ILLINOIS POLLUTION CONTROL BOARD
January 24,
1990
THOMAS
S.
FREDETTE,
)
)
Complainant,
v.
)
PCB 89—61
(Enforcement)
VILLAGE OF BEECHER,
Respondent.
OPINION
AND
ORDER OF THE BOARD
(by J.
C. Marlin):
MR. THOMAS
S. FREDETTE APPEARED PRO SE AS COMPLAINANT.
MR. STEVEN TONGREN OF CLINTON, TONGREN
&
KNUTH
APPEARED ON BEHALF
OF RESPONDENT.
This matter is before the Board upon an eight count
complaint against the Village of Beecher
(“Beecher”)
filed by
Thomas
S. Fredette
(“Fredette”)
on April
5,
1989.
The Complaint
alleges that Respondent is in violation of several of the Board’s
regulations regarding water and air pollution.
Upon a grant of
default by the Board on Fredette’s claims, hearing was held July
27 in the Village Hall Board Room,
Beecher, Illinois on the
matter of the appropriate relief to be granted.
Post-hearing
briefs were filed by the Complainant and Respondent on October 15
and November 7,
1990 respectively.
BACKGROUND
The Village of Beecher, Will County,
Illinois operates a
wastewater treatment plant which services residences and
businesses within the village.
The treatment plant is located on
Pasadena Avenue.
In the operation of the plant the Village
discharges wastewater into the west branch of Trim Creek,
a
tributary to Pike Creek and then to the Kankakee River.
(Complaint,
p.2)
The Village is authorized to discharge wastewater from the
treatment plant to the west branch of Trim Creek
pursuant to
National Pollutant Discharge Elimination System
(“NPDES”) Permit
No. IL 0049522 issued by the Illinois Environmental Protection
Agency
(“Agency”)
on July 5,
1985 which expired August
1,
1990.
The permit sets,
in part, effluent discharge limitations for
daily flow, five-day biological oxygen demand (BOD~), total
suspended solids,
fecal coliform, pH and ammonia nitrogen.
(Complaint,
p.3)
118—131
2
PROCEDURAL HISTORY
After the filing of Complainant’s complaint, Beecher moved
to dismiss it April 27,
1989.
The Board agreed to hear the
motion to dismiss at its Board meeting that day.
Beecher’s
motion alleged that the claims that Fredette had made against it
were also the subject of an Enforcement Notice Letter dated May
6,
1988 it had received from the Illinois Environmental
Protection Agency and were the subject of negotiations with the
Illinois Attorney General’s Office.
Admitting that the complaint
was not frivolous,
the attorney for respondent urged the Board
that the complaint was nonetheless “duplicitous”.
The Board,
in
its Order of April 27,
1989, found that the complaint was not
“duplicitous” at that time.
On January 16,
1990 the Petitioner filed his Motion for
Judgement by Default due to Respondent’s failure to comply with
discovery deadlines imposed by the Hearing Officer.
The Board
denied that motion by reason of it failing to include matters not
of record in verified form and advised the Complainant and the
Hearing Officer of the correct procedure to follow for such
filings.
On February 26,
1990, the Complainant filed his Second
Motion for Judgement by Default whjch cured these deficiencies.
The Hearing Officer followed with his Order Regarding Motion for
Judgement by Default filed March
1,
1990.
The Petitioner’s motion stated that Interrogatories and a
Request for Production of Documents were served upon Beecher more
than four months earlier on August 17,
1989.
When no response
was received the Complainant filed a Motion to Compel Compliance
with the Hearing Officer requesting that an Order be entered
compelling responses to the discovery requests.
The Hearing
Officer entered an Order on December 13,
1989 giving Respondent
until December 26,
1989 to comply with the discovery requests.
When again no responses were received the Complainant filed his
first Motion for Judgement by Default which was subsequently
denied by the Board.
The Hearing Officer gave the Respondent another opportunity
to cure the failure to file discovery.
