ILLINOIS POLLUTION CONTROL BOARD
    February 6, 1986
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    Complainant,
    v.
    )
    PCB 84—120 and PCB 84—121
    (consolidated)
    ATLAS SERVICE COMPANY, INC.,
    an Illinois corporation;
    RALPH WALLER, individually and as
    an officer of Atlas Service
    Company, Inc., and THOMAS
    WALLER, individually and as an
    officer of Atlas Service
    )
    Company, Inc.,
    )
    Respondents.
    MS. CHRISTINE ZEMAN, ASSISTANT ATTORNEY GENERAL, APPEARED ON
    BEHALF OF THE COMPLAINANT.
    CLAUDON, LLOYD, BARNHART & BEAL, LTD. (MR. GARY BARNHART, OF
    COUNSEL) APPEARED ON BEHALF OF RESPONDENT ATLAS SERVICE
    COMPANY, INC.
    OPINION AND ORDER OF THE BOARD (by W.J. Nega):
    This matter comes before the Board on a seven—count
    Complaint filed on August 3, 1984 by the Illinois Environmental
    Protection Agency (Agency) in PCB 84—120 (Georgetown) and a
    similar seven—count Complaint filed on August 3, 1984 in
    PCB 84—121 (Meadowbrook).
    Respondent Atlas Service Company, Inc. (Atlas), an Illinois
    corporation registered in 1971 and doing business in Illinois,
    owns and operates a sanitary sewage collection system and a
    wastewater treatment plant constructed in 1972 which serves the
    Georgetown residential subdivision (Georgetown system) located
    about one mile west of Macomb in McDonough County, Illinois. The
    Georgetown subdivision, which is a 194 unit townhouse development
    with common recreational facilities, has a sanitary sewage
    collection system which includes 11,000 feet of collecting sewers
    and a terminal lift stati,on. Its wastewater treatment plant
    includes a three—cell lagoon and a chlorination chamber. Treated
    effluent from the Georgetown system is discharged into an unnamed
    stream tributary to the East Fork of the La Moine River. Both
    the unnamed East Fork tributary and the La Moine River are
    accumulations of water which flow wholly within the State of
    Illinois. Before reaching the Georgetown treatment plant, raw

    —2—
    sewage can be discharged from an interceptor sewer into the
    unnamed tributary to the East Fork of the La Moine River.
    Respondents Ralph Wailer and Thomas Wailer are both officers
    of Atlas who directed and actively participated in the operation
    of both the Georgetown and Meadowbrook systems.
    Count I of the Complaint in PCB 84—120 alleged that, from
    May 17, 1979 until August 3, 1984 (including, but not limited to,
    May 17—23, 1979; August 24, 1979; November 14, 1980; March 26,
    1982; July 13, 1982 through September 14, 1982; January 28, 1983;
    April 27, 1983; and February 8—9, 1984), the Respondents caused
    or allowed discharges causing, or threatening to cause, water
    pollution in violation of Section 12(a) of the Illinois
    Environmental Protection Act (Act) by allowing raw sewage
    bypasses from the Georgetown system to enter the East Fork of the
    La Moine River and its unnamed tributary.
    Count II alleged that, on the dates previously specified in
    Count I, the Respondents’ raw sewage bypasses from the Georgetown
    system caused violations of Section 12(a) of the Act and
    violations of 35 Ill. Adm. Code 302.203 (unnatural sludge or
    bottom deposits, floating debris, unnatural color or turbidity);
    35 Iii. Adm. Code 304.105 (effluents causing violations of
    applicable water quality standards); 35 Ill. Adm. Code 304.106
    (effluents containing settleable solids, floating debris, visible
    oil, scum, and sludge solids); and 35 Ill. Adm. Code 306.103(b)
    (excess infiltration into sewers
    ——
    overflows from sanitary
    sewers). Additionally, it is alleged that, by allowing raw
    sewage bypasses from the Georgetown system, the Respondents
    caused the dissolved oxygen concentration of the unnamed
    tributary to the East Fork of the La Moine River to be less than
    5.0 mg/i on, but not limited to, August 8, 1979 and February 9,
    1984, in violation of 35 Ill. Adm. Code 302.206 and Section 12(a)
    of the Act.
    Count III alleged that, from its construction in 1972 until
    January, 1981 and from October, 1983 until August 3, 1984, the
    Respondents operated the Georgetown system’s treatment plant
    without the direct and active field supervision of an
    Agency—certified operator in violation of the NPDES Permits for
    the system, 35 Ill. Adm. Code 312.101 and Section 12(f) of the
    Act.
    Count IV alleged that the Respondents caused or allowed the
    discharge of effluents in violation of the NPDES Permits for the
    Georgetown system, 35 Iii. Adm. Code 309.102, and Section 12(f)
    of the Act.
    Count V alleged that, from July, 1978 until August 3, 1984,
    the Respondents: (1) failed to provide adequate facilities to
    measure the effluent flow discharged from the Georgetown
    treatment plant in violation of the system’s NPDES Permits,
    35 Ill. Adm. Code 305.103 and 309.102, and Section 12(f) of the

