ILLINOIS POLLUTION CONTROL BOARD
February 6, 1986
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Complainant,
v.
)
PCB 84—120 and PCB 84—121
(consolidated)
ATLAS SERVICE COMPANY, INC.,
an Illinois corporation;
RALPH WALLER, individually and as
an officer of Atlas Service
Company, Inc., and THOMAS
WALLER, individually and as an
officer of Atlas Service
)
Company, Inc.,
)
Respondents.
MS. CHRISTINE ZEMAN, ASSISTANT ATTORNEY GENERAL, APPEARED ON
BEHALF OF THE COMPLAINANT.
CLAUDON, LLOYD, BARNHART & BEAL, LTD. (MR. GARY BARNHART, OF
COUNSEL) APPEARED ON BEHALF OF RESPONDENT ATLAS SERVICE
COMPANY, INC.
OPINION AND ORDER OF THE BOARD (by W.J. Nega):
This matter comes before the Board on a seven—count
Complaint filed on August 3, 1984 by the Illinois Environmental
Protection Agency (Agency) in PCB 84—120 (Georgetown) and a
similar seven—count Complaint filed on August 3, 1984 in
PCB 84—121 (Meadowbrook).
Respondent Atlas Service Company, Inc. (Atlas), an Illinois
corporation registered in 1971 and doing business in Illinois,
owns and operates a sanitary sewage collection system and a
wastewater treatment plant constructed in 1972 which serves the
Georgetown residential subdivision (Georgetown system) located
about one mile west of Macomb in McDonough County, Illinois. The
Georgetown subdivision, which is a 194 unit townhouse development
with common recreational facilities, has a sanitary sewage
collection system which includes 11,000 feet of collecting sewers
and a terminal lift stati,on. Its wastewater treatment plant
includes a three—cell lagoon and a chlorination chamber. Treated
effluent from the Georgetown system is discharged into an unnamed
stream tributary to the East Fork of the La Moine River. Both
the unnamed East Fork tributary and the La Moine River are
accumulations of water which flow wholly within the State of
Illinois. Before reaching the Georgetown treatment plant, raw
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sewage can be discharged from an interceptor sewer into the
unnamed tributary to the East Fork of the La Moine River.
Respondents Ralph Wailer and Thomas Wailer are both officers
of Atlas who directed and actively participated in the operation
of both the Georgetown and Meadowbrook systems.
Count I of the Complaint in PCB 84—120 alleged that, from
May 17, 1979 until August 3, 1984 (including, but not limited to,
May 17—23, 1979; August 24, 1979; November 14, 1980; March 26,
1982; July 13, 1982 through September 14, 1982; January 28, 1983;
April 27, 1983; and February 8—9, 1984), the Respondents caused
or allowed discharges causing, or threatening to cause, water
pollution in violation of Section 12(a) of the Illinois
Environmental Protection Act (Act) by allowing raw sewage
bypasses from the Georgetown system to enter the East Fork of the
La Moine River and its unnamed tributary.
Count II alleged that, on the dates previously specified in
Count I, the Respondents’ raw sewage bypasses from the Georgetown
system caused violations of Section 12(a) of the Act and
violations of 35 Ill. Adm. Code 302.203 (unnatural sludge or
bottom deposits, floating debris, unnatural color or turbidity);
35 Iii. Adm. Code 304.105 (effluents causing violations of
applicable water quality standards); 35 Ill. Adm. Code 304.106
(effluents containing settleable solids, floating debris, visible
oil, scum, and sludge solids); and 35 Ill. Adm. Code 306.103(b)
(excess infiltration into sewers
——
overflows from sanitary
sewers). Additionally, it is alleged that, by allowing raw
sewage bypasses from the Georgetown system, the Respondents
caused the dissolved oxygen concentration of the unnamed
tributary to the East Fork of the La Moine River to be less than
5.0 mg/i on, but not limited to, August 8, 1979 and February 9,
1984, in violation of 35 Ill. Adm. Code 302.206 and Section 12(a)
of the Act.
Count III alleged that, from its construction in 1972 until
January, 1981 and from October, 1983 until August 3, 1984, the
Respondents operated the Georgetown system’s treatment plant
without the direct and active field supervision of an
Agency—certified operator in violation of the NPDES Permits for
the system, 35 Ill. Adm. Code 312.101 and Section 12(f) of the
Act.
Count IV alleged that the Respondents caused or allowed the
discharge of effluents in violation of the NPDES Permits for the
Georgetown system, 35 Iii. Adm. Code 309.102, and Section 12(f)
of the Act.
Count V alleged that, from July, 1978 until August 3, 1984,
the Respondents: (1) failed to provide adequate facilities to
measure the effluent flow discharged from the Georgetown
treatment plant in violation of the system’s NPDES Permits,
35 Ill. Adm. Code 305.103 and 309.102, and Section 12(f) of the
—3—
Act, and (2) failed to monitor the effluent discharged from the
treatment plant and/or submit the required monthly discharge
monitoring reports to the Agency in violation of the system’s
NPDES Permits, 35 Ill. Adm. Code 305.102 and 309.102, and Section
12(f) of the Act.
