ILLINOIS POLLUTION CONTROL BOARD

March 19,

1981

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

v.

)

PCB 80—112

PETER OCCHIPINTI,

Respondent.

MR. WILLIAM J.

BARZANO, JR., ASSISTANT ATTORNEY GENERAIJ, APPEARED

ON BEHALF OF THE COMPLAINANT.

MR. JAMES

K.

YOUNG, ATTORNEY AT LAW, APPEARED ON BEHALF OF THE

RESPONDENT.

OPINION AND ORDER OF THE BOARD

(by

I. Goodman):

This matter is before the Board on the June

2,

1980

complaint brought by the People of the State of Illinois

(The

People) alleging that Peter Ocehipinti

(Occhipinti)

submitted

inaccurate information in a permit application and constructed

certain sewer improvements in violation of the conditions of his

perr’iit.

Hearing was held in this matter on October 20,

1980,

which included testimony by area citizens.

The permit at issue in this matter,

No. 1978—HP—0531,

issued

to Occhipinti by the Illinois Environmental Protection Agency

(Agency)

on March

28,

1978 authorizes the construction and

operation of a sanitary sewer extension within the Village of

Lombard,

DuPage County, Illinois.

The permit required the

construction of three manholes and the placement of class bedding

(gravel cradle, type C)

under the entire length of the sanitary

sewer extension.

The People allege that Occhipinti constructed only two

rianholes instead of the required three, and failed to place the

required class bedding under a significant portion of the

extension, without notification to the Agency pursuant to both

the Board’s rules and the terms of Occhipinti’s permit.

More

importantly,

The People allege that Occhipinti made certain

misrepresentations in his application for the permit

in that he

indicated that the capacity of the downstream sewer system was

adequate to transport his proposed additional wasteload where in

fact it was not.

Thus The People allege violations of the

condition of the permit as well as Section 12(a) of the Illinois

Environmental Protection Act (Act).

41—81

---

Occhipinti responds that these changes

in construction were

done with the full knowledge of the Village of Lombard,

the owner

of the sewer system to which Occhipinti’s extension is tributary,

and that the Village had informed Occhipinti that

it

was not

necessary to submit revised plans to the Agency.

In addition,

Occhipinti alleges that an employee of the Village had stated

that

it was not necessary to place any gravel bedding under the

sewer extension.

The following day,

however, the Village

demanded that part of

the

extension be uncovered for inspection

of the bedding.

Occhipinti refused and stated that there was

no

bedding under a certain portion of the extension.

The Village

subsequently refused to service Ocohipinti’s extension until

sucb

time as Occhipinti uncovered the extension for it’s inspection

(Stip.3).

There are two issues before the Board in this matter.

The

first issue is whether Occhipinti misrepresented the capacity of

the downstream sewer system in his application for a permit,

thus

bringing into question the validity of the permit as issued.

The

second issue is whether Occhipinti violated the conditions of the

permit and the Board’s rules by constructing the extension in a

manner other than that authorized by the permit.

In regard to the issue of misrepresentation, Occhipinti

admits that he indicated to the Agency in the application that

the capacity of the downstream sewer system was adequate to

transport the proposed additional design wasteload to the

Village’s treatment works

(Tr.26),

In addition,

Occhipinti

indicated on the permit application that

a storm sewer was

provided,

although this is connected to the sanitary sewer at

a

point approximately 60 feet downstream from Occhipinti’s

extension.

In fact,

Exhibit 11 indicates that one ten—inch and

one twelve—inch storm sewer and three eight—inch sanitary sewers

all discharge into one twelve—inch sanitary sewer within a few

feet of Occhipinti’s sewer extension.

This single twelve—inch

sanitary sewer

thereafter runs

tributary to the Lombard Sewage

Treatment Plant.