    —3—
    Act, and (2) failed to monitor the effluent discharged from the
    treatment plant and/or submit the required monthly discharge
    monitoring reports to the Agency in violation of the system’s
    NPDES Permits, 35 Ill. Adm. Code 305.102 and 309.102, and Section
    12(f) of the Act.
    Count VI alleged that the Respondents failed to report the
    raw sewage bypasses from the Georgetown system (that occurred on
    the dates specified in Count I of the Complaint) to the Agency in
    violation of the system’s NPDES Permits, 35 Ill. Adm. Code
    305.102 and 309.102, and Section 12(f) of the Act.
    Count VII alleged that the Respondents have failed to
    provide or maintain adequate equipment to alert them to raw
    sewage bypasses due to power or equipment failures or adequate
    back—up equipment in such instances, thereby violating the
    system’s NPDES Permits, 35 Ill. Mm. Code 306.102(a) and 309.102,
    and Section 12(f) of the Act.
    Atlas also owns and operates a sanitary sewage collection
    system and a wastewater treatment plant constructed in 1969 which
    serves the Meadowbrook residential subdivision (Meadowbrook
    system) located approximately one mile west of Macomb in
    McDonough County, Illinois. The Meadowbrook subdivision is a 112
    home single—family development. About 8,000 feet of collecting
    sewers and a terminal lift station are involved in the sewage
    collection portion of the Meadowbrook system. The Meadowbrook
    system’s wastewater treatment facilities include a three—cell
    lagoon and a chlorination chamber. The Meadowbrook system
    discharges its treated effluent into an unnamed stream which is
    tributary to the East Fork of the La Moine River. Before
    reaching the Meadowbrook treatment plant, raw sewage can be
    discharged from the Fawn Ridge lift station into the unnamed East
    Fork tributary of the La Moine River. The Meadowbrook system is
    the subject of the Complaint filed by the Agency in PCB 84—121.
    Count I of the Complaint in PCB 84—121 alleged that, from
    May 17, 1979 until August 3, 1984 (including, but not limited to,
    March 26, 1982), the Respondents caused or allowed discharges
    causing, or threatening to cause, water pollution in violation of
    Section 12(a) of the Act by allowing raw sewage bypasses from the
    Meadowbrook system to enter the East Fork of the La Moine River
    and its unnamed tributary.
    Count II alleged that, on the dates previously delineated in
    Count I, the Respondents’ raw sewage bypasses from the
    Meadowbrook system caused violations of 35 Ill. Mm. Code
    302.203, 304.105, 304.l06r, and 306.103(b) as well as violations
    of Section 12(a) of the Act.
    Count III alleged that, from March 7, 1972 until January,
    1981 and from October, 1983 until August 3, 1984, the Respondents
    operated the Meadowbrook system’s treatment plant without the
    direct and active field supervision of Agency—certified operator

    —4—
    in violation of the NPDES Permits for the system, 35 Ill. Adm.
    Code 312.101 and Section 12(f) of the Act.
    Count IV alleged that the Respondents caused or allowed the
    discharge of effluents in violation of the 1980 NPDES Permit for
    the Meadowbrook system, thereby violating 35 Ill. Mm. Code
    309.102 and Section 12(f) of the Act.
    Count V alleged that, from June 1975 until August 3, 1984,
    the Respondents: (1) failed to provide adequate facilities to
    measure the effluent flow discharged from the Meadowbrook
    treatment plant in violation of the system’s NPDES Permits,
    35 Ill. Adm. Code 305.103 and 309.102, and Section 12(f) of the
    Act, and (2) failed to monitor the effluent discharged from the
    treatment plant and/or submit the necessary monthly discharge
    monitoring reports to the Agency in violation of the system’s
    NPDES Permits, 35 Ill. Adm. Code 305.102 and 309.102, and Section
    12(f) of the Act.
    Count VI alleged that the Respondents failed to report the
    raw sewage bypasses from the Meadowbrook system (that occurred
    on, but not limited to, March 26, 1982) to the Agency in
    violation of the system’s NPDES Permits, 35 Ill. Adm. Code
    305.102 and 309.102, and Section 12(f) of the Act.
    Count VII alleged that the Respondents failed to provide
    adequate equipment such as multiple pumping units, duplicate
    power sources, or alarms at the Meadowbrook system’s Fawn Ridge
    and Doe Run/Meadow Drive lift stations to minimize discharges of
    untreated sewage during power or equipment failure in violation
    of the system’s NPDES Permits, 35 Ill. Adm. Code 306.102(a), and
    309.102 and Section 12(f) of the Act.
    A hearing was held on October 17, 1985 at which members of
    the public were present. (R. 4). The parties filed a
    Stipulation and Proposal for Settlement on October 28, 1985.
    The proposed settlement agreement provided that the Atlas
    Service Company, Inc. admitted the violations alleged in both
    Complaints and agreed to: (1) transfer the Georgetown system
    (including all equipment and facilities) within 30 days of the
    date of the Board’s Order to the Georgetown Homeowners’
    Association which shall then own, operate, and manage the system;
    (2) transfer the Meadowbrook system (including all equipment and
    facilities) within 30 days of the date of the Board’s Order to
    the Meadowbrook Homeowners’ Association which shall then own,
    operate and manage the system; (3) no longer engage i~the
    operation or management of any sewage treatment plant ; (4) pay a
    *
    With respect to the restrictive covenants delineated in item
    #2 on page 8 of the Stipulation and in item #5 on page 9 of the
    Stipulation, it appears that the parties only intend to limit the
    rights of the Respondents to operate or manage the Georgetown and
    (continued)