In an Order dated
February 27,
1990 the Hearing Officer demanded that Respondent
show cause why his Order of December 13,
1989 was ignored; re-
ordered compliance with discovery requests by March 19,
1990;
and, set forth his intention to issue findings regarding
Respondent’s failures to comply should Respondent fail to answer
by March
19,
1990.
When Respondent again failed to answer, the
Hearing Officer filed his findings stating that he had received
no communication from Respondent nor had the Complainant received
any communication or evidence of compliance.
In its Order dated
March 22,
1990, the Board therefore granted the Complainant
judgeiuent by default and asked the Hearing Officer to schedule a
118—132
3
hearing to take evidence on the relief to be granted the
Complainant.
On March 28,
1990 the Village of Beecher filed a Motion to
Vacate Default Order and For Additional Time to File Discovery
Answers.
The Board denied the motion stating that the
Respondents purported reasons for failing to comply with the
Hearing Officer Orders fell “far short of the mark”.
Undeterred,
the Village followed with a Motion to Dismiss Complaint or for
Alternative Relief on July 27,
1990.
The motion raised again the
grounds that the matter before the Board was duplicative of an
enforcement proceeding filed against it by the People of the
State of Illinois by the Attorney General in Circuit Court.
The
motion attached in support a copy of the Complaint and an
executed Consent Decree entered into by the Village, the Illinois
Environmental Protection Agency, and the Illinois Attorney
General’s Office, which were filed together in the Circuit Court
on July 16,
1990.
The Board, however,
found upon review of the
exhibits and Complainant’s complaint that the claims, as alleged,
were not so substantially similar as to warrant dismissal of
Complainant’s action.
It therefore,
denied Respondent’s motion
in an Order dated August 9,
1990.
A hearing occurred July 27,
1990 in the Village Hall Board
Room in Beecher, Illinois for the purpose of accepting evidence
concerning the remedy to be granted Mr. Fredette.
The post-
hearing brief of respondent was filed on October
15,
1990.
Complainant filed his brief on November 7,
1990.
DISCUSSION
Allegations by Fredette
The Complaint filed by Thomas S. Fredette contained eight
counts.
Count I, entitled “Water Pollution” complained that the
Village’s wastewater treatment plant caused or allowed discharges
which caused water pollution from August 1985 through September
1988 inclusive,
so as to violate 35 Ill. Adm. Code 304.141 and
309.102(a)
and Sections 12(a)
and Sections 12(a)
and
(f)
of the
Act.
Section 304.141 of the Board’s regulations contain a
prohibition against exceeding NPDES permit limitations.
Section
309.102(a) prohibits discharges from point sources without an
NPDES permit.
Count II alleges that Respondent caused or allowed
discharges from its treatment plant which exceeded the daily
maximum concentration of fecal coliform as specified in its NPDES
permit.
Again, the violations are stated to have taken place
from August 1985 through September 1988.
Count III alleges that
from November 1985 to December 1987, the Village caused or
allowed the flow of wastewater which exceeded the design average
flow of 0.3 million gallons per day as specified in the Village’s
118—133
4
NPDES permit.
Count IV concerned violations of total suspended
solids limitations from August 1985 through July 1988.
Count V
averred that during this same period monthly average
concentration, five day biological oxygen demand
(BOD5)
for the
Village’s NPDES permit were violated.
Count VI alleged that from August 1985 through September
1988 the Village submitted reports, required to be “signed by a
principal executive officer”, which were signed by someone else.
Count VII states that for these same dates, Respondent operated
the treatment plant in a manner not constituting best management
practices and in a manner not providing optimum operation and
maintenance.
Finally, Count VIII,
entitled “Air Pollution”,
alleges that from August 1985 through September 1988, the Village
“operated the treatment plant in a manner so as to cause or tend
to cause air pollution in Illinois” in violation of Section 9(a)
of the Act.
Ill. Rev.
Stat.
1989,
ch.
111 1/2, par.
1009(a).
For each and every violation,
and for each day of violation,
Fredette requests monetary penalties,
costs.and attorney fees,
and an order to compel operation of the treatment plant according
to applicable laws and regulations.
