ILLINOIS POLLUTION CONTROL BOARD
April 8, 1993
PEOPLE OF THE STATE
)
OF ILLINOIS,
Complainant,
)
v.
)
PCB 92—164
(Enforcement)
BERNIECE KERSHAW, DARWIN DALE
)
KERSHAW
AND
DARRELL KERSHAW
)
d/b/a KERSHAW MOBILE HOME PARK,
)
Respondent.
ORDER OF THE BOARD (by G. T. Girard):
On October 29, 1992, the Attorney General of Illinois filed
a complaint on behalf of the People of Illinois against Berniece
Kershaw, Darwin Dale Kershaw, Darrell Kershaw and Kershaw Mobile
Home Park, pursuant to Section 31 of the Environmental Protection
Act (Act). (415 ILCS 5/31 (1992).)1 The complaint alleges
violations of Sections 12 and 18 of the Act on four counts. The
allegations relate to operations at Kershaw Mobile Home Park,
located in Henry County, Illinois. The Board did not receive any
filing in response to the complaint.
On February 17, 1993, the complainant filed a motion for
summary judgment asking the Board to enter judgment in favor of
complainant and against Berniece Kershaw, Darwin Dale Kershaw and
Kershaw Mobile Home Park. The Board notes that the request for
summary judgment did not include respondent Darrell Kershaw.
Further, the record indicates that Darrell Kershaw was not served
with the October 29, 1992, complaint, the motion for summary
judgment or other filings in this proceeding. Therefore, the
Board dismisses Darrell Kershaw from this proceeding and the
respondents referred to herein are only Berniece and Darwin Dale
Kershaw and Kershaw Mobile Home Park.
The motion asks for summary judgment “for the reason that
the pleadings, admissions on file and affidavits show that there
is no genuine issue as to any material fact and the complainant
is entitled to judgment as a matter of law”. (Mot. at 1.) The
Board has not received a response to the motion for summary
judgment from Berniece Kershaw, Darwin Dale Kershaw and Kershaw
Mobile Home Park.
‘The Act was previously codified at Ill. Rev. Stat. ch. 111
1/2 par. 1001 et seq.
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KERSHAW MOBILE HOME PARK
Kershaw Mobile Home Park (KMHP) is owned by Berniece Kershaw
and her two sons, Darwin and Darrell Kershaw. The KMHP has a
mailing address of Route 3, Box 3, Colona, Henry County,
Illinois. Berniece and Darwin Kershaw reside in Colona,
Illinois, and Darrell Kershaw resides in Florida. (Comp. at 2.)
KMHP serves an estimated population of 265. (Comp. at 3.)
KMHP has its own sewage treatment plant. There are approximately
30 septic tanks, each serving 3 trailers. The effluent from
these tanks is delivered by individual sewers to the sewage
treatment plant’s 3—cell lagoon system. The lagoon system
discharges into a backwater slough of the Rock River. (Comp. at
2.)
KMHP has two groundwater wells with associated pressure
tanks, mains and piping. One well serves approximately 94 lots
and the other approximately 12 lots. The wells also serve 3
houses and a large building, containing stores and a laundry.
(Comp. at 2 and 3.)
ALLEGATIONS
Count I
Count I of the complaint alleges violations of Section 12(a)
of the Act and 35 Ill. Adm. Code 304.106, 304.120(c) and
304.121(a). These regulations deal with water quality parameters
for discharges. Section 304.106 states:
“In addition to the other requirements of this Part, no
effluent shall contain settleable solids, floating debris,
visible oil, grease, scum or sludge solids. Color, odor and
turbidity must be reduce to below obvious levels.”
The complaint alleges that from “at least November 13, 1985, and
continuing until at least June 18, 1990” the Kershaws caused or
allowed discharges containing settleable solids with obvious odor
and turbidity from respondent’s sewage treatment plant. “This
condition continued until at least March 23, 1992, on which date
the Agency inspected the (KNHP and found that the effluent from
the tsewage treatment plant was green and turbid.” (Comp. at
4.)
The Board’s water pollution regulations at Section
304.121(a) provides:
Section 304.121 Bacteria
a) Effluents discharged to all general use waters shall
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not exceed 400 fecal coliforms per 100 ml unless the
Illinois Environmental Protection Agency determines
that an alternative effluent standard is applicable
pursuant to subsection (b).
