ILLINOIS POLLUTION CONTROL BOARD

November 14, 1972

ENVIRONMENTAL PROTECTION AGENCY

v.

)

#72—179

EASTLAWN WATER COMPANY; JACK BROTMAN,

RONALD BROTMAN and W. I. BROTMAN,

a/k/a BROTMAN’S EASTLAWN ADDITION;

LARRY HILL; and RONALD W. K. LUCAS

LARRY R, EATON, SPECIAL ASST. ATTORNEY GENERAL, APPEARED ON

BEHALF OF ENVIRONMENTAL PROTECTION AGENCY

BRUCE L. BALCH, APPEARED ON BEHALF OF W. I, BROTMAN AND

RONALD BROTMAN

WILLIAM M. WALKER, III, APPEARED ON BEHALF OF LARRY HILL

RONALD W. K. LUCAS, PRO SE, AND ON BEHALF OF EASTLAWN WATER

COMPANY

OPINION AND ORDER OF THE BOARD (BY SAMUEL T. LAWTON, JR.)

Complaint was filed against Eastlawn Water Company, a corpora-

tion and Jack Brotman, Ronald Brotman, W. I. Brotman, Larry Hill

and Ronald W. K. Lucas, as past or present owners of Eastlawn

Water Company, alleging that on, before and at all times since

July 1, 1970, one or more Respondents have been owners and opera-

tors of a public water supply facility serving the Eastlawn

Subdiv~sion, in an unincorporated portion of Rock Island County,

Illinois, and that during the period between July 1, 1970 and the

filing of the complaint, Respondents failed to direct and maintain

the continuous operation and maintenance of said water supply facility

so that water would be assuredly safe in quality, clean, adequate

in quantity and of adequate mineral character for ordinary domestic

consumption. The suggestion of death of Jack Brotman in 1965 was

received.

Specifically charged is the allowance of inundation of flood

waters into and about the wells and other public water supply facil-

ities including (by amendment) Pebruary 22, 23 and 24, 1971. The

Environmental Protection Agency contends that the foregoing acts by

Respondents constituted violation of Section 18 of the Environmental

Protection Act. Penalties in the maximum statutory amount are sought,

together with a cease and desist order against the Company and Ronald

W. K. Lucas, the present owner, and a direction that Respondents

bring the operation into compliance with all statutory and regulatory

6

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provisions.

For reasons more fully set forth below, we find that

the

Agency has

failed to state a cause of action against any of the

Respondents Brotinan because by July 1, 1970, the alleged date on

which the violations began, no Brotnan remained in actual owner-

ship or control of the facilities and all Respondents Brotman are

accordingly dismissed from this proceeding.

We find that while Respondent Lucas has been the owner of the

corporate stock since 

February

of 1972, and that some of the viola-

tions 

complained of have remained in existence since his acquisi-

tion of ownership, he has diligently pursued a program of improve-

ment which should bring the operation into compliance with the

Statute 

and

the Regulations, and we do not believe a penalty should

be imposed against

him

although we will direct that he continue with

such steps as are necessary to achieve the required degree of com-

pliance.

We find 

that

Respondent Hill and the corporate Respondent have

violated the

Act, 

Sec.l8,and will 

impose

a penalty against Hill

and a

compliance 

order

against the corporation as will be set forth

in our Order.

The facility

subject to this proceeding

is located adjacent

to a 55—lot subdivision which it serves (R. 98, R.l18). It consists

of two pressure 

tanks

and

a small structure

located

between the

tanks, which protects the piping

and houses the chlorinator. The

well is outside of the building and contiguous with the pressure

tanks

•

The well is covered and insulated as is the piping from

the well. A schematic diagram of the well is in evidence as Lucas’

Ex. 2 (R. 119).

The topography of the well site is such that in

periods of

heavy

rainfall, water accumulates

and

floods portions

of the well and water supply facility CR. 89, R. 120, R.137). While

the devolution of corporate ownership

would

be of more significance

if violations prior to July 1, 1970 

were asserted, the record estab-

lishes

that

Ronald Brotman acquired virtually complete corporate

ownership 

subsequent

to 1967, which he 

retained 

until transfer to

Respondent Hill in July of 1970. While there is some degree of

uncertainty as to precisely when Hill acquired undisputed owner-

ship of the corporate facility, there is no dispute that as of

July 1, 1970, he was in complete 

operation and

control of the water

supply facilities and that some, if not all, of the corporate stock

had

been transferred to 

him

prior to that date. CR. 256).

