Village of Western Springs v. Pollution Control Bd.

• Decision Date: 30 March 1982
• Docket Number: No. 81-1117,81-1117
• Citation: 438 N.E.2d 458,107 Ill.App.3d 864,63 Ill.Dec. 527
• Parties: , 63 Ill.Dec. 527 VILLAGE OF WESTERN SPRINGS, Petitioner, v. POLLUTION CONTROL BOARD of the State of Illinois and John F. Burns, Respondent.
• Court: United States Appellate Court of Illinois

Page 458

438 N.E.2d 458

107 Ill.App.3d 864, 63 Ill.Dec. 527

VILLAGE OF WESTERN SPRINGS, Petitioner, v. POLLUTION CONTROL BOARD of the State of Illinois and John F Burns, Respondent.

No. 81-1117.

Appellate Court of Illinois First District, Second Division.

March 30, 1982.

Supplemental Opinion on Denial of Rehearing Aug. 10, 1982.

Lord, Bissell & Brook, Chicago (Robert A. Knuti and Andrea Sykes Foote, Chicago, of counsel), for petitioner.

Respondent did not file a brief.

HARTMAN, Justice:

Petitioner, Village of Western Springs ("Village") seeks administrative review (Ill.Rev.Stat.1979, ch. 111 1/2, par. 1041; ch. 110, pars. 264, et seq.) of a decision rendered by the Illinois Pollution Control Board ("Board") ordering it to cease and desist from violating section 12(a) of the Environmental Protection Act ("Act") (Ill.Rev.Stat.1979, ch. 111 1/2, par. 1012(a)) and to submit a compliance plan to eliminate surcharge of human wastes into ponded street surface waters. The Board's decision arose out of a complaint filed by a village resident, John Burns, charging that his property was flooded periodically by storm water and sewage through Village violations of several regulations of the Board and sections of the Act, including section 12(a). The issues raised on appeal are whether: the Board's determination was supported by the manifest weight of the evidence; and, appropriate relief was ordered. For the reasons set forth below, we affirm.

Respondent Board has filed the transcript of hearings, together with exhibits in accordance with section 7 of the Administrative Review Act; however, John Burns has not filed an appearance in this review. Ill.Rev.Stat.1979, ch. 110, par. 270.

Evidence adduced at the administrative hearing on October 21, 1980 revealed that after a bad storm in August 1972, the basement of John Burns' house, located at 4419 Clausen, flooded with water, human waste and toilet paper. This mishap was caused by the backup of a toilet in his basement. In September 1973, his basement again filled up with similar debris, after which he removed his basement toilet. During a heavy rain in April 1974, he observed paper coming up from the manhole, located 30 feet from his front porch. On June 12, 1976, his property was again flooded and he observed water, although no human waste, coming up through the same manhole. About one dozen other flooding incidents, up to and including August 1980, were described. Generally, after a storm would abate, the water would remain on Burns' property and in the street from 2 to 4 hours. The water ranged in depth from 12""' to 18""'.

Expert engineering testimony revealed that a combined sewer passing by Burns' property eventually intersects the interceptor sewer of the Metropolitan Sanitary District of Greater Chicago ("District"). Combined sewers are designed to handle a combination of sanitary flows and storm flows. The interceptor sewer, designed to handle only sanitary flow, is about 24"'" in diameter; the combined sewer line servicing Burns' property is 48""' in diameter. The interceptor sewer can receive all the flow from the combined sewer during times when there is no storm water runoff. When there is storm water runoff, the large flows that come through the combined sewer are diverted into Salt Creek. Combined sewer overflow is the excess, untreated water and sewage which discharges into Salt Creek, because it cannot be accepted by the interceptor sewer. The sewer pipe could also be filled up to a degree that would cause a backup into a house. The dry weather flow of a combined sewer is commonly less than 5% or 10% of the capacity of the sewer, so that once the sewer starts to flow full, it is diluted 10 to 20 times by storm water.

The problem of the combined sewer overflow has been addressed by the Tunnel & Reservoir Plan ("TARP"), which has been approved by the Illinois Environmental Protection Agency and the District. The essence of the plan is that instead of the overflows being discharged into Salt Creek, they would be discharged into a proposed "deep tunnel." The engineer recommended that the Village connect its combined sewers to the proposed tunnel as soon as it is available, which would solve the pollution control problem.

The expert found no economic justification to construct new storm sewers for the Village solely for the purpose of diminishing the frequency and depth of "ponding". On October 21, 1980, the cost of a sewer system of maximum size in hooking up to TARP would be over one million dollars. The construction would reduce but not eliminate the numbers and depths of pondings. Ponding is considered a legitimate device for storing storm water runoff. Ponding may also consist of both sewer and storm water. Fifty-five households in the Village are affected by ponding. Burns could "flood proof" his home by surrounding it with an earth berm; building a concrete wall in other areas; and providing some sort of source of emergency power to insure the operational use of his sump pumps. As of February 1979, this would cost about $10,000. The pumps at the 55th Street Pumping Station, should they be operated, would aggravate the flooding problem affecting Burns. Although there seems to be "some question" as to whether they are actually operated, the Village has petitioned the District to remove the pumps.

A flood control policy resolution adopted by the Village was attached as Exhibit A to Burns' complaint. The Village resolved: that it would not expend large sums of money for the construction of new sewer systems; that temporary ponding was an integral part of the present water management system; that such damages were most economically mitigated by the private actions of the owners of the properties; and that specific, localized improvements financed by special assessments at no cost to the Village be made to alleviate specific flooding conditions.

The Board's decision, in part, found that the discharge of the combined sewer flow from street manholes into the ponded street surface waters violated section 12(a)'s prohibition against water pollution. The Village was ordered to cease and desist violating that section within a specified date and was required to submit a compliance plan acceptable to the Environmental Protection Agency within 90 days of the date of the order.

I.

The Village contends that Burns failed to show a violation of section 12(a) (Ill.Rev.Stat.1979, ch. 111 1/2, par. 1012(a)) and that the finding of a violation is contrary to the manifest weight of the evidence. We disagree.

Section 12(a) prohibits any person from causing or tending to cause water pollution. In turn, "water pollution" is defined as the discharge of any contaminant into Illinois waters "as will or is likely to create a nuisance or render such waters harmful * * * to public health, safety or welfare * * *." (Ill.Rev.Stat.1979, ch. 111 1/2, par. 1003(hh).) The Board could have reasonably found a violation of section 12(a) from evidence showing that during a heavy rainstorm there is a substantial risk of the Village's combined sewer becoming full and discharging "sewer water" composed of sanitary wastes and storm water onto the surface street areas. Such evidence supports a finding of a substantial risk of actual pollution, thereby establishing a prima facie statutory violation. Ill.Rev.Stat.1979, ch. 111 1/2, par. 1041; ch. 110, par. 274.

II.

The Village urges that even if a "technical" statutory violation was proved, the relief granted by the Board was not necessary, for a variety of reasons, including the ongoing relationship between the Illinois Environmental Protection Agency ("Agency") and the Village concerning its sanitary and storm sewer system. This latter argument is untenable. The instant complaint was initiated by a private citizen pursuant to section 31(b) of the Act (Ill.Rev.Stat.1979, ch. 111 1/2, par. 1031(b)) which specifically authorizes such an action as a safeguard against inadequate prosecution. (See, e.g., Currie, Enforcement Under the Illinois Pollution Law, 70 Nw.U.L.Rev. 389, 452-54 (1975).) The Village's previous dealings with the Agency were apparently insufficient or ineffective, precisely the raison d'etre of section 31(b). In effect, the...