ILLINOIS POLLUTION CONTROL BOARD
February 25, 1988
BILL ADEN, JOHN SCHRODER,
VELMA SCHRODER, JOE KENDALL,
LAMORN MORRIS, et al.,
Complainants,
V.
)
PCB 86—193
CITY OF FREEPORT,
)
Respondent.
JAMES L. GITZ AND SIDNEY MARGOLIS APPEARED ON BEHALF OF
COMPLAINANTS OTHER THAN BILL ADEN AND JOE KENDALL, WHO APPEARED
PRO SE.
JOHN GARRITY APPEARED ON BEHALF OF THE RESPONDENT.
OPINION AND INTERIM ORDER OF THE BOARD (by J. Marlin):
This matter comes before the Board on a November 5, 1986
Complaint filed by Bill Aden, John Schroder, Lamorn Morris, et
al. (Complainants) against the City of Freeport (Freeport). The
Complainants allege that Freeport is in violation of 35 Ill. Adin.
Code 306.102, Systems Reliability, 306.303, Excess Infiltration,
and 306.304, Overflows, due to the poor operation of its sanitary
sewer system. A hearing was held in this matter on June 23, 1987
in Freeport; members of the public were in attendance. Post
hearing briefs for Freeport and the Complainants were filed on
August 17 and 18, 1987, respectively.
At hearing, the Complainants appeared pro Se. Subsequent to
the hearing, Complainants other than Bill Aden and Joe Kendall
procured the services of an attorney. Counsel filed a post—
hearing brief for those particular complaints. Aden and Kendall
filed no post—hearing brief of their own. For the purposes of
clarity, the Board will make no distinction between Aden and
Kendall and the rest of the Complainants and will refer to all as
Complainants.
At hearing, twenty persons testified on behalf of the
Complainants. Also, much material, including many photographs,
were entered as Complainant’s exhibits. It is clear from the
testimony that there are severe problems with the functioning of
Freeport’s sanitary sewer system. Numerous eyewitness accounts
of sanitary sewer overflows, basements and streets flooding with
sewage, and resulting property damage were told at hearing. It
is also apparent that such sanitary sewer flooding is not
confined to a discrete portion of Freeport. In order to aid in
explaining the extent of the problem, the Board will review some
of the testimony presented at hearing.
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Bill Aden testified that he started to get sanitary sewer
flooding in his basement about six or seven years ago. (R. 8).
F~e claims that Freeport has been unresponsive to his
complaints. He insists that the basement back up is not storm
water but sanitary sewer water:
And when we get the t———s floating around on
the floor that comes out of the sewer, now,
if that ain’t sanitary, I know I didn’t get
over in the corner and do it.
(R. 11).
Aden lives in the “south middle” part of Freeport. Id.
Nickee Bender testified that her problems with sanitary
sewer flooding date back to 1965. At that time a back—up damaged
$3,000 worth of equipment in the beauty salon which she ran out
of her basement. “It came up the drain, the stools, it was
really a mess.” (R. 15). She claimed that the problems have
continued and that the sanitary sewer backs up about two times
per year. Bender stated that storm water infiltration into the
sanitary sewer system causes the back ups. (R. 22). Also, she
asserted that whenever the sewers near the intersection of Hunt
and Elm Streets back up, Freeport deliberately pumps raw sewage
onto the street to help alleviate the problem. She stated that
such a practice had been occuring since 1970. (R. 23). Bender
lives in the northwest part of Freeport. (R. 21).
James Oswalt testified that he had twice experienced
sanitary sewer back—ups in the seven or eight years he lived on
the southeast side of Freeport. He said that the water “comes
out in the drain and right out of my stool in the basement.” The
flood ruined the carpeting in his finished basement. (R. 25—26).
Joe Kendall testified that he first experienced a problem in
1982. At that time, he didn’t know what caused the flooding.
The most recent incident occurred in July 1986:
I woke up one morning, went down to my
freezer to get something down in the
basenient...when I did, I stepped into sewage
up to my ankles....
(R. 28).
