ILLINOIS POLLUTION CONTROL BOARD
January 21, 1988
JOHN AND JACQUELINE SCHAFER,
Complainants,
v.
)
PCB 87—17
CITIZENS UTILITY COMPANY,
Respondent,
and
ARROWHEAD HOME OWNERS
ASSOCIATION
Intervenor.
ORDER OF THE BOARD (by B. Forcade):
This matter comes to the Board on a February 20, 1987,
complaint filed by John and Jacqueline Schafer (hereinafter “the
Schafers”) against Citizens Utility Company of Illinois
(hereinafter “Citizens Utilities”). The Schafers charge that
Citizens Utilities is failing to deliver public drinking water of
an acceptable quality, in violation of Board regulations at 35
Ill. Adm. Code Part 604. On June 16, 1987, the Board received
three letters from area residents who also complained about the
quality of drinking water supplied by Citizens Utilities.
Hearings were held on July 14, 1987 and November 19, 1987. No
briefs were filed.
At the November 19, 1987 hearing, the Arrowhead Homeowners’
Association (hereinafter “Arrowhead”) moved to intervene in the
proceeding. That motion was granted by the hearing officer. At
the November 19, 1987 hearing, the parties introduced a
Stipulation of Facts and Proposed Settlement (hereinafter
“Stipulation”). The Stipulation neither admits or denies any
violations of regulatory standards for drinking water quality,
but does provide a mechanism for selection and implementation of
improvements to the drinking water supply system. Development of
the Stipulation was assisted by the Illinois Environmental
Protection Agency, which acted as Amicus Curiae in the
proceeding.
In essence, the Stipulation allows Arrowhead to participate
in choosing the treatment technology to improve drinking water
quality and requires certain actions by Citizens Utilities at
certain times. Certain actions outlined in the Stipulation are
85—139
subject to approval by the Illinois Commerce Commission. The
Stipulation also provides that the Board shall retain
jurisdiction in this matter, and may resolve disputes that arise
under the stipulation.
The Board has reviewed the Stipulation in light of the
factors specified in Section 33 (c) of the Environmental
Protection Act, and finds that the Stipulation provides an
appropriate resolution of this matter. The Board will accept the
Stipulation and order that its terms be carried out. The Board
will also retain jurisdiction in this matter.
This Opinion constitutes the Board’s findings of fact and
conclusion of law in this matter.
ORDER
The Board hereby accepts the Stipulation of Facts and
Proposed Settlement filed in this matter, a copy of which is
attached and incorporated by reference as if set forth in full,
and directs that its terms be carried out. The Board retains
jurisdiction in this matter according to the terms of the
settlement.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify at the above Order was adopted on the
~
day of
,
1988 by a vote of
7-~
Dorothy M. ~unn, Clerk
Illinois Pollution Control Board
85—140
JOHN AND JACQUELINE SCHAFER
Complainants
V.
CITIZENS UTILITIES COMPANY
OF ILLINOIS
Respondent,
and
ARROWHEAD HOME
OWNERS
AS
SOCIAT I ON
Intervenor.
PCB 87—17
BEFORE THE POLLUTION
CONTROL BOARD
OF THE STATE OF ILLINOIS
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STIPULATION OF FACTS AND PROPOSED SETTLEMENT
Complainants,
JOHN AND JACQUELINE SCHAFER, (hereinafter
“the Schafers”), Respondent, CITIZENS UTILITIES COMPANY OF
ILLINOIS, (hereinafter ‘1Citizens Utilities”), and
Intervenor, ARROWHEAD HOME OWNERS ASSOCIATION, submit the
following Stipulation of Facts and Proposed Settlement to
the Pollution Control Board (hereinafter “Board”) pursuant
to 35 Ill. Adrn. Code 103.180.
STATEMENT OF FACTS
Parties
1. The Schafers are home owners residing at 26 W. 324
Tomahawk, Arrowhead Subdivision, Wheaton, DuPage County,
85—14 1
Illinois. They receive their potable water from a public
water supply owned and operated by Citizens Utilities.
