ILLINOIS POLLUTION CONTROL BOARD

November 1, 1973

MR. AND MRS. RAYMOND E. DONALDSON

#72—389

V.

CITY OF ELMHURST

MRS. RAYMOND E, DONALDSON APPEARED PRO SE

PETER W. ERNST APPEARED ON BEHALF OF CITY OF ELMHURST

OPINION AND ORDER OF THE BOARD (BY MJ~. SEAMAN):

This is a citizens~ complaint filed 

against

the City of Elm-

hurst. Because of certain inadequacies in the original complaint,

we permitted complainants to file an amended complaint, which was

filed on October 17, 1972. Although signed by Mrs. Raymond H.

Donaldson, the complaint is filed in the name of Mr. and Mrs. Ray-

mond E. Donaldson and we proceed with both as parties complainants.

By our order of January 30, 1973, we held that the complaint, though

meager, was neither duplicitious nor frivolous, and scheduled a hearing

thereon. The City of Elmhurst filed an answer in the nature of a

general denial. The complaint alleges violation of Rule 601 of the

newly enacted water pollution regulations, (Chap. III, Water Pollution)

which violation is alleged to have caused sewer back-up and sewage

deposit in the basements of complainants and others.

Paragraph 3 of the amended complaint specifies as follows:

“Rule or Regulation allegedly violated by Respondent:

Page 23, Rule 601 Systems Malfunctions causing our base-

ments to become the sewage reservoir in the time of power

failure and an inadequate sewage system. Sewage left in

the basements of homes for as long as 4 days after the heavy

rains of August 25, 1972. Families had to use public facil-

ities to defacate because they could not flush their toilets.”

Rule 601 of the Water Pollution Rules provides as follows:

“Systems Reliability

(a) Malfunctions. All treatment works and associated

facilities shall be so constructed and operated as

to minimize violations of applicable standards

during such contingerciesas flooding, adverse weather,

power failure, equipment failure, or maintenance, through

such measures as multiple units, holding tanks, duplicate

power sources, or such other measures as may be appropriate.

9—681

(b) Spills. All reasonable measures, including where

appropriate the provision of catchment areas, relief

vessels, or entrapment dikes, shall be taken to pre-

vent spillage of contaminants from causing water

pollution.”

It will be noted that the Rule relates to treatment works

“and associated facilities” which unquestionably extends the Rulers

coverage to storm and sanitary sewers, tributary to the basic sewage

treatment plant. Further, the Rule requires that such facilities as

are covered by it, be operated so as to minimize “violations of

applicable standards.” This language is sufficient to embrace all

relevant regulatory provisions, as well as the basic provisions of

the Environmental Protection Act.

Section 602(b) provides:

“Excess infiltration into sewers shall be eliminated,

and the maximum practicable flow shall be conveyed to

treatment facilities. Overflows from sanitary sewers are

expressly prohibited.”

Section 12(a) of the Environmental Protection Act expressly

prohibits the causing, threatening or allowing of the discharge of

contaminants so as to cause water pollution as therein defined, while

Section 12 (d) prohibits the deposit of any contaminant on land so as

to create a water pollution hazard. From the foregoing, it will be

seen that the complaint, while lacking in specificity and detail,

does state a cause of action, enabling the Board to take jurisdiction

premised on the inadequacies of the Elmhurst sewer system, which,

in turn, have resulted in a sewage back—up into the homes of com-

plainants and others residing in the City. We have previously held

that a municipality is responsible for the pollutional consequences

of sewers within its limits. Environmental Protection Agency v.

City of Champaign, #71—SiC,  PCB  

(September 16, 1971).

