ILLINOIS

POLLUTION

CONTROL

BOARD

October

10, 1972

ENVIRONMENTAL

PROTECTION AGENCY

v.

)

PCB

72-197

LAKE

IN

THE

HILLS

WATER

COMPANY

Mr.

Samuel

Morgan,

Special

Assistant

Attorney

General,

appearing

for

Environmental

Protection

Agency

Messrs.

Glaeser,

Burstein

&

Gates,

by

Mr.

Edward

A.

Glaeser

and

Mr.

Boyd

L.

Gates,

appearing

for

Respondent

OPINION

AND ORDER

OF

THE

BOARD

(by

Mr.

Currie):

Lake

In

The

Hills

Water

Company

(~Respondent~)

owns

and operates

a

public

water

supply

serving

the

Lake

In

The

Hills

Subdivision

located

in

the

City

of

Algonquin,

Mcllenry

County,

Illinois.

On

May

9,

1972,

the

Environmental

Protection

Agency

(?iAgencyu) filed

a

complaint

against

Respondent

with the Board

alleging

that on various

dates

Respondent

had violated

Section

18

of

the

Environmental

Protection

Act,

Ill,

Rev,

Stat,

,

Ch.

111—1/2.

~l0l8

(Supp.

1970)

by

failing

to

direct

and

maintain

the

continuous

operation

of

the

supply to

such

an

extent

that

the water

had

not

been

provided

in

adequate

quantity

of

cleanliness

or

of a satisfactory

minerai

character

for

ordinary

domestic

consumption;

and failing

to provide

adepuate

treatment

for

the

iron

content

of the

water

and to

provide

adequate

quantity,

in violation

of

Rules

3.

13,

3.

03

anti

3.

14

of

the

Public

Water

Supply

S

stems

Rules

and

Regulations

(~Rules).

At

the

public

hearing

concluded

on

August

9,

Respondent

stipulated

that

water

outages

did

in

fact

occur

on

August

8,

9

and 10,

1971

and on

Terjowrv

31,

11)72;

that

on

various

occasions

during

the past

three

years

the

quantity

and pressure

of the

water

supplied

to the

company

a

customers

have

been

inadequate;

and that~~there

was

an

excess

of

certain

minerals

i.n

the

water

seas

to

violate

Rule

3.

13

of

the

Public

Water

Supply

System

Rules

arid

Regulations

on

November

12,

1970,

July

9,

1971,

December

14,

i~7i, December

16,

1971,

January

16,

1972,

and. February

1,

1972

(Ii,

10—12).

It

was

also

stipulated,

however,

that

there

had

been

no bacterial

pollution

nor

contamination

violating

State

standards

on

any of these

dates

(B,

12).

ifl

I ~dt

Of

the

stipulation,

the

Agency

presented

no

witnesses

and the re~

m

ainder

of the

bearing

was

devoted

to

evidence

offered

in mitigation.

---

—9—

The

secretary-treasurer

of

Respondent

water

company

testified

that

he

had

become

affiliated

with

the

company

in

1958

(R. 18),

and that

since

1958

a

substantial

increase

in

new

customers

had

occurred.

He

noted

that

the

following

number

of

new

services

had been

provided

in

recent

years:

June,

1967

—

June,

1968

=

6

June,

1968

-

June,

1969

=

27

June,

1969

-

June,

1970

=

44

June,

1970

-

June,

1971

=

126

June,

1971

-

June,

1972

=

165

(R. 20)

He

testified

that

as

a result

of the

great

expansion

of

service,

problems

developed,

and the

company

began

to investigate

ways

to

improve

service

(R. 32);

that

the

Illinois

Commerce

Commission

had conducted

a hearing

on

June

7,

1971,

and had

entered

a detailed

order

on February

9,

1972

requiring

the

installation

of

certain

improvements

to the

system

(R. 22,

58;

Ex. A).