Exhibits 5—9 are stipulated testimonies of four persons

who

reside immediately downstream,

and one person upstream,

of

Occhipinti’s sewer extension who are connected to the single

twelve—inch sanitary sewer which receives the combined discharges

of the aforementioned sewers (Exhibit 11).

The testimony of all

five witnesses is essentially the same.

All indicate they have

endured sewer backups

in

their basements since they moved

into

the area, the first incident occurring in 1972 and later

incidents continuing through 1977 unless standpipes had been

installed in the basements.

Subsequent to installation of

standpipes,

sewage was observed backing up into the pipes even

after 1978,

The majority of the problems occurred after rain

storms;

however, there are odor problems during dry weather

conditions.

41—82

---

The

Board

nrLe~

~bt

an

ordinary person could reasonably

expect

an

oven

~

I

n~

~

ackup

problem

where

thro’~ eight—inch

sewers,

a

te~‘nnd ~

~r, and a twelve—inch

sewer

all

discharge

into

a

singie

aci sewer.

However,

Occhipinti

is

not

merely

an orã

flci

~

~arsr~e,

hut rather a

contractor

assumedly

knowledgeable

~

~d

to sewers and their

capacities

(Resp.Br~i)

~n

e~denceof sewer backups

immediately

downstream

£

trti~sextension as far

back

as

1972,

nine years

ace,

~.

r ~

through the time

when

he

made

indications ac

~

~ty in his permit application.

()cchipinti

chose

not ~o e~

~tch of his proposed sewer layout to the

application

~

the Agency,

in order

to reduce the

time

of re~

Considers

i

~

evidence in the record, the

Board

concludes

that

~‘

a

rnisrepxesented

the condition of the

downstrean a~

jing the existence of sufficient

capacity

of th~

~

~ar~ sewer system to transport his proposed

additional

~

load to the treatment works

in

his

permit

application

Oc~

~iciargues that he had to answer “yes”

to

the permit ca~a~n~

~

~stion

in order to obtain the permit,

for

otherwise appii~n~

~not obtain permits.

This

is, of course,

precisely tic

~i

OccnLpinti not misrepresented the

condition or

t

~e

a

earn

sewer

he

would not have

received

a

permit

Occhipi~i

~j~e

~stoppcl”

against the Agency,

stating

that he went. ~iua

i

~

his construction project and expended a

great deal

oa

L

in reliance upon the permit issued by the

Agency.

Ha

~.

~t Occhipinti misrepresented a fact of

major matera~1

*

issiance of the permit,

the Board cannoL

accept

a pla~

apon a permit so obtained.

Occhipinti

argues that a

~3

a. o

esteppel against the ViU~

by the

Circuit Ca~

~o

an.

attempt by the Village

to

revoke Occhi~

~a di ~g permits should somehow also apply to

the

Agency

i~

~he permit,

The Board can find no

relevance beLa

~

~ci~ate

Court decree and this action.

It

is a tan

~t

)cchipinti

has

proceeded

with construcLion

of

the build.

~

or

1~r~orovementsduring the time period

between Marct

a

hen

~e obtained his Agency permit and

June

2,

19h30 ~

~

eople filed their complaint.

Occhipinti

has acquired

~)

;iortgage and

is

bound by contract for

work to instel~ ~t ir

a ~ccra, sanitary sewers,

street lights and

other improvene.ta

C

~c~ang about $80,000.

There is no question

that

this would ha

r reavy burden for Occhipinti to

endure

should

his

permit ha

th*9 late date,

On the other

hand,

there

are

ct~:

h

a

.~iahtsto a clean and healthy

environment ea~~cL~

‘

cc

to enjoyment of their

homes,

will

he

seriously

prej~oi

cc

ev~ry

time

it rains due, in part,

to

Occhipinti~s

misnepresentation

on his permit application.

In

foro

~

~

remedy the Board has attempted to correct

the

adverse

~

~

on

the

sewer system caused by Occhipinti’s

41—R3

---

misrepresentation without

the necessity

of revoking his permit.