The pervasive problems to which Respondent is subjected that

have generated the events complained of in the present proceeding are

not unique to Elmhurst. Essentially, we are confronted with. two

separate but interrelated situations characterizing established

municipalities which, in recent years, have experienced accelerated

population increases. As typical of many communities, particularly

those in DuPage County, the existing sewage treatment facilities are

not adequate to accomodate their present sewage disposal needs and

are incapable of handling any significant increases resulting from

increase in population. Secondly, as a result of sewer deterioration

and obsolescense, lax building code enforcement and past indifference

to consequences of combined storm and sanitary sewer utilization,

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9

—

682

substantial quantities of storm water infiltrate into sanitary sewers

during periods of heavy rains or flood conditions, rendering the

sewers incapable of accommodating the greatly increased flow and re-

sulting in back—up of sewage effluent into connecting lines and the

basements of residents. The combined effect of inadequate sewage

treatment facilities to accomodate even normal flows, much less

greatly increased discharge resulting from abnormal rains, coupled

with inordinate storm water infiltration into sanitary sewers, have

unquestionably created the circumstances complained of.

The principal complainant, Mrs. Donaldson, testified at length

with respect to sewage back-up in her home and those of neighbors

during the summer and fall of 1972 (R. 12—35), as well as in prior

years. Other citizens recounted similar experiences (R. 

36—37), 

most

of whom live in areas of low elevation and high water table, generating

flood conditions and poor drainage. While the complaint relates

specifically to the heavy rains of August 25, the evidence indicates

sewer back-ups experienced by her and her neighbors during the summer

months preceeding this date, and during September, 1972. (R. 20, 21,

36, 133). Nor is there any significant dispute in the record that

infiltration into the sanitary sewers has been taking place. (R. 137).

As early as 1958, the municipality at that time having combined sani-

tary and storm sewers, embarked on a program to separate these facilities

The danger of continuing combined sanitary and storm sewers had already

become evident. The consulting engineer cautioned that a separation

of sewers in itself would not achieve a satisfactory result, if, in

fact, sources of storm water flow continue to infiltrate sanitary sewers,

particularly, if as contemplated, the existing combination sewers

would continue to be used after separation, pursuant to the new program.

In the report, Baxter & Woodman, Compl. Ex. 2, pp. 26-27, the following

language appears:

“There is one hazard involved in separation. In a

community which has always had dombined sewers, merely

putting the inlets and catch basins on one set of sewers

and the house services on another does not automatically

separate all sources of storm water from the latter system,

because roof drains, footing drains, yard drains, etc.

are connected to the house sewers. The flow from these

sources of storm water would completely flood the sanitary

sewer system, even with the inlets and catch basins discon-

nected. Therefore, a carefully executed program of legisla-

tion, inspection and enforcement is needed to get all sources

of storm water disconnected from the new sanitary sewer

system. Even with such a program, there will always be

a substantial increase in flow in the new sanitary sewers

during storms as a result of undetected connections. For

this reason, we have allowed five times dry weather flow,

or 625 gallons per person per day in designing the separate

sanitary sewers.

—3-.

9— 683

“In working out the separation of sewers, maximum

use of all existing combined sewers has been made. In

some cases, it is proposed to convert the existing sewer

into a sanitary sewer; in other cases into a storm sewer,

depending on which would produce the best and result for the

least cost. Every section of sewer in the City has been care-

fully studied to determine how it could best be fitted into the

separation program.”

The program of sewer separation appears to have proceeded over

the next ten years aided, in part, by a successful referendum

generating funds to finance this project. As a result, the combined

sewers have been separated and all storm and sanitary effluent flows

are conveyed during normal periods into storm and sanitary sewers,

respectively. However, the record discloses that in periods of

excessive rainfall, storm water infiltration does continue into

the sanitary sewers creating conditions of overflow, plant by—pass

and sewage in basements, as alleged, notwithstanding the sewer separ-

ation program. Infiltration appears to result from a multiplicity

of causes, including the following:  connection of downspouts into

the sanitary sewer, pumpage from sump pumps and drainage footings into

the sanitary sewer, possible breaks in the sanitary sewer tile, over-

flow from storm sewers into the sanitary sewer manholes, ground water

flows into sanitary sewers and the failure of pumps, particularly at

the McKinley Avenue pumping station which serves complainant~s area

(R, 131, 137, 158, 171, 209, 210), These situations are prevalent

during periods of heavy rain, which did, in fact, occur during August

and September, 1972 (R. 163) and became accentuated as a consequence

of the underlying inadequacy of the Elmhurst sewage treatment plant,

which inadequacy has been previously and independently determined

by the Environmental Protection Agency (Cornp. Ex. 14).

