaint
against FNB, Robert W. Drake, Jr., Thomas
E.
Drake, Michael J.
Drake, and Robert W. Drake,
Sr., as Trustee of the Katherine
Lucille Ammer Family Trust,
in the circuit court.
The
Association requested that the court declare that no property
owners in Botomika could use Lincoln Lake and the other lakes in
Goose Lake.
On September 20,
1991,
the case was dismissed.
On June 20,
1991, the Association filed another complaint in
the circuit court.
That complaint named Grundy County, the
Grundy County Planning, Zoning & Building Department,
the Grundy
County State’s Attorney’s Office, and the Grundy County Health
Department as defendants.
The complaint challenged the drainage
of surface waters from Botomika into Lincoln Lake and
sedimentation in the lake allegedly caused by Botomika’s
development.
The suit remains pending.
During the
summer
of 1990, construction of improvements for
Botomika commenced.
As of December 1991, development of Botomika
had not been completed.
The most recent work done at that time
was the paving of the roads, reshaping of the outfall ditches,
placement of fabric, riprap, and seeding blanket in the ditches.
PRELIMINARY
MATTERS
As
stated above, on
August
31,
1990, respondents filed a
motion asking that the Board to dismiss Robert W. Drake,
Sr. as a
Oi39-0~5~
5
respondent in this matter.2
In an October 25,
1990 order, the
Board held that it would rule on respondents’ motion to dismiss
when it decided the case.3
Respondents allege that, for all relevant times, the
beneficial owners of Trust No.
370 have been “Robert W. Drake,
Sr.
as trustee for his daughter, Katherine Ammer, Robert W.
Drake, Jr., Michael Drake, and Thomas Drakeu.
Respondents next
allege that Mr. Drake has no beneficial ownership interest in
Trust 370, has no legal or equitable ownership in Botomika, has
not taken any role in the development of Botomika, and has no
financial interest in Botomika.
(Motion to Dismiss p.
1
-
Affidavit pars.
1,
2, Memorandum of Law in Support of Motion p.
6.)
As
support
for
their
arguments,
respondents
note
that
the
Association’s
president
testified
that
he was advised by Mr.
Drake in the late 1960s that Botomika was owned by Mr. Drake’s
children.
(Resp.
Br.
p.
25, Tr.
1142.)
Respondents also point
to the fact that Mr. Drake,
in a discovery deposition taken prior
to hearing and stipulated into the record by the parties,
testified that be was not the developer of Botomika and had no
financial interest in the development.
(Resp. Br.
p.
26, Comp.
Ex.
10 p.
5)
Finally, respondents note that the Association
never named Mr. Drake as a defendant in any of its other
lawsuits, but named FNB and the beneficial owner of the land
trust.
(Resp.
Br. p.
26.)
The Association alleges that Mr. Drake controls the power of
direction for the land trust in that he is the actual power and
authority which guides the trustee in its decision making.
(September
14,
1990 Response to Motion to Dismiss par.
1.)
In
fact, the Association points to evidence adduced at hearing that
indicates that Mr. Drake acted as developer for Botomika.
Specifically, the Association asserts that Mr.
Drake was present
at several Grundy County meetings concerning the development, has
his personal home phone on the sign which advertises the sale of
lots in Botomika, makes sales calls for Botomika, and demanded
that a sanitary permit system for Botomika be issued by the
Grundy County Health Department.
(Reply Br.
p.
12; Tr. 915-916,
917—918; Comp.
Ex. 10 pp. 9—11,
13—14.)
The Association also
alleges that Mr. Drake has previously been the principal
developer for all of the other residential phases contained in
the Association which adjoins the property at issue.
(September
21n an affidavit attached to the motion, Mr.
Drake attested
that he is the same individual as the named respondent,
“Robert J.
Drake,
Sr.”.
(Affidavit par.
1.)
3The Association,
in its reply brief,
incorrectly states that
the Board already ruled on this issue.
(Reply Br.
p.
12.)
0 139-01455
6
14, 1990 Response to Motion to Dismiss par.
2.)
The Association
finally asserts that joinder of Mr. Drake will prevent the
situation where the land trust is enjoined from activity but Mr.