A neighbor had a similar problem at the time. When plumbers
could not remedy the problem, they “checked in the middle of
Cherry and Clark Street, and it was the sewer that was backing
up....” According to Kendall, “they presumably the City had
someone there 24 hours a day for a week...pumping the sewage
out....Otherwise, I guess we would have gotten it back into our
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basements.” (R. 29). Kendall also testified that a sinkhole
formed in the street just after the pumping began. (R. 31).
Lorraine Kendall also testified that the Kendall’s had had
“numerous back—ups” in their basement. She stated that on
September 24, 1986, she experienced knee—deep water in the
basement. She stated, “We had put a tennis ball in the drain,
but it popped out.” (R. 31). Kendall claims that all of their
neighbors experience sewage back—ups. (R. 32). The Kendalls live
near the center of Freeport. (R. 33).
Walter Meinder stated that he has been “fighting water” for
the eight or nine years he has lived in his home. He testified
that just a few days previous to the hearing he experienced a
backup which flooded the basement up to the “fourth step”. He
claimed that his renter, who lived downstairs, moved out because
of the smell. According to Meinder:
It the flood ~has been up to the first floor
of the house, that is probably five to six
feet from the basement floor up, and I have a
body shop and it has ruined several cars, all
my equipment, it has cost me a big bundle
every time it happens.
(R. 39).
Sharon Brie, a neighbor of Men, stated that four times in
the last five years she experienced 6 ~/2feet of “water” in her
basement. Brie later spoke of 6 1/2 feet of sewage water. She
claims that the northwest wall of the basement has collapsed a
bjt and that the foundation and kitchen walls are cracked. In
addition, she stated that much of her family’s personal property
has been ruined. She estimated a loss of $2,500 for each
incident. (R. 40—41).
Russell Petra lives in the Crestwood area which is in the
northwest portion of Freeport. (R. 47). Petra expressed his
frustration with Freeport officials:
They keep trying to tell us it is
stormwater. Well, there are thirteen homes
out there that keep getting flooded everytime
we get a small rain or anything, and it is
human s——— floating around the floors.
(R. 45).
Joyce Veer, another Freeport resident, living in the
northwest part of the city, testified as follows:
We have had this problem sanitary sewer
flooding of the basement ever since they put
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the sewer in out there. It is not every
year. Sometimes you will miss a couple of
years, then again you will get it two or
three times in one year.
We have lost some stuff, but we have learned
after the first couple of times don’t put
anything down in the basement that you don’t
want to lose.
If I can find a way to get the furnace and
water heater out of there, I would.
A lot of our problem is right with the
pumping station itself because sometimes we
don’t have to have a lot of rain and the
water still backs up in the basement.
(R. 52—53).
Nick! Martin, a former Freeport alderman, recounted
incidences of flooding in her ward.
I would just like to state that last year I
was called on three different occasions to
come view the situation following various
amounts of rainfall.
I believe the first time I was called there
was about an inch of rainfall, but it fell in
a very short period of time.
What I observed was, in three different
basements in June, I observed
——
June of ‘86,
sewer backup in the basements.
When the rain hit in September, I was called
down there and couldn’t even get into the
area because the water was over my waist, and
I had to go back out and come in the other
way. At that time I observed eight homes
where the water was up to the first floor,
and it was filled with sewer water.
I observed
-—
I stayed and waited until the
water receded, so that the city began pumping
the sanitary sewer about one o’clock in the
morning, and then I believe I stopped after
work at 5:30 the following day and it was
about fifteen hours later and they were still
pumping out the sanitary sewer.
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5
I was also concerned because on another
occasion, Mr. Aden did call me to come down
late in the afternoon. We took the manhole
cover off of one of the sanitary sewers. It
was running at full capacity at four o’clock
in the afternoon on a very sunny day.
It just seemed to me at that point that there
was something drastically wrong in that
particular area that needed to be corrected.
(R. 56—68).
Pat Bores, also a neighbor of Aden, testified that in
September 1986, her basement was flooded with 4 1/2 feet of
sewage. According to Bores testimony, her family lost “about
$2000 worth of furniture, appliances, personal items, Christmas
ornaments.” (R. 72).
Another Northwest-side resident, Paula Schwartz stated:
Every time we have a bad rain, and our home
is approximately fourteen years old, we get
sewage, they pump sewage out in the street
down into the gutter because the lift station
can’t handle it.
