ILLINOIS POLLUTION CONTROL
BOARD
September 4,
1975
ENVIRONMENTAL PROTECTION AGENCY,
)
Complainant,
vs.
)
PCB 75—51
EAST LAWN WATER COMPANY and
RONALD
W. KUPER LUCAS and JUDY
)
WILLIAMS KUPER,
)
Respondents.
JAMES JENKS,
II, Assistant Attorney General for the EPA
JOHN BALL,
JR.,, Attorney for Respondents
OPINION AND ORDER OF THE BOARD
(by Mr. Henss):
The Environmental Protection Agency charged Respondents
with numerous viclations of the Environmental Protection Act
and Pollution Control Board Regulations.
Specifically,
Respondents are alleged
in the Amended Complaint
to have:
Count
I
a.
Failed to direct and maintain the continuous
operation and maintenance of
a public water supply
from January
13, 1973
to date of filing of Complaint
(June 27,
1975)
so as to assure the safe quality of
water for ordinary domestic consumption in violation
of Section 18 of the Act;
b.
Failed to provide adequate and continuous
chlorination
from January
13,
1973 to December 21,
1974
in violation of Rule 3.50 of the Public Water
Supply System Rules and Regulations
and Technical
Release
10-2 and from December
21, 1974
to date of
filing of Complaint in violation of Rule
305 of the
Public Water Supply Rules and Regulations;
c.
Operated and maintained a public water supply
from January 13, 1973 to date of filing of Complaint
in such manner as to render it subject to contamination;
18
—
442
—2—
d.
Operated and maintained
a public water supply
without a protective casing at least
30” above the
highest known flood level elevation and without being
properly surrounded by earth fill in violation of
Rule 3.12
of
the Public Water Supply System Rules and
Regulations and Section 3.2,
3.14(a)
and
(c)
of the
Great Lakes Upper Mississippi River Board of State
Sanitary Engineers Report on Policies for the Review
and Approval of Plans and Specifications for Public
Water Supplies from January 13,
1973 to December 21,
1974 and
in violation of Agency Technical Policy
Statement 212(a)
from December
21,
1974 to date of
filing of Complaint;
e.
Operated and maintained a public water supply
system without pump house heater and without adequate
insulation so as to subject the system to freezing and
to allow the system in fact to become frozen and in-
operative during various periods from January
13, 1975
to date of filing of Complaint;
f.
Operated and maintained a public water supply
in such mariner so as to cause the distribution of water
containing offensive odor,
taste and color from
January 13,
1973 to date of filing of Complaint;
g.
Operated and maintained a public water supply
system without adequate pressure from January
13, 1973
to date of filing of Complaint.
All of
these alleged violations are said to be prohibited by
Section
18 of the Environmental Protection Act.
Count II
a.
Failed to submit water supply samples and reports
of operationfrom January
13,
1973 to date of filing of
Complaint in violation of Section 19 of the Act;
Count III
a.
Failed to employ on its operational staff at
least one certified water supply operator from September 12,
1973 to date of filing of Complaint in violation of
Section
1 of an Act to Regulate the Operating of a Public
Water Supply
Illinois
Revised Statute, Chapter 111 1/2,
Section
50J.,
effective September 12,
1973,
as amended by
P.
A.
75—801.
18
—
443
—3—
Ronald W. Kuper Lucas is cited in the Complaint as owner,
operator, managing agent, official custodian and owner of
record of the East Lawn Water Company, holding said company in
trust for Judy Williams Kuper and Adele McMillian.
Judy
Williams Kuper,
a/k/a Judy Williams,
is cited as owner, operator,
managing agent and official custodian of the East Lawn Water
Company.
Three public hearings were conducted on this matter
in April
1975.
East Lawn Water Company is
a public water supplier
located in the East Lawn Subdivision
(Hampton Township), Rock
Island County,
Illinois.
The facility consists of a drilled
rock well,
immersible pressure pump, well house,
chlorination
equipment,
two pressure storage tanks,
and a water distribution
system.
East Lawn provides water to
47 households in the East
Lawn Subdivision at a monthly fee of $4.00,
10
of which is
deductible
if
the fee is paid before the due date.
The company
derives approximately $400 per quarter from this service
(R.
68).
Ronald W.
K.
Lucas, among others, was cited
in a prior
action before the Board involving similar allegations
(See:
EPA
vs. East Lawn Water Company,
et al, PCB 72-179).
In that prior
case Lucas was ordered to cease and desist from further violations
within
60 days and to take corrective measures to bring the water
supply facility into compliance.
Confusion regarding
legal ownership,
corporate officers,
registered agents,
legal shareholders and managerial responsi-
bilities existed throughout the hearings.
At various times
throughout the record,
the registered agent for East Lawn Water
Company was shown to be a Miss Williams
(R.