Drake is free to conduct the activity for which the trust is
enjoined.
(September 14,
1990 Response to Motion to Dismiss par.
3..)
The Board finds that respondents have cited no authority on
why Mr. Drake could not exercise control over the property to
stop a violation of the Act and Board’s regulations from
occurring,
should he choose to do so.
Turner v. Chicago Title
&
Trust Co.
(February 27,
1992),
PCB 91—146 at 2,
16,
130 PCB 227,
228, 242;
Turner v.
Franke
(February 27,
1992), PCB 91-148 at
16, 130 PCB 259,
274.
In fact, certain evidence suggests that
Mr. Drake has been an active participant in the management of the
property.
(Tr. 915—916, 917—918;
Comp.
Ex.
10 pp.
9—11,
13—14.)
Accordingly, the Board hereby denies respondents’ motion to
dismiss Mr.
Drake as a respondent in this matter.
DISCUSSION
The issue before the Board is whether respondents caused or
violated Sections 11(a)(1), 11(b),
12(a)-(d)
of the Act.
The
Association specifically “challenges the applicability of all
currently known individual sanitary systems for use (in
Botomika)” and argues that the individual sanitary systems in
Botomika, given the soil, existing water table,
density of the
site, and the site’s proximity to Lincoln Lake, will lead to
contaminants and effluents that pollute Lincoln Lake.
(Association’s Br. at 2—9.)
Section 11(a)(1) and
(b)
Section 11(a)(1) of the Act states:
that pollution of the waters of this State constitutes
a menace to public health and welfare, creates public
nuisances,
is harmful to wildlife, fish, and aquatic
life, impairs domestic, agricultural,
industrial,
recreational, and other legitimate beneficial uses of
water, depresses property values, and offends the
senses;.
Section 11(b) of the Act states,
in part,
as follows:
(i)t is the purpose of this Title to restore, maintain,
and enhance the purity of the waters of this State in
order to protect health,
welfare, property, and the
quality of life,
and to assure that no contaminants are
discharged into the waters of the State, as defined
herein,
including, but not limited to waters to any
sewage works,
or into any well,
or from any source
0139-01356
7
within the state of Illinois, without being given the
degree of treatment or control necessary to prevent
pollution, or without being made subject to such
conditions as are required to achieve and maintain
compliance with State and federal law....
As can be seen above,
Section 11(a) (1) and
(b)
of the Act
set forth legislative declarations, and do not enumerate
prohibited acts.
Accordingly, the Board hereby finds that Mr.
Drake and FNB can not violate Section 11(a)(1) and
(b)
of the
Act.
Section 12(a~
Section 12(a)
of the Act states:
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;...
Subsection
(a) prohibits a person from causing, threatening,
or allowing the discharge of any contaminants into the
environment so as to
1) cause or tend to cause water pollution in
Illinois, or
2) violate regulations or standards adopted by the
Board pursuant to the Act.
First, we will address the Association’s allegation that
respondents cause or allow the discharge of any contaminants into
the environment so as to cause or tend to cause water pollution
in Illinois.
Section 3.55 of the Act defines “water pollution”
as:
...(an
alteration of the physical, thermal, chemical,
biological or radioactive properties of any water of
the State, or such discharge of any contaminant into
any waters of the State,
as will or is likely to create
a nuisance or render such waters harmful or detrimental
or injurious to public health,
safety or welfare,
or to
domestic, commercial,
industrial, agricultural,
recreational, or other-legitimate uses, or to
livestock, wild animals, birds,
fish,
or other aquatic
life.
In those court cases that discuss the meaning of the phrase
“cause or allow”, the courts have determined that the phrase
0139 -01457
8
relates to a person’s past or ongoing acts or omissions.
Perkinson v. IPCB (3rd Diet. 1989),
187 Ill. App. 3d 689,
543
N.E.2d 901; Hindman v. EPA
(5th Diet.
1976),
42 Ill. App.
3d 766,
356 N.E.2d 669; Freeman Coal Mining Corp.
v. IPCB (3rd Dist.
1974),
21 Ill. App. 3d 157,
313 N.E.2d 616; Meadowlark Farms v~
IPCB (5th Diet.