(R. 73).
Lloyd Eller lives across the street from Schwartz. He
testified:
Every time we get a serious rain we get a
flooding problem as well as sewer backup, and
countless times at the pump station, which is
just a hundred yards from my back door, they
are over there and they are pumping it out.
They are pumping it out onto the lawn and
there are kids that play in it around that
area, also.
Eller stated that he believed that the problem was a storm water
as well as sewer water problem. He further asserted: (R. 75)
They presumably Freeport put in a real
fancy holding pond for the storm sewer to
keep the problem away. And right where I am
there is a river of water that comes down
through there. I am talking a river. It is
wider than the Pecatonica!
(R. 77).
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Eller also described the property damage he has incurred:
When I lost my basement due to the flooding
and the sewer backup, I lost my entire
plumbing in the house, the entire electric in
the house, my boiler in the house, my water
heater, everything that was in the
basement. The stairs had to be tore sic
out.
(R. 75—76).
Lee Robinson is an alderman for the ward which covers the
west end of Freeport. He stated at hearing.
As I visited with my constituents in the
Second Ward, either through telephone calls
or through personal conversations, I found
that sewer complaints are the number one
concern of the citizens in this immediate
area.
I have also visited the homes of citizens in
my area who have been plagued by sewer
problems, and I have personally witnessed the
flooding of the basements.
Frankly, there was no question in my mind
that this was caused by sanitary sewer
backup, simply due to the nature of the
substances found in the water.
(R. 80—81).
Margie Heilman stated that in the eleven years at her
residence, she has experienced sewage water back—ups in her
basement at least five times. According to Heilman, these back-
ups caused much damage. (R. 83).
Apparently, Freeport does not challenge the validity of the
stories of the Complainants’ witnesses. Rather, Freeport
attempts to characterize the sanitary sewer floods as relatively
infrequent occurrences:
The witnesses for the complainants testified
that from time to time in the past several
years they had experienced sanitary sewer
backup in their homes.
The evidence
indicated that the backups of the sanitary
sewer occurred during periods of heavy
rainfall. Surface water flooding resulted in
sanitary sewer backups.
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(Freeport Brief, p. 3).
Freeport also asserts that its records show receiving only “few”
complaints regarding sanitary sewer backups during the years 1985
through 1987. (Id.; See also City Exh. #3).
Kim Roes, executive director of the Water and Sewer
Commission for Freeport, testified on behalf of Freeport. He
stated that Freeport has approximately 102 miles of sanitary
sewers. (R. 135). He admitted that Freeport, at times, pumps
sanitary sewer water into the storm sewers in an effort to keep
the sanitary sewers from backing up into people’s basements. (R.
139). However, Rees claims that the sewage during periods of
rain is 99 percent water (R. 13). Rees also testified that
Freeport had an infiltration and inflow problem which the city is
trying to address through the work of its engineering
consultants, Missman, Stanley & Associates. (R. 140). He stated
that when the Pecatonica River is high, it infiltrates into the
sanitary sewers (R. 144). Rees also spoke of problems concerning
the Lynn Street lift station which impacts upon the Hunt street
area. Rees stated that a Missman, Stanley & Associates’ report
that the Lynn Street lift station “cannot handle the extra flows
during rains.” (R. 138).
Freeport presented as City Exhibits #19 and #25 two reports
authored by Missman, Stanley & Associates. The first is dated
February 1987 and is entitled Interim Preliminary Finding. (City
Exh. #19). The second is dated March 1987 and is entitled
Preliminary Findings. (City Exh. #25). The March report is a
final version of the February report (R. 156).
The March report covers the whole sanitary sewer system
tributary to Freeport’s treatment works. However, special
attention was given to the Hunt Avenue and Homer Street areas.
(City Exh. #25, p. 1).
The Missman Report concludes:
1. The sanitary sewer system is subject to excessive inflow
and infiltration (river water intrusion).
2. Surcharging is common to many portions of the sewers.
The hydraulic capacity of the sewer system is exceeded
during significant rainfall events and, at times, causes
surcharging of the sewers with sewage back—up.
3. The basement flooding and sewer back—up problems are
compounded upon occasion when the capacity of the
surface drainage system is exceeded.