Will County Complaint
It is against this background, that the Complaint filed by
the People of the State of Illinois, and the provisions of the
subsequent Consent Decree must be examined in order to derive
what actions remain unremedied.
The Complaint for Injunction and
Other Relief filed in Will County Chancery Court,
No.
50 CH
10301, contains five counts.
Count I alleges that discharges
from the Village’s waste water treatment plant failed to meet the
final effluent limitations for BOD5, total suspended solids and
fecal coliform for the months of July
—
September and December
1988; and January, April
-
June,
and August
-
November 1989.
Count II complained of offensive discharges from the plant in
violation of 35 Ill.
Adni.
Code 304.106 in that odor and turbidity
standards were violated.
Count III alleged that the Village
violated Section 302.212 and 302.203 of the Board’s regulations,
which concern general use water quality standards relating to
ammonia nitrogen and unnatural sludge.
Count IV averred that the
Village failed to perform according to the compliance schedule
for final effluent limits for BOD5, TSS and fecal coliform,
contained in its NPDES permit.
Count VI stated that the Village
violated a special condition of an Agency-issued permit relating
to sludge disposal.
Like Fredette, the People requested monetary penalties for
violation of the Act; expert witness fees and costs; and
temporary and permanent injunctive relief.
118—134
5
qill County Consent Decree
The Consent Decree entered into between the People and the
~Tillageof Beecher set forth the existing noncompliance with
3tate regulations and “National Municipal Policy.”
The decree
Dutlined that the Village had violated its NPDES permit and, more
specifically,
35 Ill.
Adin. Code 302.212,
302.203,
304.106,
304.121, 304.141(a) and 309.102(a)
and Sections 12(a),
(b) and
(f) of the Act by discharging effluents containing in excess of
the interim effluent limits.
(Section C. of the Consent Decree)
The decree also covered violations of the Municipal Compliance
Plan,
35 Ill.
Adm. Code 309.102(a)
and Section 12(f) of the Act.
The Village agreed that its discharges failed to meet compliance
plan final effluent limitations from June
—
November 1987 for
both TSS and Fecal Coliform; during December 1987 and January
1988 for Fecal Coliform; during March
-
June 1988 for TSS and
Fecal Coliform and for May and June 1988 for TSS and Fecal
Coliforin and for May and June 1988 for BOD5.
The decree also
stated that the discharges TSS, BOD5 and Fecal Coliform exceeded
limits for April
-
November 1989 and July 1988.
The Village also
admitted that it violated Fecal Coliform limits for August 1988
and for Fecal Coliform and TSS for September 1988.
For these violations the Village agreed to a penalty of
$6,600 payable to the Environmental Protection Trust Fund.
The
Village also agreed to construct improvements to its WWTP to
achieve compliance with applicable laws and regulations.
The
improvements,
already substantially completed, were an additional
4.5 million gallon capacity aerated lagoon with 50,000 cubic foot
rock filter and chlorination cell and a lift station with two
submersible pumps; conversion of the existing lagoon to an
aeration pond; and piping required by the Agency permit.
The
Village is to also use “best efforts” to control obvious odors
from the planned lagoon.
The Village also agreed to contingent
penalties should it not meet final effluent limitations after
June 15,
1990 and agreed to final effluent limitations of
30 mg/l
of BOD5 as a monthly average,
37 mg/i of TSS as a monthly average
and 400/100 ml fecal coliform as a daily maximum.
The Village
was ordered to abate,
cease and desist all violations of the Act
and regulations thereunder.
ARGUMENTS OF THE PARTIES
At hearing, Mr. Fredette testified as to the nature of
violations claimed and summarized his request for relief.
In
support of his testimony he introduced six exhibits:
a document
entitled “Notice of Violation/Intent to File Lawsuit dated March
15, 1988
(Pet.
Exh. 1).
The Village’s operating permit and two
letters from IEPA referring to the permit
(Pet.
Exh.
2),
a
discovery request dated July 12,
1990 with a letter to Mr.
118—135
6
Tongren, the Village attorney (Pet.
Exh.
3) with return receipt
(Pet.
Exh.