He

said

the

cost

of

the improvement

program

would

be

$83, 483,

36

(R. 59).

But,

he

said,

notwithstanding

the

frequent

outages,

the

company

was

compelled

to

continue

to

accept

new

connections

because

~our

franchise

states

that

we

must

accept

new

connections

to our

system

(R. 36).

He

pcinted

out,

however,

that

the

company

had asked

the

Village

to

suspend

the

issuance

of building

permits,

but

had

been

turned

down

(R. 36-37).

Confirming

these

remarks,

the

Village

President

testified

that

no

measures,

other

than a

sprinkling

ban,

had been

taken

by

the

Village

to

aid

the

company

in

its

water

shortage

difficulties

(R. 47),

and that

the

Village

~had

no

power

to turn

off

building

permits

for

connections

to

a water

system,

IT

(B. 48).

The

Village

Attorney

later,

amplified

these

comments,

testifying

that

the

Village

had instituted

a

sprinkling

ban

every

summer

since

1960

to

help

alleviate

the water

shortage

(H.

108).

I-Ic

added that

it

was

the

Village1s

belief

that

where

homes

were

built

on lots

that

had

previously

con-

tracted

for

service

from

Respondent,

the

Village

could

not

prevent

the

use

of

such

lots

(R. 109),

and that

prohibiting

the

Respondent

from

making

further

house

connections

would

stunt

the

growth

of

the

Village

and cut

off potential

sources

of revenue

(R.

110).

He

noted

that

the

Village

had

offered

to

purchase

the water

company

for

$225, 000,

which

figure

would

include

assumption

of

existing

liabilities

of

$200,

000

(R.

111-112).

A

consulting

engineer,

retained

by

Respondent

as

its

agent

to negotiate

and let

contracts

for

improvements

to Respondents

water

supply

system,

testified

that

subsequent

to the

I.

C.

C.

hearing

of

June

7,

1971,

the

I.

C. C.

had

issued

its

order

of

February

9,

1972,

requiring

Respondent

to

embark

upon

an

extensive

two-phase

improvement

program

(H.

71).

He

noted

that

the

system

was,

in fact,

inadequate

during

peak

periods

prior

to

June,

1971

(R.

102),

and that,

to the best

of his

knowledge,

Respondent

had

taken

no

5

—

632

---

—3—

action

to

attempt

to

improve

the

situation

prior

to

the

entry

of

the

I. C.

C.

order

(H. 101).

Counsel

for

Respondent

added that

the

water

company had

been

TTin

negotiations

for

three

to

six

years

for

the

sale

of

its

assets,

IT

(H. 137),

and that,

TI(g)enerally

in the

business

sense

a man

won~tsell

something

that

he

is

going

to

improve

10

days

after

he

might

make

a

contract

for

sale..

.

our

clients

would

have been

imprudent

as

businessmen

to

con-

tract,

as

they

now have

pursuant

to

an

I. C.

C.

order,

to

expend

$83, 000,

$84,

000.

II

(H.

137-138).

The

property

which

was

being

considered

as

a potential

sale,

however,

was

a public

water

supply

system,

serving

the

ordinary

daily

domestic

needs

of hundreds

of families,

and not

a used-car.

We cannot

accept

the possibility

of sale

as

an

adequate

excuse

for taking

such

liberties

as

are

here

admitted

with

the

publicTs

welfare.

Since

various

violations

have

been

admitted

as true,

our

only task

is

to

determine

the

extent

of

the

penalty,

if

any,

which should

be

assessed,

and the affirmative

orders

which

should

be

applied

to

assure

that

Respondent

improves

the

existing

unsatisfactory

condition.

Phase

I

of

the

I.

C.

C.

order

called

for

the installation

of

additional

deep

well water

supply

and pumping

equipment.

The

engineer

stated

that

digging

had

been

accomplished

at a rate

of

five

feet

per

hour,

and that

they had

already

reached

a

depth

of

360 feet

(R. 78).