20),
Mrs. Kuper
(R.
21)
and the brother-i~-i-1awof Ronald W. Kuper Lucas who “lives over
in Collinsvjlle”
CR.
22)
.
Ronald Lucas identified Miss Williams
and Mrs.
Kuper
as one and the same person, his wife,
a fact
unknown to Respondent’s attorney
(R.
21).
Mrs. Kuper testified
that she uses her maiden name of Williams “solely for a business
practice and no other reason”
(R.
54).
She has never been the
corporation registered agent
(R.
50).
That position is held by
a Michael McMillian of Edwardsville, Illinois.
During a pre-hearing conference Respondent’s first attorney
wa~: granted leave to withdraw as
attorney of record.
(Public
Exh:~it#3).
One of the reasons forwithdrawalwas that Respondent
had
not provided necessary information for the preparation of a
;~r~er rcsponse.
This interfered with the defense of
the case and
pr;~.~cd
the attorney from complying with the Hearing Officer’s
order
that “Respondent Corporation shall file and serve upon all
paiLies,
a list of s~iareho1dersfor the year 1973 through the
year 1974 and a statement of the registered agent of the afore-
said Corporation during that time period”
(Public Exhibit
#1,
Item 4).
18—444
—4—
During the first public hearing Ronald W.
K. Lucas requested
a delay
in proceedings on grounds that he:
A.
Did not have possession of corporate records
CR.
13)
B.
Did not have knowledge of certain financial dealings
of
the
Corporation
since
that
aspect
of
the
Corpor-
ation
was
handled
by his wife
(R.
17),
C.
Had been unable to secure certain
corporate
documents
from
the
attorney initially retained for defense
against
the
Complaint
(R.
27)
and
D.
Was
totally
unprepared
to
defend
himself
and the
Corporation
(R.
13).
Ronald
W.
K.
Lucas
admitted
that he had not attempted to secure
certain
corporate
documents
in the possession of the Corporation’s
attorney
in
Missouri
(R.
26),
that his wife had retained the
other
attorney
and
he did not know what efforts she had made
towards
securing
the
corporate
records
from the prior attorney of
record
(R.
29),
and
that
he
was
unaware
that
a
“so-called
bad
check” had been submitted to the prior attorney of record since
his wife “never told me that”
(R.
29).
A short delay in the
proceedings
was
granted.
Although
Respondent
was
requested
to
appear
at
the
next
hearing
with
“all
documents,
deeds,
records,
corporate
books
or
memoranda
which
established
the
ownership of the East Lawn
Water
Company”
(R.
51),
Judy
W.
Kuper
testified
that
she
was
appearing
with
“a
stock
certificate” since the other documents
had
been
“turned
over
with
the
corporate
books
quite
some
time
ago to the State”.
Mrs. Kuper testified that she is the secretary,
bookkeeper,
treasurer and general manager of the East Lawn Water Company
(B.
50).
Both she and Adele McMillian are stockholders in the
Company,
each holding 75 shares of common stock
(R.
53).
She
testified that company stock certificate No.
22 was transferred
from the previous owner to Ronald W. Kuper Lucas on February 2,
1972
and
then
to
her
“just
shortly
after
that”
(B.
55).
However?
upon
examination
of
certificate
No.
22,
it
was
discovered
that
no
such
transfer
had
in
fact
taken
place
and
that
Ronald
W.
Kuper
Lucas
was
the
principal
shareholder.
Mrs.
Kuper
then
admitted
that
it
had
been
planned
to
transfer
the
stock
to
Adele
McMillian
and
Judy
Williams
shortly
after
Larry
Hill
had
transferred
the
stock
to
Ronald
W.
Kuper
Lucas
but
that
“due
to
my
own
error
they
weren’t
transferred
into
my
name
or
Mrs.
McMillian’s”
(B. 61).
Mrs. Kuper testified that she and
Adele
McMillian
had
pro-
vided the funds used to acquire the corporation and agreed that
18—
445
—5—
her husband is nothing more than
a
trustee
holding
the
stock
for
the
benefit
of
Adele
McMillian
and herself
(B.
62).
The
parties
in
this
matter
stipulated
that
both
Judy
Williams
and
Adele McMillian hold 75 shares of stock
in the Company despite
the fact that corporate records show no issuance of shares since
the assignment of stock from Hill to Ronald W.
K.
Lucas
(B.
283).
Corporate records show that no shareholder meetings for
the election of officers or directors have been held since
February 2, 1972
(R.
62).
A resolution drawn up for the purpose
of opening a bank account in Rock Island,
Illinois showed that
Adele McMillian signed the Resolution as President of the
Company
(R. 63).