The record suggests that flooding of the well facility and other

violations extended as far back as 1960 (R.l37). A letter dated July 11,

1969 was sent to 

Ronald

Brotman as President of the East Lawn Water

Company by the Department of Public Health 

noting among other things,

that

the ininediate area surrounding the well is low, permitting water

to collect and stand several inches deep after a heavy rain;

noting 

that

the surface water could

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possibly seep into the well and contaminate the water supply.

Other violations are stated including the absence of a certified

operator, of failure to provide adequate fluoridation and the

inadequate number of water quality samples submitted for bacter-

iological determination. The letter suggested that in order to

alleviate the sanitary defects, the immediate area around the

well be

filled and the surrounding ground area sloped away from

the well casing to drain surface water away from the well (EPA

lx. 1) (R,ll0),

Brotman failed to take any steps pursuant to the recommendations

of this communication and it is not clear from the record whether

Hill was advised of this communication upon transfer of the cor-

porate

interest by Ronald Brotman to him, although he concedes that

he

received a

“whole bunch of them” after he took over (R.270—271),

In any event, no one did anything to bring the operation into com-

pliance.

On or about

February 

23 or 24, 1971, (R.89) a condition of

flooding occurred which was observed by Opal Mayhugh, a resident

of the Eastlawn Addition Subdivision, when flood water surrOunded

the well structure and which flooded condition continued for 4 or

5 days (P.91),  The water drawn from the tap in the witness’

home 

was

cloudy in color and had a”swamp odor 

a sewer odor.”

(P.92). Tests taken in March of 1971 disclosed a contaminated

condition of the water which the Agency witness attributed to the

earlier flooding. Analysis made of 42 samples collected during

the period between September,1970 and August, 1971, showed the

presence of contamination during March, l971~ This contamination

is believed to have entered the well when flood waters from the

Rock River inundated the area on February 23, 24 and 25, 1971.

EPA lx. 3 (P.155-160).

a result of 

the foregoing tests, the Environmental Protection

Agency wrote to Respondent Hill on December 15, 1971, directing that

the following corrections be provided:

“NECESSARY CORRECTIONS

Sanitary Defects: Extend the well casing at least 30 inches

an th~t the topis 2 feet above the highest known flood level.

Construct a concrete envelope at least 18 inches in diameter

around the casing up 

a point 6 inches below the extended casing

ton. 

Fill

in the area within a 15 foot radius 

of the well with

comnacted earth. The fill should come to within 8 

inches of the

tep of the casing to prevent surface water from standir.g near 

the

well (see diagram attached).

Operator Certification: We request 

that

you employ a certified

operator to supervise the operation of your supply.

Water Pressure : Maintain a

minimum of at least 30 ps 1 (gage

pressure) at the pump house.

OTHER IMPROVEMENTS

Chlorination Record: We recommend you maintain daily chlorination

records on the chlorine report sheets provided by this Agency. A

copy of the completed report sheet should be sent to this office at

the end of each month.

Pressure Storage: A sight glass and air compressor should be pro-

videdfor the pressure storage tank. The sight glass 

used to

determine the amount of air blanket in the tank and the compressor

provides a positive means of maintaining the air blanket.”

Notwithstanding

the

above, Hill failed to take any corrective

measures prior to the time when he sold the Company to 

Lucas in

Feb-

ruary of 1972. In his testimony, Hill concedes that he was the sole

owner and operator of the water company since July of 1970 (P.257),

In his motion to dismiss, 

Hill

contends that only the corporation is

sublect to liability and that he has no equity, stock, possession or

control of Eastlawn Water Company. While Hill may not presently have

any interest in the Company, having transferred his ownership to Lucas,

there is no dispute that during the period of flooding and high bacterial

count in February of 1971, Hill was the sole owner and operator of the

Company. Section 18 of the Environmental Protection Act requires that

‘owners and official custodians” of public water supplies shall take

steps to provide safe and clean water.