5),
a
set of discharge monitoring reports from Nay
1985 through May 1990
(Pet.
Exh.
4) and
a
written document
containing a summary of the relief requested
by Mr.
Fredette.
(Pet.
Exh.
6).
The respondent introduced a copy of the Consent
Decree and Will County complaint (Resp.
Exh.
1,2) as well as an
effluent sample report dated July 5,
1990.
(Resp.
Exh.
3)
A
number
of objections were made by the parties at hearing.
To clarify matters these will be decided prior to our discussion
of the case.
Fredette objected to the documents, which he
characterized as discovery, attached to the July 27,
1990 Motion
to Dismiss Complaint filed by the Village.
Fredette observed
that the motion was filed the day of hearing.
Any discovery
attached to the motion was untimely, he argued, and should not be
considered a proper response to his discovery requests.
The
Board notes that,
indeed a number of documents were attached to
the motion.
However, these were properly attached as exhibits to
the motion, did not purport to be discovery responses and were
not considered by the Board as such.
The Village objected to the discharge monitoring reports
contained in Petitioner’s Exhibit No.
4 which were not part of
Fredette’s original complaint or were not claimed there as a date
of violation.
These concerned reports post September 1988.
Mr.
Fredette argued that Board rules, specifically 35 Ill.
Adm. Code
Section 103.210(b) allowed him to amend his Complaint at hearing
Fredette claimed that he was introducing them as evidence of
“motive” or “continuing violations”.
(R. 21).
The Hearing
Officer admitted the packet and gave leave to petitioner to amend
his complaint and for the Village to file their response.
The
Village declined to exercise any right to a continuance by reason
of surprise
(R.
24-25).
Fredette failed, however, to file an
amendment post—hearing.
We believe that none was necessary, the
evidence merely being used to show continuing course of conduct.
The Village could not have been unaware of their existence,
similar reports having been obtained from the Village by Fredette
under the Freedom of Information Act.
(R.
23).
Therefore, the
Board rules that such evidence was admissible.
The Village also objected to the admission of Petitioner’s
Exhibit No.
6,
a summary of the violations charged, damage
calculations and a request for relief.
The damage calculations
purported to show that the Village was potentially liable for
over $16 million in penalties.
The request for relief only asked
that a $7,000 penalty be imposed, among other items of relief.
The Village argued that the document was really a late attempt to
amend the complaint and was unsupported by evidence.
The Hearing
Officer gave Mr. Fredette the Opportunity to support his claims
and damage calculations with testimony, which Mr. Fredette did
(R.
37-40).
However, the Village continued to object to their
admission as an exhibit, despite the fact that,
as a totality,
118—136
7
the admission of the exhibit seemed to limit Fredette’s request
for relief.
Again,
Mr. Fredette did not amend his Complaint post-
hearing.
Therefore, the Board will decide whether Petitioner’s
Exhibit
No.
6 was properly admitted by the Hearing Officer as an
exhibit.
Under Board rules the Hearing Officer may receive
“evidence which is material, relevant and would be relied upon by
reasonably prudent persons in the conduct of serious affairs
.
.“
35 Ill.
Adm.
Code 103.204
The document sets forth
a
summary
of the alleged violations, petitioner’s count of the days of
violations, damage calculations including expenses, and a request
for relief.
We believe the summaries and calculations to be
relevant to Mr. Fredette’s claim for relief.
Therefore the Board
admits these documents.
Mr. Fredette’s new and altered claim for relief presents a
separate problem however.
We believe it would have been
preferable that this new claim for relief have taken the form of
a written amendment to the pleadings.
However, our review of the
record reveals that clearly the petitioner is no longer asking
for the full range of penalties which could have been assessed
against the Village but has reduced it to a monetary penalty of
$7,000 plus a series of additional items of relief.
The oral
aniendment, we believe,
is valid and will be treated as
Complainant’s amended request for relief.
The Village called Mr. Barber, the Village Administrator, to
testify on its behalf.
Mr. Fredette objected to Mr. Barber being
called as a witness.