Although annual reports of the Company were
filed with the State of Illinois, Mrs. Kuper testified that
she did not bring any copies of the reports with her to the
hearing because she was not aware that the Hearing Officer had
directed the production of such documents at the public hearing
CR.
65).
Income derived from payments to East Lawn Water Company is
distributed for monthly maintenance, gas and electric bills,
chlorination and bookeeping fees
CR.
68).
Maintenance fees
(chlorine additior.,
system checks, reports preparation, operator’s
salary and equipment repairs)
average about $40.00 per month
while the electric bill ranges from $30 to $50 per month.
Neither of the Kupers received any money from the Company whatso-
ever during 1974
CR.
77).
Marsha Foutch,
a registered nurse, testified that she was
hired in March 1974 to operate the well.
She held this position
until January 1975 at which time she resigned because
the Company
was $70.00
in arrears
in her pay
(R.
127).
She reassumed the
position in April 1975 after the pay issue was resolved.
To
her knowledge the facility had no operator from January to
April 1975
(B.
82).
She
is compensated at the rate of $30.00
per month plus
$l’).OO per month for chlorine, and postage fees
required for sending water samples
to the State laboratory.
In
addition, she receives water from the Company without charge.
During the period from March 1974 to January 1975 Marsha
Foutch was the sole operator of the facility.
She has at no
time
been
a certified public water supply facility operator
(II.
82).
Although Mrs.
Kuper asked her to acquire the certifi-
cation and advanced $50 for the necessary course work, Mrs. Foutch wa~
seeking
full-time employment at that time and felt she could not
handle
a full-time job and the certification course work at the
same
time.
She used the $50 to cover late salary payments
(R.
133).
18
—
446
—6—
Chlorination equipment for the water supply is
located in
the pump house.
This equipment consists of one 20—gallon crock
and a pump which sits atop the crock.
The chlorine solution is
prepared by adding one gallon of commercial liquid bleach
(5.25
hypochiorite)
to
18 gallons of water.
Mrs. Foutch testified
that bleach usage ranged from about
1 gallon per week in the
winter to
2
gallons per week in the summer
(R.
83).
The
commercial liquid bleach costs about $.60 per gallon
(R.
115).
Shortly after assuming the position of well operator in
March 1974,
Mrs. Foutch discovered that the chlorination unit
was frozen and inoperative
(R.
91).
A contractor had to be
called in to thaw the unit.
Mrs. Foutch at first speculated
that the chlorinator had frozen because “the heat was not on”
(B.
91) but she )~atertestified that the heater was operating
(B.
92).
In May 1974 Mrs. Foutch recalled that flood waters were
“waist high on me” in the pump house
(B.
89).
No
chlorination
was provided for the water because flood waters completely
covered the crock and pump.
Flood waters were one to two feet
above the well casing and remained above the well casing for
about three days
(B.
104).
Although no samples of the water
were taken for analysis during this time, water was supplied
to the customers
(R.
105).
Since the flooding conditions
presented the possibility of contamination, Mrs. Foutch had
an announcement published in the newspaper to inform the water
supply customers that an Agency telegram advised the boiling
of drinking water for five minutes
(B.
105).
This advisory
remained
in effect for two months.
Mrs. Foutch testified that she was unable
to provide
chlorination for the water supply during two additional periods,
the summer or early fall of 1974 and October and November 1974.
On July 15,
1974 Mrs. Foutch advised Judy Williams by telephone
that she could not continue chlorination unless her salary and
money for chlorination supplies were received.
Although she
was informed that the check would be mailed that day, Mrs.
Foutch did not receive the money until September
5,
1974
(R.
91).
On October 29,
1974 the chlorinator was taken out of service to
repair a leak.
It was replaced the next day.
Chlorination
was not provided for an undetermined part of November 1974
because the Company
failed to supply money
to purchase supplies
(R.
89).
Water samples were not sent in for analysis during
these time periods because of the failure to receive any money
for this purpose
CR.
89, 115).
For about three days in March 1974 the water supply
customers experienced a gradual decrease in water pressure.
A
leaking elbow joint
at the well casing finally froze on the
third day causing the customers to be without water.
The joint
18
—
447
—7—
had been insulated at one time but was not insulated during
the freezing weather because “it had been ripped off or
weather beaten or whatever”
(B. 107).
Several of the customers
called Mrs. Foutch to complain of the low water pressure.
One
of the customers,
Opel Mayhugh, complained that her family could
not bathe adequately after returning from an out-of-town trip
(R.
113).
The water developed a yellow cast during flooding
(B.
133)
and had an offensive taste and odor during February, March and
part of April 1975,
according to Mrs. Foutch
(B.
108).
She
described the odor as
“a rotten egg odor”
(R. 109).
A 12 year
old girl came
to Mrs. Foutch’s home in March 1975 complaining
that the “water smelled and tasted so bad that she would not
wash her hair or drink the water”
CR.
