ILLINOIS POLLUTION CONTROL BOARD
October 30, 1980
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
v.
)
PCB
79—70
EDWARD
AI’W LYDIA SANDMAN,
)
Respondents.
WILLIAM
J.
I~ARZANO,JR., ASSISTANT ATTORNEY GENERAL, APPEARED ON
BEHALF OF COMPLAINANT.
JOSEP~IN.
SIKES, VILLAGE ATTORNEY, APPEARED ON THE BEHALF OF THE
INTERVENOR,
THE VILLAGE OF HAWTHORN WOODS.
LYDIA
SANDMAN APPEARED PRO SE.
OPINION AND ORDER OF THE BOARD
(by J.
Anderson):
On March 29,
1979, the Environmental Protection Agency filed
a complaint of seven counts charging the respondents,
Edward and
Lydia Sandman, with violations of the Environmental Protection
Act (Act) of “An Act to Regulate the Operating of a Public Water
Supply”
Ill.
Rev.
Stat.,
1977,
Ch.
111½,
par. 501 et
seg.
(PWS
Act),
and of Chapter
6:
Public Water Supply (Chapter 6).
On
February
7,
1980,
the Board imposed sanctions for respondents’
failure to respond to discovery requests.
Hearing was held in
this action on April
21,
1980.
Mrs. Sandman presented no testimony
or witnesses
in her behalf.
The Village of Hawthorn Woods
(Village),
which was granted leave to intervene by the Hearing Officer, cross—
questioned the Agency’s witnesses and presented testimony of one
witness in its behalf.
Members of the press and public attended
the hearing, and two residents of Hawthorn Woods presented testimony.
At the close of the day,
the hearing record was ordered to
be held open for 30 days.
This was done
in response to a motion
of the Agency, which requested the opportunity to evaluate the
testimony of the Village’s witness and to perform further discovery,
if necessary, before cross—examination of that witness.
On June
4,
the Agency moved to have the record closed and a briefing schedule
set,
stating that it had decided not to pursue further discovery.
The Hearing Officer granted this motion by Order dated June 16,
1980.
The Agency filed its final
argument on July
2,
1980, but
the respondents and the Village did not avail themselves of their
opportunity to file closing arguments.
In its argument, the
Agency moved the Board to dismiss the Village from this cause
2
with prejudice if it did not state its interest in the cause in
its final
argument.
No argument was filed by the Village.
However,
the Board finds that the Village made a showing of sufficient
interest at the hearing on its motion to intervene, when it stated
.since the health of this area is concerned——this
is within the
Village of Hawthorn Woods, and we are concerned with the ultimate
disposition of this matter”
(R.
6),
The Agency’s motion
is therefore
denied.
The Sandman’s system supplies water to some, but not all of
the residents of the Acorn Acres Subdivision located in the Village
of Hawthorn Woods
(R.
84, Comp.
Ex.
2),
The Agency’s witness,
Mr.
Leonard Lindstrom,
and the Village’s witness,
Mr. Jack Lichter,
concur in their description of the system, which was constructed
and is currently maintained by Mr. Lichter’s company
(R.
83-86).
Water is drawn from seven separate wells each 250—300 feet deep.
Each of the wells and distribution systems, which were constructed
between 1959—1971, were intended to be
a private water supply system,
that
is, one which serves
9 or fewer properties in an unincorporated
area
(R.
83,
§3(r)
of the Act, §5 of the PWS Act).
The wells do not
interconnect
(R.
31,
84),
and only two of them share a common
distribution system
(Comp.
Ex.
3,
p.
2),
Although nine or fewer
properties were to be connected to each well,
according to its
builder
(R.
83),
the testimony of a resident of Acorn Acres,
Heidi Brake, indicated that 68 homes were connected to the Sandman’s
system.
The Agency estimated that 40—50
lots,
serving about 140
persons are connected
(Comp.
Ex.
3,
R.
84).
The home water services
are metered and uniform rates charged
(Comp.
Ex.
6,
p.
2).
In its complaint,
the Agency alleges that since at least 1970,
the Sandmans’ have owned and operated a public water supply located
in Hawthorn Woods
in Lake County.
The Sandmans’ were charged with
the following offenses:
1)
since September,
1973,
failure to
employ a certified treatment plant operator in violation of Rule
302 of Chapter
6, §18 of the Act, and §1 of the PWS Act,
2)
since
December,
1975,
failure to chlorinate their water
in violation of
Rule 305 and §18 of the Act,
3) since December, 1974,
failure to
maintain the required fluoride ion concentration in violation of
Rule 306 and §18 of the Act,
4)
since January,
1975,
failure to
provide adequate hydro—pneumatic storage capacity for the system
and to provide a fluoride meter, hydrants to flush the distribution
system,
and sufficient air blankets for the system’s storage tanks,
in violation of §18 of
the Act,
5) since January,
1975, failure to
submit requisite bacteriological
samples
in violation of Rule 309
and §~18-19of the Act,
6)
since December,
1974,
failure to submit
monthly operating reports in violation of Rule 310 and §~18-19of
the Act, and
7) since September,
1978,
failure
to submit “as built”
plans of the system in violation of Rule 209 and §15 of the Act.