He added

that

he

believed

another

three

weeks

would

be

necessary

to finish

the

job

(R. 79-8 0).

Noting

that

another

400

gallons

of water

per

minute

was

needed

(R. 82),

the

engineer

stated

that

the

contracts

for

the

installation

of

adequate

pumping

equipment

to

comply

with

the

I. C.

C.

order

would

be let

upon

completion

of

the

well

(R. 83-84).

The

second

stage

of Phase

I

calls

for

the

installation

of

additional

means

to

improve

the

grid

pattern

of

the

distribution

system

(R. 84),

and the

engineer

testified

that

work

on

these

improvements

is

approximately

60-65

completed

(H.

85).

Under

Phase

II

of

the

I.

C. C.

order,

the

company

is

to

install

another

deep

well

(H. 8 7-88),

a

water

storage

standpipe,

or

water

tower,

(H. 89),

and

to forward

progress

reports

to the

I.

C.

C.

(H.

90).

It is unclear

from

the

record

whether

or

not

complian~ with

all

the

provisions

of the

I.

C.

C.

order

will

indeed

allow

the

Respondent

to achieve

compliance

with

applicable

state

pollution

laws,

rules

and regulations.

Furthermore,

it

is unclear

when work

on

both

Phase

I

and Phase

II

of

the

5

--

633

---

orders

will

be

completed,

and the order

itself

contains

no

firm

completion

dates

or

interim

time

schedules.

The refore,

we

will

ask

Respondent

to

provide

us,

within

twenty

days

of

the

date

of

receipt

of this

order,

with

a written

submission

indicating

the

dates

by

which

construction

and

installs-

tion

of

the

improvements

called

for

by

the

I. C.

C.

will

be

completed,

and

an assessment

of

how

serious

the

situation

will

be

upon

completion

of

each

phase,

We

are primarily

interested

in

determining

to what

extent

the

situation

which led

to the

institution

of the

present

case

will

be

alle-

viated

by

completion

of first

Phase

I,

and then

Phase

II

of

the order,

and

we would like

assurances

from

Respondent

that

the

situation

will

not

only

substantially

improve,

but

also

that

the

service

will

be

in compliance

with

applicable

State

laws

and

regulations

by

a

reasonable

date

certain.

Upon

receipt

of

such

information

and of

such

response

as

the

Agency

may

submit,

we

shall

take

what further

measu:res

appear

desirable,

Additional

connections

to

the service

during

the

installation

of

the im-

provement

measures

may

well

have

an

aggravating

effect

on

what

is

already

an

unacceptable

situation.

However,

we find

no

evidence

that

the requisite

notice

was

given

under

Section

33(a)

of

the

Act regarding

cases

in

which

an

order

of

the

Board

may

affect

the right

of

the

public

to the

use

of water

facilities

provided

by

a

municipally

owned or

publicly

regulated

company.

We

will

ask the

Agency to

submit,

within

five

days

of

receipt

hereof,

a

statement

describing

the

notice

previously

given

in this

case

to

determine

if

in fact

adequate

notice

was

given.

If the

requirements

of

Section

33(a)

were

not

met,

and if upon

receipt

of information

as

to

the

dates

on

which

compliance

is

expected

it

appears

that

there

is

reason

to

believe

a

ban on

new

connections

might

be

desirable,

we

will

arrange

to

have

proper

notice

published,

and will

conduct

a

new hearing

solely

on

the

question

of

a

conner—

tion

ban

as

a remedial

interim

measure

in this

case,

As

stipulated,

we

find violations

of

Section

18

of

the

Act

on

August

8,

9

and 10,

1971

and on

January

31,

1972.