Count VI alleged that the Respondents failed to report the
raw sewage bypasses from the Georgetown system (that occurred on
the dates specified in Count I of the Complaint) to the Agency in
violation of the system’s NPDES Permits, 35 Ill. Adm. Code
305.102 and 309.102, and Section 12(f) of the Act.
Count VII alleged that the Respondents have failed to
provide or maintain adequate equipment to alert them to raw
sewage bypasses due to power or equipment failures or adequate
back—up equipment in such instances, thereby violating the
system’s NPDES Permits, 35 Ill. Mm. Code 306.102(a) and 309.102,
and Section 12(f) of the Act.
Atlas also owns and operates a sanitary sewage collection
system and a wastewater treatment plant constructed in 1969 which
serves the Meadowbrook residential subdivision (Meadowbrook
system) located approximately one mile west of Macomb in
McDonough County, Illinois. The Meadowbrook subdivision is a 112
home single—family development. About 8,000 feet of collecting
sewers and a terminal lift station are involved in the sewage
collection portion of the Meadowbrook system. The Meadowbrook
system’s wastewater treatment facilities include a three—cell
lagoon and a chlorination chamber. The Meadowbrook system
discharges its treated effluent into an unnamed stream which is
tributary to the East Fork of the La Moine River. Before
reaching the Meadowbrook treatment plant, raw sewage can be
discharged from the Fawn Ridge lift station into the unnamed East
Fork tributary of the La Moine River. The Meadowbrook system is
the subject of the Complaint filed by the Agency in PCB 84—121.
Count I of the Complaint in PCB 84—121 alleged that, from
May 17, 1979 until August 3, 1984 (including, but not limited to,
March 26, 1982), the Respondents caused or allowed discharges
causing, or threatening to cause, water pollution in violation of
Section 12(a) of the Act by allowing raw sewage bypasses from the
Meadowbrook system to enter the East Fork of the La Moine River
and its unnamed tributary.
Count II alleged that, on the dates previously delineated in
Count I, the Respondents’ raw sewage bypasses from the
Meadowbrook system caused violations of 35 Ill. Mm. Code
302.203, 304.105, 304.l06r, and 306.103(b) as well as violations
of Section 12(a) of the Act.
Count III alleged that, from March 7, 1972 until January,
1981 and from October, 1983 until August 3, 1984, the Respondents
operated the Meadowbrook system’s treatment plant without the
direct and active field supervision of Agency—certified operator
—4—
in violation of the NPDES Permits for the system, 35 Ill. Adm.
Code 312.101 and Section 12(f) of the Act.
Count IV alleged that the Respondents caused or allowed the
discharge of effluents in violation of the 1980 NPDES Permit for
the Meadowbrook system, thereby violating 35 Ill. Mm. Code
309.102 and Section 12(f) of the Act.
Count V alleged that, from June 1975 until August 3, 1984,
the Respondents: (1) failed to provide adequate facilities to
measure the effluent flow discharged from the Meadowbrook
treatment plant in violation of the system’s NPDES Permits,
35 Ill. Adm. Code 305.103 and 309.102, and Section 12(f) of the
Act, and (2) failed to monitor the effluent discharged from the
treatment plant and/or submit the necessary monthly discharge
monitoring reports to the Agency in violation of the system’s
NPDES Permits, 35 Ill. Adm. Code 305.102 and 309.102, and Section
12(f) of the Act.
Count VI alleged that the Respondents failed to report the
raw sewage bypasses from the Meadowbrook system (that occurred
on, but not limited to, March 26, 1982) to the Agency in
violation of the system’s NPDES Permits, 35 Ill. Adm. Code
305.102 and 309.102, and Section 12(f) of the Act.
Count VII alleged that the Respondents failed to provide
adequate equipment such as multiple pumping units, duplicate
power sources, or alarms at the Meadowbrook system’s Fawn Ridge
and Doe Run/Meadow Drive lift stations to minimize discharges of
untreated sewage during power or equipment failure in violation
of the system’s NPDES Permits, 35 Ill. Adm. Code 306.102(a), and
309.102 and Section 12(f) of the Act.
A hearing was held on October 17, 1985 at which members of
the public were present. (R. 4). The parties filed a
Stipulation and Proposal for Settlement on October 28, 1985.
The proposed settlement agreement provided that the Atlas
Service Company, Inc. admitted the violations alleged in both
Complaints and agreed to: (1) transfer the Georgetown system
(including all equipment and facilities) within 30 days of the
date of the Board’s Order to the Georgetown Homeowners’
Association which shall then own, operate, and manage the system;
(2) transfer the Meadowbrook system (including all equipment and
facilities) within 30 days of the date of the Board’s Order to
the Meadowbrook Homeowners’ Association which shall then own,
operate and manage the system; (3) no longer engage i~the
operation or management of any sewage treatment plant ; (4) pay a
*
With respect to the restrictive covenants delineated in item
#2 on page 8 of the Stipulation and in item #5 on page 9 of the
Stipulation, it appears that the parties only intend to limit the
rights of the Respondents to operate or manage the Georgetown and
(continued)
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stipulated penalty of $1,100.00 into the Environmental Protection
Trust Fund for violations in PCB 84—120 (Georgetown system), and
(5) pay a stipulated penalty of $400.00 into the Environmental
Protection Trust Fund for violations in PCB 84—121 (Meadowbrook
system). (Stip. 8—9).