At hearing,
the question arose
as to
whether the Sandman’s
system actually is a public
water
supply system within the meaning
of §3(r) of
the Act and §5 of the PWS Act,
The Sandman’s have
admitted that they operate
a public water supply system:
by failing
3
to respond to the Agency’s February 19,
1980 First Request to Admit
Facts
(Admissions
1—6), they have admitted the facts there set forth
(Procedural Rule 314(c)).
Even in the absence of this admission,
the Board would
find this system to be a public one.
Section 3(r)
of the Act (formerly
3(j)),
and Section
5 of the
PWS in pertinent part, describe a public water supply as “mains,
pipes,
and structures”
.
.
.“..
.actually used or intended for use
for the purpose of furnishing water for drinking or general domestic
use
in incorporated municipalities
;..
.“
Complainant’s Exhibit
2
shows Acorn Acres to be within the corporate limits of the Village
of Hawthorn Woods.
Additionally, whatever the Sandrnans’
original
intent may have been, the Board finds that a unified public water
system has developed since as many as
68 homes are served, there
is unified management and charges throughout the system,
and two
of the wells’
distribution systems are inter-connected.
EPAv.
Pow Wow Club,
Inc.,
PCB 74—50,
13 PCB 113,
117
(July 18,
1974),
EPA v.
Timberlane Acres
Assoc., PCB 75—248,
19 PCB 725,
726
(January 22,
1976).
By failing to respond to the Agency’s First Request to Admit,
the Sandmans’ have also admitted to the truth of all of the rest
of the Agency’s allegations.
In light of these admissions,
and
the testimony and exhibits introduced by the Agency at hearing in
support of its complaint,* the Board finds Edward and Lydia Sandman
to have violated all of the aforementioned sections of Chapter
6,
the Act,
and the PWS Act.
The balance of the testimony at hearing relates
to
mitigation
of the offense, and to the considerations required to be addressed
by Section 33(c) of the Act.
The Agency witness Lindstrom testified
that Mr.
Sandman is
a competent operator of the existing system, even
though he is not certified,
and that the water distributed by the
Sandmans is of generally good quality
(R.
60-63,
121—123).
Of the
bacteriological samples received by the Agency only those of August—
September,
1978 showed contamination
(Comp.
Ex.
3,
p.
4,
R.
48-49).
However, both Mr. Lindstrom and Mr. Lichter testified that the water
is of good quality naturally,
rather than as
a result of any finishing
by the Sandman system.
The residents of Acorn Acres concur in these assessments.
Mrs.
Heidi Brake introduced two exhibits showing community support
for the Sandrnans as operators of the system, and for the safety,
adequacy and quality of the chlorine—free,
fluoride—free water
supplied by the Sandmans.
The first of these is a letter signed
by Robert
M. Gardner.
The second is
a petition addressed to the
*Count
I•
Admission 9,
R.
29—30,
105, Comp.
Ex.
3 and 6;
Counts II and III:
Admissions 10 and 11,
R.
36,
105,
Comp.
Ex.
3
and 6;
Count IV:
Admission 12,
R.
26—38,
58—60,
105—106,
Comp.
Ex.
3 and
6; Count V:
Admission 13,
R.
30—36,
106,
Comp.
Ex.
3,
4, and 6; Count VI and VII:
Admissions
14 and 15,
R.
38,
106,
Comp.
Ex.
3 and
6.
4
Agency
requesting
that
it
dismiss
the
complaint
against
the
Sandmans~
This
petition
was
signed
by
owners
of
63
of
the
68
homes
connected
to
the
system,
with
owners
of
two
of
the
remaining
5
homes
unavailable,
and
2
more
homes
empty
and
on
the
market
(1.
124-130,
Heidi
Brake
Ex.
1
and
2).
The
Agency’s
testimony
generally,
as
well
as
Exhibits
1
and
2,
indicate
its
belief
that
the
Sandmans’
system
is
of
social
and
economic value to the community and is suitable to the area in which
it is located.
However, the lack of a certified operator, submission
of insufficient samples, failure to submit as—built plans, and the
other operation and maintenance deficiencies are believed to interfere
With the protection of the health and general welfare of Illinois
citizens (e.g. 30—34, 36—40).
In the opinion of Agency witness Lindstrom, it is
both
tech-
nically practical and economically reasonable
for
the
Sandmans
to
correct
the
equipment
deficiencies.
This
witness
suggested
that
there are three compliance options.
The first option, that of
dividing the system into 9 private systems, does not solve the
problem, as Acorn Acres is located in an incorporated area.
