ILLINOIS POLLUTION CONTROL BOARD
May 1, 1981
ILLINOIS ENVIRONMENTAL
PROTECTION
AGENCY,
Complainant,
v.
)
PCB 80—32
PLANNED COMMUNITIES, INC.,
)
an Illinois corporation,
Respondent.
MR.
PHILIP L. WILLMAN, ASSISTANT ATTORNEY GENERAL, APPEARED ON BEHALF
OF THE COMPLAINANT.
FOLLMER, WEST, ERDMANN & CLEM, ATTORNEYS AT LAW (MR. RICHARD 0.
ERDMANN, OF COUNSEL), APPEARED ON BEHALF OF RESPONDENT PLANNED
COMMUNITIES, INC.
WILLIAMSON, MILLER & HENDREN, ATTORNEYS AT LAW (MR. PAUL C. HENDREN,
OF COUNSEL), APPEARED ON BEHALF OF THE BRIARCLIFF ASSOCIATION.
OPINION AND ORDER OF THE BOARD (by N.E.Werner):
This matter comes before the Board on the February 14, 1980
Complaint brought by the Illinois Environmental Protection Agency
(“Agency”).
Count I of the Complaint alleged that, from December 21, 1974
until February 14, 1980, the Respondent, Planned Communities, Inc.
(the “Company”), failed to provide equipment to adjust and maintain
the
fluoride ion concentration of its water supply to a level h~tween
0.9 milligrams per liter (“mg/i”) and 1.2 mg/l in violation of
Rule 3.05 of the Department of Public Health Rules and Regulations,
Rule 306 of Chapter 6: Public Water Supplies (“Chapter 6”), and
Section 18 of the Illinois Environmental Protection Act (“P~ct”~.
Count II alleged that, from December 22, 1975 until February 14,
1980, the Company failed to chlorinate its water in violation of
Rule 305 of Chapter 6 and Section 18 of the Act.
Count III alleged that, from April 5, 1976 until February 14,
1980, the Respondent failed to provide a certified public water
sup?ly operator in violation of Rule 302 of Chapter 6 and Section 18
of the Act.
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Count IV alleged that, from January 17, 1974 until February 14,
1980, the Company failed to submit the requisite monthly operating
reports in violation of Rule 310 of Chapter 6 and Section 19 of the
Act.
Count V alleged that, from November 11, 1975 until February 14,
1980, the Respondent failed to meet Agency criteria for the design,
operation and maintenance of its public water supply facilities in
violation of Rule 212(A) of Chapter 6 and Section 18 of the Act.
On May 29, 1980, the Respondent filed a Motion to Strike Count I
of the Complaint for Lack of Jurisdiction; a Motion to Dismiss the
proceedings on the ground that Planned Communities, Inc. was an
improper party respondent; a Motion to Add Necessary Parties, and a
Motion to Dismiss for Lack of Jurisdiction. On June 5, 1980, the
Agency filed a Motion for an Extension of Time to Respond to the
Respondent’s Motions. On June 12, 1980, the Board entered an Order
which granted the Agency’s Motion for an Extension of Tine to
Respond to the Respondent’s Motions.
On June 16, 1980, the Company filed a Motion for a Protective
Order which requested that the Board enter a protective order limit-
ing, under Complainant’s Request for Production of Documents,
Respondent’s obligation to produce its files for the purposes of
inspection and copying. However, the Company subsequently withdrew
its Motion for Protective Order on July 11, 1980.
On June 19, 1980, the Agency filed responses in opposition to
all of the motions that the Company had previously filed on
May 29, 1980.
On July 10, 1980, the Board entered an Order which: (1) denied
the Company’s Motion to Dismiss for Lack of Jurisdiction; (2) denied
the Company’s Motion to Dismiss; (3) denied the Company’s Motion to
Strike for Lack of Jurisdiction; and (4) granted the Company’s ~1otion
to Add Necessary Parties with respect to the Briarcliff Association.
A hearing was held on December 12, 1980 at which members of the
public were present. At this hearing, Planned Communities, Inc.
moved to voluntarily dismiss the Briarcliff Association
(the “Association”) as a Respondent in this case. Since the ~gency
and the Association had no objections to the Company’s motion, the
Hearing Officer dismissed the Briarcliff Association from this action.
