ILLINOIS POLLUTION CONTROL BOARD
June 29,
1972
McHENRY SHORES WATER CO.
V.
)
#
72—137
ENVIRONMENTAL PROTECTION AGENCY
ROBERT HORWITZ, Attorney for Environmental Protection Agency
JOHN FUHLER,
President of McHenry Shores Water Company
OPINION OF THE BOARD
(BY MR. CURRIE):
This variance petition initially sought until June
15, 1972
to obtain Agency approval of plans
for correcting admitted inadequacies
of
a small public water supply system
in McHenry County.
At the
hearing the request was extended to July 15
(R.
57).
The Agency’s
recommendation alleged continuing violation of
the regulations des-
pite two years of complaints,
and asked that as conditions of any
variance
the company be required
to comply by July
1,
to post a $50,000
bond,
and
to make no further connections
to its system until
compliance was achieved.
A hearing was
held.
Agency tests* substantiate the admission that
iron content in
the water supplied by the company significantly exceeds the 0.3 mg/i
permitted by the regulations
(Ill.
Dept.
of Public Health, Public
Water Supply Systems Rules and Regulations, renumbered
as PCB
Regs.,
Ch.
6
Rule 3.13,
incorporating the United States Public
Health Service Standards
for Drinking Water,
Rule 5.21 of which
prescribed the iron
limit, which
is not to be exceeded if “other more
suitable supplies are or can be made available.”)
There have been
complaints about the water, the company president acknowledged,
“probably from the first day” after
the company was acquired in
1969
(R.
24,
10)
.
Complaints have included discolored water that
results in spots on laundry
(R.
44).
It is also conceded in the
petition
that fluoride content
is below that required
(0.9 mg/l)
by statute
(Ill.
Rev.
Stat.
ch.
111 1/2, ~ 121)
and by regulation
(Water Supply Rules,
supra,
Rule
5.28,
as amended 1/15/69),
and that water
quantity and storage capacity are below that required by Rules 3.14
and 3.30
of the regulations.
The petition admits that the system was
in bad shape when acquired;
complaints,
as noted, have been received
since the beginning;
the president admits he was contacted by the
Agency about violations
as early as 1970
(R.
15).
*R.
38-40.
The concentrations found were
0.8,
0.6, and
1.0 mg/l.
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—
745
The evidence is that no effort was made to correct the violations
until
some six to ten weeks before
the hearing, when
two consultants
were employed
to propose solutions,
one with regard
to chemical
treatment and
the other for additional capacity
(H.
15-16,
4-6).
The reason given for the delay was financial.
The petition alleged
that the company suffered an operating
loss of $2,498 during its first
year;
that subsidies had been provided by the president’s real
estate company;
and
that the president had loaned the company $3,025.
The president testified that
the company has no money and that the
improvements
to be made will be financed by
a personal
loan
(H.
20).
He added that the reason nothing was done about the violations earlier
was that his first priority had been repairing the meters
in order to
build up revenue
(R.
30).
At the same time, while violations were left
uncorrected,
the company increased the number of homes
it served from
about 150
to about 230,
about
42 or 43 of the new connections being homes
built and
sold by
a real estate company owned by the water company’s
president
(H.
10-13).
Recently, however,
the federal Department
of Housing and Urban Development has indicated that in order to
restrict further overloading of the system it will no longer provide
mortgage assistance for new homes
in McHenry Shores
(R.
49).
As for the
future,
the consultants
report was expected June
15
(H.
19).
While the president expressed his intention to implement the
recommendations in order, to meet the
law
(see petition;
R.
19),
he also stated that he would provide ‘~serviceas we can afford”
(H.
19)
and that “financing may come
in the picture”
(H.
22).
No preliminary
steps toward financing had been taken at
the time of the hearing
(R.
24);
there was no program of specific improvements until
the consultants’
report was received;
there was no schedule for achieving compliance;
the president surmised
that construction
of “some of
it” might begin
“within 60 days after the recommendation from the engineer and then
the okay from
the Environmental Protection Agency”
(R.
23-24).
it
is evident that McHenry Shores Water Co.
has committed
continuing and multiple violations
of several different rules
respecting the serious business of public water supply for over two
years
in the
face of repeated complaints
and official Agency warning.
It is clear that the company has been unconscionably dilatory in
correcting the situation.
No reason
is given why money was not
borrowed at the outset,
instead of
in the future,
in order to satisfy
the important obligations of
a public utility.
No attempt
is
made to justify the deliberate, profitable course of making
a
large
number of new connections
to an already inadequate system, which put
money
into the pockets of the common owner while causing additional
violations.
We do not understand why the Agency has not filed
enforcement proceedings long since.