Fredette argued that he had filed a
discovery request with the Village asking for a list of their
witnesses to be used at hearing and any documents to be relied
upon.
The document request was mailed July 12,
1990.
The
hearing date was July 27,
1990.
Counsel for the Village states
that he mailed his response two or three days earlier and would
be willing to file proof of service with the Board.
Based on the
closeness of the filing and hearing, the Hearing Officer
overruled the objection.
O~irexamination of the record reveals
that,
incredibly,
the discovery response filed with proof of
service on July 24,
1990 did not reach the Board until August
3,
1990 some 11 days later.
We cannot determine,
from the record,
that mailing on the 24th did not occur as alleged.
Therefore,
Mr. Barber’s testimony will be admitted.
Mr. Fredette also objected to the relevance of Mr. Barber’s
testimony.
Mr. Barber testified that certain improvements
were
made to the Village’s sewer plant.
The testimony was apparently
introduced to rebut the petitioner’s “motive” or continuing
conduct evidence.
We cannot say that the testimony was
irrelevant as to this point.
Mr. Barber testified that as part of the municipal
compliance plan
“as issued by the State of Illinois”, the
118—137
8
Village completed $688,000 worth of capital improvements to the
facility.
(R.68)
Construction did not take place until late 1989
and were completed June 15,
1990.
(R.69)
A new operator was
hired for the sewer facility July 1,
1990.
Construction was delayed in part,
Mr. Barber testified, due
to a pending lawsuit involving construction of an aeration
lagoon.
The lagoon was placed into operation on December 15,
1989.
Village engineers have assured Mr. Barber that violations
of the NPDES permit will cease as of the start—up date of the
facility.
(R.78)
Mr. Fredette also objected to introduction of evidence that
he was a party in a suit to enjoin construction of the city’s
aeration lagoon.
This evidence
is hardly relevant to the matter.
Because this circumstance was already in~thepleadings of record,
we find that its admission was harmless.
On October 15,
1990 the Village of Beecher filed its post-
hearing brief.
The Complainant responded with his brief on
November 7,
1990.
The Village’s arguments echo those made at
hearing.
The Village contends that “it is important to compare
the Attorney General Complaint or Consent Decree to the Complaint
herein for any similarities in alleged violations.”
(Br. p.2)
The brief then submits that the Board’s review will reveal that
the present suit and Consent Decree will be found “substantially
similar.”
With this explained, the Village argues that the
portions which are similar should be dismissed,
citing Northern
Illinois Anglers’ Association v. The City of Kankakee, PCB 88-
183.
To the extent that the Village asks that the Board dismiss
Fredette’s Complaint, the Board declines to do so.
The Board has
examined the issue regarding “duplicitous” and frivolous filing
no less than twice.
As pointed out by Fredette and by previous
Board Orders, what the Village misses, and continues to miss,
is
that while the allegations are similar they are by no means
identical.
The dates of the alleged violations vary as do the
violations themselves,
as we think our lengthy description of the
two documents shows.
Under these circumstances the Board will
not grant the “motion” to dismiss contained in respondent’s
brief.
To the extent, however, that the charges are similar, the
Board will take these matters into consideration when it fashions
the appropriate relief to be granted.
The Village objects to any requests by Fredette for
reimbursement for attorneys fees and expenses.
Fredette is not
~S1
other objections of minor importance were also made
by the parties of hearing.
For these we decline to both discuss
or revise the rulings of the Hearing Officer, which shall stand.
118—138
9
an attorney entitled to these fees, the Village argues.
In
his
response brief Fredette cites decisions which have granted fees
to non—attorneys.
The Board’s lack of authority to grant
attorney’s fees absent specific statutory authorization is clear,
however.
Therefore,
the Board denies the request for such
relief.
RELIEF TO BE GRANTED
Because the Board entered default against the Village in
favor of Complainant Fredette, judgment was entered on each and
every count of Fredette’s Complaint in his favor.
As we have
stated previously, our examination of Fredette’s Complaint and
the Consent Decree shows that the violations complained of are
not identical.