1974),
17 Ill. App. 3d 851,
308 N.E.2d 829; Bath.
Inc. v. IPCB (4th Diet.
1973),
10 Ill. App. 3d 507, 294 N.E.2d
778.
(see also Turner v. Chicago. Title
& Trust Co.
(February
27,
1992), PCB 91-146, 130 PCB 227; Turner v. Franke (February
27,
1992), PCB 91-148,
130 PCB 259; County of Jackson v. Taylor
(1991), AC 89—258, 118 PCB 37.)
The Association, in presenting its case,
questions only the
effect of individual sanitary systems in light of the existing
conditions at Botomika (i.e., soil, ground water levels,
drainage, density, and proximity to Lincoln Lake).
Because no
private sewage disposal systems were installed in Botomika as of
the date the complaint was filed, respondents have not thus far
caused or allowed the discharge of any contaminants into the
environment so as to cause or tend to cause water pollution.
In fact, the Association notes only that there are currently
six roadside ditch entrances on the property and that such
entrances currently cause roadside ditch runoff to go directly
into Lincoln Lake.
(Association’s Br.
p.
8, Tr.
34.)
The
Association, however, has offered no evidence showing a discharge
of any specific contaminants from the ditches themselves.
In
fact, the Association notes only that water quality testing
indicates that Lincoln Lake is showing some effects
(i.e.,
increases in ammonia and nitrogen) from septic systems in
existing residential areas.
(Association’s
Br.
p.
9; Tr.
444;
Resp.
Ex.
15.)
Moreover, even though the Association also
asserts that there is increased fecal coliform level
in the lake,
there is no assertion that respondents’ activities caused the
increase.
(Association’s Br.
9; Tr. 416; Resp.
Ex.
15.)
The Board next turns to the issue of whether respondents
threaten to discharge any contaminants into the environment so as
to cause or tend to cause water pollution.
Although the above—
mentioned cases discuss the meaning of the phrase “cause or
allow”, we believe that the holdings in those cases are
dispositive on the issue of whether respondents threaten to
discharge contaminants in the instant case.
Freeman Coal Mining Corp.
V.
IPCB
(3rd Dist.
1974),
21 Ill.
App.
3d 157,
313 N.E.2d 616,
involved a petitioner who was an
owner of a coal mine that maintained a mine refuse pile.
Rainfall upon the pile resulted in an acidic contaminant which
washed into an unnamed waterway causing water pollution.
The
petitioner argued that it could not be held liable for “allowing
such discharges because the discharges were the result of a
natural force beyond the control of the petitioner.”
The court
0139-01358
9
found that the Act is malum prohibitum and that no proof of
guilty knowledge or mens rea is necessary to a finding of guilt.
~.
at 621.
The court went on to say that the fact that the
discharges were unintentional, or occurred despite efforts to
prevent them,
is not a defense.
1~.
The owner of the property
that creates the pollution has a duty,
imposed by the
legislature, to take all prudent measures to prevent the
pollution.
The efforts by the landowner to control or treat the
pollution go to the issue of mitigation, not to the primary issue
of liability.
~.
Meadow.ark
Farms v. IPCB (5th Dist. 1974),
17 Ill. App.
3d
851,
308 N.E.2d 829,
involved a situation where iron pyrites,
in
the form of refuse piles on a surface estate, were abandoned by
the owner of the mineral estate.
Ownership of the property,
excepting the mineral estate lying beneath the surface, was
transferred to petitioner via a warranty deed.
The court
concluded that the refuse piles remained part of the mineral
estate on or above the surface of the property.
~.
at 835.
The
court,
however, held that petitioner was the owner of the refuse
piles, and thus was responsible for the pollutional discharge
emanating from the piles since the ownership of the property,
excepting the mineral estate lying beneath the surface, was
transferred to the petitioner via a warranty deed.
~.
at 836.
Accordingly, the court affirmed the Board’s finding that
petitioner had violated Section 12(a) of the Act.
