ILLINOIS
POLLUTION CONTROL BOARD
February
17,
1972
RICHARD
P.
GLOVKA
V.
NORTH
SHORE SANITARY DISTRICT,
)
#71-269
RAYMOND
E. ANDERSON, THOMAS
P.
KAEDING, ALFRED N.
BEDERMAN,
EDWARD A. HOLUB,
E.
A. HORSCH,
JR.,
ROBERT E. NILLES,
INC.
NORTH
SHORE INDUSTRIAL
& RESEARCH
CENTRE, VILLAGE OF LAKE BLUFF,
ILLINOIS, AND JOHN E. MURRAY
MR.
RICHARD P.
GLOVKA,
PRO SE
and
MR.
RICHARD
R. ELLEDGE FOR COMPLAINANT
MR.
MURRAY R. CONZELMAN FOR NORTH
SHORE
SANITARY DISTRICT AND
RAYMOND
E. ANDERSON
MR.
KENNETH
J. BURNS,
JR. FOR ALFRED N. BEDERMAN
MR.
WARREN W. BROWNING FOR THOMAS P. KAEDING
MR.
GERALD
C.
SNYDER,
JR.
FOR EDWARD A.
HOLUB
MR.
VINCENT J.
LOMBARDI
AND
MR. WILLIAM L.
CLARK,
FOR ROBERT E. NILLES,
INC.
MR.
RICHARD
B.
KtJSESKI
AND
MR.
SHELBY
YASTROW
FOR
NORTH
SHORE
INDUSTRIAL
&
RESEARCH
CENTRE
MR.
PETER
J.
NORDIGIAN
AND
MR.
STEPHEN
H.
KATZ
FOR
VILLAGE
OF
LAKE
BLUFF,
ILLINOIS
AND
JOHN E. MURRAY
OPINION
AND
ORDER OF THE BOARD
(BY MR. LAWTON):
Citizens
complaint was filed by Richard
P.
Glovka
against
the
North Shore Sanitary District and Raymond
E. Anderson,
its Secretary
and General Manager,
the Village of Lake Bluff and John B. Murray,
Village administrator,
and six named individuals and corporations.
The
complaint alleges that specific conduct of the foregoing Respondents,
in
varying forms,
by inquiring about,
authorizing,
issuing,
receiving
arid
using sewer connection permits for certain properties
in Lake Bluff,
violated Sections 12(a)
and
(c)
of the Environmental Protection Act,
caused or threatened to cause water pollution and violated
the sewer
ban order entered by
this Board in case entitled “League of Women Voters
v,
North Shore Sanitary District,
#‘s
70-7,
70-12,
70—13
and
70—14” entered
March
31,
1971.
Raymond Anderson, killed in the recent Chicago and
Southern airplane crash was dismissed as
a party respondent.
Sectiorsl2(a)
and
(c)
of
the Environmental Protection Act provide
as
follows:
“No person shall:
(a)
Cause or threaten or
allow the discharge of any contam-
inants into the environment in any State
so as to cause or
tend to cause water pollution
in Illinois,
either alone or
in combination with matter
from other sources,
or so as to
violate regulations
or standards adopted by the Pollution
Control Board under this Act;
(c)
Increase
the quantity or strength of any discharge of
contaminants
into the waters, or construct or install any
sewer or sewage treatment facility or any new outlet for
contaminants into the waters of this
State, without
a permit
granted by the Agency.”
“Water pollution”is defined in the Act
as:
“Such. alteration of the physical, thermal,
chemical, biologi-
cal
or radioactive properties of any waters of the State,
or
such discharge of any contaminant into
any waters
of the State,
as will or is likely
to create
a nuisance
or render such waters
harmful or detrimental
or injurious to public health, safety or
welfare,
or
to domestic,
commercial, industrial, agricultural,
recreational,
or other legitimate uses,
or
to livestock, wild
animals, birds,
fish
or other aquatic life.”
The
relevant portion of
the sewer ban order provides
as follows:
“The District shall
not permit any additions
to present
sewer connections
or new sewer connections
to its facilities
until
the District can demonstrate
to the Board that it can
adequately treat the waste from these new sources so
as
not to
violate the Environmental Protection Act or the Rules and Regu-
lations promulgated thereunder.”
LWV
V.
