ILLINOIS POLLUTION CONTROL BOARD
May
15, 1975
ENVIRONMENTAL PROTECTION AGENCY~
Complainant,
)
V.
PCB 73-279
DONALD F. SIZELOVE, individually and
d/b,/a CENTRAL REALTY AND DEVELOPMENT
CO., and THE MARK
IV
CORPORATION, a
corporation,
Respondents.
OPINION AND ORDER of the Board (by Mr. Zeitlin)
This case was originally filed by the Environmental
Protection Agency
(Agency) as an enforcement action on July 10, 1973, It concerns the water supply
for residents
of
the Washington Heights Subdivision, .and the first addition
thereto, located in McLean County, Illinois, near the City of Bloomington.
The action has been the subject of~several prior orders of the Board, on
motions, which will be discussed below. After nearly one and one-half years
of dispute, however, the parties arrived at~amutually acceptable Stipula-
tion and Proposal for Settlement (Stipulation), which, with a subsequent
A~iì~ndnient,forms the basis of this Opinion and Order.
The complaint alleged in essence that Respondent violated various pro-
visions of the old Public Water Supply Rules and Regulations. (Rules),which
were continued in effect by Section 49 (c) of. the Environmental Protection
Act (Act). (He~einafteronly Respondent Sizeldve will be referred to, and all
activity or other matters attributed to him shall be understood to apply to
all Respondents, except as noted). The Complaint also alleges that Respondent~s
actions were in violation of the Act itself; the specific violations included:
1. Inadequate pressure,
(20
p.s.i. standard), in violation of Sec. 1$
of the Act, old Rule 3.40 of th~Rules, and Sec~8.10 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, (here~
inafter ustandardsu), incorporated by reference in the old Rules.
2.
Inadequate water storage capacity,
(35
gallon per person standardj,
in violation of old Rule 3.30.
3. Excessive levels of iron in the water, (0.30 mg/I
standard),
in
violation of old Rule
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4. Failure to submit water samples for analysis, or operation
reports, in violation Sec. 19 of the Act.
5. Failure to submit plans and specifications to the Agency, and
failure to obtain approval before construction, of a public water supply
installation, in violation of Sec. 15 of the Act.
6. Distribution of water with objectionable odor, color and taste,
in violation of Sec. 18 of the Act.
(Note that the Board has since the inception of this action promulgated the
new Chapter 6, Public Water Supply Rules and Regulations, superceding the
old Rules at issue here).
HISTORY
Respondent Donald Sizelove, individually and d/b/a Central Realty and
Development Company, originally purchased the Washington Heights Subdivision
on or about May 20, 1970. (Beverly Sizelove, a joint tenant in the subdivision,
is not a party to this action). The first addition to the subdivision was
platted and recorded on or about July 24, 1970. The subdivision and its addi-
tion contain 25 lots, each of which contains an individual residence. At the
time this action was commenced by the Agency, 24 of those houses were occupied.
In the course of developing the Washington Heights Subdivision, Respondent
Sizelove constructed three wells, designed to provide domestic water to each
of the houses. The first of these, drilled in June, 1970, was set up originally
to serve lots 2 through 10. Well No. 2 was drilled in December 1970, and de-
signed to serve lots 13 through 18, 26, and 27. Well No. 3 was drilled in August
or September, 1971, and designed to serve lots 1 and 19 through 25. Each of
the th.ree wells has a separate 550 gallon pressure storage reservoir; the wells
areconstructed in pits, each having a pump served by separately metered elec-
trical systems. Water is distributed to the lots in two inch plastic pipe.
Respondent’s Supplementary Answer to Written Interrogatories and Motion to
Produce Compliance, together with the Stipulation, indicate that Respondent was
responsible for all construction and maintenance of the water distribution system
for the Subdivision, with one. exception. (That exception, a pump replacenent
by
the
affected residents, is not material to the findings here). Respondent was
originally informed in August, 1970, that the Agency considered the water distribution
system in the subdivision to be a Public Water Supply. At that time, Wells 1
and 2 were in operation andwere not interconnected; Respondent claimed that as
each well served less than 10 homes, he did not consider the distribution of
water within the subdivision to constitute a Public Water Supply. In 1971 Wells
2 and
3 were inter :~nnectedwith manual valves.