The fecal coliform limit of 400 per 100 milliliters (ml) was
violated at least 5 months between March 1986 and May 1987. The
“greatest excessive concentration occurred in March 1986, when
the concentration was 87,000 per 100 ml. The Kershaws failed to
provide effluent disinfection in order to assure that the
effluent did not exceed 400 fecal coliform per 100 ml.” (Comp.
at 6.)
Section 304.120(c) states:
Except as provided in Section 306.103, all effluents
containing deoxygenating wastes shall meet the following
standards:
c) No effluent whose dilution ratio is less than five to
one shall exceed 10 mg/l of BOD5 or 12 mg/l of
suspended solids, except that sources employing third-
stage treatment lagoons shall be exempt from this
subsection (c) provided all of the following conditions
are met...
The record shows that “the BOD5 effluent of 10 mg/l on a monthly
average was in fact violated at least 18 months between November
1985 and March 1990”. (Mot. at 7.)
Count II
Count II of the complaint alleges violations of Sections
12(a) and (f) of the Act and 35 Ill. Adm. Code 305.102(b) and
305.103. The complaint alleges that the respondents had no
National Pollutant Discharge Elimination System (NPDES) permit
from May 1, 1983, through March 6, 1991. Further, the complaint
alleges that respondents failed to perform tests and monitoring
as required by their previous NPDES permit. (Comp. at 9-10.)
Count III
Count III alleges violations of Section 12(f) of the Act and
35 Ill. Adm. Code 309.102(a) and 309.104(a). Specifically, the
allegation is that respondents operated their facility without a
NPDES permit. (Comp. at 12-13.)
Count IV
Count IV alleges violations of Section 18(a) of the Act and
35 Ill. Adm. Code 601.101, 653.109, and 653.118 as well as Part
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7.2.4 of the Recommended Standards for Water Works (l982).2 The
complaint alleges that the respondents are a public water supply.
(Comp. at 15.) As a public water supply the complaint alleges
that respondents failed to keep proper air pressure in the tanks.
(Comp. at 18.) In addition, the complaint alleges that one of
respondent’s water wells was located within 5 feet of the
restroom stool and cast iron sewer line. (Comp. at 19.)
MOTION FOR SUMMARY JUDGMENT
The motion for summary judgment includes full affidavits and
supporting documents from the Illinois Environmental Protection
Agency files. (See attachments B—F.) These affidavits and
documents support the allegations set forth in the complaint. In
addition, the motion includes a request for admission of facts
which was served upon respondents Berniece Kershaw and Darwin
Dale Kershaw on December 3, 1992. (Mot. Attch. A.) The
admission of facts was not answered by respondent. Therefore,
pursuant to 35 Ill. Adm. Code 103.162(c) the facts are deemed
admitted.
The facts which are admitted by respondents include that
respondents operated the sewage treatment plant without a NPDES
permit. (Not. Attch. A at 3.) In addition, respondents admit
ownership of the facility as well as ownership of the wells and
water supply. (Mot. Attch. B at 2.)
The complainant has presented substantial evidence in
support of its allegations. Further, the respondents’ failure to
respond to the request for admission of facts has resulted in
material facts being deemed admitted. Therefore, the Board finds
that there are no genuine issues of fact to be determined.
Further, the Board finds that the complainant has presented
sufficient evidence to warrant granting of summary judgment in
complainant’s favor and that as a matter of law complainants are
entitled to judgment. Thus, the Board finds respondents in
violation as alleged in each of the four counts of the complaint.
PENALTY
Having found violation, the Board must now determine the
penalty to be assessed. The complainant points out that the
total maximum penalty which could be assessed is seven hundred
sixteen million one hundred thousand dollars ($716,100,000.00).
(Not. at 25.) Complainant is however only asking for two hundred
fifty thousand dollars ($250,000.00). The motion states that
2 This standard is incorporated in the Agency’s regualtions
at 35 Ill. Adm. Code 652.111.
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complainant has determined that such penalty “will serve to deter
further violations and aid in future voluntary enforcement of the
Act and Board regulations”. (Mot. at 25.) In determining the
unreasonableness of the alleged pollution, the Board must take
into account factors outlined in Section 33(c) of the Act.