2. Citizens Utilities is now, and at all times perti-
nent hereto has been, an Illinois corporation organized and
existing under the laws of the State of Illinois. It is
doing business in Illinois, with offices at 315 South
Stewart Avenue, Addison, Illinois.
3. Citizens Utilities owns and operates, and at all
times pertinent hereto has owned and operated, a public wa-
ter supply located at Wheaton, Illinois, and commonly known
as the Arrowhead Division Public Water Supply (hereinafter
“the public water supply”). The public water supply is reg-
ulated by the Illinois Environmental Protection Agency
(hereinafter “Ill. EPA”) as a public water supply (facility
number 0435150) under the Illinois Environmental Protection
Act (ill. Rev. Stat. 1985, ch. 111 1/2, section 1014 et
seq.). The public water supply serves approximately 1879
persons and has 568 service connections.
4. Citizens Utilities is also regulated by the
Illinois Commerce Commission as a public utility.
5.
The Arrowhead Home Owners Association
of DuPage
County, Illinois (hereinafter “Arrowhead Home Owners
Association”) is a general not for profit corporation acting
as a home owners association with membership restricted to
85—142
2
residents of legal age who own property in Arrowhead
Subdivision plus certain adjoining subdivisions outside of
Citizens Utilities’ service area. Its organizational pur-
poses include creating,
“...
an awareness of area problems
affecting the interests and well being of the community.”
and working,
“...
as a unit to protect these interests and
combine with other organizations in maintaining the high
standards of our area.” Its president is Gerald Stoller, of
1847 Wingate Lane, Wheaton, Illinois 60187, and its secre-
tary is Niary Udelhofen, of 26 W. 044 Cree Lane, Wheaton,
Illinois 60187. Both the Schafers and Citizens Utilities
stipulated to the intervention of the Arrowhead Home Owners
Association and that it be made a party to this proceeding.
History and Applicable Regulations
6. On February 20, 1987 the Board received a formal
complaint against Citizens Utilities from the Schafers, al—
leging the following: “Excessive Iron Concentration (rust)
in water supply’t in violation of 35 Ill. Adm. Code 604.201
and “My water is usually brown or yellow. I sometimes have
to wait 3 weeks to have water clear enough to wash white
clothes and pastels.”
7. 35 Ill. Adm. Code 6O4.201(a) provides,
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.
85-~143
Drinking water shall contain no impurity which
could reasonably be expected to cause offense to
the sense of sight, taste, or smell.
8.
35 Ill. Adm. Code 604.202 requires that the con-
centration of iron in the finished water not exceed 1.0
milligrams per liter (mg/i). However, 35 Ill. Adm. Code
604.203(b) permits iron in excess of 1.0 mg/i if sequestra-
tion proves to be effective.
9. Ill. EPA records since June 29, 1982 indicate that
iron concentrations in this public water supply’s finished
water that is filtered (a test as to the degree of seques-
tration) range from 0.16 to 1.44 mg/i and~In unfiltered wa-
ter from 1.17 to 5.80 mg/i. Unfiltered water from Well #1
had 2.40 mg/i and from Well ~2 had 1.70 mg/i of iron.
10. The Board appointed Ms. Patricia F. Sharkey as
hearing officer and later AlLen Shoenberger was substituted
by the Board as hearing officer as of October 14, 1987. A
copy of the Schafers’ complaint was sent to the Agency.
11. Beginning February 5, 1987, the Board sent a large
number of informal complaints against this public water sup-
ply to the Agency for investigation. These complaints made
allegations concerning excessive iron concentrations in the
public water supply, that is, iron concentrations which are
very offensive to the sight, which damage plumbing and ap-
pliances and discolor clothes being washed and cause the
water sometimes to be unfit to drink.
85~144
12.
The Ill.
EPA has had
a number of
telephone
conversations with the Schafers and Citizens Utilities and
met with representatives from Citizens Utilities twice in
attempts to devise a plan to correct the problems of the
high iron concentrations in the finished water. Copies of
the informal complaints were made available to the Schafers
and Citizens Utilities. The Ill. EPA, with the cooperation
of Citizens Utilities, mailed a survey to the 568 customers
of the public water supply on March 6, 1987. There were re-
sponses from 374 customers. 73.7 percent indicated that
the water was unacceptable, 52.6 percent indicated that the
water was unacceptable and wanted Lake Michigan water.