4. A combination of improvements to the surface drainage
system and to the sanitary sewer system including
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sanitary sewer rehabilitation may have to be
accomplished before basement flooding or sewer back up
can be relieved.
(City Exh. #25, p. 40).
Evidence presented by the Complainants, as well as Freeport,
indicates that there exists a long—time problem with the
functioning of the sanitary sewers throughout much of the city.
Freeport points to the various projects it has undertaken since
1979 to correct problems with its sewers. (City Exh. #6—9).
However, Freeport evidently recognizes the need for further
improvements on the sewer system, since it is willing to move
forward with further work on the sanitary sewers provided funds
are available. (R. 109).
Section 31(c) of the Illinois Environmental Protection Act
(Act) provides that the burden of proof of violation is on the
complainant. Once the complainant makes this proof, “the burden
shall be on the respondent to show that compliance with the
Board’s regulations would impose an arbitrary or unreasonable
hardship.” Freeport has not made such a claim, and it has not
presented evidence to the Board that would prove such claim.
The Board notes that Freeport points out that one of the
Complainants’ residences, that of Lamorn Morris, is not hooked up
to the Freeport sanitary sewer system. Section 31 of the Act
provides that “amy person” may file a complaint before the
Board. That person does not necessarily have to be a victim of a
violation. Also, Morris’ testimony concerned other people’s
back—ups, not his own. Nonetheless, there is much testimony,
outside of that of Lamorn Morris, which indicates serious
problems with Freeport’s sanitary sewers.
In 1986, an allegation of sanitary sewer overflows prompted
the Illinois Environmental Protection Agency (Agency) to send to
Freeport a letter, pursuant to Section 31(d) of the Act,
informing Freeport that the Agency intended to file an
enforcement action. (City Exhibit, #13). The Agency never filed
an enforcement action.
In February 1987, Freeport submitted to the Agency the
interim study which had earlier been requested by the Agency
during negotiations with Freeport. (City Exhibit #19). The
February study included a recommendation that Freeport conduct a
Sewer System Evaluation Study (SSES). After reviewing the
February study, the Agency asserted in a letter to Freeport that
the “recommended implementation schedule appears to be
appropriate for the pursuit of the cost effective alternative.”
Specifically, the Agency stated “SSES work appears to be
appropriately scheduled in this report to provide necessary
information to adequately design relief work to match inflow
removal work.” (City Exhibit #20).
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In that same letter, the Agency stated:
The method of financing the proposed work should
be submitted as part of this report. We would
like to see a verification that the City fully
intends to finance and complete the project.
Freeport, through its Water and Sewer Commission, responded in a
letter dated May 29, 1987:
Tihe Water arid Sewer Commission has decided to
proceed with the Sewer System Evaluation Survey
after we are given the green light by our State
Representative Mulcahey and all of the Build
Illinois) grant funds that will be available for
this project get the needed legislative approval.
(City Exhibit #21)
Kim Rees also reiterated that position at hearing. (R. 108).
By its Order of September 4, 1987, the Board granted
Complainants’ motion to enter into the record a letter, dated
August 11, 1987, from State Representative Richard T. Mulcahey to
the Board. This letter further explains the situation concerning
Build Illinois funds as well as overall sewage problem.
(Complainants’ Exh. A). The letter states:
The City’s witnesses at that hearing were Kim
Rees, Director of the Water & Sewer
Commission for Freeport, and Robert Dunning,
an engineer with Missman, Stanley &
Associates of Rockford, Illinois who
conducted a city sewer study. Both of these
gentlmen testified to the city’s plans for
possible sewer improvement to benefit long
suffering Freeport residents who have
experienced continuing sewer backup
problems. Both gentlemen also alleged that
these improvements would be paid for by state
grants and/or appropriated state funds.
This is our hope and objective; however, at
this moment this is not a reality. I have
been actively working with state agencies in
pursuing grant monies.
Likewise, I
introduced legislation to appropriate funds
to the City for the needed sewer
improvements. However, that bill was held in
committee. As you can appreciate, these are
tough times financially for the State of
Illinois.
