ILLINOIS POLLUTION CONTROL BOARD
    June 2, 1988
    M. SANCHEZ,
    Complainant,
    v.
    )
    PCB 87—10
    ISLAND LAKE WATER COMPANY,
    Respondent.
    MRS. MARVA SANCHEZ AND MR. W. RANDAL BAUDIN APPEARED ON BEHALF OF
    THE COMPLAINANT.
    MR. MICHAEL T. CALDWELL APPEARED ON BEHALF OF THE RESPONDENT.
    OPINION AND ORDER OF THE BOARD (by Michael Nardulli):
    This matter comes before the Board from a formal complaint
    filed by Mrs. Marva Sanchez (hereinafter “Mrs. Sanchez”) on
    January 7, 1987. In the complaint, Mrs. Sanchez alleges that the
    Respondent, Island Lake Water Company, has violated 35 Ill. Adm.
    Code 604.201 “Finished Water Quality” which states:
    a) The finished water shall contain no
    impurity in concentrations that may be
    hazardous to the health of the consumer or
    excessively corrosive or otherwise
    deleterious to the water supply. Drinking
    water shall contain no impurity which
    could reasonably be expected to cause
    offense to the sense of sight, taste or
    smell.
    b) Substances used in treatment should not
    remain in the water in concentrations
    greater than required by good practice.
    Substances which may have a deleterious
    physiological effect, or for which
    physiological effects are not known, shall
    not be used in a manner that would permit
    them to reach the consumer.
    The Complainant cites problems with red water destroying
    home appliances and laundry, sand in the water system and poor
    water pressure. Mrs. Sanchez requests that the Board enter an
    order to have the Island Lake Water Company “correct this problem
    immediately..
    .
    It
    .0—33

    —2—
    The Board scheduled a hearing on this complaint for January
    15, 1987. Hearings were continued on July 13, 1987 and concluded
    at a third session on September 16, 1987. Nine (9) witnesses
    testified on behalf of the Petitioner. The Respondent called
    only one (1) witness. In addition, four (4) members of the
    public made statements in response to the Hearing Officer’s
    invitation to allow any one attending the hearing to testify.
    The parties agreed that no briefs would be filed. On September
    22, 1987, the Respondent filed a Motion for Directed or Summary
    Finding. On direction from the Board, the Respondent filed a
    proof of service for the Motion for Directed or Summary Finding
    on the Complainant on October 28, 1987. The Complainant did not
    respond to the Motion for Directed or Summary Finding. The Board
    hereby denies the motion for reasons made apparent in the
    following decision.
    FACTUAL BACKGROUND
    Island Lake Water Company is a closely—held Illinois
    corporation that operates a water—treatment and distribution
    facility supplying potable water to the residents of Island Lake,
    Illinois. The system serves approximately eight—hundred (800)
    services (P.283). The water treatment for Island Lake water
    includes a sequestration program to control the iron in the
    water. The program includes the injection of a polyphosphate
    sequestering agent. The sequestering agent causes the iron in
    the water to either adhere to the mains or allows the iron to be
    carried through the system without staining or causing red water
    problems. (P. at 109). The iron that adheres to the mains can
    be removed from the system by flushing the systems through open
    hydrants. Testimony by the Illinois Environmental Protection
    Agency (hereinafter “Agency”), Division of Public Water Supply
    Regional Manager of the northeast region of Illinois, Mr. Leonard
    Lindstrom indicates, however, that the Respondent has not
    followed a good sequestration program because it has been unable
    to flush part of its mains and has a history of not flushing
    (P.290—292). It is not clear from the record how often the
    system has been flushed. In a letter dated April 30, 1987, the
    Agency has recommended that Island Lake Water Company repair its
    broken hydrants, install additional hydrants, and thoroughly
    flush the distribution system early in the spring, during the
    summer and again late in the fall in order to reduce the red
    water problem. (P.293—296).
    EVIDENCE OF THE ALLEGED VIOLATION
    At the public hearing, the Complainant, Mrs. Sanchez, had
    the burden of proving that the Respondent had violated the
    standards established in 604.201.
    A violation of 604.201 will be found if any one of the
    following requirements is not achieved:
    9 0—34

