ILLINOIS POLLUTION CONTROL BOARD
    September 2~,1973
    )
    ENVIRONMENTAL PROTECTION AGENCY
    )
    )
    )
    V.
    )
    PCB 73-72
    )
    )
    JOHN POPP and GEORGE KACKERT, d/b/a
    )
    KACKERT ASSOCIATES,
    and KACKERT.
    )
    ASSOCIATES,
    a partnership
    )
    )
    )
    MESSRS.
    FREDRIC
    FT. ENTIN and RICHARD COSBY, Assistant Attorney
    Generals, appeared on behalf of the Complainant;
    MESSRS. GEORGE
    P. KACKERT and JOHN POPP,
    appeared on their own
    behalf.
    OPINION AND ORDER OF THE BOARD
    (by Mr.
    Dumelle)
    The Environmental Protection Agency (Agency)
    filed
    a
    complaint on February 23,
    1973,
    alleging
    that John Popp and
    George
    D.
    Kackert, Respondents,
    the owners and operators
    of
    a housing subdivision located in Yorkville,
    County
    o:F Kendall,
    Illinois, have violated several sections of the Environmental
    1rotection Act
    (Act)
    and the Illinois Pollution Control Board
    Rules and Regulations
    (Water Pollution Rules),
    adopted
    pursuant
    to the Act, by constructing, installing, connecting
    and operating
    a sanitary sewer system from September
    6,
    1972 until February 23,
    1973 w thout the required permits being obtained from the Agency.
    ~ unique situation presents itself in that
    the Respondents
    clai~’ that they would have initially been issued a permit had the
    Agency not improperly issued
    a permit
    to an earlier developer.
    The Agency admits that they issued
    a permit
    to
    a developer based
    upon a report issued by the Yorkville-Bristol Sanitary District
    (District) which
    listed the Yorkville-Bristol Sewage Treatment
    Plant
    (Plant)
    to have
    a capacity of four thousand population equiva-
    lent
    (P.E.)
    when the Agency~s
    own
    records showed that plant
    had a capacity of two thousand one hundred PE.
    Agency personnel
    stated that had they known of their error, they would not have
    issued the prior permit which exhausted the reserve capacity of
    the Plant.
    Flad the Agency not issued the prior permit,
    the
    Agency through Mr.
    Darrill Bauer,
    an engineer employed by the
    Agency,
    testified that Respondent’s permit application would
    probably been given final approval as
    it was the next permit
    application received and would not have exceeded the capacity of
    the plant.
    However,
    the prior permit was issued with the stipula-
    tion that the individual units not be connected or operated if the
    9
    283