(Wells Manufacturing Company v. Pollution Control Board, 73
Ill.2d 226, 383 N.E.2d 148 (1978).) In addition, the Board is
authorized by statute to consider the factors in Section 42(h) of
the Act in determining an appropriate penalty.
Section 33(c) Factors
Section 33(c) sets forth five factors which the Board must
consider in making its determinations:
1. the character and degree of injury to, or interference
with the protection of the health, general welfare and
physical property of the people;
2. the social and economic value of the pollution source;
3. the suitability or unsuitability of the pollution
source to the area in which it is located, including
the question of priority of location in the area
involved;
4. the technical practicability and economic
reasonableness of reducing or eliminating the
emissions, discharges or deposits resulting from such
pollution source; and
5. any subsequent compliance.
Section 33(c)(1)-(4) The complainant states that the
Kershaws have created a “nuisance and caused actual or potential
harm to human health”. (Mot. at 22.) In addition, the
complainant indicates that the mobile home park does have
“moderate social and economic value” and is suitable to the rural
area in which it is located. (Not. at 22.) Further, complying
with the requirements of the Act and regulations is technically
feasible and economically reasonable according to complainant.
(Not. at 22.)
Section 33(c)(5) The complainant also discusses whether or
not there has been subsequent compliance. On December 17, 1985,
an enforcement letter was mailed to the Kershaws and a subsequent
meeting resulted in a tentative settlement agreement. However,
the Kershaws failed to perform their obligations under the
settlement. (Mot. at 22.) In 1987, 1990 and 1991 further
meetings took place with the Kershaws. On May 23, 1992, “the
IEPA inspected the facility and found that conditions there were
essentially unchanged from those noted in a Nay 1990 inspection”.
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(Not. at 23.) In July 1992, the Kershaws retained an engineering
consultant to recommend changes to bring the facility into
compliance. (Mot. at 23.)
Section 42(h) Factors
Section 42(h) sets forth factors to be considered in
determining the appropriate amount of the civil penalty. Those
factors are:
1. the duration and gravity of the violation;
2. the presence or absence of due diligence on the part of
the violator in attempting to comply with the
requirements of this Act and regulations thereunder or
to secure relief therefrom as provided by this Act;
3. any economic benefits accrued by the violator because
of delay in compliance with requirements;
4. the amount of monetary penalty which will serve to
deter further violations by the violator and to
otherwise aid in enhancing voluntary compliance with
this Act by the violator and other persons similarly
subject to the Act; and
5. the number, proximity in time, and gravity of
previously adjudicated violations of this Act by the
violator.
Section 42(h)(1) The Board finds that the Complainants
requested penalty of two hundred fifty thousand dollars
($250,000) is appropriate given the number of years of violation,
the serious nature of the violations, the number of people at
risk, the varied violations, and the many meetings with Agency
officials attempting to bring the facility into compliance. The
respondents have been in violation of the Act since October 1978
through at least October 1992. (Not. at 24.) When records were
available, they showed serious violation of water discharge
standards, including standards for suspended solids, BOD5, and
fecal coliform. (Comp. at 4—6.) Respondents also failed to
perform required tests so determining the full magnitude of their
non—compliance is frustrated by respondent’s noncompliance with
Board regulations. From October 14, 1978, through October 29,
1992, respondents “failed to perform flow measurement and monitor
effluent discharge as required by their NPDES permit”. (Comp. at
9.) Respondent’s also violated public water supply regulations,
including siting a restroom stool a distance of five feet from a
well serving over 200 people. (Comp. at 19.) The Board notes
that KMHP serves a community population estimated at 265. (Comp.
at 3.) The unhealthy discharges from the sewage treatment plant,
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and the violation of public water supply regulations (Comp. at
14-19), put that large community at risk.
Section 42(h)(2)-(4) The Agency and the Attorney General’s
Office have stated in the record that there have been several
meetings over the years with respondents. At those meetings “the
state has made numerous attempts to bring the Kershaws into
compliance with the Act”. (Mot. at 24.) Further, the Kershaws
“accrued a substantial economic benefit by not making the
improvements necessary to bring the KMHP wastewater treatment
plant into compliance”. (Mot. at 25.) Complainant believes
“that a total penalty of Two Hundred Fifty Thousand Dollars
($250,000) will serve to deter further violations and aid in
future voluntary enforcement of the Act and Board regulations.