The Board

will, therefore, order Occhipinti to make

certain

modifications

to his sanitary and storm sewage systems, including

installation

of holding tanks

to

store the

wastewater

from

the

buildings

during rain storms for later discharge to

the

sewer

system,

installation of water—saving devices

in the

buildings

to

reduce

the wastewater flow, and disconnection of any

roof

drain

downcomers

to the storm sewer

system.

The

Board

shall

order

Occhipinti’s

permit stayed until

such time

as

he

complies

with

the Board

Order

herein.

With respect to the second issue,

that of the unannounced

change

in the design of the sewer extension,

the parties have

filed

and later revised a Stipulation of Fact and

Suggested

Relief which calls

for Occhipinti to post a

performance

bond

to

cover

the

replacement cost of the sewer

extension

for

a

period

of

ten years.

The terms of the bond call for Occhipinti

to

correct

any malfunction

that might occur due to the design

change

within

thirty

days

of notice of such malfunction,

The

stipulated

amount

of

the

proposed

performance bond

is $3,000.

Should

this

amount

be insufficient

to cover all necessary

expenses

to

adequately

correct any

malfunctions,

Occhipinti

shall reimburse

the Agency

for all such

expenses

so incurred.

This approach

is

found

to

be

the

most

reasonable method to protect

the environment without

placing

undue

hardships on any party or

person,

In determining

the

relief

necessary for the violations

found in this

case

the

Board has

taken

into consideration all the facts and

circumstances

in light of the specific criteria delineated in

Section

33(c)

of the Act.

The Board,

therefore,

accepts

the

proposed

stipulation as a suitable remedy for this violation.

This

Opinion constitutes the findings of fact and

conclusions

of law of the Board

in this matter.

ORDER

It

is

the

Order of the

Illinois

Pollution Control

Board

that:

1.

Peter Occhipinti

is

found to be

in

violation of the the

conditions

of Permit No,

1978-HB-0531 issued by the Illinois

Environmental

Protection Agency on March 28,

1978 and of Section

12(a)

of the Illinois

Environmental Protection Act.

2.

Peter

Occhipinti

shall install one or more

holding

tanks

in the sanitary sewer

line receiving discharge

from his subdivision

of a design and

capacity to he determined

by the Illinois

Environmental

Protection Agency so as to restrict

flow to the

sanitary

sewer system

of the Village of

Lombard during

rainstorms.

3.

Peter Occhipinti shall

install water—saving

devices

in

his

subdivision

to reduce as much as possible the

sanitary

flow

therefrom.

4 1—84

---

4.

Peter

Occhipinti

shall

disconnect

alL

roof

drain

downcomers,

if

any,

from

the

stormwater

sewn:

s”se~n

of

the

Village of Lombard.

5.

Peter

Occhipinti

shall

comply

with

aLl

the

Lermr. and

conditions of the Stipulation

of Fact and Suggested

r~e1.ief: CiTed

on

October

31,

1980,

as

moclLdied by the Noticu

of Agreed

Upon

Amount

of

Performance

Bond

filed

on

November

26,

1980,

which

is

incorporated

by

reference

as

if

fully

set

forth

herein.

6.

Permit

No.

1978—HB—0531

issued

by

the

Illinois

Environmental Protection Agency on

March

28,

1978

to Peter

Occhipinti

is hereby stayed

with

respect:

to

discharges

to

the

Village of Lombard’s sewer

system until

such time

as Paragraphs

2,

3,

4 and

5 above have been executed.

7.

The Board

shall retain jurisdiction in

this

matter.

Mrs.

Anderson and Mr. Werner concurred.

I,

Christan

L.

Moffett,

Clerk of the Illinois Pollution

Control

Board, hereby certify that the above Opinion and Order

were adopted on the /i1~ day of

~

1981 by a vote

of

~

Christan

L.

Moffet ,/Clerk

Illinois

Pollution

~ontrol

Board

41—85