NSSD,
supra,
p.28,
par.
7.
The reasons, background
and objectives
of the sewer ban order re-
sulting from the unsatisfactory operation of the North Shore Sanitary
District are set forth in detail in the basic case and the many varia-
tion proceedings that have followed and need not be restated in this
Opinion.
Suffice it to say that the reasons existing for such Order
at the time of its rendition maintain during
the period of
the events
involved during the present case.
Lake Bluff owns,
operates and maintains
a sewer system, which sewers
are tributary to interceptor sewers operated and maintained by
the
North Shore Sanitary District.
These interceptor sewers carry the
3
—
648
waste from the village as well as other municipalities to various
sewage treatment facilities operated by
the
District.
Section 283.2, Chapter
42,
Illinois Revised Statutes, provides
as follows:
“Where
any sewer system under the jurisdiction of
a
city,
village or incorporated
town is tributary to
a sanitary district
sewer system,
and the board of trustees
of such sanitary district
finds that it will conduce
to the public health,
comfort or
convenience,
the board shall have
the power
and, authority
to
regulate,
limit,
extend,
deny,
or otherwise control any connec-
tion to such sewer tributary to the sanitary district sewer
system by any person or municipal corporation regardless
of
whether the sewer into which the connection is made
is directly
under
the jurisdiction of the district or not.”
The pattern described in the complaint giving rise
to the violations
alleged was
as follows:
Property owners and developers,
desiring
to
build within the Village of Lake Bluff and requiring building permits
and authorization from the village
to connect to the Lake Bluff sewers,
would direct their reque~ts for authorization
to the Village.
The
Village,
by
a series of letters written by Murray,
the Village Adminis-
trator,
directed to the North Shore Sanitary District’s general
manager would inquire whether such tie-ins were authorized.
The Dis-
trict,
in its response to these inquiries,
stated that if the requested
connection
was
to
sewers
previously
authorized
by
the
State
Sanitary
Water Board or the Environmental Protection Agency,
such tie-in would
be proper.
This response was uniformly given irrespective
of the
fact
that the State sewer construction permit pre—dated the Board’s March
31,
1971 Order, in some instances by many years, or the fact that
the tie-
in was subsequent
to the issuance
of the Board’s Order.
Never consi-
dered
in these authorizations was
any action the Board had taken respectin
the particular parties and requests involved.
The District’s authoriza-
tions
for these connections
are reflected in letter from its general
manager to the ViJlage sanctioning
the connections,
and will be con-
sidered
in more de:ail below.
The complaint details the specific instances
in which Respondents Kaeding,
Bederinan,
Holub, Horsch, Nilles,
Inc.
and
the North Shore Industrial
and Research Centre were granted authoriza-
tion by
the Village
for sewer connection pursuant to the general procedurE
above outlined.
The North Shore Sanitary District is the only party to this proceeding
that was
also
a party
to the original
case
in which the sewer ban order
was entered.
The gravamen of the complaint against the District is
that by virtue of statutory provision above cited
(Sec.
283.2,
Ch.
42,
Ill.
Rev.
Statutes)
the District, although not owning or operating the
village sewer system,
has specific statutory authority
to control and
regulate sewer connections
to local systems which
are tributary
to the
sewage system of the district and that its authorization to the village
was tantamount to the allowance of
a permit
in each instance and,
accordingly,
constituted a violation of the sewer ban order,
as well as
the Environmental Protection Act.
3
—
649
In
consequence
of
the
foregoing
actions1
complainant
alleges
that
all
Respondents
have
violated
the
Board
sewer
ban
order
and
have
caused,
or
threatened
to
cause,
water
pollution
in
violation
of
Section
12(a)
of the Act and have violated Section 12(c)
in discharging
contaminants
into
the
water
without
a
permit
granted
by
the Agency.
The
entry
of
orders
agailist
all
Respondents
prohibiting
sewer
connections
and
requiring
disconnections
where
made
and
for
the
assessment
of
penalties,
is
prayed
for
by
the
complainant.
The
District’s
answer
admits
the
principal
allegations
of
fact
alleged,
hut
denies
that
it.
is
quilty
of
any
wrongful
action
or
in
violation
of
the
Board’s
order
or
the
statute.