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The Agency first received a complaint in June, 1972, regarding the
quality and quantity of the water being distributed, from one of the
residents of the subdivision. After that, the Agency made inspection
visits to the Washington Heights Subdivision on several occasions in
1972 and 1973. The results of those visits, Group Exhibits A, B and C
to the Stipulation submitted by the parties, indicate violations supported
by discolored water, gas presence in the water, low pressure, and excessive
quantities of iron in the water. (These findings are also assented to by
the parties in the Stipulation itself). This enforcement action was
then instituted by the Agency, through the Attorney General, on July 10,
1973.
Respondent’s Motion to Strike Complaint and Dismiss, filed on
January 18, 1974, was denied by a Board Order of January 24, 1974. Nor
did the Board grant Respondent’s Motion for Amended Complaint or Bill of
Particulars. And on November 22, 1974, the Board denied the Agency’s
Motion to Add Parties, which would have added as parties three “Homeowner’s
Associations”. (Those Associations are further discussed below).
In the Fall of 1973, the parties received information concerning a
possible expansion of the Bloomington Township Water District (District),
which would allow that District to supply water to an area including the
Washington Heights Subdivision. The District had applied for a grant
from the Farmer’s Home Administration for that purpose, and was soliciting
commitments for water purchase from individual residents of the area.
Further, the District had entered negotiations with the City of Bloomington
for the purchase of water, (The Bloomington City Council later, on
January 27, 1975 approved a contract to sell water to the District.) In
July, 1974, the District received a suitable commitment from the Farmer’s
Home Administration, conditioned upon commitments from 80 of the residents
to be served. The District anticipates being able to supply water to
the Washington Heights Subdivision area in late Summer, 1975.
A hearing was held in the matter on November 26, 1974, in Bloomington,
Illinois. The parties at that time entered a Stipulation, and renewed
orally their Motion to Add Parties. (The latter Motion was resubmitted
to the Board in written form on December 6, 1974). In essence, the
parties by this document adopted water service from the Bloomington
Township Water District as the long term solution to their problems, and
proposed an interim plan pending connection to that District.
In an Interim Order adopted January 23, 1975, the Board rejected
the Stipulation submitted by the parties. The Board at that time stated
that it was not opposed to the factual provisions of the proposed Stipulation,
or to the provisions for penalty and compliance. But the Board found
that several technical difficulties in the Stipulation provisions prohibited
acceptance, and returned the matter to the parties for further negotiation
and some redrafting of the Stipulation.
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An Amended Stipulation and Proposal for Settlement (Amended Stipulation)
was then submitted to the Board on March 19, 1975, after a further hearing
held in Bloomington on March 18, 1975. In compliance with our Interim Order
of January 23, 1975, the parties in that Amended Stipulation accomplished the
fol lowing:
1. Submitted proof that three “Homeowners Associations” had acquired
the necessary legal status to allow their assumption of certain property
and responsibilities which would be required under the interim compliance
plan;
2. Submitted binding agreements under which those Homeowners Asso-
ciations are bound to the terms of the Amended Stipulation;
3. Submitted a written communication from the Bloomington Township
Water District evidencing the intent of that District to supply water to
the Washington Heights Subdivision, which will be required to achieve long
term compliance in this matter;
4. Deleted from the original Stipulation certain deficient clauses
regarding final termination of cause and the disposition of any penalty to
be levied.
AMENDED
STIPULATION
With its later Amendment, the Stipulation in this case now provides facts
on which the Board may base its decision, a provision for penalty should the
Board find that those facts support a finding of violation on the part of
Respondent, and an interim plan to provide water to the Washington Heights
Subdivision until the Bloomington Township Water District
can provide such
water.
Both the
Agency and Respondent in this case indicate that connection
with the District is the best long run
solution
to water supply problems in
the Washington Heights Subdivision.
The parties have estimated that an up-
grading of the present system to meet public water supply standards would
cost between $2O~000and $100,000. Plans near the lower end of that range
would require at least 400 days to construct, (by which time a
hookup
to the
District is
expected), and could not be guaranteed
to assure
compliance with
the Boards requirements for a
Public Water Supply. A plan costing up to
$100,000 would ~til1 take in excess of 18 months to become effective.
Pendinqhook~~upto the District, an
interim
plan provides that Respondent
will convByto
the t.hree ~.Honieowners4sscci at ions
H
al lo f his remaining
interest in the Subdivision,
including the
present
water distribution system.