In

addition.,

and

also

as

stipulated.

we find

violations

of

Rule

3,13

of

the

Public

Water

Supply

System

Rules

and Regulations

occurred

on

November

12,

1970,

July

9,

1971,

December

14

and

16,

1971,

~January

16,

1972

and

February

i,

i972,

We

will

assess

a penalty

in the

amount

of i~250,00 for

each

of these

offenses,

or

a

total

penalty

of

~2,

500.

08,

A final

note

regarding

the

involvement

of

the

Hearing

Officer

in this

case.

Notwithstanding

the

fact

that

Hearing

Officers

are

not

renuiree

or

requested

to

submit

findings

of fact

or

recommendations,

and

are,

in fact,

specii~cai1ydirected

not

to

do

so,

or

to take

any part

whatsoever

in

the

We urge

parties

requesting

relief

that

falls

‘rithin

the

special

notice

requirement

relating

to the

:right

to

use

public

or

pubii,c—utltlt’7

services

to

give such

notice

at.

the

outset

so that

a sin

le

~iearin

can

be

held

on

all

issues.

---

-5-

decision

making

process,

the

Hearing

Officer

in

this

case

submitted

a

lengthy and

detailed nine-page

recommendation,

entitled

“Hearing

Officer’s

Report.”

In

addition,

he

engaged In post-hearing

written

colloquy

with

the Village

Attorney on the merits of

the

case

and

his

report.

We

think

the

Officer

acted zealously,

but

beyond his

authority,

and

we

again

urge

Hearing

Officers to

act

more as referees

authorized simply to receive

evidence,

and not

as advocates or

judges.

We

did

not

take

the

Hearing

Officer’s

“Report” in the

present

case

into

consideration

in

arriving

at our

determination.

This

opinion

constitutes.the

Board’s findings of fact

and

conclusions

of

ORDER

IT

IS

HEREBY

ORDERED:

1.

Respondent shall

pay

to the State of Illinois

within thirty-five

(35)

days from the date hereof,

the

sum

of $2. 500.00

as

a penalty for

the violations

found

in this proceeding.

Penalty

payment by certi-

fied

check or money order

payable

to the State of illinois

shall

be

made to “Fiscal

Services

Division,

minois

Environmental

Protection

Agency,

2200

Churchill Drive,

Springfield,

illinois

62706.

2.

Respondent

shall,

within twenty

(20) days of this Order,

submit to

the Agency and Board

a written statement indicating

the progress

already made on the work required under the Order of February

9,

1972 issued by the Illinois

Commerce Cotnrntssion,

the dates by

which

all

work on Phases

I

and

II of said Order will be

completed,

the extent to which the violative

conditions

and

the situation

which

led to

such conditions

wifi be

improved upon

completion

of Phase

I

and Phase

II,

and such further

information as is

relevant

and

necessary.

3.

All

provisions of the order of February

9,

1972,

of the minois

Commerce Commission

are hereby adopted by

this

Board and

incorporated in the present Order herein.

The

Board reserves

the

right,

upon

receipt of the written submissions

required herein,

to enter

as a

supplementary order

setting

interim and final comple-

tion

dates for the

improvement projects

specified

in

said I. C. C.

Order,

and to

set

appropriate

bond to assure

compliance thereto.

4.

The

Agency is

directed,

within five

days of the receipt of

this

order,

to

submit

a written statement to

Respondent and Board,

5-.835

---

-6-

describing

the

notice

procedures

that

were

followed

in

this

case,

and to

explain

whether

or

not

the

notice

requirements

of

Section

33(a)

of

the

Act

were

complied

with.

5,

This

case

remains

open

for

such

further

proceedings

as

are

contem-

plated

by this

opinion

and order.

I,

Christan

L.

Moffett,

Clerk

of the

Illinois

Pollution

Control

Board,

hereby

certify

the

above

Opinion

and Order

were

adopted

on

the

/~

day

of

October,

1972

by

a

vote

of

-~

1.

..

-

.~

1/

/

--

Christan

L.

Moffett,

Clerk

Illinois

Pollution

Control

Board

5

-—

636