The court
specifically stated:
(p)etitioner further argues that it has not caused,
threatened or allowed the discharge of contaminants
within the meaning of section 12(a)
of the
Act...Petitioner contends that its mere ownership of
the surface estate from which the discharge originates
is the only relationship to the transaction responsible
for the discharge and that to expect the petitioner to
exercise control to prevent pollution would be
unreasonable.
In conjunction, the petitioner states
that its lack of knowledge that the discharge of
contaminants was occurring is a defense to the
complaint.
We find these arguments without merit.
To
clarify this issue,
it should be noted that the
petitioner was charged with causing or allowing the
discharge of contaminants so as to cause or tend to
cause water pollution...in violation of Section 12(a)
of the...Act....Petitioner was not charged with
creating the refuse piles or with responsibility for
the creation of the refuse pile.
The...Board merely
found that the petitioner had ownership of the surface
rights of the property which was the source of the
violation, that the evidence showed that the pollution
had its source on that property and that fish were
killed, and that the petitioner had the capability of
0139-01459
10
controlling the pollutional discharge.
Therefore,
petitioner was found to have violated section 12(a)
of
the Act, as well as violating the other rules and
regulations related to water pollution.
The findings
of the Board were correct.
We have found that the petitioner was the owner of
the refuse piles which were the source of the
pollutional discharge, but to see how the petitioner
violated the Act, we must look to the Act itself.
Section 12(a), which petitioner was found guilty of
violating,
states that:
Petitioner admits that seepage from the refuse pile
containing AND had created
a flow in the tributary of
Brush Creek and that the fish died as a result of the
AND seepage.
Furthermore, soon after the petitioner
was given notice of its violation, Amax Coal Co.,
a
division of the petitioner’s parent company,
investigated the charges and began an abatement
program.
The unquestioned pollution proves
sufficiently that the petitioner allowed the discharge
within the meaning of section 12(a).
(~.
at 836.)
Perkinson v. IPCB (3rd Dist.
1989),
187 Ill. App. 3d 689,
543 N.E.2d 901,
involved a petitioner who was an owner and
operator of a swine farm.
Liquid swine waste escaped, via a man-
made .trench, from a lagoon where the waste was accumulated from
the swine buildings.
The waste then entered a tributary causing
water pollution.
Petitioner did not cause or authorize the
trench and had no knowledge of who was responsible for it.
The
petitioner argued that he was not guilty of “causing or allowing”
the discharge because the trench was dug by a trespassing vandal.
In affirming the Board’s finding of violation of Section 12(a)-
(f) of the Act, the court specifically stated:
The case before us is controlled by the long line of
precedent in Illinois which holds that the owner of the
source of the pollution causes or allows the pollution
within the meaning of the statute and is responsible
for that pollution unless the facts established the
owner either lacked the capability to control the
source, as in Phillips Petroleum or had undertaken
extensive precautions to prevent vandalism or other
intervening causes,
as in Union Petroleum.
Here
Perkinson plainly had control of the lagoon and the
land where the pollution discharge occurred.
The PCB
concluded that he is liable for the pollution that had
0139-01460
11
its source on his land and in a waste facility under
his control.
Under well—established Illinois
law, that
is sufficient to support a finding of a violation of
the Environmental Protection Act.
(j~,.
at 336.)
(See also Hindman
V.
EPA (5th Dist.
1976),
42 Ill. App. 3d 766,
356 N.E.2d 669;
Bath,
Inc.
V.
IPCB
(4th Dist. 1973),
10 Ill. App.
3d 507, 294 N.E.2d 778; Turner v. Chicago. Title
& Trust Co.
(February 27, 1992), PCB 91-146,
130 PCB 227; Turner v.
Pranke
(February
27,
1992), PCB 91-148,
130 PCB 259; County of Jackson
v. Taylor (January 10,
1991), AC 89—258,
118 PCB 37.)
As can be seen from the above cases,
in order to find that a
person “caused or allowed” pollution,
a person must have an
ownership interest in the source of the pollution, whether that
source is located on real property or is the real property
itself.
Likewise, in order to determine whether a person
“threatens” to discharge a contaminant, it must be proven that a
person has or will have an ownership interest in the source of
the pollution at the time that the pollution occurs.
In an enforcement proceeding before the Board, the burden of
proof is a preponderance of the evidence.