    —3—
    1) Finished water shall contain no impurity
    in concentrations that may be hazardous to
    the health of the consumer or excessively
    corrosive or otherwise deleterious to the
    water supply.
    2) Drinking water shall contain no impurity
    which could reasonably be expected to
    cause offense to the sense of sight, taste
    or smell.
    3) Substances used in treatment should not
    remain in the water in concentrations
    greater than required by good practice.
    4) Substances which have a deleterious
    physiological effect, or for which
    physiological effects are not known, shall
    not be used in a manner that would permit
    them to reach the consumer.
    To prove a violation of the first standard listed, the
    Complainant would need to show what impurities were in the water,
    the concentration of the impurities and prove that the impurities
    could be hazardous, excessively corrosive or otherwise
    deleterious. A violation of this standard has not been proven by
    the Complainant through the testimonies and exhibits presented at
    the public hearing. Evidence from expert witnesses, chemical
    analysis, cause and effect relationships or some equivalent type
    of evidence would be required to meet this burden of proof.
    Similarly, Mrs. Sanchez has failed to prove a violation of
    the third and fourth standards listed. The evidence does not
    show that substances used in treatment remain in the water in
    concentrations greater than required and there was no evidence of
    any substance having a deleterious physiological effect.
    However, the burden of proof for the second standard listed
    is more readily met. This standard is based on a reasonable
    person test and is violated when the water quality offends the
    sense of sight, smell or taste of a reasonable user of the
    water. The burden of proof under this standard can be met by the
    testimony of reasonable people stating that they found the
    finished water offensive to their senses or by submitting
    finished water samples as exhibits that can be examined by
    reasonable people and found to be offensive. While this sentence
    from 604.201(a) is, in part, intended to be a preamble to the
    finished water standards defined throughout Subpart B on Chemical
    and Physical Quality, it is the Board’s opinion that this
    sentence is also intended to establish a catch—all standard for
    finished water quality and to allow relief from unusable finished
    water even if this water meets all of the other standards of
    90—35

    —4—
    Subpart B.
    At the public hearing for this complaint, the preponderance
    of the evidence indicated that the finished water distributed by
    the Island Lake Water Company could reasonably be expected to
    cause offense to the sense of sight, taste or smell. The
    testimony of numerous customers of Lake Island Water Company
    indicated that they found the water unfit for the uses of
    drinking, cooking, bathing, washing laundry, making coffee and
    other typical uses of potable water. There were common
    complaints of a chlorine odor to the water, sediment and white
    precipitate in the water, a cloudy appearance of the water, red
    water problems and damage to appliances. Further, the finished
    water samples submitted as exhibits evident many of the offensive
    qualities brought out in testimony. The testimony of the Agency
    representative also tends to prove that the water has offensive
    characteristics.
    Based on the record, it is apparent that the Island Lake
    Water Company did violate 604.201(a). It is not clear, however,
    how often the finished water quality standard was violated or if
    violations took place on the dates mentioned in the complaint.
    BOARD ACTION
    In the complaint, Mrs. Sanchez recommends the Board enter an
    order to “correct this problem immediately”. While it is the
    Board’s desire to grant this relief, the practicalities of the
    situation make it impossible. Because seventeen months have
    already passed since Mrs. Sanchez filed her complaint, the Board
    will attempt to ensure a lasting and expeditious, rather than
    immediate, remedy with its order.
    Ill. Rev. Stat. ch. 1l~/~~par. 1033(c) sets forth the
    elements for this Board to consider in reviewing this type of
    action. Par. 1033(c) elucidates the following criteria:
    In making its
    ...
    determinations, the Board shall take
    into considering all facts and circumstances bearing
    upon the
    ...
    violations
    ...
    but not limited to:
    1. the character and degree of injury to or
    interference with the
    ...
    health, general
    welfare and physical property of the
    people;
    2. the social and economic value of the
    source;
    90—36