Based on the results, the Ill. EPA determined that use of
sequestering had not been fully effective in reducing the
effect of the high iron concentration as allowed under 35
Ill. Adm. Code 604.203(b), On July 7, 1987 the Ill. EPA
notified Citizens Utilities that the Ill. EPA had imposed
Restricted Status on this public water supply.
13. On July 14, 1987 a public hearing was held in this
proceeding and a number of persons testified as witnesses
for the Schafers. The hearing was continued to September
16, 1987 to complete receiving testimony in the Schafers’
case in chief and to hear testimony on behalf of Citizens
Utilities. The Ill. EPA proposed to both of the parties a
general outline of a settlement and an agreement in princi—
85—145
5
ple was reached. The hearing officer held a telephone con-
ference on September 15, 1987 with both parties and the Ill.
EPA to discuss
the proposed
settlement.
The scheduled
September
16, 1987 hearing
was postponed
to November 19,
1987 to allow
preparation of this stipulation.
14.
All of the parties to this proceeding,
as well as
the Ill. EPA, believe one resolution
for the iron violation
is
to obtain
Lake Michigan
water.
However,
Citizens
Utilities estimates
it will be mid—1992 before Lake Michigan
water will be available, at the earliest. Another resolution
would be the installation of iron treatment facilities.
Since the parties do not believe that it would be equitable
for the home owners and Citizens Utilities to have to pay
for treatment to achieve compliance as well as for Lake
Michigan water, the parties and Ill. EPA agree that interim
compliance steps should be taken by Citizens Utilities, and
the Arrowhead Home Owners Association should decide whether
it prefers to have iron treatment installed or to wait for
Lake Michigan water.
PROPOSED TERMS OF SETTLEMENT
15.
As a result of
the settlement discussions, the
parties and the Ill. EPA believe the customers served water
by Arrowhead Division of Citizens Utilities, as well as the
public interest and Citizens Utilities, will be best served
85— 146
6
by the resolution of this enforcement action under the terms
and conditions provided herein.
16. The parties hereby agree as follows:
A.
By February
1, 1988, the Arrowhead Home Owners
Association shall review the advantages and disadvantages
of having
iron treatment
installed
or obtaining
Lake
Michigan water and shall inform in writing Citizens
Utilities and the Ill, EPA of
its selection of which com-
pliance plan by that date. The notice of its selection,
properly executed and authorized by the Arrowhead Home
Owners Association and including a sworn affidavit to
such effect, shall-be sent by certified mail to:
Thomas E. Fricke
General Manager
Citizens Utilities
Company of Illinois
315 South Stewart Avenue
Addison, Illinois 60101
and to
Charles Bell
Manager, FOS
Division of Public Water Supplies
Illinois Environmental Protection Agency
2200 Churchill Road
P.O. Box 19276
Springfield, Illinois 62794—9276.
B, If the Arrowhead Home Owners Association se-
lects installation of iron removal facilities as the
compliance plan, Citizens Utilities shall install iron
removal facilities, subject to approval by the Illinois
Commerce Commission (hereinafter “ICC”).
Citizens
85—147
7
Utilities shall make all reasonable efforts to obtain
that approval in a timely manner. Upon receipt of ICC
approval, Citizens Utilities shall follow the schedule
below.
C. If the Arrowhead Home Owners Association se-
lects Lake Michigan water as the compliance plan,
Citizens Utilities shall negotiate with the DuPage
Water Commission to obtain Lake Michigan water for the
public water supply as soon as possible, subject to ap-
proval by the Illinois Commerce Commission. Citizens
Utilities shall make all reasonable efforts to obtain
that approval in a timely manner. However, if by
February 1, 1989, or within one year from receipt by
Citizens Utilities of the notice of the selection of
the compliance plan by the Arrowhead Home Owners
Association, whichever is later, Citizens Utilities has
not obtained a signed contract with the DuPage Water
Commission to obtain Lake Michigan water for the public
water supply as soon as possible, Citizens Utilities
shall, subject to prior receipt of ICC approval, in-
stall iron removal facilities in accordance with the
schedule below. The Arrowhead Home Owners Association
may waive the one year deadline to give Citizens
Utilities additional time to negotiate said contract
with the DuPage Water Commission. Any such waiver
85—148
8
shall be in writing, shall be for a specific time peri-
od, and may be renewed in the discretion of the
Arrowhead Home Owners Association.