Lefton Iron & Metal
Company. Inc.
v. City of East St. Louis
(April 12,
1990), PCB 89—
53 at
3,
110 PCB 19,
21; Bachert v. Village of Toledo Illinois.
et p1.
(November 7,
1985), PCB 85—80 at 3,
66 PCB 279,
281;
Industrial Salvage Inc.
v. County of Marion
(August 2,
1984), PCB
83—173 at 3—4, 59 PCB 233,
235—236, citing Arrinaton v. Water E.
Belier International Corp.
(let Dist.
1975), 30 Ill. App.
3d 631,
333 NE.2d
50.
58.
A proposition is proved by a preponderance of
the evidence when it is more probably true than not. Industrial
Salvage at 4,
59,
233, 236, citing Estate of
Ragen
(1st Dist.
1979),
79 Ill. App.
3d 8,
198 N.E.2d
198,
203.
It is
complainant’s burden to prove a proposition by a preponderance of
the evidence.
As previously stated, the Association questions only the
effect of individual sanitary systems in light of the existing
conditions at Botomika.
The Association, however, has failed to
adduce any evidence that respondents will own the private sewage
disposal systems or the property in which the systems will be
installed, or that respondents will otherwise be responsible for
the systems or have the capability of controlling discharges,
if
any, from the systems.
It appears that the Association is attempting to stop
respondents from developing Botomika and selling the lots to
buyers who will install sanitary systems that may generate
pollution in the future.
In other words, the Association is
attempting to guard against pollution that prospective buyers may
0139-01361
12
generate.
Even if we were to hold respondents somehow
responsible for the sanitary systems, we emphasize that there is
no indication in the record that all
types
of sanitary systems
would be inappropriate for the property.
For example, evidence
was adduced at hearing,
from both the Association’s and
respondents’ experts, that there are systems
(e.g., the
“Wisconsin mound” sanitary system) that, with proper
modifications or safeguards, could be safely utilized at the
site.
(Tr. 556—559, 559—561, 565—566,
615—616, 644—49, 691—692,
1210—1212, 1223—1226; Resp.
Ex.
16.)
The Association’s only
argument in rebuttal is that there is no assurance that the
Wisconsin mound system will be the selected system in Botomika
because the choice of sanitary system is left to the individual
discretion of each property owner and the County rather than
respondents.
(Reply Br.
p.
9.)
Although there is no guarantee
that prospective buyers will utilize the Wisconsin mound system,
there is no proof that buyers will refuse to use such a system.
We emphasize that we are not making a finding that a
sanitary system can never result in pollution or that,
in this
instance, the owners of the sanitary systems can never be held
liable for a violation of Section 12(a)
of the Act.
Nor does the
Board wish to infer in any manner that it has a lack of concern
over problems caused by sanitary systems, especially those
located near lakes.
The owners who install the sanitary systems
in Botomika are well cautioned to install systems that will not
result in pollution.
The Association also has offered no evidence that the
roadside ditches themselves could be construed as a source of
pollution in the future.
Even if it could be determined that the
ditches were a source of pollution, however,
it has not been
shown that respondents will have any ownership interest in the
ditches or other common areas at Botomika once the subdivision is
completed and all of the individual lots are sold.
Finally, the Board will address the Association’s allegation
that respondents cause,
threaten, or allow the discharge of any
contaminants into the environment so as to violate specific Board
regulations or standards.
This Board has looked with disfavor
upon any reliance on general prohibitions that reference the
Board’s regulations or standards without citation to such
regulations or standards.
ESG Watts.
Inc. v
IEPA (October 29,
1992), PCB 92—54 at
9.
In ESG Watts, the Agency cited to Section
21(d) (2) of the Act as a basis for its denial of Watts’ waste
stream permit applications.
That section prohibits a person from
conducting a waste-disposal-operation in “violation of any
regulations or standards adopted by the Board under
(the) Act.”
The Board held that “...without citation to any regulation or
standard, the Agency cannot rely on this general prohibition,
which by its very terms
is dependent on the provisions of a
regulation or standard,
as a basis for permit denial.”
(u.)
