ILLINOIS POLLUTION CONTROL BOARD

November

23,

1971

RICHARD P.

GLOVKA

v.

)

#

71—269

NORTH SHORE SANITARY DISTRICT

etal.

Opinion and Order

of the Board on Motions

to Dismiss

(by Mr.

Currie):

This citizen complaint alleges violations of

the Environmental

Protection Act and of our order

in

#

70-7,

League of Women Voters

v.

North Shore Sanitary District

(March

31,

1971)

,

with respect

to new connections to sewers tributary

to overloaded treatment

plants.

A flood of motions to dismiss has resulted from parties

other than

the District

itself.

Various legal and constitutional arguments are raised

that

are without merit.

Those relating to the Board1s authority to

act as

a tribunal or to impose money penalties have been disposed

of by earlier decisions.

See EPA v.

Modern Plating Corp.,

# 71-38

(April

28,

1971).

The suggestion that federal law

forbids us

to concern ourselves with navigable waters such as

Lake Michigan

is flatly contrary to the federal statutes, which

expressly direct us to do so.

The standing of the complainant

is

clear;

the Act allows any citizen

to file

a complaint.

It

is

also suggested that our original March

31 order was invalid,

but we disagree

for the reasons there stated.

Any respondent

is

free

to raise in defense

the existence of an arbitrary or

unreasonable hardship,

cf.

Wachta

v.

EPA,

# 71-77

(July 12,

1971)

but this must be affirmatively proved at the hearing,

and,

in

the case of two of the present respondents,

has been considered

before.

See Bederman v.

EPA,

# 71-173

(August

5,

1971)

,

and

Kaeding v.

EPA,

# 71-133

(August

5,

1971).

The notion

that

because not every violator can be prosecuted all must

go free,

also suggested, needs

no response.

It

is contended that our order did not preclude

new

connections

to existing sewers or by persons who had earlier

been granted permits by the Sanitary Water Board.

If this

3

—

163

---

were true,

it would not be grounds

for dismissal,

since it would

remain

a question of fact whether

or not each respondent was

within an exempted category.

But the contention is incorrect.

The order

is absolute:

“The District shall not permit

any

addition

to present sewer connections,

or new sewer connection,

to its facilities

.

.

.

“

The age of the sewer

is immaterial;

new connections are not to be made.

And,

contrary

to the argumn~

here made,

a permit

is

not

a license

to violate the

law;

only

a variance duly granted by this Board

can authorize doing what

the law forbids.

There

is nothing vague

about this

order,

as

is suggested.

It flatly and absolutely

forbids new connections.

Against the District, therefore,

a cause of action

is den::.

stated.

The District was specifically ordered not to allow

new connections;

it has authority under

Ill,

Rev,

Stat.

ch.

42,

sec.

283.2 to deny connections

to any tributary

sewers opera~

by others;

yet,

if the allegations

are proved,

in several ±nstan:~n

rather than prevent such connections,

the District gave

them

its official blessing.

A hearing is

in order to determine the

truth of these allegations.

It

is further argued

that,

since only the District was

a party

to the earlier proceeding and only the District was

directed by the earlier order not to allow connections,

only

the

District can be guilty of violating the order.

But we need

not delve

into the question whether and in what circbmstances

a person not named in

an order

can be held responsible for

inducing or abetting in its violation,

for the complaint quite

clearly charges that each of the respondents has violated the

statute itself.

There is no doubt that the statute aeplies

to

all of the respondents;

it

applies

to

everybody.

It oroscribes

water pollution,

either actual or threatened,

and we found in

the League of Women Voters case,

above,

that new connections

would worsen the existing pollution.

It is open

to persons not

bound by the order

in that case

to show that this

is not so,

but the allegation that new connections threaten or cause water

pollution

is sufficient to justify

a hearing to determine

the

truth of the allegation.

Exactly what

acts constitute

a threat of water pollution

is

a question on which the illumination cast by concrete

facts

would be helpful.

It

is argued that all that one respondent

did was

to ask whether or not

a connection was allowed.

We

agree that,

if this is proved,

it would demonstrate that no

violation occurred.

But the complaint

alleges that each of the

---

individual respondents’

requests was approved by the Sanitary

District,,

and that the net effect was

at least

a threat of water

pollution.

Since

a logical consequence of receiving approval

to make

a connection is to proceed to make

it, we think the

complainant should be given the opportunity to prove that

a connection either has been or

is about to be made.

The severity

as well

as the inadequacy of ordering

a disconnection of

illegally attached sources demonstrates

that we cannot insist

on waiting until after pollution has been caused before issuing

a preventive order.

That

is what the statutory word “threaten”

is

all about,

And plainly it is no defense that one may have

relied upon the approval of the Sanitary District;

it is every

citizen’s obligation to obey the

law.

The allegations with regard to the Village of Lake Bluff

appear chiefly

to be based upon

a number

of communications in

which

the Village

is

said to have forwarded individual requests

for connections

to the District,

This alone cannot constitute

a

violation;

everyone has

a right to ask for

advice.

If, however,

the complainant can show that the Village allowed or threatened

to allow

the illegal connections here alleged, which

it had the

authority and duty to prevent if they threatened or caused

water pollution”-and this again

is

a logical inference from the

allegations

of Village request and District approval—”,

then

a case will have been made,

Again we think

a hearing

is the

place to determine just what did occur.

Several factual defenses, relating

to such rnatte~sas the

ownership

of property

and. the duties of the Village Administrator,

can be determined only

after the hearing.

The motion to dismiss with regard to the respondent Raymond

Anderson,

tragically killed in

an aircraft accident,

is granted.

In all other respects

the motions to dismiss are denied.

There was

also

a motion to disqualify the hearing officer

on the ground that he had once been

a litigant before this

Board.

This motion was properly denied.

The matter in which

he appeared was entirely unrelated

to the present case;

there is

no suggestion he has demonstrated anything but the utmost fair”

ness

in dealing with

this case.

We cannot be expected

to dis-

qualify as hearing officers everybody with enough concern over

pollution generally ever

to have appeared before the Board.

In any event,

the decision will be made by this Board and not

by the hearing officer.

3— 165

---

We note that argument on some of the present motions

has been set

for December

6.

The parties are free to renew

their motions with further amplification then or later, but

it

is the Board’s order that the hearing scheduled for

December

14 proceed without delay for the reasons given

in

this

opinion.

The Environmental Protection Agency’s request to intervene

is granted.

The participation of the Agency is important,

as indeed at least one of the respondents

suggested.

This

intervention shall not be permitted to delay the proceedings.

The motion to divide this case

into several is denied.

The

issues are

simple, and delay is not called

for.

The motion

for trial by jury

is also denied.

Mr.

Kissel took no part

in the consideration or decision

of this case.

I, Christan Moffett, Acting Clerk of the Pollution Control

Board, certify that the Board adopted the above Opinion and

Order on Motions to Dismiss this

,.-~J

day of//~/~.~

1971.

~L

3

—

166