In their Stipulation and Proposal for Settlement, the
parties have indicated that they believe that the stipulated
penalties are appropriate because (1) Atlas will no longer
operate the Georgetown system, the Meadowbrook system, or any
other sewage treatment plant; (2) Atlas will transfer its
ownership interest in the Georgetown system and the Meadowbrook
system to respective homeowner associations which will then own,
operate, and manage the systems; and (3) Atlas’s current
financial condition appears to warrant the aforementioned
stipulated penalties. (Stip. 9—10; R. 5).
As part of the proposed settlement agreement, and in
consideration of the agreement of Ralph Wailer and Thomas Wailer
not to engage in the operation or management of any sewage
treatment plant, the Agency has agreed to request that the Board
dismiss both Ralph and Thomas Waller as Respondents in both
actions. (R. 6—7; Stip. 8). The Board believes that this
request is appropriate and hereby grants the Agency’s motion to
dismiss.
In evaluating this enforcement action and proposed
settlement agreement, the Board has taken into consideration all
the facts and circumstances in light of the specific criteria
delineated in Section 33(c) of the Act and finds the settlement
agreement acceptable under 35 Ill. Adm. Code 103.180.
The Board finds that the Respondent, the Atlas Service
Company, Inc., has violated 35 Ill. Adm. Code 302.203, 302.206,
Meadowbrook systems in the near future. However, as presently
worded, the restrictive covenants would appear, for all practical
purposes, to indirectly bar the Respondents from ever seeking, or
obtaining, appropriate certification. Moreover, the overly
broad, vague, and ambiguously all—inclusive language of items #2
and #5 does not clearly or specifically limit the restriction on
the Respondents’ freedom of action to operate or manage the
sewage treatment plants at the two subdivisions in question and
does not place a reasonable time limit or geographic limit on the
proposed restriction. The Board accepts this Stipulation with
the understanding that the actual intent of the two agreed—upon
restrictive covenant conddtions is limited to precluding Ralph
Waller, Thomas Waller, and the Atlas Service Company, Inc. from
an operating or control relationship with the Georgetown and
Meadowbrook facilities. The Board notes that the respective
Homeowner Associations can effectively preclude this result
without such conditions and, thus, such conditions are actually
extraneous.
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304.105, 304.106, 305.102, 305.103, 306.102(a), 306.103(b),
309.102 and 312.101 and Sections 12(a) and 12(f) of the Act. The
Respondent will be ordered to follow the agreed—upon compliance
plan and to pay a stipulated penalty of $1,100.00 into the
Environmental Protection Trust Fund in PCB 84—120 (Georgetown
system) and a stipulated penalty of $400.00 into the
Environmental Protection Trust Fund in PCB 84—121 (Meadowbrook
system).
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. Ralph Wailer and Thomas Waller are hereby dismissed as
Respondents in PCB 84—120 and PCB 84—121.
2. As admitted in the Stipulation, Respondent Atlas Service
Company, Inc. has violated 35 Ill. Adm. Code 302.203,
302.206, 304.105, 304.106, 305.102, 305.103, 306.102(a),
306.103(b), 309.102, and 312.101 and Sections 12(a) and
12(f) of the Illinois Environmental Protection Act.
3. Within 30 days of the date of this Order, Respondent
Atlas Service Company, Inc. shall:
(a) Transfer the Georgetown system (including all
equipment and facilities) to the Georgetown
Homeowners’ Association which shall then own,
operate and manage the system, and
(b) Transfer the Meadowbrook system (including all
equipment and facilities) to the Meadowbrook
Homeowners’ Association which shall then own,
operate and manage the system.
4. Atlas Service Company, Inc., Ralph Waller, and Thomas
Wailer shall no longer engage in the operation or
management of any sewage treatment plant at either
facility or any subdivision.
5. Within 30 days of the date of this Order, the Respondent
Atlas Service Company, Inc. shall, by certified check or
money order payable to the State of Illinois and
designated for 4posit into the Environmental Protection
Trust Fund, pay the stipulated penalty of $1,100.00 (for
violations in PCB 84—120) and the stipulated penalty of
$400.00 (for violations in PCB 84—121) which are to be
sent to:
Illinois Environmental Protection Agency
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Fiscal Services Division
2200 Churchill Road
Springfield,
Illinois
62706
6. The Respondents shall comply with all the terms and
conditions of the Stipulation and Proposal for
Settlement filed on October 28, 1985, which is
incorporated by reference as if fully set forth herein.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby cer~tifythat the ~ove Opinion and Order was
adopted on the ~
day of
_____________,
1986 by a vote
p77.
Dorothy M. GCrnn, Clerk
Illinois Pollution Control Board