The default judgment entered against the Village
by the Board contain far more instances of violation than either
alleged in the Will County Complaint or incorporated into the
Consent Decree.
The Board decides today that under the evidence
as presented it is appropriate to order the Village to cease and
desist from future violations of the Act and Board regulations.
Prior to addressing whether a penalty is appropriate in this
case the Board first turns to an additional measure of relief
requested by Complainant:
a performance bond (“escrow account”)
in the amount of $500,000 conditioned upon the operation of the
Village’s WWTP in accordance with the Act and Board regulations.
The Complainant also asks that the Village be charged $1,000 per
day for future violations from the fund.
The Board declines to require the Village to establish an
escrow account as envisioned by Complainant.
Future violations,
of course, would have to be adjudicated before the Board could
order the payment of a penalty.
The Board could not order
deductions from the fund,
based on a reported or alleged
violations.
Moreover, this money would have to be set aside by
the
Village
prior
to
the
establishment
that
a
violation
had
occurred.
In addition a performance bond is normally associated with a
clearly defined set of conditions.
The bond acts as a means of
assurance that these conditions will be complied with.
Here, the
Village has already made substantial improvement to their
wastewater treatment system.
The Village has committed to
detailed improvements and to compliance with the Act and Board
regulations.
We see little more assurance in a performance bond
than the Village has already given.
Future violations can be
brought to the Board’s attention through the enforcement process.
Therefore, the Board declines to impose a performance bond as a
part of the relief.
Section
33(c)
Factors
118—139
10
Section 33(c) provide the minimum factors which must be
considered in reaching a penalty assessment.
As we stated in our
Allen Barry decision, these will be considered by the Board in
each penalty determination to the extent relevant evidence
exists.
These factors affect the calculation of the penalty by
increasing or decreasing the penalty amount depending on whether
the statutory factor, when evaluated by the Board, weighs in
favor of a larger or smaller penalty within the range of
penalties derived pursuant to the first part of the penalty
evaluation.
IEPA v. Allen Barry, PCB 88—71
(May 10,
1990)
The statutory penalty criteria are:
*
All the facts and circumstances.
Section 33(c)
*
Character and degree of injury or interference.
Section 33(c)(l)
*
Social and economic value.
33(c)(2)
*
Suitability/unsuitability of pollution source to
its locale.
Section 33(c)(3)
*
Technical practicability and economic
reasonableness of pollution abatement.
Section
33(c) (5)
*
Economic benefits of non—compliance.
Section
33(c) (5)
*
Any subsequent compliance.
Section 33(c)(6)
Regarding Section 33(c)(l), the Village of Beecher
discharged effluents in excess of its NPDES permit limitations
for approximately
3 years.
These violations had a measurable
negative impact upon the receiving waters and therefore, support
imposition of a penalty.
Operation of the Village’s
WWTP
has a social and economic
value.
Section 33(c)
(2)
However, operation of the
WWTP
in a
manner which violates the Village’s NPDES permit diminishes this
utility.
Municipalities which comply with the effluent
limitations contained in their NPDES permits do contribute,
socially and economically, to the community.
Assessment of a
penalty is not expected to diminish the social and economic value
of the
WWTP
to the community.
Unlike a private employer, the
WWTP
cannot
terminate operation to either avoid payment or
because the payment threatens profitable operation.
Therefore,
the Board finds that its consideration of this factor does not
support reduction of the potential penalty.
118—140
11
The Board finds that suitability/unsuitability of locale is
not a consideration in this case.
(Section 33(c)(3))
The Board also finds that the technical practicability and
economic reasonableness of pollution control is not at issue
here.
The technology associated with the control of the named
effluents is well established.
The Village has not demonstrated
that these controls are economically infeasible.
Rather, the
Village has consented to make the changes to bring about
compliance.
The Board finds therefore, that
our
consideration of
Section 33(c)(4) supports imposition of a penalty.
The Village derived a certain economic benefit by its
delayed compliance with the conditions contained in its NPDES
permit.
(Section 33(c)(5))
For as long as the Village failed to
take those steps necessary to bring its operation into
compliance, the time value of the money necessary to undertake
those steps was saved.