The company plainly does not qualify for an unconditional
variance that would shield it from penalties for its improper actions.
Its inability to comply with
the regulations today was brought about
by its
own inexcusable inaction,
and such self—inflicted hardship cannot
4
—
746
be the basis
for immunity from enforcement. See EPA v.
Lindgren
Foundry Co.,
#70—1
(Sept.
25,
1970); Decatur Sanitary District
V.
EPA,
#71-37 (March 22,
1971).
The flat denial of
a variance,
as we have said before, would not require a shutdown of the
offending
facilities;
it would merely leave the operator subject
to whatever sanctions might be imposed
in an enforcement proceeding.
See Flintkote Co.
v.
EPA,
#71-68
(Nov.
11, 1971).
Moreover,
a firm
and adequate program for correcting violations by
a stated and expedit-
ious date is generally a requisite for a variance of
the kind sought
here.
See Godfrey Township Utility Board
v.
EPA,
#72-68
(June 27,
1972),
and cases cited.
In the present case there is no program of specific
improvements
to be made;
there is no date for compliance;
there is
inadequate commitment
to do the job,
since the whole
thing remains
contingent upon “financing.”
To deny relief completely, however, would not promote
a rapid
resolution of
the problem,
as further proceedings would have to be
filed and further delay might.result.
In appropriate cases in the
past we have granted limited variances upon strict conditions
in order
to avoid further litigation and resolve an entire dispute in a
single proceeding.
See,
e.g., Marquette Cement Mfg.
Co.
v.
EPA,
#71-23
(Jan.
6,
1971).
In
the present case,
as in Marquette,
we
must condition the variance on
payment
of
the penalty for past
inexcusable violations.
In view of the importance
of public water
supply and the long failure to correct known violations,
the penalty
must
be
$3000.
Payment
of
this
sum
will,
we
believe,
justify
granting
protection against further penalties
in the future so long
as the
company actively pursues and completes
its correction program.
Without
the penalty there would be no justification for any variance
at all.
The request is for
a variance until July 15 to permit filing
of detailed plans with the Agency.
Those plans must provide for
construction of facilities adequate to meet the regulations within the
shortest practicable
time, which must be explicitly stated.
A
request for extension
of the variance during the construction period shall
be included,
and the Agency will be given the opportunity to respond.
To assure performance,
a $50,000 security will be required, as the
Agency requests.
The failure to adhere to any of these conditions
will void the protection given by the variance and
leave the company
open to
full statutory penalties
in any proceeding the Agency may
bring.
The Agency asks
us
to make it
a further condition that no new
connections be allowed.
There are special statutory notice provisions
applicable if such an order
is contemplated,
and they have not been
met in this case
(Environmental Protection Act,
~ 33(c)).
This
does not mean that additional connections
are permissible.
Any new
connection would be one more violation of the regulations regarding
water quality and quantity,
and we have before us no request for
a
variance to allow such new violations.
No Board order is necessary.
4
—
747
ORDER
McHenry Shores Water
Co.
(McHenry)
is hereby granted
a
variance from Rules
3.13,
3.14,
3.30, and
5.28 of the Public
Water Supply Systems Rules and Regulations until July
15,
1972,
provided the following conditions
are met:
1.
McHenry shall submit to the Agency and to the Board,
on or before July
15,
1972,
a firm and specific program
for construction of improvements sufficient to achieve
compliance with the above Rules
in the shortest practicable
time, which
shall be explicitly stated.
Such program
shall include a request for extension of this variance
during the construction period.
2.
The filing of the program required in condition one of
this order shall extend this variance
for thirty days
to allow Agency and Board consideration
of the program.
The Agency shall respond to the program within twenty
days after
its receipt,
and McHenry may file comments
in reply.
3.
Within 35 days after receipt of this order, McHenry shall
post with the Agency
a bond
or other security in form
satisfactory to the Agency in the amount of $50,000 to
assure compliance with
the terms and conditions
of this
order.
4.
McHenry shall
so operate its facilities during the
period of this variance as
to furnish the best service
practicable under
the circumstances.
5.
Within 35 days after receipt of this order, McHenry
shall pay to the State of Illinois the sum of $3000
as
a penalty for the violations
found in the Board’s opinion.
Such payment shall be made by check payable to the
Fiscal Service Division of
the, Environmental Protection
Agency,
2200 Churchill Road,
Springfield,
Illinois
62706.
6.
Failure
to
comply with
the conditions
of this order shall
render this variance null
and void.
I, Christan
L. Moffett, Clerk of the Pollution Control Board,
certi,~ythat the Board adopted the above Opinion and Order this
~
day of June,
1972, by a vote
of
~‘-~
4
—
748