~1~OIS
POLLUTION
CONTROL
BOARD
December
20,
1977
ENVIRONMENTAL PROTECTION AGENC~,
Compiainar~~,
V.
)
PCB 77—123
PAUL STARCHEVICH, JR., MILDRED L.
STARCHEVICH, FOUR NINE FOUR
CORPORATION,
a Missouri Corporation,
and PAUL’S IGA FOOD-LINER,
INC.,
an
Illinois Corporation,
Respondents.
-
and
-
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
v.
)
PCB
77—148
CC~SOLIDATED
PAUL STARCHEVICH,
JR., MILDRED L.
STARCHEVICH and ELEANOR LEEPER,
)
Respondents.
JOHN VAN VRANKEN, ASSISTANT ATTORNEY GENERAL, APPEARED ON BEHALF
OF
COMPLAINANT;
GARY E. BARNHART OF CLAUDON, ELSON, LLOYD
& BARNHART, LTD.,
APPEARED
ON BEHALF OF RESPONDENTS PAUL STARCHEVICH JR., MILDRED L.
STARCHEVICH, ELEANOR LEEPER, AND PAUL’S TCA FOOD-LINER,
INC.;
RONALD WEBER OF FROEHLING,
TAYLOR
& WEBER APPEARED ON BEHALF OF
RESPONDENT FOUR NINE FOUR CORPORATION.
OPINION AND ORDER OF THE BOARD
(by Mr. Goodman):
This matter comes before the Board upon two Complaints filed
by the Environmental Prote~tionAgency
(Agency).
PCB 77-123,
filed May 2,
1977,
charges Paul Starchevich,
Jr., Mildred
L.
Starchevich and Four Nine Four Corporation
(Four Nine Four) with
28
—
457
violations of Rules
9
‘i
952(a)
953(a)
of
Pollution and Section
~i:
of the Environment
(Act).
The Complaint was anerded on
August
9,
IGA Food-liner,
Incorporat.
I
..
s,
Inc.)
as
PCB
77—148,
filed
June
2,
197i
-
rges
Paul
S
Mildred
L.
Starchevich
and
Ele
Leeper with
of
Chapter
3 and the Act,
A
I
g was held
At the hearing,
a motion
wh.L.
was
brough
consolidate these actions was gran
ed by the
H
(R.5
&
6).
Under
Procedural
Ruie
09,
only
th
to consolidate adjudicative claimn
Therefore
Board
grants
the
motion
and
consoL~dates
PCB
7
for
decision.
Respondents
Starche~±ch,
Leeper,
motion
to
dismiss
is
hereby
denied
(R.74).
A request for Admission of icts
was
made
Starchevich and Four Nine Four
~
Respondents
June
1,
1977.
Four Nine
Four
d to file a
Board.
Pursuant to Procedural
t.
314(c),
ea
fact raised in the request to
Nine Four
as admitted.
nr
3:
Water
Lotection Act
to
add Paul’s
ty
Respondent.
.evich,
Jr.,
name
violations
c.ptember
1,
1977.
v the
Agency
to
ng
Officer
~nard
has authority
at
this time the
~a
and PCB 77-148
id
Paul’s Inc.,
f
Mr. and Mrs.
.n PCB 77—123,
on
esponse with the
of the
matters of
‘e,
Ex.
2)
are
taken
In
1973,
a
retail
grocLr
ere
located
ir Farmington,
Fulton
County,
Illinois was construc~a aud subsequen
l.y
owned and operated
by
Paul’s,
Inc.
Sewer service
wa~
provided
by
~onstruction
of
an
8—inch line connected to the
Farri
gton
sewer
ntem,
Agency
per-
mits were not required for constru
tion or
ope.
~ion
of this sewer
line because of the Rule 951(b)
(2)
exemption.
The
Farmington sewer
system and STP were on restricted status at this time.
Ownership
of the building, surrounding land, and the sewer line passed to
Mr.
and
Mrs.
Starchevich
on
or
about
December
19,
1976
and
Paul’s,
Inc. was dissolved on or about
January
18,
1977.
Two additional connections were made to
the 8-inch line:
a
Ben Franklin store owned by Four Nine Four on July
22, 1977 and
the Shad Hill marketplace owned by Leeper on or about March
18,
1977.
No Agency Construction or Operating Permits were received for these
connections.
In fact,
no permit application was even made until
May 24, 1977
(R.EPA).
Paul’s,
Inc. was paid $1,000 for the Ben
Franklin connection
(R.l4,
93), and Paul Starchevich was paid
$1,000 for the Shad Hill connection
(R.l5).
The existence of these
connections
is established beyond doubt from the testimony of Paul
Starchevich (R.13,
15,
87), Eleanor Leeper
(R.21) and Agency in-
spector Lyle A.
Ray
(R.28-9,
71) and the unanswered Request for
Admissions.
28
—
458
—3—
All ResponcLe.~n
..~
aware before the fac
these connec-
tions to the the
8-1
3e\qe
line would
requa
-
cy permits.
Four Nine Four and
LL
.cacelved
such notifi
-
by
mail in
May,
1976
(See Ex.
4
an~
~)
and
Paul Starchev
s
notified
verbally by Ray at the
tir
.
-
Ben Frankli
~tion
(R.3l—
33,
51).
Following not1fi~
-.
Paul Starc
,
the Ben
Franklin line was disconnect~
..
was reconne
-
pproximately
one week later at the reques.
ur Nine Fou
92-3).