    -2-
    plant
    were overloaded.
    The
    acts
    in this
    case
    are
    that
    the
    Respondent
    applied
    for
    a
    permit
    to
    construct
    and
    connect
    a
    sanitary
    sewer
    system
    on
    June
    15,
    1972.
    Respondent
    proceeded
    with
    the
    construction
    and
    connect:i.on
    to
    an
    existing sewer
    line
    during
    July
    of
    1972
    which
    was prior
    to receiving
    any
    response
    from the Agency.
    On
    August
    10,
    1972
    the
    Agency
    rejected
    the
    permit
    because
    it
    lacked
    the
    signature
    of
    the
    presiding
    officer
    of
    the
    District.
    The
    Agency’s
    letter
    to
    Respondents’
    engineer
    stated
    that
    correction
    of
    the
    signature
    omission did not necessarily
    mean
    that
    the
    permit
    would
    be
    forthcoming.
    The
    Agency’s
    letter to the
    Respondents
    did
    not
    contain
    the
    above
    warning,
    Respondents
    obtained
    the
    signature
    and
    resubmitted
    the
    application
    on
    Septenhe
    r
    19,
    1972.
    Sometime
    during
    the
    application
    process
    the
    Agency
    learned
    of
    their
    earlier
    error
    in
    plant
    capacity
    and
    thus
    rejected
    on
    November
    19,
    1973
    the
    Respondents’
    permit
    application
    when
    it
    was
    received
    in
    proner
    form
    based
    upon
    the
    plant
    not
    having
    any
    reserve
    capacity.
    Respondent
    in
    December,
    1972
    after
    notice
    of
    denial
    based
    upon
    lack
    of
    capacity
    and
    denial
    of
    an
    occupancy
    permit
    from
    the
    Yorkvilie
    City
    Council,
    based
    upon
    failure
    to
    obtain
    Agency
    permits
    allowed
    the
    occupancy
    of
    four
    out
    of
    the
    twenty-
    six
    units
    with
    operation
    o:E
    the
    sanitary
    sewers.
    The
    record
    (PCB
    73-72)
    is
    not
    clear,
    but
    it
    appears
    on
    page
    59
    that
    the
    District,
    through
    its
    engineer,
    then
    submitted
    additional
    data
    to
    show
    that
    the
    plant
    had
    a
    h:igher
    rated
    capaci
    ty
    than
    that
    shown
    on
    the
    Agency
    records.
    Subsequently
    the
    developer
    who
    held
    the
    prior
    permit
    which
    exhausted
    the
    reserve
    capacity,
    scaled
    down
    the
    scope
    of
    his
    development
    so
    that
    there
    would
    be
    enough
    capacity
    at
    the
    plant
    to
    adequately
    handle
    the
    Respondents’
    development.
    After
    resubmittal
    by
    the
    Respondents,
    the
    Agency
    issued
    a
    permit
    on
    March
    30,
    1973.
    It
    is
    not
    clear
    from
    the
    record
    (page
    39)
    what
    type
    of
    permit
    was
    issued.
    It
    is
    the
    finding
    of
    the
    Board
    that
    the
    Respondents
    have
    from
    September
    6,
    1972
    until
    February
    23,
    1973
    violated
    Section
    12(c)
    of
    the
    Act
    and
    Rule
    901(a)
    of
    the
    Water
    Pollution
    Rules
    by
    con-
    structing
    a sanitary sewer without obtaining the necessary construc-
    tion
    permit
    from
    the
    Agency.
    The Board also finds
    that
    the Res-
    pondents have violated Section 12(h)
    of the Act and Rule 902
    of
    the Water Pollution Rules
    by operating or allowing to be operated
    the san:itary sewer without obtaining
    an operating permit from the
    Agency.
    The
    Respondents
    have
    essentially
    built
    a
    development
    and
    installed the sewer system, and then sought
    a permit
    to do
    what
    was
    already
    done.
    From the special
    facts presented in this case
    9
    284

    -3-
    the Board has not levied the maximum fine of $10,000 for each
    violation and $1,000 per day for each day each violation occurred.
    The total fine could amount to approximately Three Hundred Seventy-
    Six Thousand Dollars for the violations present in this
    case.
    While equity might tend to motivate the Board toward allowing
    a
    developer the economic benefit of operating
    a sanitary sewer system
    once
    the development
    is built and the sanitary sewer system in-
    stalled, the Board would clearly be within reason if it were
    to levy
    the full or
    a substantial portion of the fine
    in the case of the
    developer who willfully builds and then applies for the necessary
    permits.
    The Board also suggests that
    in the future that the Agency
    include in any technical deficiency letter or permit denial letter
    based upon
    a technical deficiency language to the effect that
    complying with the requests made in such
    a letter should not be
    construed as an indication that upon resubmittal
    of the application
    that
    a permit will be imminent.
    Such a clause should tend
    to warn an
    applicant that his permit has not been reviewed upon the merits
    and should help prevent
    some of the confusion found in this
    case.
    The Board’s order in this
    case
    is based in part upon the
    fact that
    at full occupancy
    the development will consist of twenty-
    six units with
    a projected load of
    65 P.E.
    This
    small load should
    have
    a minimal effect upon the marginally overloaded plant.
    The
    Agency did not present any data
    as the plant’s effluent characteristic
    or its impact upon water quality in the receiving
    stream.
    ORDER
    The Pollution Control Board orders that:
    1.
    The Respondents shall
    apply for and obtain the necessary
    Construction Permit for their development if not previously
    obtained.
    ~.
    The Respondents shall
    apply for and obtain the necessary
    Operational Permit for their development if not previously
    obtained.
    3.
    The Respondent shall pay to the State of
    Illinois, within
    35 days
    after receipt of this Order the sum of $500.00
    as
    a penalty for violation of provisions
    found in the
    9
    285

    -4-
    Board’s
    opinion.
    Penalty payment by certified check or
    money order payable
    to the State of Illinois shall be made
    to:
    Fiscal Services Division, Illinois Environmental
    Protection Agency,
    2200 Churchill Road,
    Springfield, Illinois
    62706.
    IT
    IS
    SO
    ORDERED.
    I,
    Christan L. Moffett, Clerk of the Illinois Pollution
    Control
    Board, her by certify the above Opinion and Order w re
    adopted on the
    ~b
    day of September,
    1973 by
    a vote of
    —o
    Christan L.
    Moffett,4~4’1erk
    Illinois Pollution ~k’itrolBoard
    9
    286

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