D. If the compliance plan is the installation of
iron removal facilities for the public water supply,
Citizens Utilities shall file a petition for necessary
ICC approvals of construction and resulting rate in-
creases for an iron removal treatment facility within
thirty days after receipt of the notice of the selec-
tion of this plan from the Arrowhead Home Owners
Association. In addition, Citizens Utilities shall
comply with the following schedule, with the dates be-
low starting from the date the Arrowhead Home Owners
Association notified Citizens Utilities that it has
selected the installation of iron removal facilities as
the compliance plan, or from the end of the last waiver
granted by the Arrowhead Home Owners Association,
whichever is applicable, plus the length of time that
it takes to obtain ICC approvals of the proposed con-
struction and rate increase, (hereinafter referred to
as “the starting date”):
1. Within nine months from the the
starting
date, Citizens
Utilities
shall
complete all engi-
neering plans and obtain all necessary permits for
installation of the iron removal facilities neces-
sary to achieve compliance with the iron standard
8
~—
149
(35 Ill. Adm. Code 604.202);
2. Within 12 months from the the starting
date, Citizens Utilities
shall complete the bidding
process for the necessary construction;
and
3.
Within 30 months from
the the starting
date, Citizens
Utilities
shall complete all neces-
sary construction and achieve compliance with the
iron standard (35 Ill. Adm. Code 604.202).
4.
Notwithstanding
the
above,
Citizens
Utilities shall complete preliminary engineering and
submit a request for proposal for engineering design
services for the iron removal facilities prior to
ICC approval. (Citizen Utilities expects this ad-
vance work should save two to three months from the
total project schedule as compared to waiting until
obtaining ICC approval. Assuming no objections,
Citizen Utilities expects ICC to approve its peti-
tion within six months of its filing.)
H. Within 30 days after entry of the Board order
incorporating this settlement, Citizens Utilities shall
submit a program for flushing its water mains in the
distribution system of the pubLic water supply for re-
view by Ill. EPA and review and approval by the
Arrowhead Home Owners Association. It is agreed that
the purpose of such flushing is the reduction of any
build—up of iron precipitate in the water mains. The
program shall include system—wide flushing to be done
at least on a monthly basis, weather permitting. Local
areas shall be flushed more often as needed. This pro—
gram shall be revised from time to time based on the
number, frequency and significance of complaints of
high iron concentrations, discoloration of clothes,
85j-~5O
etc. If the flushing program or revisions cannot be
mutually agreed upon by the Arrowhead Home Owners
Association and Citizens Utilities to assure that the
drinking water does not contain iron precipitate
that
could reasonably be expected to cause offense to the
sense of sight and taste or to discolor clothes, etc.,
the Arrowhead Home Owners Association or Citizens
Utilities may file a request with the Ill. EPA for a
written opinion as to whether the flushing program
should be adopted or revised. Ill. EPA shall consult
with both the Arrowhead Home Owners Association and
Citizens Utilities and provide a written opinion to
both within 45 days of the request. If the Ill. EPA
advises adoption of the flushing program or a revision
in the flushing program, Citizens Utilities shall do so
unless the Arrowhead Home Owners Association or
Citizens Utilities asks the Board to resolve the dis-
pute. The burden of proof shall be on the party dis-
agreeing with the Ill. EPA opinion to prove by clear
and convincing evidence that the Agency’s opinion is
unreasonable. If the Ill. EPA does not provide its
written opinion to both parties within 50 days of the
request, either or both parties may ask the Board to
resolve the dispute without waiting further for the
Ill. EPA’s written opinion. The Ill. EPA may provide
85—151
11
its written opinion to the parties and to the Board
even after the 50 days have expired and the burden of
proof shall be as stated above. Any flushing program
undertaken in accordance with this settlement shall be
discontinued upon compliance with the iron standard
being consistently achieved for six months. During
this six months, flushing may be reduced in accordance
with the provisions of Paragraph 16 E above, except the
Ill.