Testimony from the Village placed
eventual construction costs at $688,000.00.
The time value of
avoiding this expense for
3 years of non—compliance is not
expressly revealed by the record.
However, even at the statutory
interest rate of 9
per annum,
considerable savings are amassed.
The Board finds that our consideration of this factor also
indicates a penalty should be assessed.
The issue of subsequent compliance is squarely before the
Board.
(Section 33(c) (6))
The Village has entered into a
consent agreement which mandates future compliance, sets
penalties if the Village does not comply with express effluent
limitations, and incorporates
a construction schedule for
improvements
(now completed)
to the Village WWTP.
The Board
believes that consideration of this factor supports a reduction
in any potential penalty.
Finally, the Board will consider the fact that the Village
of Beecher has paid a penalty of $6,600 for violations of the
NPDES permit issued the Village which were outlined in the Will
County Consent Decree.
These violations occurred within the game
general time period for which Fredette has been granted judgment
on the counts of his Complaint before the Board.~ The time
periods are not as extensive as those on which we have granted
judgment, however.
The Board finds,
therefore, that our
consideration of this factor warrants a set-off in our penalty
assessment for the $6,600 already paid by the Village of Beecher.
Integrating the various elements which suggest either the
imposition or non—imposition of penalty, the Board concludes
that,
separate and distinct from recouping the economic benefit
on non-compliance, and not taking into account the set—off which
the Village is entitled to by reason of the penalty assessed it
under the consent decree,
a penalty in the amount of $1,000 each
for violations of Sections 9(a),
12(a)
and 12(f) of the Act would
118—141
12
aid in the enforcement of the Act.
The Village also should incur
a penalty of $14,000 for its violation of fecal coliform, excess
flow,
total suspended solids and biological
oxygen
demand
which
exceeded permitted levels.
The total of the two measures is
$17,000.
Complainant’s evidence showed that if the full range of
penalties were assessed against the Village for each day of
violation for which judgment was entered, the total penalty would
amount to millions of dollars.
The Complainant stated at hearing
that the total penalty he was requesting was $7,000, however.The
Board does not consider itself bound by the complainant’s amended
request for monetary penalties in the amount of $7,000 just as it
was not bound by the original request that millions of dollars of
penalties be imposed.
The Board chooses not to impose a penalty
for
the
violations
concerning
reporting
requirement
or
best
management
practices.
Nor
does
the
Board
choose
to
impose,
in
this case, penalties for each continuing day of violation of the
NPDES permit limitations.
Accounting for all of the above,
and
applying the indicated set-off,
a penalty of $10,400 is
indicated.
This Opinion constitutes the Board’s findings of fact and
conclusions
of
law
in
this
matter.
ORDER
1.
The Respondent, Village of Beecher, has violated
Sections 9(a),
12(a)
and 12(f)
of the Illinois
Environmental Protection Act and 35 Ill.
Adm. Code
304.141 and 309.102(a).
2.
Within 30 days of the date of this Order the Respondent
shall, by certified check or money order payable to the
State of Illinois, pay the penalty of $10,400, which is
to
be
sent
to:
Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield,
Illinois
62708
The Village of Beecher shall also place its Federal
Employer
Identification
Number
upon
the
certified
check
or money order.
3.
The Village of Beecher is hereby ordered to cease and
desist
from
all
violations
of
the
Illinois
Environmental
Protection
Act
and
from
Board
regulations.
118—142
13
Section 41 of the Environmental Protection Act,
Ill. Rev.
Stat. 1989,
ch.
ill 1/2,
par.
1041, provides for appeal of final
Orders of the Board within 35 days.
The Rules of the Supreme
Court establish filing requirements.
IT IS SO ORDERED.
J.
D. Dumelle, B.Forcade and
3.
Theodore Meyer concurred.
I, Dorothy N.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify t at the above Opi
o
and Order was
adopted on the
,-2
day of ___________________________
l99lbyavoteof
___________.
~
~.
Dorothy M.~7Gunn,Clerk
Illinois Pollution Control Board
118—143