    —5—
    3. the suitability
    ...
    of the
    ...
    source
    including the question of propriety of
    location in the area involved.
    4. the technical practicability and economic
    reasonableness of reducing or eliminating
    the violations
    ...
    from such pollution
    source.
    The interference with the physical property and general
    welfare of the people of Island Lake is well documented in the
    testimony on behalf of the Complainant. The damage to laundry
    and appliances, as well as the inconvenience of purchasing
    bottled water, is substantial when the aggregate effect is
    considered. There is no question that a water—treatment and
    distribution facility serves a useful social and economic
    purpose. There also is no question that the facilities need to
    be in the area serviced and are suitably located.
    The issue of the technical practicability and economic
    reasonableness of reducing or eliminating the violations was
    addressed in the testimony of the Agency representative. He
    testified that the installation of a filter tank would be a
    reliable technology to remove hardness from the water. However,
    this type of filtration system would require a large capital
    expenditure and would be difficult for a private water company to
    finance. The approach consider more reasonable by the Agency is
    to improve maintenance and operational practices so that an
    effective sequestration program can be developed.
    There are two more criteria by which this Board must judge
    Respondent’s actions. The first is the degree of economic
    advantage enjoyed by Respondent by its failure to comply with the
    law. IEPA v. Standard Metal Co., PCB 83—22, decided January 10,
    1985. The second additional criterion is whether or not the
    Respondent made good faith attempts to comply with the Act.
    According to the testimony of the representative of the
    Agency, the poor water quality can at least in part be attributed
    to the Respondent’s failure to follow a proper sequestration
    program, to maintain the system, to replace broken hydrants and
    to install additional hydrants that would allow for a thorough
    flushing of the system. The failure to spend money for proper
    operation and maintenance results in an economic advantage for
    the water company at the expense of its customers. There is also
    testimonial evidence that the Respondent failed to make a good
    faith effort to correct the problem. A number of customers
    testified that in response to their complaints about water
    quality, the water company said that the problem was inside the
    customer’s home and not the responsibility of the water
    company. Further, customers were told that they were the only
    ones having problems, even though the testimony at hearing
    indicates that there were problems in other areas. The failure
    90—37

    —6—
    to investigate and address problems, that reasonably would be
    expected to be under the control of the Respondent, indicates the
    lack of a good faith attempt to comply with the Act.
    The Board will exercise its power to assess civil penalties
    under Ill. Rev. Stat. 111½ Section 1042. In taking this action,
    the Board hopes to deter the Respondent from neglecting its
    responsibilities to properly maintain and operate its system.
    The Board also notes that the Agency supplied the Respondent
    with a number of recommendations for improvement to the
    Respondent’s sequestration program. The Respondent has been in
    receipt of these recommendation at least since the beginning of
    May of 1987. The Agency was of the impression that the Island
    Lake Water Company had adopted these recommendations and had
    began installing and repairing hydrants and following a scheduled
    flushing program. If the company was following the
    recommendations, the improvements should be completed by this
    time. These improvements would eliminate a significant part of
    the water quality problems in Island Lake and would allow the
    Respondent time to implement the Agency’s other
    recommendations. Because of the length of time Island Lake Water
    Company has already had since the time this complaint was filed
    to improve its finished water quality, and the short amount of
    time it would take to implement a significant portion of the
    Agency’s recommendation, the Board orders the Respondent to cease
    and desist from further violation of 35 Ill. Adm. Code 604.201
    within forty—five (45) days of the date of this Order.
    This Opinion constitutes the Board’s findings of fact and
    conclusions of law in this matter.
    ORDER
    Based on the Board’s findings and conclusions expressed in
    this Opinion, the Board hereby finds the Respondent, Island Lake
    Water Company in violation of
    35 Ill. Ptdm. Code 604.201(a) and
    orders Island Lake Water Company to undertake the following
    actions:
    1) Island Lake Water company shall pay a
    penalty of one—thousand dollars ($1000.00)
    to the Illinois Environmental Protection
    Trust Fund as a civil penalty for the
    violation of 35 Ill. Adm. Code 604.201(a)
    with forty—five (45) days of the adoption
    of this Opinion and Order.
    Such payment shall be made by certified check or money order
    payable to the Illinois Environmental Protection Trust Fund and
    mailed to:
    90—38

    —7—
    Environmental Protection Agency
    Fiscal Services Division
    2200 Churchill Road
    Springfield, IL 62706
    2) Pursuant to Section 1033(b) of the
    Illinois Environmental Protection Act, the
    Board directs the Island Lake Water
    Company to cease and desist from further
    violations of 35 Ill. Adm. Code 604.201
    within forty—five (45) days of the date of
    this Order.
    Section 41 of the Environmental Protection Act, Ill. Rev.
    Stat. 1985 ch. 1111/2 par. 1041, provides for appeal of final
    Orders of the Board within 35 days. The Rules of the Supreme
    Court of Illinois establish filing requirements.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify that the above Opinion and Order was
    adopted on the
    _____________
    day of ________________________
    1988, by a vote of
    7—0
    .
    ,7~.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board
    9 0—39

    Back to top