111).
One of the firm’s customers, Tracy Isaacson, testified
that she has smelled the water on different occasions when she
thought an animal had entered the pump house and drowned
(P.
234).
The water
is discolored and “tastes like mud”
to her.
She is inconvenienced by “trying to tote in plastic
jugs for
drinking water” and having the jugs sitting around her kitchen.
She dislikes having to boil the water for fifteen minutes stating
that “you start out with a pan of water and you end up with
half” the water
(R.
236).
The discolored water has turned all
her white clothes to “pastel brown”.
She has experienced these
problems continuously since moving to her present residence in
May
1974.
Sharon Wells testified that she has experienced similar
problems with discolored and odorous water.
She has complained
to the operator about the water quality problems
(B.
241).
She
testified that the color of the water had affected her clothing
and that the taste is so “terrible at times” that “you can’t
hardly drink
it”
(R.
241).
She has had to purchase bottled
water during flooding periods.
Another resident of the Sub-
division, Mrs. Opel Mayhugh testified that one family living
in the Subdivision had been refused a loan to purchase the
house
in which they were residing because of the
“well condition
and the sewer condition”
CR.
244).
Mrs. Foutch testified that she had never submitted operating
reports to the Agency even thouqh she knew they were required.
She explained that the water supply was not fluoridated and
that there was no way to measure the quantity of water being
pumped to the customers.
In addition, the facility did not
have a chlorine test kit with which to measure the amount of
chlorine in the water supplied to the customers
(R. 116).
18— 448
—8—
On June
6, 1974 Mrs. Foutch wrote
a letter to Ira Markwood,
Manager
of
Public
Water
Supplies
for
the
Agency,
complaining
of
conditions at the well site.
She indicated her “hope” that
proceedings would be “forthcoming against the owners for
necessary repairs to the casing, etc.”
(Complainant Exhibit 2).
A former well operator, Glen Hams, was employed by
Respondents from October
8,
1972 until January 13,
1974.
During
that time he was not a certified public water supply facility
operator even though he was the only person performing the duties
of well operator
(R.
141).
Hams disagreed with the testimony of Mrs. Foutch as to the
amount of bleach required for the water supply stating that
bleach addition was only required “approximately once a month”.
He recited from personal records the dates and amounts of bleach
added for the period January
3,
1973 through November 6,
1973.
This testimony shows that Hams added one gallon of bleach on
the
average of every 18 1/2 days with intervals ranging from
five days to thirty-four days.
On at least two occasions he
added a 15
solution of hypochlorite at a cost of $.75 per
gallon.
No reason was given for using the stronger hypochlorite
solution.
During flooding conditions which began on May
7,
1973 and
lasted for four days, Hams was unable to chlorinate the water
supply “for a couple of days”.
The flood water reached almost
to the doorknob of the pump house during this flood
(R.
169).
Hams thought the flood waters covered the well casing but he
“wasn’t worried about the well casing,
I was worried about
that inside”.
He dumped the contents of the crock,
cleaned it
and added new bleach but “it came back in it”
(B.
157).
Hams
called Respondent’s customers and told them to boil their water.
The boiling of water continued after the flood,
“I told them
to
boil
about two or three weeks longer, whatever they
thought”
(B.
156).
About one week after the May 1973 flood,
the water developed
an odor “like rotten eggs” which lasted for two days.
Hams
did not tell Respondents about the odor problem
(B.
168).
Hams testified that he called Mrs. Kuper on January
6,
1974
and informed her that the system had frozen the day before.
Hams recalled that Mrs.
Kuper contacted Pete’s Welding about
the problem and tt~atPete’s Welding installed a portable heater
for “about three or four days”.
The portable heater was re-
moved after the system was operating again
(B.
170).
Both Mrs. Foutch and Hams testified that their salaries
were not received promptly.
Hams testified that he submitted
water samples regularly to the Agency from October
10,
1972
until
the date he terminated his employment with Respondent
CR. 160).
18
—
449
—9—
Charles Bell,
Jr., Regional Supervisor of the Agency’s
Division of Public Water Supplies, testified that he first
visited Respondent’s facility in May 1973 in response to
a
call from the Rock Island County Health Department advising
of flooding in the area of Respondent’s well.
Bell observed
water one foot deep around the well site and pump house.
These
conditions could cause the water in the well to become con-
taminated
(R.
176).
This would occur
if water seeped down
the side of the well casing and into the ground water.
Bell again visited the site in June and August 1973
to
observe site conditions and to see
if any work had been done
towards achieving compliance with the Board Order in PCB 72-
179.
Subsequent to the August visit,
Bell contacted Mrs. Kuper to
inquire about the work.
He was informed that they were applying
for a loan from the Small Business Administration in order to
start the repair work.