(Mot. at 25.)
Section 42(h) (5) The complainant notes that in 1990, the
Illinois Department of Public Health suspended the respondents’
license to run the mobile home park because a licensing
inspection “revealed numerous problems with the sewage treatment
plant”. (Not. at 26.) The complainant notes that the following
year the license was reinstated. (Not. at 26.) However, despite
the long term nature of the violations, there are no “previously
adjudicated violations of this Act by the violator”.
Conclusion
After considering the record in this case and the factors
outlined in Section 33(c) and 42(h) of the Act, the Board finds
that the penalty requested by the complainant is reasonable. The
Board will order respondents to pay a penalty of two hundred
fifty thousand dollars ($250,000).
COSTS AND FEES
The complaint asked that the respondents be ordered to pay
all costs including attorney, expert witness and consultant fees,
expended by the State in pursuit of this action. (Comp. at
9,13,15,21.) The Attorney General’s motion (Comp. at 26) states
that documentation of costs and fees will be provided if the
Board so requests. Under Section 42(f) of the Act, the Board may
award “costs and reasonable attorney’s fees, including the
reasonable costs of expert witnesses and consultants” in a case
where the Attorney General has prevailed “against a person who
has committed a willful, knowing or repeated violation of the
Act”. Such monies are to be deposited in the Hazardous Waste
Fund created in Section 22.2 of the Act. Implementation of
Section 42(’f) requires certain findings which must be based on
the record. In cases where the Attorney General asks to recover
costs and fees it would be most helpful if the complaint would
request them pursuant to Section 42(f). Additionally, a
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discussion of which evidence specifically supports a finding of
willful, knowing or repeated violations should be presented.
The record indicates that respondents committed additional
violations of the Act even after being notified that the
operation of respondents’ facility was in violation of the Act.
(~
Mot. at 22-24.)~ Thus, the Board finds that the respondent
committed repeated and knowing violations of the Act. Therefore
the Board will open a Docket B in this proceeding to assess
reasonable costs and fees to the respondents as provided in
Section 42(f) of the Act. Complainants are directed to file an
affidavit of costs and fees with the clerk of the Board within 30
days of this date.
ORDER
The respondents shall pay Two Hundred Fifty Thousand Dollars
($250,000) within 30 days of the date of this Order.
Such payment shall be made by certified check or money order
payable to the Treasurer of the State of Illinois, designated to
the Environmental Protection Trust Fund, and shall be sent by
First Class mail to:
Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
P.O. Box 19276
Springfield, IL 62794—9276
Respondents shall also write its Federal Employer
Identification Number or Social Security Number on the certified
check or money order. Any such penalty not paid within the time
prescribed shall incur interest at the rate set forth in
subsection (a) of Section 1003 of the Illinois Income Tax Act,
(35 ILCS 5/1003), as now or hereafter amended, from the date
payment is due until the date payment is received. Interest
shall not accrue during the pendency of an appeal during which
payment of the penalty has been stayed.
Respondent shall cease and desist from the alleged
violations.
3me Board notes that this case is distinguishable from
Chicago Heights Refuse Depot (cite) wherein the Board determined
that there is a distinction between “continuing” violations and
“repeated” ‘violations. In the instant matter the respondents
were first notified of violations in 1985 and yet as late as
1992, the respondents were in violation for failure to perform
required test procedures. (Comp. at 9.)
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The Board hereby opens Docket B in this proceeding.
Complainants are directed to file an affidavit of costs and fees
with the Clerk of the Board within 30 days of the date of this
Order.
IT IS SO ORDERED
Board Member Joan Anderson concurs
Section 41 of the Environmental Protection Act (415 ILCS
5/41) provides for the appeal of final Board orders within 35
days. The Rules of the Supreme Court of Illinois establish
filing requirements. (But see also, 35 Ill. Adin. Code 101.246,
Motions for Reconsideration, and Casteneda v. Illinois Human
Rights Commission (1989), 132 Ill. 2d 304, 547 N.E.2d 437; Strube
v. Illinois Pollution Control Board, No. 3—92—0468, slip op. at
4—5 (3d Dist. March 15, 1993).)
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify~that the above order was adopted on the
~
day of
(-~u~~ ,
1993, by a vote of
ORI-0077
Dorothy M.
Illinois
Control Board