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In weighing the evidence against the City, I
hope and trust that the search for state
grant monies and state help will not be
utilized as an excuse or a defense to avoid
responsibility for immediate remedial
measures should violations of the rules and
regulations be found.
***
I have been a member of the Illinois General
Assembly for over thirteen years and have
developed an understanding of the basic needs
of my constituency. The severity of these
antiquated and unhealthy conditions is
unprecedented.
The residential problems that exist on Homer,
Hunt, and Shawnee Streets as well as on the
east side of Freeport have reached an
epidemic stage arid should have been addressed
long ago.
The health arid welfare of the residents
continues to be ignored. Subjecting these
people to primitive sewer conditions through
years of neglect must be addressed by the
municipality which created the problem.
(Complainants’ Exh. p. 1—2)
The Board gave Freeport an opportunity for cross—examination
concerning the letter’s contents by directing the Hearing Officer
to schedule a second hearing. (Order, September 4, 1987).
However, Freeport subsequently informed the Board that it waived
its right to the cross—examination of Representative Mulcahey
with regard to the information contained in the letter. Freeport
also requested that a second hearing not be scheduled. As a
result, the Board found a second hearing to be unnecessary.
(Order, October 1, 1987). Finally, the Board notes that Section
32 of the Act states that in an enforcement case “any person may
submit written statements to the Board in connection with the
subject thereof.” Ill. Rev. Stat. 1985, ch. 111 1/2
,
par. 1032.
Representative Mulcahey’s letter is one such statement.
In reviewing the record of an enforcement proceeding, the
Board must consider the factors set forth by Section 33(c) of the
Act. The burden of proof is on the respondent to supply the
Board with information in order to enable the Board to make such
a consideration. Processing and Books, Inc. v. Pollution Control
Board, 64 Ill. 2d 68, 76—77, 351 N.E.2d 865 (1976); Castellari v.
Prior, PCB 86—79 (May 29, 1987).
86—330
11
Sanitary sewer back—ups and floods have greatly interfered
with the lives of many of Freeport’s residents. Much private
property has been damaged over the years by the back—ups. On a
periodic, but regular, basis the back—ups have rendered
basements, yards, and streets completely unsanitary. Such
conditions certainly threaten the public’s health and general
welfare.
The pollution source in this instance, is the sanitary sewer
system. When functioning properly, sanitary sewers have great
economic and social value. However, when a sewer system
malfunctions in a manner such as Freeport’s, such value is lost
to those who experience the malfunctioning first hand.
With regard to the suitability of the location of the
pollution source, it is imperative that sanitary sewers function
properly due to their inherent close proximity to the residential
environment.
Finally, the Board must consider the “technical
practicability and economic reasonableness” of eliminating the
pollution problem. There is no evidence to suggest that the
solution to Freeport’s sewer problem is technically not
practicable. Similarly, there is no basis for the Board to
conclude that the cost of this solution is “unreasonable.”
Although a $20 million estimate was mentioned at hearing,
Dunning, a Missman engineer, stated that it was premature to
estimate a cost for rehabilitation work for the whole city. (R.
158). Dunning, though, did testify that Rock Island, a city of
similar size and with similar problems4 incurred a $2 million
expense for a complete rehabilitation.~ (R. 159—160). According
to the Missman Report, a total cost for studies and
rehabilitation (including transportation and treatment costs) of
the Hunt Avenue, Homer Street arid Downtown Districts amounts to
approximately $1 million. (City Exh. #25, p. 39).
In conclusion, the Board finds that Freeport has violated
Sections 306.102(a), 306.303 and 306.304.
Section 306.102(a), Systems Reliability, provides in part
that “All treatment works and associated facilities shall be so
constructed and operated as to minimize violations of applicable
standards during such contingencies as flooding, adverse
weather....” The record is clear that sanitary sewer back—ups
and overflows occur in Freeport during rainy conditions.
1 The Board notes that the Illinois highway map indicates that
Rock Island’s population is considerably largers, almost by a
factor of two, than Freeport’s population.
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Section 306.303, Excess Infiltration, states:
Excess infiltration into sewers shall be
eliminated, and the maximum practicable flow
shall be conveyed to treatment facilities.