We do not feel, on the facts of the present case, that an owner of

corporate stock can escape liability for violation of this section, by

contending that the corporation is the sole owner and operator of the

facility in

violation. If the term “custodian” contained in Section 18

of the Act is to have any meaning, it must apply to a situation as

in the present case where one person is the sole owner of the corporate

stock and operator of the facility involved,

Hill’s continued indifference to the relevant regulations and his

failure to take steps of any nature to correct the situation require

to assess a penalty against him for violation of the foregoing pro-

visions. 

hold Hill accountable and his Motion 

Dismiss is denied.

Lucas, on the

other hand, after having acquired ownership and control

in February, 1972, has embarked upon a program of compliance including

the raising of the well and the employment of a certified operator

to bring the operation into compliance. (R.36).

In summary, 

dismiss the complaint as to all Respondents Brotman

on the basis that none was in ownership or control of the faciliLies

on the dates when the alleged violations occurred.

In so dismissing

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224

the

and

earticularle, 

Ronald

Brotman, we do 

not conclude that

::o~:

were 

:iaaut

fault 

in allowing the events complained of to

~

~‘~loieg 

of d~stuss-l ~s onl~ cecause nonc was ~n owner-

ccotro~ on 

tee dates wean

the

allegee vrotations occurred,

~eseapJ~’nt

Full to nave been in botn ownershao and control when

o~ tee. wail 

took c~ace

and wnen the 

nigh bacterial counts

We fief that 

his indifference,

both before and after this

::r;:rraeoe eacessa

taLes the imnosition 

of a

penalty which we 

assess

en the

amount of 

$2,500. IL is fortunate

that the con—

~ err ~

t~ ii e~onot rc’uit ln e~trcme _llress

beat;: to those who were 

obliged to use this

water and 

that the con—

seenences were ::oL

more severe than what occurred. While we find the

orrooration to have violated the 

statute,

we

imcose no penalty against

th~~

oceld

ode work to the possible detriment of Lucas, the

not assess a penalty

aaainst 

Respondent Lucas because we

beeeve he has been

actinq with 

diligence to bring the operation into

:o::nleaece but

Tee will 

direct that

he

and the corporation cease and

ceo Continuing v~olateon

of

ac statutory ann regulatory

ro-

visions 

founi to have been violated

by

this Opinion and to take all

:ee-cesscro stave

to

bring the oaeration

into compliance.

The record

boos not

mutate how 

far along

the

comoliance program has progressed

but we trust 

that Lucas will take all steps to achieve such compliance.

See nviroeo.ental 

Protection Agency v. Lake In The Hills Company,

~72—i07,

5

POE

(October 10, 1972),

This 

opinion constitutes

the findings

of

fact and conclusions of

of the Board.

~:r.

Hence took no 

cart

in the 

consideration or decision of this

THE

ORDER of

the

Pollution Control Board:

1.

Complaint against Jack

Brotman., Ronald Brotman and

N. I. Erotman is dismissed

as no 

violation against

these 

Respondents has been proven for the period in

which

the

alleged violations

took place.

Penalty in the amount of $2,500 is assessed against

Respondent Larry Hill for violation of Section

18

the

Environmental Protection Act for the

period between

July

1, 1970 and February 2, 1972, the date upon which

Respondent 

Lucas acquired ownership of the

Company.

Pen-alLy payment by 

certified check or money order

payable to the

State of Illinois 

shall

be made to:

Fiscal Services Division,

Illinois

Environmental

Protection Agency, 2200 Churchill Drive, Springfield,

Illinois 62706.

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225

3. Within 60 days from the date of this order, Respon-

dents Eastlawn Water Company and Ronald N. K.

Lucas shall cease and desist the violation of all

statutory and regulatory provisions found to have

been violated by this opinion and shall take all

corrective steps to achieve such compliance as

set forth in Lucas lx. 2 captioned “Necessary

Corrections” as set forth in this Opinion.

I, Christan Moffett, Clerk of the Illinois Pollution Control Board,

certify that the above Opinion and Order was adopted on the 

_____

day of    

1972, by a vote of ~  

to ~

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