Its
position appears
to be
that
the
Board’s
sewer
ban
order
does
not
apply
in
any
instances
where
either
a
State
agency
or
the
District
itself
had
previousl~’
authorized
sewer
construction
and
that
such
authority
carried
with
it,
without
limitation,
the
capability
of sewer connection.
Answer filed by
the Village of Lake Bluff contends,
in substance,
as does
the District,
that authorization
granted prior to
the sewer
ban by the Environmental Protection Agency and
the Sanitary Water Board
allow
connections
to the village’s
sewer system and that the sewer
ban in no way constituted
a revocation
of such authorization.
The
village also asserts
a theory of estoppel against the State, premised on
the alleged expenditures
by the Respondents pursuant
to
sewer
author-
izations
previously
granted.
Constitutional
arguments
as
to
the
Board’s
power
and
jurisdiction
are
also
asserted.
Answer
filed
by
the
North
Shore Industrial
& Research Centre again relies on an authorization
granted by
the State Sanitary Water Board to operate
a sewer system
and alleges
an
estoppel
against
the State based on expenditures made
prior
to the March
31,
1971 order.
By Order the Hearing Officer permitted the Environmental Protection
Agency to file
a complaint as Intervenor,
the allegations of which are
~similar to
the Glovka complaint.
The Agency contends
that the Act and
the Order were violated by the Village acting as spokesman for property
owners and developers
to seek sewer connection
authorizations subse-
quent to the sewer ban order and directing these inquiries
to the dis-
trict rather than to the Board,
and that the District,
in sanctioning
the connections pursuant
to these inquiries, has violated the statute
and
the Board’s order.
The specific actions of request,
authorization,
allowance and use
involving the village,
the district
and eaOh individual
respondent,
are set
forth.
The Agency
asks that the District and Respondent Byers,
designated
as General Manager after
the death of Raymond Anderson,
cease
and desist approval of
any further sewer connections,
that the
Village and its agents
cease acting
as spokesman
for applicants
for
sewer connections, that the individual respondents he prohibited
from
making connections without Board approval
and that if connections have
been made they be disconnected.
Assessment of penalties
is
also sought.
3
—
650
Answer
was
filed
by
the
Village
of
Lake
Bluff
to
the
complaint
of
the
Intervenor.
A
proliferation
of
motions
to
dismiss
the
action
was
filed
by
the
respondents
asserting
various
legal
and
constitutional
arguments
relative
to
the
Board’s
jurisdiction
and power as well as the basic
Environmental
Protection
Act.
These
motions
were
disposed
of
in
Opinion
entered
by
the
Board
on
November
23,
1971, where we reiterated
our
authority
to
impose
money
penalties,
and
our
jurisdiction
to
concern
ourselves
with
Lake
Michigan.
We
confirmed
the
right
of
the
complainant
to bring the proceeding
dnd reaffirmed
the validity
of our March
31
order.
We dealt in that opinion for the first time with
the respondent’s
contention
that our sewer ban order did not preclude new connections
to existing sewers or by persons who had earlier been granted permits
by
the
Sanitary Water Board.
We stated that the contention
is incorrect
and that
the
Order is absolute.
The Order prohibits addition to pre-
sent sewer connections or new sewer connections
to the facilities of
the District.
We there noted that the
age of
the sewer
is immaterial,
no new connection can be made and that
a permit is not a license
to
violate the
law.
“Only
a variance duly granted by
the Board can
authorize doing what
the law forbids,”
We further noted in the opinion that while the District was
the
only party to the original proceeding,
the present complaint
alleges
that Respondents caused water pollution in violation of the statute,
which assertions
are not premised on violation
of the Board’s order.
The Opinion observed that new connections
could worsen the existing
pollution and that
a hearing is the proper means
for ascertaining
the
validity of this charge.
Hearing was held on the complaints
and answers.
Nine stipulations
were received between Glovka and each of the named respondents, in-
cluding
a stipulated compilation of exhibits.
No useful pur~~ses will be served by
a reiteration in this opinion
of all events and
the voluminous
correspondence involving the Village,
the District
and various respondents.
The essential
facts are not
in
dispute but only their legal consequence.
Several legal issues emerge
from
the
proliferation
of documents
filed:
First, whether the sewer
ban order operated against those who had previously received authority
from the State or the District for the construction of sewers,
or who
stood in their position
as successors in interest.