0 139-01462
13
Just as the Agency is prohibited from basing a permit denial
on a provision that contains a general reference to the Board’s
regulations or standards,
a complainant cannot rely on a general
provision as the basis of an enforcement action without more.
A
complainant must actually allege the specific Board regulations
or standards that are being violated.
If this were not the case,
a respondent would be placed in the position of defending itself
against unspecified violations.
Based on the above, the Board finds that there is no factual
basis to support the allegation that Mr. Drake or FNB have
caused, threatened,
or allowed the discharge of any contaminants
into the environment so as to 1)
cause or tend to cause water
pollution,
or 2) violate the Board’s regulations or standards.
As a result,
there is no factual basis to support the allegation
that Mr. Drake or FNB have violated Section 12(a)
of the Act.
Section 12(b)
and
(C)
Section 12(b)
and
(c)
of the Act state:
No person shall:
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;
Section 12(b)
and
(C)
address a person’s failure to obtain a
permit required by the Environmental Protection Agency (Agency)
to conduct specific activities.
The Association has failed to
adduce any evidence at hearing that Mr. Drake or FNB were
required to obtain permits from the Agency.
Rather, the
Association,
in its post—hearing briefs, only refers to permits
issued by the Grundy County Health Department or by the County.
(Reply Br. pp.
13-14.)
Accordingly, the Board finds that there
is no factual allegations that Mr. Drake or FNB have violated
Sections 12(b)
or
(c) of the Act in that the Association has
failed to allege that respondents were required to obtain any
0 139-01363
14
Agency permits.
Section 12(d)
Section 12(d) of the Act states:
No person shall:
* **
d.
Deposit any contaminants upon the land in such
place and manner so as to create a water pollution
hazard.
Again, the Association, in presenting its case, questions
only the effect of individual sanitary systems in light of the
existing conditions at Botomika (i.e.,
soil, ground water levels,
drainage, density, and proximity to Lincoln Lake).
Because no
private sewage disposal systems were installed in Botomika as of
the date the complaint was filed,
respondents have not thus far
deposited any contaminants on the land via sanitary systems.
The Association notes only that, thus far, Lincoln Lake is
connected to six roadside ditch entrances on the property and
that such entrances currently cause roadside ditch runoff to go
directly into the lake.
(Association’s Br.
p.
8,
Tr.
34.)
The
Association, however, has offered no evidence that respondents
otherwise have deposited any contaminants on the land or that
such contaminants are being discharged via the ditches.
The
Association notes only that water quality testing indicates that
Lincoln Lake is showing some effects
(i.e., increases in ammonia
and nitrogen)
from septic systems in existing residential areas.
(Association’s
Br.
p.
9; Tr.
444; Resp.
Ex.
15.)
Moreover, even
though the Association also asserts that there is increased fecal
coliform level in the lake, there is no assertion that
respondents’ activities caused the increase.
(Association’s Br.
9; Tr.
416; Resp.
Ex.
15.)
Accordingly, the Board finds that
there is no factual basis to support the allegation that Mr.
Drake or FNB have violated Section 12(d)
of the Act.
For the foregoing reasons, the Board hereby finds that Mr.
Drake or FNB have not violated Sections 11(a) (1),
11(b),
or 12
(a)—(d) of the Act.
The above opinion constitutes the Board’s findings of fact
and conclusions of law in this matter.
ORDER
The Board hereby finds that neither Robert J. Drake,
Sr.
or
the First National Bank of Joliet as Trustee, Trust No.
370, have
0139-013613
15
violated Sections l1(a)(1), 11(b), or 12(a)—(d)
of the
Environmental Protection Act.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act, 415 ILCS
5/41
(1992 State Bar Edition), provides for appeal of final
Orders of the Board within 35 days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
(But see also
Castenada v.
Illinois Human Rights Commission
(1989),
132 Ill.2d
304,
547 N.E.2d 437).
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certiy ~jat the above opi~ionand order was
adopted on the
~‘‘
~5~’
day of
c,L~
~
,
1993, by
avoteof
_____________.
/
/~
~.-
~1j
~
/~
-
~Dorothy
M. ~~1nn,Clerk
Illinois Po~/lutionControl Board
0 139-01465