Visits in September, October and
December 1973 showed that Respondents had failed to start
work towards compliance with the previous Board Order.
As a result of his December 12, 1973 visit, Bell prepared
a letter for signature by his supervisor which advised Re-
spondents that undesirable conditions existed at the facility
which might constitute violations of the Act and Public Water
Supply Rules and Regulations.
Among the conditions warned of
were:
A.
Contaminated water during the Spring 1973 flood,
B.
Possible future contamination during periods of
heavy rain or flooding,
C.
Failure to have a certified water supply operators
D.
Failure to fluoridate the water supply,
E.
Failure to employ any method for determining the
amount of water pumped and,
F.
Failure to submit operational reports.
Suggestions for correcting the “apparent violations” were pro-
vided including the recommendation that a second well be pro-
vided as
a stand-by source “in the
even.t of an emergency such
as failure of your present well pump”
(Complainant Exhibit 5).
Additional site visits were made by Bell in January,
February, March and July
1974.
Following his July 17, 1974
visit Bell again prepared a letter for signature by his super-
visor advising Respondents of possible violation
(Complainant
Exkibit
9).
In addition to findings similar to those enumer-
ated in his prior letter, Bell adVised Respondents that their
failure to extend the well casing and fill the well area with
compacted earth had “allowed flood water to again inundate and
contaminate the well in May 1974”.
18
—
450
—10—
Respondents were further advised that there was
a leak
in the well discharge line and the south pressure tank.
Bell
told Respondents
that the site was overgrown
with
weeds
which
made proper care and maintenance of
the
system di.~ficult.
Suggestions were again made for bringing the facility into
compliance.
Bell testified that Mrs. Kuper had called him in May
1973 to inform him that the delay in raising the well casing
was caused by flooding and slow contractors
CR.
219).
On April
28,
1975 Bell observed that the well casing had
been extended and some earth had been piled around the casing
although not to the 15’ radius specified in plans for that
work.
He estimated that the top of the well casing
is now
about 12 to 18” above the previously defined flood level.
The
referenced flood
level was defined here as the “door knob” on
the pump house door”
(B.
216).
Another
Agency employee, Jayant Kadakia, visited the site
on
September 6,
1974.
In his report
(Complainant Exhibit 11)
Kadakia noted
that,
although
the
well
casing
had
been
extended,
the
requirement
that
the
top
of
the
casing
be
2
feet
above
the
highest
known
flood
level
had
not
been
complied
with.
Kadakia
also
noted
that:
a)
there
was
no
concrete
collar
around
the casing,
b)
the earth placed around the well was not of
sufficient
radius
and
dId not appear to be well compacted,
c)
the
facility
did
not
have
a
certified
operator,
d)
the
facility
did not have fluoridation equipment or equipment for detecting
the amount of water pumped or
a chlorine test kit to monitor
chlorine
residual
in the system,
e)
the
pressure
storage
tanks
were
not
equipped
with
an
air
compressor
or
sight
glasses,
and
f)
no monthly operational report had been submitted to the
Agency.
Kadakia
returned
to
the
site
on
December
12,
1974.
In
his
report of this visit (Complainant Exhibit 12) Kadakia noted
that
conditions
were
virtually
unchanged since his visit of
September
1974.
He
noted,
however,
that
a
heater
in
the
pump
house
was
inoperable
which
could
cause
the
system
to
freeze
during
very
cold
spells.
As
a
result
of
his
April
7,
1975
visit, Kadakia testified that “no work along the lines that
was necessary” had yet been performed
(B.
263).
He estimated
that the top of the well casing is now
9 to 12” above the
pump house door knob~
Testifying in Respondent’s defense, Mrs. Kuper stated that
repairs had been made on the facility continuously.
These
repairs include the installation of a new pump in 1973,
18
—
451
—11—
improvements and repairs on the chlorinator and furnace,
installation of a new roof on the pump house and bracing on
the well head.
The pump was replaced even though the old
pump was still operable because Respondent had been advised
that it might become inoperable “in the very near future”.
Regarding the operator’s salary and chemicals supply,
Mrs..
Kuper testified that she sent the June 1974 paycheck to
Mrs. Foutch but it was returned marked unclaimed.
When
advised by Mrs. Foutch that the June paycheck had not arrived
in July,
Mrs. Kuper sent a second check.
She recalled that
Mrs. Foutch had told her that “it might have been due to the
flood and that they weren’t collecting mail”.
On two other
occasions her mail to Mrs. Foutch was returned marked unclaimed.
According to Mrs. Kuper, neither Mrs. Foutch nor Glen
Hams had ever complained about water discoloration or odor.
Mrs. Kuper testified that she was not aware of these problems
until “yesterday” when it was called to her attention for the
first time
(R.
288).