The evidence presented
at
U.
hearing
is
-,
Icient to find
violations of Rules 951(a)
and
91~
a) ofChapt
~.
The contention
by Respondents that the additiona
connections
under the Rule
951(b) (2)
exemption is wholly
unfo~nded.
Once
ose
connections
were made,
the 8—inch line became ~ sewer exte
~ rather than a
service connection and the exempti
)fl
no longei
tied.
Respond-
ents therefore “caused or allowed”
the construction
ct±~
~“-~eration
of a sewer requiring a permit wit
li~ut
the requisite permit,
in vio-
lation of Rules
951(a) and 952(a’
A violation of Rule 953(a
Chapter
3 w
not shown in the
record.
The buildings involved
e are neith
treatment works,
pretreatment works or wastewat~
urces
as
de~ned
in Rule 104.
In regard to the Ben
Fra~,
connection,
the
Board finds the
following violations of Cha:t
..
and the Act.
Paul’s, Inc.
is
in
violation of Rules
951(a),
cn
..ny
22, 1976,
9.52(a)
from July 22,
1976 until December 18,
1976 and
.
ereby Secti
-ì
12(b).
Four Nine
Four is
in violation of Rules
95.
.)
on July 2
1976 and 952(a)
from July 22,
1976 until August
9,
1977
aiici th
~by Section 12(b).
Paul Starchevich and Mildred
L.
Starchevich ar~
in
violation of
Rule 952(a)
and Section 12(b)
from December 18,
1976
until
August
9,
1977.
In regard to the Shad Hill connection,
the Board finds
Paul Starchevich,
Jr., Mildred
L. Starchevich
nnd
Eleanor Leeper
in violation of Rules
951(a),
on
or
about March
18,
1977,
952(a)
from on or about March 18,
1977 until June
2,
1977 and thereby
Section 12 (b).
The Board has considered the Section
33(c)
factors
in assessing
a penalty for these violations.
Respondents have the burden of
producing evidence concerning these factors.
Processing and Books,
Inc.
v. Pollution Control Board,
64 Ill.
2nd 68,
351 N.E. 2nd 865
(1976).
The character and degree of injury consists primarily of
damage to the integrity of a restricted status and the need for a
viable permit system.
In addition, a citizen witness testified
that the area of the city surrounding the connection of the 8-inch
line into the city sewer system has experienced an overflow problem.
The businesses have social and economic value as a source of income
and employment.
The suitdbility of the three buildings to their
location was clearly established,
28
—
459
—4—
The fourth factor,
technical
feasibility and economic reason-
ableness, was discussed
in greater detail.
One engineer testified
that
there
was no difference
in
environmental impact between sepa-
rate service connections with city
sewers and connecting into the
existing 8-inch line
(R.127-8).
Mrs. Leeper presented evidence
of great difficulty in building a direct service connection
(R.107-lll).
Finally, imposition of a cease and desist order would
hamper operations at the Ben Franklin store and the Shad Hili
marketplace.
The weight of this evidence, however,
is gr~at1y
diminished by the fact that any hardship is self-imposed due to
the Respondent’s failure to avail themselves of Board variance pro-
ceedings,
of which they were aware
(See
EXe
4 and 5).
In aidition,
the City of Farmington was placed on restricted status several years
before construction on the Ben Franklin and Shad Hill
facilities
was
begun.
Based on these factors,
the Board imposes a penalty of $1,000
against Paul’s,
Inc.,
$1,000 against Paul Starchevich, Jr. and
Mildred
L. Starchevich who are jointly and severally liable for its
payment,
$750 against Four Nine Four
and
$500
against
Eleanor
Leeper.
The
Board
orders
the Respondents
to
cease and desist all vio-
lations
of the permit requirements
within
180 days.
All necessary
Agency permits must be obtained
within
that
time
period.
This Opinion and Order
constitute
the findings of fact and
conclusions of law of the
Board.
ORDER
It is the Order of the Pollution Control Board
that:
1.
Paul Starchevich, Jr., Mildred
L.. Starchevich, Eleanor
Leeper,
Four Nine Four Corporation and Paul’s IGA Food-liner, Inc.
are
in violation of Rules 951(a)
and 952(a)
of Chapter
3 and the~-e—
by Section
12(b)
of the Act.
2.
The above Respondents shall cease and desist fro~iall
aforementioned violations of the Act and Regulations within 180
days of the date of this Order.
3.
For the above violations,
a penalty in the amounts listed
below shall be paid:
Paul Starchevich, Jr. and Mildred L. Starchevich,
jointly and severally liable
$1,000.00
28
—
460
Eleanor Lee .ei’
Four Nine Fo
—5—
dorporation
Paul’s
IGA Food—
‘no
incorporated
Payment
shall be made wit~in
d
certified check or money
orde~
.e
1~O~
-
~s
of
the
date
of
1&~
Order
by
State
of I~jn~
Fiscal
Service
Division
Illinois
Envii~
imental
Protecti~
Agency
2200
Churchill
Road
Springfield, 1~linois
62706
I, Christan
L, Moffett,
Clerk of
the Illinois
P~12~tion
Control
Board,
hereby
certif
inion
and Order wet~a~opted
on
the
c~0h
day ~
1977 by a
vote of ~-O
Illinois Pol1ut~
,.Control Board
28
—
461