Second, whether
the District’s sanction of sewer connections to the Lake Bluff sewer
system violated the Order and the Act.
Third, whether the requests
and actions by Lake Bluff violated
the Order
and
the Act.
Fourth,
whether the acts
of the individual respondents pursuant to the author-
izations violated either the Order or the Act,
and in this respect,
whether parties
to
the present proceeding who are not parties to the
March 31 proceeding resulting in the sewer ban Order can,
nevertheless,
be found liable for aiding,
abetting or being an accessory to its
violation,
and,
fifth, what sanctions should be imposed for those
violations found to have been committed.
3
—
651
The requests directed to the District by
the Village,
the Dis-
trict’s response authorizing
the issuance of sewer connection permits,
the permits
issued by the Village
and subsequent events with respect
to each Respondent may be summarized as followsJ
The relevant correspondence was principally between Murray,
the
village administrator,
and Anderson,
the general manager of the Dis-
trict.
On May
5,
1971, Murray wrote to Anderson inquiring whether
Kaeding would be allowed
a sewer connection based on
a 1956 state
sewer construction allowance.
(C EX
10)
.
A further letter was written
on July
13,
1971
(C EX
15)
.
On July
27,
1971,
Anderson responded
to Murray as follows:
(C EX
16)
“Please be advised that we are of the opinion that
the
permit previously issued by the State
of Illinois
for the
construction of sewers
in Page’s Lakeland Woods subdivision
and Margaret Kennedy Subdivision carry with them the right
to connect with the sewers
so constructed,
and are not affected
by the
ban of the Illinois Pollution Control Board.”
Sewer tapping permit was granted by the Village
on July
29,
1971
(C EX
17)
.
Previously, Kaeding had sought
a variation
from this Board
to permit
a sewer connection, which variation
(C EX
46)
was denied by
order of the Board entered on July
26,
1971
(C EX
47)
which according
to Stipulation
3 was received by Kaeding shortly thereafter.
Notwith-
standing
this denial, Kaeding began construction and proceeded to
complete
the sewer connection.
On May
7,
1971,
as
a result of inquiry made by Beder~rnan (C EX
8,18)
and again
on August
2,
1971, Murray, on behalf of the Village, wrote
to Anderson requesting information
as to whether
a sewer connection
could be made on property owned by Bederman because of sewer authoriza-
tion granted by
the Sanitary Water Board on December
14,
1966
(C EX
18)
a copy
of which permit is in the record
as
C EX
19.
On August
4,
1971,
Anderson responded to Murray
as follows:
“Please be advised that we are
of the opinion that the
permit
previously issued
by
the State of Illinois for
the
construction of sewers in Forest Cove Subdivision carried wilh
it the right
to connect to the sewers so constructed.”
However,
on July
2,
1971, Bederman had sought
a variance of the sewer
ban from this Board.
On August
5,
1971,
the Board dismissed the variance
on the grounds that even if all allegations were proven,
the variance
would still be denied.
Yet, pursuant to
the alleged authorization given
1 Exhibits, unless otherwise designated,
refer to complainant’s
exhibits admitted by stipulation.
3
—
652
by
the District, the Village issued
a permit to Bederman on August
24,
1971 permitting sewer connection
(C EX
21)
.
No connection appears to
have been made
to
date.
Murray wrote
to Anderson on July
13,
1971 relative
to property
of Horsch
(C EX
27)
stating that
a sewer authorization was issued in
March
of
1967.
Authorization
for this connection was given by the
District in the July
27 letter above-referred to
(C EX
16)
.
A
connection permit was issued by the Village
to
Horsch on August
27,
1971,
but
was
cancelled on September
13,
1971.
Request for authorization
to permit sewer connections
of Nilles,
Inc.
appears
to
have
been
written
by
Murray
to
Anderson
on
April
15,
1971,
to
which
letter
Anderson
responded on
April
20,
1971
(C
EX
29)
authorizing the connection based on
a pre-existing state permit.
(Nilles
Ex.
2)
.
As
a result
of this authorization and one subsequent-
ly sent on June
21,
1971
(C EX
30)
six building permits,
each permit-
ting sewer tie-ins, were issued to Nilles
(C Group EX
31)
,
resulting
in two sewer connections being made
(Stip.