(R. 5). However, under the Board’s Procedural Rule 308(e), such a
dismissal was not within the purview of the Hearing Officer. Because
the Hearing Officer had no authority to dismiss the Briarciiff
Association from this action, he should have referred the motion to
the Board. Accordingly, the Board will remedy this procedural
deficiency by dismissing the Briarcliff Association as a Respondent
in this case.
Additionally, at the hearing, all other pending motions
(i.e., a motion for a pre—hearing conference, a motion for a
continuance of the hearing date, etc.) were withdrawn by mutual
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—3
consent of the parties. (R. 13—14). The terms of an unwritten
settlement agreement were summarized orally. No members of the public
made comment.
The parties filed a Stipulation and Proposal for Settlement on
March 25, 1981. Since the proposed settlement as filed reflected the
oral presentation at the hearing, the Board finds this procedure in
substantial compliance with its Procedural Rule 331.
The Stipulation indicates that the Company’s public water supply
system (the “system”), which includes one drift well, a 5,000 gallon
underground water storage tank, and distribution facilities, serves
about 153 individuals in the Briarcliff First Subdivision near
Mahomet, Champaign County, Illinois. (Stip. 2; Exhibit A).
The Briarcliff Association, a not—for—profit Illinois corporation,
originally operated this public water supply system until December 31,
1978 under an automatically renewable one—year lease agreement
between the Company and the Association which was first entered into
on January 1, 1967. (Stip. 3-4; R. 11; Exhibit D). From January 1,
1979 until November 7, 1979, the Company and the Association
participated in negotiations pertaining to the leasing, operation,
maintenance, and repairs of the water supply facilities. On
November 7, 1979, the Association provided the Company with written
notice that, although it would perform routine maintenance until
December 6, 1979, it would no longer operate the system after
December 6, 1979. Nevertheless, after further discussions between
the Company and the Association, the Association continued to
operate the water supply until May 27, 1980. (Stip. 4).
On April 16, 1980, the Company obtained a temporary Certificate
of Public Convenience and Necessity from the Illinois Commerce
Commission which authorized the Respondent to operate the public
water supply. (Stip. 5; Exhibit C). Subsequently, on May 27, 1980,
the Company replaced the Association as the operator of this system.
(Stip. 4—5).
During the prior time period, there were extensive legal
proceedings pertaining to the ownership and operation of this public
water supply system:
“...From April 18, 1971 until November 27, 1975,
Foreclosure Proceedings File No. 71—C-179 at Circuit Court
of the Sixth Judicial Circuit, Champaign County, progressed.
On December 9, 1974, the Circuit Court of Champaign County,
Illinois, appointed Alice W. Ogg as receiver of all PCI
real estate, including but not limited to the Briarcliff
water and sewer systems. On November 28, 1975, Notice for
Sale was issued. On December 5, 1975, PCI paid Gibson
City Federal Savings and Loan the required amount by loan
obtained from Busey First National Bank. From December 9,
1974 until December 5, 1975, due to foreclosures
proceedings, the custody and control of PCI’s rights in
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—4—
the water and sewer system were under the control of
said receiver...
From September 14, 1976 until February 6, 1978, ther~±
was a law suit between PCI and BHI over who is the owner
of the public water supply. On February 6, 1978 the
Circuit Court of the Sixth Judicial Circuit, Champaign
County, declared, in the case of Briarcliff Association v.
Planned Communities, Inc. and Busey National Bank of Urhan~
76—C—906, that PCI is the sole owner of the public water
supply.” (Stip. 2—3; Exhibit B).
It is stipulated that the Briarcliff Association was the
operator of the system from January 1, 1967 until May 27, 1980 and
thus the Company was not responsible for submitting operating reoorts
to the Agency during this time period. (Stip. 6). Furthermore, the
Association did not submit any of the required operation reports to
the Agency from January 17, 1974 until April 16, 1980. (Stip.
‘i).