She remembered receiving a letter from
Tracy Isaacson about a billing problem but no mention was
made in that letter about the discoloration or odor problems
(B.
294).
Upon being notified that the system had frozen on
January
5,
1975, Mrs. Kuper testified that she called A—l
Welding to handle the problem immediately
(R.
286). Shortly
thereafter,
her husband and a repairman from
St. Louis visited
the facility to check on the problem.
They discovered that
gas had not been turned on to the furnace by Hams
so the
power company was called out to check the furnace.
The power
company found that “someone had disconnected the fan belt”.
After correcting these problems, Mrs. Kuper testified
that they fired Hams “that same day”
(B.
287).
Hams vigor-
ously denied having been fired on that date.
He testified that
he called Mrs. Kuper on January 13,
1974
to tell her that he
was
quitting.
He
then
received
an
envelope
postmarked
February
1,
1974
which contained
a
letter
dated
January
13,
1974.
(The.
Ilearing Officer reported that the testimony of Rains
‘1was
fair
but
bore a sense of malice to his ex-part—time employer”.)
Respondent had hired a certified operator in May 1973.
How-
ever Hams informed Mrs. Kuper that the operator was neither
supervising nor visiting the facility.
Mrs. Kuper testified
that she continued to pay the operator through October or
November 1973 at which time she learned that the operator’s
certification had expired in July 1973.
The operator had not
informed her that his certification had expired.
—
—12—
After obtaining a list of certified operators from the
Agency, Mrs. Kuper sent letters
to
all
certified
operators
in
surrounding
counties
offering
employment.
Mrs.
Kuper
testified that three or four operators refused the job be-
cause “word had gone around” that the EPA was going to be
involved with the system.
“They were just afraid to get in-
volved with them”
(B.
289).
Part of Respondent’s delay in hiring
a certified operator
can be attributed to the actions of Marsha Foutch, according
to Mrs. Kuper.
When Mrs. Foutch told her that she would obtain
the certification, no other employment contacts were made by
Mrs. Kuper.
The two month period that followed before
Mrs.
Foutch decided that she would be unable to secure certification
“was just something that happened”
(P.
289).
Two
prospective
employees are withholding coinmittment pending the outcome of
this matter
(R.
290).
Attempts to have the well head raised “started in the
beginning of 1973 and even before that at times”, according
to Mrs.
Kuper.
A licensed engineer drew up required plans
and a permit was secured from the Agency.
Johnson Water
Equipment was hired
to ~performthe work in early
1973.
How-
ever a number of delays were caused by “ground too wet to per-
form the work”,
a flood,
and a “too busy” contractor
(B. 290).
A second contractor informed Respondents that they were
too busy with winter jobs
to perform the work at that time but
that the job could be “the first thing in the spring
(Of
1974)
before flooding could occur”.
Flooding did occur,
however,
before the new contractor could get to the job.
Respondents
contacted the contractor again and “finally got them to under-
stand it had to be done then”.
Mrs. Kuper testified that the
well head was finally raised in August 1974 in conformance with
plans and specifications “that were given to us” and “approved
by the EPA”
(B.
291).
She testified that she first found out
that
there
was
no
casing
around
the
well
only
“yesterday”
(B.
302).
Mrs.
Kuper
testified
that
she
was
aware
of
the
leaking
elbow joint before it froze in March 1974.
She called Johnson
Water
Equipment
and
informed
Mr.
Johnson
about
the
leak.
She
was informed that he did not want to replace the joint at that
time
since
it
was
planned
to
eliminate
that
joint
when
the
well
head
was
raised.
When
the
joint
froze
Respondent
“realized
we couldn’t let it go any
longer”
(B.
312).
18
—
453
—13—
Respondents do not visit the faiclity with any regularity
to check on the operation
CR.
311).
They do not meet with the
well operator on a routine basis.
Mrs. Kuper testified that
she had never seen or tasted the water and that she thought it
was average “that you normally drink”.
She was never informed
that it had
“a bad taste,
a bad odor or bad color”
CR.
315).
The crux of the problem, according
to
Mrs.
Kuper,
is
that
the malfunctions cannot be corrected quickly unless she is
informed of them.
Although she believes Mrs. Foutch to be a
conscientious person, Mrs. Kuper believes the water supply
problems developed because of Mrs. Foutch’s failure to communi-
cate the problems to her.
All customers were notified by letter
that Respondents would accept collect calls if any problems
developed due to “low pressure or no water”.
Mrs. Kuper believed
that discoloration and bad odor would be reason to call but she
never received any calls.
Mrs. Kuper testified that the system “doesn’t break even”
financially because of continuous operational repairs and the
low rate for water now charged.
A petition to increase this
rate ~as been submitted to the Illinois Commerce Commission
and a decision on that petition is now pending.
