ILLINOIS POLLUTION CONTROL BOARD
December
2,
1976
THE PEOPLE OF THE STATE OF ILLINGTS,
Complainant,
v.
)
PCB 75—431
BRIAN RESTAURANT CORPORATION,
et
al.,
Respondent.
MS.
MARY
C.
SCHLOTT, Assistant Attorney General, appeared on
behalf of complainant;
MR. DAVID
D.
DYER,
JR.,
appeared pro se, and on behalf of
Beneficiaries.
OPINION AND ORDER OF THE BOARD
(by Mr. Dumelle):
This matter comes before the Board on
a Third Amended Complaint
filed on April
29,
1976 by the People of the State of Illinois against
Brian Restaurant Corporation, Batavia Bank as Trustee under Trust
No.
274,
and eleven individuals who are the named beneficiaries of
that
Trust.
The
original
Complaint
in
this
matter
was
filed
on
November
6,
1975,
and was dismissed without prejudice by a Board
Order of November 26,
1975.
On December 11,
1975 the Board granted
Complainant’s motion for reconsideration based upon the filing
of an Amended Complaint.
On May 26, 1975 a hearing was held
in
Geneva,
Illinois at which the parties presented
a Stipulation and
Proposal for Settlement, which was subsequently
filed
in writing
on June
4,
1976.
The Th
i
rd
Amended
Comp.1 a in
t
a
I
eqe~ that
1’sponden
t
~
ope
rated
in
the
vicinity
of
6003
Batavia
Avenue,
Batavi
a,
Kane
County,
liii
noi
s,
a
septic
sysLem
wiLIiou~
a
required
Agency
permit, and
theii
constructed
and
operated
a new septic system also without the required permits,
in violation of Water Regulations 953(a)
as alleged in Counts
I
and III of the Complaint,
951(a)
as alleged
in Count
II of the
Complaint,
and hence Section
12(a)
of the Act.
The Board must decide whether to accept
the
Stipulation and
Proposal for Settlement
filed
by
the parties on
June
4,
1976.
rph(~
key provision of the Stipulation
is the establishment of which
Respondents are actually responsible
for causinq or allowing the
24
—317
—2—
alleged violations.
The Stipulation states that Batavia Bank
and Brian Restaurant Corporation had no control over
the trans-
actions which resulted in the alleged violations and the
Settlement proposes dismissal of the case against those parties.
Inasmuch
as the eleven named beneficiaries of Trust No.
274
have admitted sole control over the subject matter of
this cause,
the Board sees no reason to hold Batavia Bank and Brian Restaurant
responsible.
Based
upon
paragraphs
20,
21, and 22 of the Stipulation the
Board will
find Respondent David Dyer and the other named beneficiaries
of Trust No.
274
‘to have violated Board Regulations and the Act
as alleged
in the Third Amended Complaint.
The Board also finds
the proposed $500.00 penalty to be adequate given the particular
facts of this case.
The record indicates
(R.5)
that these viola-
tions have already been remedied.
In addition,
the restaurant
closed on February 15,
1976
(Stip. Par.
33)
This Opinion constitutes the Board’s findings of fact and
conclusions of
law.
Mr. Young abstained.
ORDER
A.
The Complaint as
against Brian Restaurant Corporation and
Batavia Bank is hereby dismissed.
B.
1.
Respondents David Dyer, Medeyo Cotti, Meric Belding,
Glen Smilie, Brian Stuhlsatz, David Neri,
P.
Bruce Isherwood,
Anthony Marcello, Pauline Neri,
Mario Savino and Robert J.
Hankes, are herby found to have violated Water Pollution Regula-
tions
953(a)
as alleged in Counts
I and III of the Complaint,
951(a)
as alleged
in Count II
of the Complaint,
and hence
Section
12(a)
of the Act.
2.
lh~
IH)!’(Iflflflt
ione(1
I~e~1)(ndeI)t
el
nt
‘7
~Ilt
I
I
pty
,
a
petla
It
‘~
ol
LIn’
aior~esa.id
viol
at
ioiis,
h’
~um
ol
~J)0
oo
to
the
StaLe
of
I iliriois.
Payment
shall be made
by
certified
check
or
money
order
within
35
days
of
the
date
of
this
Order
to:
State of Illinois
Fiscal Services Division
Illinois Environmental Protection
Agency
2200 Churchill Road
Springfield,
Illinois
62706
24
—318
—3—
IT IS SO ORDERED.
I, Christan
L.
Moffett, Clerk of the Illinois Pollution Control
Board, hereby certify the above Opinion and Order were adopted on the
~
day of December,
1976 by
a vote of
3~
Christan
L. Moffet~,~erk
Illinois Pollution ~6~?rol
Board
24
—
319