The
second option suggested would involve installation of necessary
fluoridation and chlorination equipment at each well for about
$1000 each, erection of a housing at each well.for about $2000
eáah, and
payment
of an operator to make daily inspections for
about $20 daily, in addition to the $150 monthly cost of a cer-
tified operator to supervise the system on a twice monthly basis.
(Mr. Lichter estimated the cost to install and house necessary
equipment to be $154000
per
well, rather than the $3,000 suggested
by Mr. Lindstrom
(R.
91).*)
The third option suggested was to
rebuild
the
Sandman’s
system
to
be a more conventional public
supply,
with
only
one
or
two
wells
and
larger
mains.
This was
estimated to cost approximately $100,000 to $250,000
(R. 76—78,
54).
Consideration of all the facts
and
circumstancàs of this case
in light of Section 33(c) leads the
Board
to conclude that in this
case, imposition of a nominal penalty is a
necessary
and appropriate
*This
testimony,
and
the earlier cross—questioning of
Mr.
Lindstrom, by the Village was allowed
by
the
Hearing
Officer
over
the
Agency’s
objection
that
the
introduction
of such information
was a circumvention of the Board Order entered in this case on
February 7, 1980
(H.
64—66, 92).
As a sanction for continued
failure to respond to discovery
requests,
the
Board
debarred the
Sandman’ s
from
presenting
testimony
concerning,
among
other issues,
their
ability
to
pay
any
penalty
imposed,
and
the
economic
reason-
ableness
and
technological
feasibility
of
compliance
with
rhe
Act
(37
PCB
311,
February
7,
1980).
While
itdois
seem
that
the
Village
presented
‘the
same
evidence
as
the
Sandmans
might
have
them-
selves,
the Board finds that the Hearing Officer was correct in
his ruling.
5
aid to enforcement of the Act.
The Sandmans’
received notice of
the deficiencies observed by
Agency
inspectors both by telephone
and by letter in 1975 and in 1978
(Comp.
Ex.
4,
7,
and
12,
Ex.
B,
D,
E thereto),
but no actions towards compliance in any area were
noted in the record.
Compliance was shown to he technically
achievable.
Compliance usually imposes economic burdens;
if the
burden is believed to be arbitrary or unreasonable, variance
relief may be sought.
While
the Board notes that the Acorn Acres
water users strongly support maintenance of
t~ie
status quo, and
the water source at present is of high quality, we must observe
that the lack of problems with the system is entirely fortuitous.
The Board has noted this
in its Opinion in R78—8, October 30,
1980.
Even if a water source is at present “bacteriologically pure,”
it can easily become contaminated before
it reaches the consumer.
Contamination can occur suddenly, and for a variety of reasons.
A system operator can cause contamination, either by mistakes in
operation, or by mere contact with the system while he is carrying
or suffering from an infectious disease.
Contamination can occur
during system installation or repair,
as well
as a result of back
siphonage, which can suck contaminants into a system through leaks
or cross connections, or of back pressure.
The continued good health of Acorn Acres residents is jeopardized
by the lack of adequate sampling of and reporting concerning
the
water supplied by the system, and by the Sandmans’
failure to provide
the Agency with “as—built” plans of the system, particularly since
the system is not chlorinated as
a protection against sudden,
unexpected contamination.
As the system is now monitored and
existing, problems which develop might not be noticed
arid traced
until major adverse health effects had been felt.
This concern
would become even more pressing
if the Sandmans’ were replaced
by less competent system operators.
The ~oard hereby assesses a penalty of $100.
The Sandmans
shall also be ordered to cease and desist from violations of Chapter
6,
the Act,
and the PWS Act,
and to develop a plan to bring their
public water supply system into compliance.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
1.
Respondents Edward and Lydia Sandman are hereby found to
iave violated Section
1 of “An Act to Regulate the Operating of a
Public Water supply, Sections
15,
18,
and 19 of the Environmental
Protection Act and Rules 209,
305,
306,
309 and 310 of Chapter 6:
Public Water Supply.
2.
Within 60 days of the date of this Order,
Respondents
shall
submit to the Agency a compliance plan for their public
water supply system.
6
3.
The Respondents
shall cease and desist from violation of
the aforementioned Rules and Acts within 180 days of the date of
this Order,
except that submission of requisite samples and monthly
reports shall
be commenced immediately.
4.
Within
90 days of the date of this Order,
Respondents
shall pay, by certified check or money order payable to the State
of Illinois,
a penalty of $100 which is to be sent to:
Illinois
Environmental Protection
Agency,
Fiscal Services Division,
2200
Churchill Road,
Springfield, IL
62706.
5.
The Agency’s motion to dismiss the intervenor,
the
Village of Hawthorn Woods,
is denied.
IT IS SO ORDERED.
I, Christan L.
Moffett, Clerk of the Illinois Pollution Control
Board, hereby certify th~tthe above Opinion and Order were adopted
on the
~3~L
day of
~
1980 by a vote of
______
Christan L.
Mo ~
Clerk
Illinois Pollution Control Board