EPA shall
provide any requested
written
opinion
within ten days of the request, otherwise either party
may ask the Board to resolve the dispute without wait-
ing further.
F. Reports on dates and locations of water main
flushings shall be sent to the Ill. EPA for six months
and thereafter upon request, and shall be sent to the
Arrowhead Home Owners Association on a monthly basis
until compliance with the iron standard is achieved.
G. Citizens Utilities shall use the most effec-
tive sequestering agents available to reduce the ef-
fects of excessive iron concentration until compliance
with the iron standard is achieved.
H. Within 15 days after entry of the Board order
incorporating this settlement, Citizens Utilities shall
set up a process for handling complaints about high
85— 152
12
iron concentrations in the public water supply. This
process shall include the following:
1. A toll—free telephone hot—line that is used
solely for receipt of calls concerning high iron
concentrations in the water and manned by an employ-
ee during regular business hours. Telephone calls
shall be taken by a telephone answering machine or
an answering service during non—regular business
hours, so that complaints may be made 24 hours a
day, seven days a week. The telephone number shall
be provided to the Arrowhead Home Owners Association
within 15 days after entry of the Board order incor-
porating this settlement and to all households
served by the public water supply in writing within
90
days after entry of the Board order incorporating
this settlement.
2. Persons who complain about the high iron
concentrations shall be given the option of being at
home while an investigator comes to the home or not
being at home.
In -either instance, Citizens
Utilities shall investigate the complaint within 24
hours when investigation can be made during regular
business days; and no later than the end of business
on the next regular business day following receipt
of the complaint, in the case of holidays, weekends
and other times when investigation cannot be com-
pleted during regular business days.
3. Names, addresses and telephone numbers ~of
all complainants, summaries of complaints, dates of
complaints and statements of the responses made by
Citizens Utilities shall be recorded in writing by
Citizens Utilities. These records shall be sent to
the Ill. EPA for three months and thereafter upon
request, and shall be sent to the Arrowhead Home
Owners Association on a monthly basis.
4. The requirements of Paragraph 16 H, sub—
paragraphs 1 through 2 above,
shall continue until
compliance
with the iron standard
is consistently
achieved for six months.
I. Within 60 days after entry of the Board order
85—153
13
incorporating this settlement, Citizens Utilities shall
complete investigation of allegations of substances ap-
pearing to be hydraulic oil in the drinking water and
report to Ill. EPA and the Arrowhead Home Owners
Association in writing as to the results and any reme-
dies that Citizens Utilities deems appropriate.
NOTICES
17. All notices, reports and other documents required
hereunder to be given shall be mailed or delivered as fol-
lows:
A.
For the Arrowhead Home Owners Association,
to the
last
known address of the then current President
of the
Arrowhead Home Owners Association.
B. For the Ill. EPA, to Charles Bell, Manager, FOS,
Division of Public Water Supplies, Illinois Environmental
Protection Agency, 2200 Churchill Road, P.O.
Box 19276,
Springfield, Illinois 62794—9276.
C. For Citizens Utilities, to Thomas H. Fricke,
General Manager, Citizens Utilities Company of Illinois,
315 South Stewart Avenue, Addison, Illinois 60601.
EXTENSIONS OF TIME
1~3. Citizens Utilities’ obligation to meet any of the
time requirements of this settlement shall not be extended
85—154
14
unless it is the result of an act of God or by a circum-
stance beyond Citizens Utilities’ control or by any other
circumstances agreed to by the Arrowhead Liome Owners
Association and Citizens Utilities. Written notice of the
claimed applicability of this provision must be given to the
Arrowhead Home Owners Association and the Ill. EPA within a
reasonable time. Said notice shall be in affidavit form,
signed by an officer or the General Manager of Citizens
Utilities, and state: (A) the delay is caused as a result of
an act of God or circumstances beyond Citizens Utilities’
control, and describe the cause, and (2) a timetable by
which Cit:izens Utilities intends to implement the delayed
requirements. Citizens Utilities shall adopt all reasonable
measures to avoid or minimize
any
such delay.