Respondents have authorized McClure Dunkirk Engineering
to proceed with plans,
specifications, permit applications and
completion reports for the installation of fluoridation equip-
ment,
a master meter and an air compressor for the water supply
system
(Respondent Exhibit 1).
Residents of the East Lawn Addition are considering a
venture aimed
at securing the water supply system as a “not—
for-profit community well association”, according to Mrs. Foutch.
Following a meeting of the residents in which this possibility
was discussed,
Respondents were notified of the proposed venture
and reacted favorably
(B.
117).
Opel Mayhugh testified that Mrs. Kuper had called her in
February 1975 wanting to know if she and her husband would
“accept the well as
a gift”
(R.
245).
After conferring with
their attorney, the Mayhughs decided “it was more than what we
wanted to tackle”.
Mrs. Mayhugh also recalled that Mrs. Kuper
had offered to give her a list of operators “that would allow
us
to use their name for $5 or $10
a month”.
Mrs.
Kuper recalled the conversation with Mrs. Mayhugh
but vigorously rejected the interpretation rendered by Mrs.
Mayhugh.
She denied having ever offered to give Mrs. Mayhugh
a list “where she could buy the names of operators”.
She
18
—
454
—14—
denied offering the water supply system as
a gift.
She
testified that the Mayhughs were merely told that Respondents
were “liquidating immediately”
and that the Mayhuqhs could
contact a local attorney who could “give her a list of any
violations outstanding”.
Mrs. Kuper then testified that,
when Mrs. Mayhugh asked about the price
for the system,
she
informed Mrs. Mayhugh that there would be no price,
“we just
wanted to donate the system, we were liquidating and there
were violations and they would have to be corrected”
CR.
295).
This recital of facts has been long but we believe was
necessary to show the mismanagement, failure of communication
and the gross neglect in the operation of this water system.
All alleged violations have been proven, including the alle-
gation that Respondents failed to employ a certified water
supply operator.
A certified water supply operator was on the
company payroll for three months in July 1973, but the record
indicates that this employee did not supervise the operation
nor was he even visiting the facility.
This employee remained
on the payroll even after Respondents were advised of his
failure to attend to the duties of a certified water supply
operator.
The failure of mail delivery is largely unexplained.
The
problems with mail delivery do not correspond well with testi-
mony
establishing the dates of floods in the area.
Mrs.
Kuper testified that she had never contacted the post office
regarding the mail delivery nor had she ever attempted to solve
the problem
(B.
317)
and we regard this as additional evidence
of mismanagement.
Respondents were somewhat hampered in defending against
the charges because of the unavailability of corporate records.
They must bear the responsibility since the Hearing Officer
clearly had notified them to come prepared with corporate
records and they had the opportunity to address that issue prior
to the hearing.
There is abundant evidence of slipshod methods
which were adopted~notonly in the operation of the water system
but in the keeping of corporate records and the preparation for
defense of the case.
From the record,
it is apparent that Ronald W.
K.
Lucas
knows little about the operational aspects of this water system.
He relies heavily upon Mrs. Kuper to run the operation.
He
apparently does not question her management practices, even
though he is nominal owner of the stock in the company.
As
the stipulated owner and as
the manager of the company one
would anticipate that Mrs. Kuper at least would be fully aware
18
—
455
—15—
of the operational problems with the company.
Her neglect is
obvious.
In the previous case involving the Respondents the
Board Opinion clearly pointed out that the water supply system
had
experienced
problems
with
discoloration
and
odors.
Testi-
mony
by
Mrs.
Kuper
that
she
became
aware
of
thse
problems
only
“yesterday” therefore strongly suggests that she never
bothered to read the prior Opinion and Order.
The Board has thoroughly considered all of the factors of
Section 33(c)
of the Act.
We find that there has been a sub-
stantial and serious interference with the protection of the
health, general welfare and physical property of the families
served by this water system.
The water system does have a
social and economic value but that exists only if it is correctly
operated.
Shipshod methods of the type seen here can change an
asset
into
a
health
liability
in
the
community.
We
find
that
the water system is suitable to the area in which it is located
if the owners make adequate provision against flood damage.
Such protection,
and compliance with the appropriate regulations
are both technically feasible
and
economically
reasonable.
Because
Respondents
did
fail
to
comply
with
the
Hearing
Officer’s
order
for
production
of
corporate
records,
there
is
but a meager amount of financial information in this record.
It would appear that,
at times,
the water supply operation
has profits of $130
to $190 per quarter
($400 income less $70
-
$90 expenses)..
This,
of course,
largely ignores the cost of
repairs but the evidence of repairs and their cost is negligible.
It is difficult to know the true financial situation but the
impression is given that this water system is not a money
making proposition.