Finally, Section 306.304, Overflows, states, “Overflows from
sanitary sewers are expressly prohibited.” The record is filled
with accounts of sanitary sewer overflows. The record
demonstrates that much of the infiltration now occurring in
Freeport’s sanitary sewers can be eliminated and overflows
prevented.
Unfortunately, the record is not detailed as to the specific
types of improvements that are necessary to rectify the overflow
problems throughout Freeport. The Missman Report recommended
that a Sewer System Evaluation Survey be conducted for the
city. Knowledge of needed improvements might not be gained until
after the results of the SSES are known. Nonetheless, the
Missman Report outlines a plan which would complete city—wide
rehabilitation by October 31, 1990. (City Exh. #25, p. 41).
The problems with the system are complex and influenced by
sanitary and storm sewer flows, surface water runoff and river
stages. Some problems may be beyond Freeport’s control due to
the location of residences in relation to the floodplain. The
Board realizes that all of the problems in the system cannot be
addressed at once given the current information base. However,
it is apparent that substantial progress could be made in the
short term. A number of cost effective actions that could be
undertaken without much study include disconnecting downspouts
from-sanitary or combined sewers and doing some work on
manholes. Freeport can implement programs to require retention
of storm water at related businesses to reduce the peak flows of
surface water.
Freeport and the Agency have been discussing solutions to
the problems. The Board will at this time largely defer to
Freeport and the Agency regarding the details addressing the
sewer problems. Freeport is expected to immediately take steps
that will lead to compliance. Emphasis should go to the most
serious problems which appear to be in the Homer and Hunt areas.
Freeport is required by today’s Interim Order to proceed
without regard to the availability of State or Federal Funds.
Health and environmental threats demonstrated by the record in
this case demand such action. The record indicates that the City
has failed to adequately address its sewer problems for many
years while encouraging developments that add to both surface and
sewer flows. In essence, Freeport has long deferred expenditures
on the sewer system. Freeport should be aware of Section 46 of
the Act regarding financing such work.
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Failure to make progress in addressing the problems could
lead to penalties against Freeport and the possible imposition of
restricted status to prevent additional residential or commercial
hookups to the sewer system.
The Board will retain jurisdiction in this matter and order
that Freeport submit its plan for compliance with Board
regulations. The plan shall outline anticipated steps, with
associated dates for completion, which will lead to the
rehabilitation of Freeport’s sewer system. The Board will
require that Freeport achieve substantial compliance by October
31, 1990. The Board will order Freeport to provide its
compliance plan to the Agency, the Board and Complainants by May
2, 1988. Given that the preliminary Missman Report has been
available since March of 1987, this requirement is viewed as
reasonable. Freeport at this juncture has considerable freedom
to choose a mixture of options to come into compliance. For
example, the cost effectiveness of disconnecting certain illegal
hookups can be balanced against using funds to work on the main
sewer lines. The Complainants and Agency may comment upon the
plan after it is filed wih the Board. This action today is
consistent with previous sanitary sewer enforcement cases brought
by citizen complainants. See Cupp v. South Palos Township
Sanitary District, PCB 83—104, 58 PCB 223 (May 29, 1984), Daun v.
Village of Roselle, PCB 80—17, 40 PCB 45 (December 4, 1980).
INTERIM ORDER
It is the Order of the Pollution Control Board (Board) that:
1. The City of Freeport (Freeport) has violated 35 Ill. Mm.
Code 306.102(a), 306.303, 306.304.
2. By May 2, 1988, Freeport shall submit to the Board, the
Illinois Environmental Protection Agency (Agency), and
Complainants a plan for compliance with 35 Ill. Mm. Code
306.102, 306.303, and 306.304. At a minimum, this plan shall
include a schedule detailing steps, with corresponding dates,
that must be taken in order to achieve compliance.
Compliance shall be achieved no later than October 31, 1990.
3. Within 30 days after the filing of Freeport’s compliance
plan, the Agency and Complainants may file comments
concerning the plan.
4. The Board will retain jurisdiction in this matter.
IT IS SO ORDERED.
J.T. Meyer concurred.
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Interim Order
was adopted on the ~‘4~rZ. day of ~
,
1988, by a
vote of
7-i~
Dorothy M. Gónn, Clerk
Illinois Pollution Control Board
86—334
