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
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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:
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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
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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;
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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
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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:
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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
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.
,7~.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
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