This impression comes
in part from the
Respondents’
attempt
to
donate
the
entire
system
to
one
or
more families now residing in the East Lawn Addition.
We regret the necessity of imposing a monetary penalty in
this case.
Our prior Order has been ignored and we feel that
stronger measures are required in order to force the recalcitrant
to come into compliance.
This may not be a money making operation
for Respondents but this fact cannot justify the continued
flouting of laws which were designed to protect the health of
people.
The health and welfare of 47 families have time and
again been threatened and it can be permitted no longer.
We
shall not require Respondents
to close this facility for the
simple reason that the customers would be forced to suffer even
further
by
such
an
order.
18
—
456
—16—
We
find
that
Ronald
W.
Kuper
Lucas
is
not
personally
liable
since
he
was
not
involved
in
raanaging
the
company
and
had
only
a
nominal
ownership
of
stock
certificates
held
for
the
benefit
of
others.
Judy
Williams
Kuper
would
be
liable
as
the
manager
of
the
Company
but
she
was
not
named
as
a
Respondent
personally
until
the
filing
of
the
Amended
Complaint.
There
is no showing that the Amended Complaint
was served upon her
in
conformity
with
our
Procedural
re-
quirements.
Our
Order
will
require
Respondent,
East
Lawn
Water
Company,
to
pay
a
monetary
penalty
in
the
amount
ot
$2500
and
to
bring
the
water
system
into
compliance
with
the
law.
If compliance can be achieved at an early date then the Board
will be amenable to a reduction of the penalty to $500.
In
view of the history of this operation we believe
a performance
bond in the amount of $5000 will be appropriate.
In addition,
Respondent will be required to provide the well operator with
ample operating expenses at least one month in advance to
insure
that
chlorination
is
not
suspended
again for lack of
funds.
This
Opinion
constitutes
the
findings
of
fact
and
con-
clusions
of
law
of
the
Illinois
Pollution
Control
Board.
ORDER
It
is
the
Order
of
the
Pollution
Control
Board
that:
1.
Respondent
East
Lawn
Water
Company
shall
pay
to
the State of Illinois by December 31,
1975 the
sum
of
$2500
as a penalty for violations found in this proceeding.
Penalty
payment
by
certified
check
or
money
order
payable
to the State of Illinois shall be mailed
to:
Fiscal
Services Division,
Illinois EPA,
2200 Churchill Road,
Springfield, Illinois
62706.
2.
Respondent East Lawn Water Company shall provide
the well operator with funds sufficient to cover the
purchase
of
all required chemical
supplies
and
postage
fees
at
least
one
month
in
advance
of
the
date
such
funds
are
required.
By
the
7th
day
of
each
month
following
the
date of this
Orde.r
Respondent
shall
have
provided
the
Agency with proof that such funds were provided and
received by the well operator.
3.
Respondent shall immediately proceed with main-
tenance measures designed to insure that the entire water
system supply is adequately protected from freezing.
All
such
measures
shall
have
been
completed
by
October
15,
1975,
18
—
457
—17—
and the Agency shall be advised of the measures taken
and the date of completion no later than
5
working
days after said date of completion.
4.
Respondent
shall
submit
a
compliance
plan
to
the
Agency
by
September
15,
1975
and
shall
send
a
copy
of the compliance plan to the Pollution Control Board.
The
compliance
plan
shall
show
that
Respondents
will
eliminate
the
violations
which
have
been
proved
in
this
case
and
will
come
into
compliance
with
the
Regulations
by November 15,
1975.
The compliance plan shall be
accompanied
by
a
performance
bond
in
the
amount
of
$5000
to
guarantee
performance
of
all
aspects
of
the
compliance
plan.
Respondents
shall
proceed
immediately
with
in-
stallation of a master meter, chlorination equipment and
an air compressor at the well site and shall provide the
well
operator
with
an
Agency
approved
chlorine
test
kit
no
later
than
September
15,
1975.
The Environmental Protection Agency shall provide
the
Board
with
an
assessment
of
Respondent’s
compliance
plan
within
15
days
after
receipt
of
the
plan.
5.
The
Board
retains
jurisdiction
of
this
matter
until December
31, 1975 for any further orders
as may
be
required.
Within
that
period
of
time
Respondent
East
Lawn
Water
Company
may
apply
for
a
reduction
of
monetary
penalty
upon
proof
of
full
compliance
with
the
preceding paragraphs of this Order.
6.
Respondent East Lawn Water Company shall cease
and desist from its violations of the Act and Regulations,
as
found
in
this
proceeding,
by
November
15,
1975.
I,
Christan
L.
Moffett,
Clerk
of
the
Illinois
Pollution
Control
Board, he~-ebycertify the above
pinion and Order was adopted
the ____________day of
1975 by a vote of
~/~O
Illinois Pollutio
trol Board
18
—
458