On the state of the record, therefore, it is manifest that the

Elmhurst sewage treatment plant is presently inadequate to accomodate

the volume of flow being generated by the areas serviced by it (R. 80-

86). Further, the sanitary sewers, although no longer combined with

storm sewers, were, during the periods alleged, being infiltrated with

storm water, rendering them incapable of handling the combined flow and

causing the back—up, particularly on the McKinley Avenue sewer line,

that complainants allege. Additionally, the evidence is undisputed

that on several occasions, the pumping facilities of the McKinley

Avenue station, have broken down with the expected and consequential

back—up of sewage.

We believe that complainants have adequately established their

burden of proof, demonstrating malfunction of the associated facilities

of the treatment works and excess infiltration into sewers, and that

Rules 601 and 602(b) have accordingly been violated during the period

alleged. The circumstances above-described further manifest the

creating of a threat of water pollution, in violation of Section

—4—

9— 684

12(a) of the Act and the deposit of contaminants on land creating

a water pollution hazard in violation of Sec. 12(d). The record

further substantiates that the City of Elmhurst has, by interconnecting

sanitary sewers, connecting sanitary sewers to storm sewers and per-

mitting flow from storm sewers into sanitary sewers, violated the rele-

vant Regulations and statutory provisions. We conclude that the com-

plainants have established the violations as alleged.

The remaining problem, of course, is what steps the City should

take to abate the conditions complained of. With respect to the basic

upgrading and improvement of the Elmhurst sewage treatment plant, this

matter is the subject of the comprehensive regionalization program

embarked upon by the Board in 1971. A proposed final Order for

Region II of which the Elmhurst sewage treatment plant will be one of

the two principal plants, was entered by the Pollution Control Board

on July 12, 1973. Independently, the City of Elmhurst has progressed

with its program,of sewage treatment plant improvement so that the

facility will be capable of handling a greatly increased flow (R. 76,

220). This program when completed will unquestionably have a salutory

effect on the problems plaguing complainants and their neighbors, con-

stituting the subject matter of this proceeding. It is not the purpose

of this opinion and order to go into any substantial detail with respect

to the Elmhurst sewage treatment plant improvement program other than

to note, as was brought out in the record in this proceeding, that the

expansion and modification program is moving forward. The program,

being in implementation of the comprehensive DuPage Regionalization

regulations, will be subject to the continuing jurisdiction of the Board.

More importantly, so far as the present proceeding is concerned, the

immediate problem respecting storm infiltration into the sanitary sewers

is being addressed by the municipality. The City has embarked on a

program specifically designed to ameliorate this condition (R. 171,

181, 203). Included in this program is consideration for additional

standby pumping facilities to minimize the likelihood of back-up in the

event of pump failure CR. 189), the enlargement of storm water sewer

intake facilities enabling better street drainage and flow during

periods of heavy rainfall, and the improvement and modification

of sanitary sewer manhole covers, lessening storm water infiltration

into these sewers.

In addition, and perhaps of even greater significance, the City

has renewed its efforts to terminate infiltration from downspouts and

footing drains into sanitary sewers CR. 222). This program has

already achieved some success although it would appear that much remains

to be done. The city manager has stated that those who made such connec-

tions subsequent to the separation of sewers have been directed to

disconnect but has also expressed the fear that those who have made

connections prior to sewer separations could not be legally directed to

disconnect, viewing such 

order

as being a retroactive application

a building code requirement. These homeowners instead are subject 

an increased sewer 

charge

CR. 223).