Additionally, it is stipulated that: (1) the system failed to
provide equipment to chlorinate the water since December 22, 1975;
(2) since November 11, 1975, the system “has not had a master neter;
a screened, downturned facing elbow on the air relief valve to the
storage tank; a sight glass on the storage tank; and an air
compressor for the storage tank”; (3) the public water supply has
had no equipment to maintain the fluoride ion concentration of its
raw water to the required level (i.e., between 0.9 mg/i and 1.2 mg/i)
since December 21, 1974; (4) the storage tank capacity for the water
supply system has fallen below 35 gallons per capita on a few
occasions since November 11, 1975; and (5) “since April 15, 1976
until May 27, 1980, the lessee—operator failed to provide a certified
water supply operator”. (Stip. 5—6).
The parties have also indicated that the Company has attempted
to provide a properly certified public water supply operator on two
separate occasions since May 27, 1980. (Stip. 6). However, each of
these operators has resigned the position before submitting a
“Notification of Operator in Responsible Charge” form to the Agency.
(Stip. 6).
The proposed settlement agreement provides that the Company
follow a compliance plan which mandates that the Company will
promptly: (1) hire a properly certified operator; (2) “install a
screened, downturned elbow on the air relief valve to the storage
tank”; (3) submit plans and specifications to the Agency for the
construction of the improvements necessary to provide fluoridation,
chlorination, metering, and storage of water; (5) apply for the
necessary permits from the Agency, and (6) pay a stipulated penalt-~
of $100.00
.
(Stip. 7—8).
In evaluating this enforcement action and proposed settleme’it
agreement, the Board has taken into consideration all the facts anti
circumstances in light of the specific criteria delineated in
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—5
Section 33(c) of the Act. The Board finds the stipulated agreement
acceptable under Procedural Rule 331 and Section 33(c) of the Act.
The Board finds that the Respondent, Planned Communities, Inc., has
violated Rule 3.05 of the Department of Public Health Rules and
Regulations; Rules 212(A), 302, 305, 306, and 310 of Chapter 6:
Public Water Supplies, and Sections 18 arid 19 of the Act. The
stipulated penalty of $100.00 will be assessed against the Respondent.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
It is ‘the Order of the Illinois Pollution Control Board that:
1. The Respondent, Planned Communities, Inc., has violated
Rule 3.05 of the Department of Public health Rule~s anI Reg\3~laticms;
Rules 212(A), 302, 305, 306, and 310 of Chapter 6: Public Water
Supplies, and Sections 18 and 19 of the Illinois Environmental
Protection Act.
2. Within 15 days of the date of this Order, the Respondent
shall:
(a) hire a Class A, B, or C certified operator and submit
to the Agency an original “Notification of Operator in
Responsible Charge” form signed by the operator and the
Respondent (the certified operator will sign the
requisite monthly operating reports and submit them to
the Agency);
(h) install a screened, downturned elbow on the air relief
valve to the storage tank.
3. Within 45 days of the date of this Order, the Respondent
will submit plans and specifications to the Agency for construction
necessary to provide:
(a) fluoridation and chlorination of the public water
supply system;
(b) the installation of an acceptable means of metering the
finished water, sight glass, and air compressor on the
storage tank; and
(c) the installation of adequate water storage tank capacity.
4. Within 15 days from the date that the Respondent receives a
Construction Permit from the Agency, it will install the proposed
chlorination equipment and apply to the Agency for an Operating
Permit for this equipment.
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5. Within 9 months from the date that the Respondent receives
a Construction Permit from the Agency, it will complete the remainder
of the requirements outlined in Item 3 of this Order, and will apply
to the Agency for an Operating Permit for the remaining equipment.
6. Within 45 days of the date of this Order, the Respondent.
shall, by certified check or money order payable to the State of
Illinois, pay the stipulated penalty of $100.00 which is to be sent
to:
Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield, Illinois 62706
7. The Respondent shall comply with all the terms and
conditions of the Stipulation and Proposal for Settlement filed
March 25, 1981, which is incorporated by reference as if fully set
forth herein.
8. The Briarcliff Association is hereby dismissed as a
Respondent in this case.
9. The Board retains jurisdiction in this matter for a six-month
period.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order were adopted
on the
)~T
day of/r,~a~
,
1981 by a vote of
‘~‘~
—--.
0
fr~i)
~d-~4(
Christan L. MoffO~+,&, Clerk
Illinois Pollution Control Board
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