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Starcevich v. Pollution Control Bd.

OPINION FILED NOVEMBER 19, 1979.

PAUL STARCEVICH, JR., ET AL., PETITIONERS,

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS.



PETITION for review of order of Pollution Control Board.

MR. PRESIDING JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 28, 1979.

The petitioners, Paul and Mildred Starcevich, Paul's IGA Foodliner, Inc., Four Nine Four Corporation, and Eleanor Leeper, were individually fined by the Pollution Control Board. They were found guilty of causing or allowing the construction and operation of a sewer requiring a permit without obtaining such permit in violation of Rules 951(a) and 952(a) of the Pollution Control Board Rules and Regulations, chapter 3: Water Pollution, and section 12(b) of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1012(b)). The petitioners appeal from the Board's order finding a violation.

In 1973, Paul's IGA Foodliner, Inc., a retail grocery store located in Farmington, Illinois, constructed an eight-inch sewer line connecting the store to the city of Farmington's sewer system. The connection was made at a manhole (the "Vernon Street manhole") located at the end of the Farmington sewer line. At the time this sewer was constructed, no permit was required from the Environmental Protection Agency (hereafter referred to as the EPA) under Rule 951(b)(2) of the Pollution Control Board. Rule 951(b)(2) exempts from the construction permit requirement any sewer which serves a single building and discharges less than an average of 1500 gallons of domestic sewage per day.

On June 6, 1975, Paul's IGA Foodliner sold some property located to the west of the store to Jerry Freirich, a representative of the Kansas City real estate development firm of Block & Company.

In the spring of 1976, the petitioner Four Nine Four Corporation's Ben Franklin Store was constructed on the land that was the subject matter of the Paul's IGA Foodliner/Freirich contract. On April 5, Lyle Ray, an EPA inspector, had a telephone conversation with Freirich and informed him that a construction permit would need to be issued from the EPA if a sewer line was to be built connecting the Ben Franklin Store to the eight-inch line coming from Paul's IGA Foodliner. This telephone call was followed up by a letter (dated May 27, 1976) to Freirich from the EPA in which he was told that "if any additional buildings are to be attached to the service line which serves the IGA building, a sewer extension permit will need to be issued by this Agency." A sewer extension was constructed without a permit from the Ben Franklin Store to Paul's IGA line, for which Paul's IGA was paid $1,000. Neither Starcevich, Freirich, Paul's IGA Foodliner, Inc., nor Four Nine Four ever applied for the necessary construction permits or a variance from the permit requirement. Pierson-Pyle Contractors, the firm building the Ben Franklin Store, applied to the EPA for a permit on May 24, 1977, but was denied a permit by letter on June 10.

Petitioner Eleanor Leeper owned a parcel of land west of the Ben Franklin Store. On September 9, 1976, she began construction of the Shad Hill Complex, a marketplace for arts, crafts, and antiques. In response to her inquiry concerning the necessity of a sewer construction permit for her proposed building, the EPA informed her by letter dated May 28, 1976, that she could not tap onto the Paul's IGA line. The letter stated that no tap could be made because, as the IGA line was installed without a permit, "it can only be presumed that one was not required, which means the sewer is designed and intended to serve only one building, * * *." Although she was informed that no permit would be required to connect to a public sewer if her sewer was to serve only her facility and handle less than 1500 gallons of sewage a day, no permit would be issued to her if one was necessary because of the Farmington system's "inadequate treatment capability." However, she was advised that she could seek a variance if in fact she did need a permit.

After investigating several possible ways in which she could dispose of the Shad Hill sewage and meeting with no success, Leeper eventually made a sewer connection with Paul's IGA sewer line, and paid Paul Starcevich $1,000 for permission to make the connection. Mrs. Leeper testified at the Pollution Control Board's hearing that she told her engineers to prepare a variance request for her, but she did not know if a petition for a variance was ever filed. Like the other co-petitioners, Mrs. Leeper never sought a permit.

After a consolidated hearing on each claim of violation before the Pollution Control Board an order was entered finding each of the petitioners guilty of violating Board Rules 951(a), 952(a), and section 12(b) of the Environmental Protection Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1012(b)) in that they caused or allowed the construction or operation of a sewer without first obtaining the requisite construction permit. On appeal from this order the principal issue raised is whether they are guilty of violating the rules and regulations as promulgated by the Pollution Control Board.

Since it is conceded that no permits or variances were issued the question remains as to whether a permit was required; in particular, whether the exemption described in the rule is applicable to the circumstances of these petitioners. That part of the rule describing the exemption is Rule 951(b)(2) of the Pollution Control Board and it provides:

"(b) Construction Permits shall not be required for the following:

(2) Any * * *, sewer, * * * designed and intended to serve a single building and eventually discharge less than an average of 1500 gallons per day of domestic sewage."

According to the Board, the Ben Franklin Store and the Shad Hill Complex would be within the scope of Rule 951(b)(2) if each had constructed a separate sewer line to the "Vernon Street manhole." Hence, lack of compliance is not predicated upon the petitioners' failure to comply with the single-building requirement, since according to the Board, the exemption under Rule 951(b)(2) would have been applicable had petitioners changed the method by which their sewage was discharged. Rather, lack of compliance arises from the manner attachment was made to each of the petitioners' single buildings, a condition not specified in the rule creating the exemption. The departure from the conditions creating the exemption in the rule is evidenced by the only finding in the Board's order relating to the violation, as may be seen by the following portion of the Board's order.

"The contention by the Respondents that the additional connections fall under the Rule 951(b)(2) exemption is wholly unfounded. Once those connections were made, the eight-inch line became a sewer extension rather than a ...


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