No.
2,
Par.
10)
Requests to authorize sewer connections
for the North Shore Indus-
trial
& Research Centre were contained
in letters written by Murray
to Anderson on May
17,
1971,
May
21,
1971 and June
25,
1971
(C EX
33,
35,44)
.
Authorizations for these connections
are found in letters
written from Anderson to Murray dated June
21,
1971
(C EX
30)
and
letter from Conselman,
the District Attorney,
to Bleck Engineering
dated May
17,
1971
(C EX
38)
which states,
in part,
as
follows:
“It is our understanding that
all permits issued prior
to March
31,
1971 to connect to sewers carry with
them the
permission to connect those sewers to the existing system.
Therefore,
it appears that all work construction pursuant
to the permits of September
12,
1966, October
19,
1967
and
April 18,
1969 include permission to connect to the existing
system.”
Letter
from Anderson to Murray dated July
6,
1971
(C EX
45)
likewise
contains authorization
for the issuance of permits
to the Industrial
Centre.
The State permits on which this alleged authorization are
based are found in
North
Shore
Industrial
&
Research
Centre
EX
1.
As
a consequence of this authorization,
a construction permit per—
mitting sewer tie—in was issued by
‘the Village on June
19,
1971
(C EX
45A).
It will be noted that the permit issued prior to the
last—mentioned correspondence.
However,
the record indicates
that
no sewer connection has been made by
the North Shore Industrial
&
Research
Centre.
3
—
653
The
Village
of
Lake
Bluff,
by
its
repeated
inquiries
of
the
District,
was
seeking
sanction
for
what
both
undoubtedly
knew
violated
the
letter
and
spirit
of
the
March
31,
1971 sewer ban.
There
is
no
question that the District took upon itself, unilaterally and in
direct
defiance
of
the Board’s Order,
jurisdiction
to allow violation
of
the
law
by
authorizin~
the
Village of Lake Bluff to permit sewer
connections.
As stated in our earlier Opinion in this
case,
the March
31,
1971 sewer ban prohibited sewer connections irrespective of any pre-
existing permits granted by the State
or the District itself.
The
order was unequivocal,
plenary and without exception.
It is also
manifest
that the individual respondents,
to th~extent connections
were made, acted in violation of the ban.
The difficulty
in imposing
sanctions against them arises from the fact that
they were not parties
to
the original proceeding.
We
find that the North Shore Sanitary District has violated the
sewer ban order of March
31,
1971 by authorizing the sewer connections
above stated.
We will order
the District to cease and desist the allow-
ance of all sewer connections beyond those expressly permitted by
variance
or pursuant to our January
31,
1972 Order giving limited re-
lief against the sewer’ ban
order.
We direct the District to revoke
all previously-granted authorizations upon which the complaint
in
this
proceeding was based and to take
all necessary
steps
to cause discon-
nection of all sewer connections granted or authorized by
the District
as above set
forth.
Because of the apparent good faith reliance
on the acts of
the District
and the Village,
connections made by
Nilles,
Inc. prior to service of
this complaint are excepted from
this Order.
We will impose
a penalty of $5,000.00
against
‘the Dis-
trict
for the violations aforesaid.
The
conduct
of
the
Village
of
Lake
Bluff
in
our
judgment
repre-
sents
a flagrant effort to circumvent the clear language of the sewer
ban order.
However,
its absence
as
a party to the original proceeding
unfortunately
shields
it from
the imposition of penalties and any
cease
and desist order.
Any future allowance of improperly author-
ized sewer connections by Lake Bluff, however, will be treated with
greater severity.
With respect to respondents Kaeding and Bederman,
who acted in defiance
of our variation denials
after having sought our
assistance in obtaining permits, we direct them to disconnect any
tie-
ins they have made and to cease
and desist any future tie-in or con-
nection to the Lake Bluff sewer system without proper authority.
As
to the other individual respondents, we are not disposed on the
facts
of this case to invoke
a doctrine of accessory liability in view of
their absence as parties to the original sewer ban proceeding
and the
absence of an affirmative showing of bad faith on their part.
With
respect
to
the
charges
that
the
conduct
of
all
parties
caused
or
threatened
to cause water pollution in violation of
the statute,
we
conclude that the evidence does not warrant such
a finding.
