ILLINOIS POLLUTION CONTROL BOARD
    May 14,
    1981
    PEOPLE OF THE STATE OF ILLINOIS,
    )
    )
    Petitioner,
    v.
    )
    PCB 80—112
    PETER OCCHIPINTI,
    Respondent.
    ORDER OF THE BOARD
    (by I. Goodman):
    On April
    17, 1981 Respondent moved the Board to delete Para-
    graph
    2 of its Order of March 19, 1981,
    citing several arguments.
    On April
    23, 1981, Complainant responded and moved the Board to
    clarify its Opinion of March 19,
    1981 with respect to the term
    misrepresented”.
    Paragraph
    2 of the Order, which directs Respondent
    to install
    holding tanks of a design and capacity to be determined by the
    Illinois Environmental Protection Agency, was imposed in balancing
    the financial burden of the Respondent with the constitutional and
    other rights of affected citizens to a healthy environment pursuant
    to S33 of the Illinois Environmental Protection Act (Act).
    The
    paragraph has the further effect of mitigating against the Board’s
    revocation of Respondent’s permit.
    Respondent cites an inability to install the tanks due to
    the
    Village of Lombard’s alleged refusal to approve their installation.
    These holding tanks will not only minimize backups to neighboring
    homes, but decrease wet weather load on the Village’s treatment
    plant.
    Although Respondent disputes the Board’s finding that an
    ordinary person could reasonably expect an overload and backup
    problem under the facts of this case, alleging the finding to be
    inconsistent with reasonable engineering criteria, the finding
    was not solely based on technical evidence, but included the
    common sense recognition that a 12—inch pipe may not flow freely
    at all times when many pipes connect to it, one of which
    is of the
    same 12-inch diameter.
    The Board agrees with Complainant that
    Respondent’s exhibits to its motion were improperly appended;
    such
    evidence was not a part of the record in this proceeding and is
    therefore immaterial and irrelevant to the Board’s Opinion of March
    19,
    1981.
    As to the Order, however,
    the Board accepts the exhibits
    as evidence of the feasibility of complying with Paragraph 2.
    Although the Board denies Respondent’s motion to delete Para-
    graph
    2 of its Order, it will amend that Paragraph to allow
    Respondent to,
    in lieu of installing holding tanks, timely submit
    to Complainant
    a plan,
    to the complete satisfaction of Complainant,
    41—407
    —2—
    to reduce the pollution.
    However, the instant matter
    is an enforce-
    ment action and not a grant of variance.
    Further delay
    in cleani~q
    up the pollution is not warranted,
    and the Board will set
    a deadiin~
    for the submission of an alternative plan.
    Respondent’s other arguments are of no merit; that the cost
    of the holding tanks cannot justify their benefits was not under
    consideration in the record of this enforcement case, and reliance
    upon a previous permit is immaterial to the duty to make true
    sLi~
    ments of fact in permit applications.
    The Board declines to require of Respondent
    a performance band
    and also declines to revoke the permit pursuant to §33 of the
    )\c~:.
    As to the Agency’s concern with the Board’s use of the term
    “misrepresented,” the Board need not make, and did not here,
    a
    finding as to state of mind,
    as state of mind is immaterial to
    a
    finding of whether facts
    in a permit application are true.
    The
    Agency itself had pleaded the irrelevancy of intent to the issue
    of whether the permit should be revoked (People’s Reply Brief, p.5).
    If the meaning of the term in the phrase “Occhipinti misrepresented
    the condition of the downstream sewers
    ...
    in his permit application”
    is “unclear from a reading of the Opinion,” since one might chonso
    to “infer that the Board interpreted the term
    ...
    to include so~~c
    state of mind accompanying Occhipinti’s act of submitting incorrert
    information in his permit application,” the Board cites the
    Agenc’~’
    to Webster’s Dictionary and not tort law principles.
    The Agency’s final plea to clarify the elements of a j~ima
    facie case for the Board’s revocation of Respondent’s permit is
    answered by reference to §33 of the Act which calls for the Boar’-l’~
    consideration of a number of facts in finding violations and in
    drafting its Orders.
    It is the Order of the Illinois Pollution Control Board that
    Paragraph
    2 of the Order of March 19,
    1981 he amended to read as
    follows:
    2.
    Peter Occhipinti
    shall
    install one or more holding tanks
    of
    a design and capacity to be determined by the Illinois Environ-
    mental Protection Agency so as to restrict flow to the sanitary
    sewer system of the Village of Lombard during rainstorms.
    In the
    alternative, Peter Occhipinti shall
    submit an alternadve plan for
    the same purpose to the Illinois Environmental Protection Agency
    on or before July 17,
    1981 and shall abide by the Agency’s
    determination regarding said plan.
    I, Christan
    L. Moffett,
    Clerk of the Illinois Pollution Co~itr-l
    Board, hereby certify that the above Order was adopted on the
    /t/~’
    day of
    _________,
    1981 by a vote of
    ~-C~
    ‘.
    Christan
    L.
    Mdffett, Clerk
    Illinois Pollution Control Board
    41—408

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