Existing
Well
No. 2
is to
be dropped from the system,
a new well dug, and
trie three wells then remaining disconnected from each other; the three Home-
owners Assoc,
iooions will
then each operate an independent system to supply
oiter
to
thoir
respective members, The resulting arrangement, to operate
until water is supplied by the District, would be:
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Existing Well No. 1
Existing Well No. 3
New Well
Lots served:
1 thru 9
19 thru 27
10, 13 thru 18
(Association No. 2)
(Association No. 3) (Association No. 1)
Under this arrangement, Respondent Sizelove will take the following
actions:
1. Pay for the work described above.
2. Pay for the examination, and rehabilitation where necessary,
of the existing distribution system.
3. Pay all repair and maintenance on the new well for a
period of one year, exclusive of electrical operating costs.
4. Convey his remaining interest in the Washington Heights
Subdivision to the
respective Homeowners Associations,
including the wells, distribution
lines, pumps, and
~outlot No. 28”, on which
one of the wells is situated.
5. Deposit with an
escrow agent $625,
amounting to $25 per
house, to be used as payment to the Bloomington Township
Water District for the required sign-up charge.
6.
Pay to each
of
the three Homeowners Associations
an
amount equaling $75 per house for payment
of the final
tap-on fee, which
will be charged by the Bloomington
Township Water District, and an additional
amount to be
used for the rental of commercial water filters by the
individual homeowners. That amount breaks down as
follows:
Association No. I
$
980
Association No. 2
1,260
Association No. 3
1,260
TOTAL:
$3,500
The Amended Stipulation also provides that the Board may, based on
the facts presented, find that Respondent Sizelove has violated the Act
and/or the old Rules, as charged
in the Complaint. In
the event that
the’ Board should so find, the Amended Stipulation makes provision for a
penalty
of $750.
As
was noted above, the evidence submitted at the November 26, 1974
hearing,
and the Stipulation as originally entered on that date, clearly
provide a sufficient basis for the Board to reach a finding of violation
on each of the points alleged in the Complaint. Insofar as the parties
have assented to such a finding, it is not necessary that we consider
here each of the provisions of Section 33(c) of the Environmental Protection
Act, as would normally be the case.
As to the penalty provision of the original Stipulation, (the amount
of
which was not affected by the changes contained in the Amended Stipulation),
we would not normally find the sum of $750 sufficient in a case of tvis
17
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type. The record here indicates that Respondent was notified very early
in the history of the Washington Heights Subdivision that the Agency
considered the subdivision water system to constitute a Public Water
Supply; Respondent nonetheless continued operation in violation of the
Old Rules and the Act. But in mitigation, Respondent’s considerable
outlays to achieve compliance, and his apparent cooperation with the
Agency in achieving such compliance, permit us to find that amount
acceptable.
Finally, the Agency consents to the dismissal of Respondent Mark IV
Corporation, as there is no indication that that Respondent is in any
way connected to the Washington Heights Subdivision or with the subject
matter of this action.
This Opinion constitutes the Board’s findings of fact and conclusions
of law of the Board in this matter.
ORDER
IT IS THE ORDER of the Pollution Control Board that:
1. Respondent Mark IV Corporation is dismissed as a party
Respondent.
2. Respondent Donald F. Sizelove, individually and d/b/a
Central Realty and Development Co., is found to have
violated or permitted violations of Sections 15, 18, and
19 of the Illinois Environmental Protection Act, and to
have violated or allowed to be violated Rules 3.13, 3.30,
and 3.40 of the old Public Water Supply Rules and Regulations,
continued in effect by Section 49(c) of the Act.
3. Respondent Donald F. Sizelove, individually and d/b/a Central
Realty and Development Co., shall pay a penalty of $750
for said violations. Payment is to be made within 35
days by certified check or money order to the State of
Illinois, Fiscal Services Division, Illinois Environmental
Protection Agency, 2200 Churchill Road, Springfield,
Illinois 62706.
4. Respondent Sizelove, individually and d/b/a Central
Realty and Development Co., shall conform fully with the
provisions of paragraphs 3 through 7 of the Stipulation
and Proposal for Settlement as Amended, submitted in this
proceeding.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control
Board,, hereby certify the above Opinion and Order were adopted on the
J4~~dayof
___________________,
1975 by a vote of ~ to 0
~rnE~
Christan L. Moffett, C
çy~
Illinois Pollution Cont’6~’ Board
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