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07/19/89 the City of Freeport, v. the Pollution Control

July 19, 1989

THE CITY OF FREEPORT, PETITIONER-APPELLANT

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

544 N.E.2d 1, 187 Ill. App. 3d 745, 135 Ill. Dec. 644 1989.IL.1119

Petition for review of order of Pollution Control Board.

APPELLATE Judges:

JUSTICE McLAREN delivered the opinion of the court. NASH and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCLAREN

Plaintiff, City of Freeport (City), appeals from an order entered by the Illinois Pollution Control Board (Board). The City maintains that the Board erred when it entered a $10,000 civil penalty or fine against the City. We affirm.

On November 5, 1986, a citizen's complaint was filed with the Board alleging that the City's sanitary sewer backed up and overflowed into and on residential properties. On its own motion, the Board joined the Illinois Environmental Protection Agency (Agency) and designated it as a nominal complainant. The Agency filed a motion for relief from misjoinder. The motion expressed the Agency's unwillingness to participate in the suit due to the possibility that such participation would jeopardize its negotiations already in progress with the City. The Board granted the Agency's motion and entered an order dismissing the Agency as a party.

On June 23, 1987, the Board held a hearing on the complaint. During the hearing, a number of City residents testified to the sanitary sewer backups which they had experienced on their properties over the past 20 years. These sewer backups caused extensive flooding and property damage. The residents testified that, in spite of attempts to get the City to solve the sanitary sewer backups, the problems still continued. The executive director of the City water and sewer commission testified as to work done on the sewer system. The director testified that the City expended $1,187,664.32 from 1983 through 1987 on the system. Additionally, the City, in response to a preenforcement letter it had received from the Agency, had been working with the Agency to correct its sanitary sewer problems.

The City retained an engineering firm, Missman, Stanley & Associates (Missman), to make an engineering study of the sanitary sewer system and to make proposals for work to be done to correct the problems. In February 1987, Missman completed a report entitled "Interim Preliminary Findings." This report, which had been requested by the Agency during negotiations with the City, included a recommendation that the City conduct a sewer system evaluation study. In March 1987, Missman completed a second report entitled "Preliminary Findings." Both reports indicated a project completion date of October 31, 1990. After reviewing the first Missman report, the Agency stated in a letter to the City that the implementation schedule was appropriate. The Agency also stated it would like to see "a verification that the City fully intends to finance and complete the project."

City representatives indicated an intention to proceed with the sewer system evaluation study when State grant funds became available. Testimony at the hearing indicated this same position on the part of the City. However, a letter from a State representative to the Board indicates that State funds were not likely to be received for the City sewer project. He further expressed the hope that the City's search for State grant funds would not be used as an excuse to avoid immediate remedial measures.

On February 25, 1988, the Board entered an interim order. The Board found that the City had violated sections 306.102(a), 306.303 and 306.304 of chapter 35 of the Illinois Administrative Code. (35 Ill. Adm. Code §§ 306.102(a), 306.303, 306.304 (1985).) Noting that the record was not detailed as to how the City's sewer system problems were to be solved, the Board ordered the City to submit to the Board, Agency and complainants, by May 2, 1988, a plan for compliance with the cited regulations. This plan was to contain a schedule detailing steps to be taken and corresponding dates by which those steps should be completed. The Board required the City to achieve substantial compliance by October 31, 1990. The Board retained jurisdiction in the matter and stated that the City's failure to make progress in addressing the problems could lead to penalties and possible restricted status to prevent additional hookups.

On April 29, 1988, the City submitted a compliance plan to the Board, Agency and complainants. The plan included a "substantial compliance" date of August 31, 1991.

On September 8, 1988, the Board entered a final order. Regarding the compliance date in the City's plan, the Board noted that the date was 10 months later than the Board had ordered and that the City had offered no explanation for the delay. The order indicated that the Board again found that the City had violated sections 306.102(a), 306.303 and 306.304 of chapter 35 of the Illinois Administrative Code. Additionally, the Board ordered the City to achieve compliance by December 31, 1990, extending its original compliance date to account for time the Board had used in its deliberations on a remedy. Lastly, the Board ordered the City to pay a civil penalty of $10,000. The Board noted that, given the City's violations and the time over which they have occurred, a larger penalty could have been assessed. However, as an aid to the enforcement of the Act, the Board assessed the lower amount of $10,000.

On October 13, 1988, complainants filed a motion for limited rehearing or modification of final order. The Board denied this motion on November 3, 1988. On December 15, 1988, the Board denied the City's motion for stay of the civil penalty. On January 31, 1989, the City filed with this court a motion for stay of the civil penalty. We granted this motion on February 7, 1989. The City has appealed the portion of the Board's September 8, 1988, final order which imposes a $10,000 civil penalty or fine. This court's ...


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