We do not believe that the Illinois law 

so limiting and

suggest that the municipality has the legal right and, indeed, the

duty to direct such disconnection, notwithstanding its retroactive

application, where the public health and safety dictate the need for

such action. See Kaukas v. City of Chicago, 27 111. 2nd 197, 188

N. E. 2nd, 700 (1963), Appeal Dismissed, 375 U. S. 811 LEd 2nd, 40,

84 S. Ct. 67, permitting retroactive enforcement of fire code require-

ments. We believe the same rationale would be applicable in the

present situatIon.

Viewing the totality of this proceeding, we do not believe any

useful purpose would be served by the imposition of a penalty. Further-

more, we believe that the City has embarked upon a dual program of im-

provernent that will achieve the results sought by complainants. Un-

doubtedly, the sewage treatment plant upgrading End modification will

create a substantial improvement in the flow of sanitary sewage, lessen-

ing the likelihood of back—up with resulting conseriuences as demonstrated

in this proceeding. Furthermore, we expect that the City will continue

its efforts to abate the conditions that have, in the past, caused or

permitted storm water infiltration. We anticipate that the City will

take more aggressive steps to terminate the illegal connections of

downspouts and footing drains to sanitary sewers, take remedial action

in improving its storm water sewers and lessening the likelihood of

overflow and infiltration into the sanitary sewers and will take all

necessary steps to minimize the loss of power and pumping capability where

such circumstances have previously resulted. We would also expect that

unauthorized cross—connections between sewers will be discontinued,

if this has not already occurred.

We will order that the City report to the Pollution Control Board

Within sixty days from the date of this Order, the status of all of

the foregoing improvements, modifications and changes as above set

forth, together with any incidents of sewer back—up into basements that

have occurred during the intervening period and t.he reasons therefor,

In entering the foregoing order, we are not unmindful that

by taking jurisdiction of the

issues presently in contention, we are

subjecting the Board to a possible proliferation of suits of a similar

nature, recognizing the pervasiveness of the conditions upon which the

present complaint is based. This fact should in no way serve as a basis

for our declining jurisdiction in a matter so clearly proscribed by

the terms of the Environmental Protection Act and the relevant regulations.

The Pollution Control Board is mandated by the Act to enforce the law

and it will not retreat from this duty no matter how burdensome its

workload may become, in view of the new avenue of complaint having been

recognized. We feel that such a view is particularly compelling in

consideration of the factual situation in the instant case where the

burdens on the community and its residents

are manifest and the possibil-

ity of

resolution by Board action is available. If an aggrieved

citizen cannot place a case before us, where else can he go? The

legislature has created a means of relief that is expeditious, in-

expensive and plenary and which has the capability of achieving the

desired results. We intend to fulfill this mandate.

This Opinion constitutes

the findings of fact and conclusions

of law of the Board.

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9— 686

ORDER

IT IS THE ORDER of the Pollution Control Board that:

1. The City of Elmhurst shall report to the

Pollution

Control Board, through the

Agency, within 

sixty days

from the date of this Order the status of all

improvements, modifications and changes relative to

the upgrading of its sewage treatment plant, its

progress in abatement of storm water infiltration

and its program for termination of all illegal

connections to sanitary sewers, together with all

remedial action taken to improve its storm water

sewers and to lessen the likelihood of overflow

into sanitary sewers, its termination

of cross—connection

between sanitary sewers and its program to assure

against recurrence of power loss and diminished

pumping capacity as

has occurred previously.

2. The City of Elmhurst

shall report all incidents of

sewer back—up Into basements that have occurred during

the intervening period and the reasons therefor.

3. The Board retains jurisdiction for the entry of such

other and further orders as may be appropriate in

the premises, based upon the submission made by the

City, as hereinabove directed.

IT IS SO ORDERED.

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control Board, certif~ythat the above Opinion and Order

was adopted thi~s ~    

day of ~    

1973

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