It
is
true
that
the original sewer ban was promulgated with
the view of preventing
3
—
654
increased
water
pollution
and
it
might
be
argued
that
any
new
connection
in
violation
of
the
ban
leads
‘to
this
result,
per
se.
However,
in
finding
violation
of
the
statute
and
asserting
penalties
thereunder,
subjective
proof
must
be
established
that
water
pollution
was
caused
by
the
specific
offense
charged.
Such
‘proof
is
lacking
in
‘this
record.
One
further
matter
remains
to
be
considered.
Counsel
for
the
North
Shore
Sanitary
District
sought
an
advisory
opinion
from
a
Board
member
as
to
whether
the
sewer
ban
order prevented connections
to sewers
oreviously authorized by the State
or the District itself.
Interpreting
‘the alleged response to suit his purpose,
the District’s attorney
then
promulgated his own
legal ‘opinion without seeking Board authorization
which he should have known would have been the proper method to proceed.
Indeed,
the Board had previously indicated upon inquiry of
the
District
that it would not render advisory opinions regarding
the precise subject
of sewer connections.
See LWV v. NSSD Opinion dated May
12,
1971,
There we said:
“Our decision has raised
a number of
important
questions
which we
shall endeavor to
resolve. :~nvariance
or enforcement
proceedings
as they
are brought before
us.
While it would
save
time
‘to answer inquiries
such
as
the present one without
waitine
to accumulate
a record in accordance with
the Environ-
mental Protection Act and our procedural rules, we think the Act
does
not permit us
to render ex parte advisory opinions
as to
matters
that may
be of importance
to other parties.
We shall
he happy
to consider the question posed either in
a variance
proceeding or in
a motion to clarify the order after the other
parties
to the
case are served and given
‘the opportunity to
respond.”
It is inexcusable that
as
late as May
17,
1971,
the District’s
attorney was advising builders
that the sewer ban did not apply
to
connections
to
pre-existing
sewers.
Counsel for the District should be
well
aware
that
only
the
Board
can
speak
for
the
Board,
that
advisor~~
opinions
are
not
rendered
in
any
case
arid
that
no
single
member
has
the power or authority to give binding interpretations
of law.
The
District,
in failing
to proceed in the proper
legal fashion,
has
acted at its
peril.
Its authorizations to the Village of Lake Bluff
in violation of the sewer ban order
are
a nullity and must be rescinded.
Parties adversely affected by this decision may still proceed by the
filing of variance applications or to the extent applicable,
seek
the
benefit of the January 31,
1972 Order in the principal case granting
limited relief against the sewer ban order.
This Opinion constitutes
the findings of
fact and conclusions
of
law of the Board,
IT IS
THE
ORDER of the Pollution Control Board:
I.
North
Shore
Sanitary
District
shall
cease
and
desist
the
authorization
of
sewer connections in violation
of the March
31,
1971 order in this proceeding.
Authorization shall be permitted only by variance order
granted by
this Board or by compliance with modification
order of January
31,
1972,
or pursuant to such regulation
as may hereinafter be adopted by
this Board.
2.
North Shore Sanitary District shall
take’irnrnediate steps
to cause revocation of all authorizations heretofore
granted for sewer connection to the sewer facilities of
the Village of Lake Bluff and shall take all steps
to
cause disconnection
of any sewer connections heretofore
made pursuant to its alleged authorization
as stated in
this Opinion.
Connections made by Nilles,
Inc. prior
to
the service of the complaint are excepted from this Order.
3.
Penalty in the amount of $5,000.00
is assessed against
the North Shore~Sanitary District for the violations of
the March
31,
1971 sewer ban order
as stated in this
Opinion.
4.
Bederman
shall
cease
and
desist
the
connection
of
any
sewer connection to the Lake Bluff sewer system and shall
disconnect any connection heretofore made.
5.
Kaeding shall cease and desist the connection of any sewer
connection to the Lake Bluff sewer system and’shall dis-
connect any connection heretofore made.
Mr. Richard
J.
Kissel did not participate
in the consideration of
or decision in this case.
I, Christan Moffett, Clerk of the Pollution Control Board,
certify
that the above Opinion was
adopted on the f7~day of February,
1972,
by
a vote of
~
~
~
3
656