Should the Arrowhead Home Owners Association and
Citizens Utilities fail to agree within 30 days from the
date the Arrowhead home Owners Association receives written
notice from Citizens Utilities as provided above on what
circumstances shall excuse a delay in performance or period
of extension, either the Arrowhead Home Owners Association
or Citizens Utilities may submit the matter to the Board for
resolution after a hearing. The burden of proving by clear
and convincing evidence that any delay is caused by
an act
of God or by circumstances beyond Citizens Utilities’ con-
trol shall rest with Citizens Utilities. Any such hearing
85—155
15
before the Board will be in accordance with Board Procedural
Rules found at 35 Ill. Adm. Code Subpart F.
APPLICABILITY AND ENFORCEMENT OF STIPULATION
20. The provisions of this settlement shall apply to
and be binding upon the parties to this action and their as-
signs and successors in interest. Citizens Utilities shall
give notice of any Board order incorporating this settlement
to any successors in interest prior to transfer of owner-
ship, and simultaneously notify the Arrowhead home Owners
Association and the Ill. EPA that notice has been given.
21. The parties hereby stipulate and agree that the
statement of facts contained herein represents a summary of
the evidence and testimony which has been or would be intro-
duced by the Schafers at hearing and that Schafers’ claims
would have been disputed at hearing. This stipulation does
not constitute an admission on the part of any of the par-
ties hereto. The parties further stipulate that this
Statement of Facts is made and agreed upon for the purpose
of settlement only and that neither the fact that a party
has entered into this Stipulation, nor any of the facts
stipulated herein, shall be introduced into evidence in this
or any other proceeding unless the Board approves and dis-
poses of this matter pursuant to all of the terms and con-
ditions set forth herein. If the Board should reject any
85—156
16
portion thereof, the entire settlement and stipulation shall
be terminated and be without legal effect and the parties
shall be restored to their prior position in this litigation
as if no settlement and stipulation had been executed, with-
out prejudice to any parties’ position as to any issue or
defense. Citizens Utilities neither admits nor denies any
of the allegations found in the formal or informal com-
plaints made against it.
22. Violation by Citizens Utilities of any final Board
order incorporating this settlement shall make Citizens
Utilities subject to a civil penalty of not to exceed
$10,000 for said violation and an additional civil penalty
of not to exceed $1000 for each day during which violation
continues, in accordance with Section 42(a) of the Illinois
Environmental Protection Act (Ill. Rev. Stat. 1985, chapter
111
1/2, paragraph 1042(a)).
23. Besides the parties hereto, the Ill. EPA, through
the Illinois Attorney General’s Office or State’s Attorney’s
Office, may enforce any Board order incorporating this
agreement as though the Ill. EPA were a party to this pro-
ceeding.
24. The parties ask that the Board retain its juris-
diction over this case to resolve any disputes over this~
agreement, including disagreements concerning adoption or
85—157
17
revisions to the flushing program.
WHEREFORE, Complainants,
Intervenor,
and the Respondent
jointly pray that the Board adopt and
accept the foregoing
settlement and stipulation as written.
FOR THE COMPLAINANTS:
Date:
~
1’
?
~
1987
FOR THE INTERVENOR:
Date: ~
/~ ,
1987
FOR THE RESPONDENT:
Date:
/VgV,
/ 9
,
1987
N~~t’f/~?~-:J,
i’~~-~~
J~4~que’lineK~,Schafer
~
/ohn A. Scllafey/
Arrowhead Home Owners
Association
by:
(
President
title
Stipulation of Facts and Proposed Settlement prepared by:
Wayne L. Wiemerslage
Staff Attorney
Division of Public Water Supplies
Illinois
Environmental Protection
Agency
2200 Churchill Road
P.O. Box 19276
Springfield,
Illinois
62794—9276
WLW: mac
85—158
18
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