    —5—
    stipulated penalty of $1,100.00 into the Environmental Protection
    Trust Fund for violations in PCB 84—120 (Georgetown system), and
    (5) pay a stipulated penalty of $400.00 into the Environmental
    Protection Trust Fund for violations in PCB 84—121 (Meadowbrook
    system). (Stip. 8—9).
    In their Stipulation and Proposal for Settlement, the
    parties have indicated that they believe that the stipulated
    penalties are appropriate because (1) Atlas will no longer
    operate the Georgetown system, the Meadowbrook system, or any
    other sewage treatment plant; (2) Atlas will transfer its
    ownership interest in the Georgetown system and the Meadowbrook
    system to respective homeowner associations which will then own,
    operate, and manage the systems; and (3) Atlas’s current
    financial condition appears to warrant the aforementioned
    stipulated penalties. (Stip. 9—10; R. 5).
    As part of the proposed settlement agreement, and in
    consideration of the agreement of Ralph Wailer and Thomas Wailer
    not to engage in the operation or management of any sewage
    treatment plant, the Agency has agreed to request that the Board
    dismiss both Ralph and Thomas Waller as Respondents in both
    actions. (R. 6—7; Stip. 8). The Board believes that this
    request is appropriate and hereby grants the Agency’s motion to
    dismiss.
    In evaluating this enforcement action and proposed
    settlement agreement, the Board has taken into consideration all
    the facts and circumstances in light of the specific criteria
    delineated in Section 33(c) of the Act and finds the settlement
    agreement acceptable under 35 Ill. Adm. Code 103.180.
    The Board finds that the Respondent, the Atlas Service
    Company, Inc., has violated 35 Ill. Adm. Code 302.203, 302.206,
    Meadowbrook systems in the near future. However, as presently
    worded, the restrictive covenants would appear, for all practical
    purposes, to indirectly bar the Respondents from ever seeking, or
    obtaining, appropriate certification. Moreover, the overly
    broad, vague, and ambiguously all—inclusive language of items #2
    and #5 does not clearly or specifically limit the restriction on
    the Respondents’ freedom of action to operate or manage the
    sewage treatment plants at the two subdivisions in question and
    does not place a reasonable time limit or geographic limit on the
    proposed restriction. The Board accepts this Stipulation with
    the understanding that the actual intent of the two agreed—upon
    restrictive covenant conddtions is limited to precluding Ralph
    Waller, Thomas Waller, and the Atlas Service Company, Inc. from
    an operating or control relationship with the Georgetown and
    Meadowbrook facilities. The Board notes that the respective
    Homeowner Associations can effectively preclude this result
    without such conditions and, thus, such conditions are actually
    extraneous.

    —6—
    304.105, 304.106, 305.102, 305.103, 306.102(a), 306.103(b),
    309.102 and 312.101 and Sections 12(a) and 12(f) of the Act. The
    Respondent will be ordered to follow the agreed—upon compliance
    plan and to pay a stipulated penalty of $1,100.00 into the
    Environmental Protection Trust Fund in PCB 84—120 (Georgetown
    system) and a stipulated penalty of $400.00 into the
    Environmental Protection Trust Fund in PCB 84—121 (Meadowbrook
    system).
    This Opinion constitutes the Board’s findings of fact and
    conclusions of law in this matter.
    ORDER
    It is the Order of the Illinois Pollution Control Board
    that:
    1. Ralph Wailer and Thomas Waller are hereby dismissed as
    Respondents in PCB 84—120 and PCB 84—121.
    2. As admitted in the Stipulation, Respondent Atlas Service
    Company, Inc. has violated 35 Ill. Adm. Code 302.203,
    302.206, 304.105, 304.106, 305.102, 305.103, 306.102(a),
    306.103(b), 309.102, and 312.101 and Sections 12(a) and
    12(f) of the Illinois Environmental Protection Act.
    3. Within 30 days of the date of this Order, Respondent
    Atlas Service Company, Inc. shall:
    (a) Transfer the Georgetown system (including all
    equipment and facilities) to the Georgetown
    Homeowners’ Association which shall then own,
    operate and manage the system, and
    (b) Transfer the Meadowbrook system (including all
    equipment and facilities) to the Meadowbrook
    Homeowners’ Association which shall then own,
    operate and manage the system.
    4. Atlas Service Company, Inc., Ralph Waller, and Thomas
    Wailer shall no longer engage in the operation or
    management of any sewage treatment plant at either
    facility or any subdivision.
    5. Within 30 days of the date of this Order, the Respondent
    Atlas Service Company, Inc. shall, by certified check or
    money order payable to the State of Illinois and
    designated for 4posit into the Environmental Protection
    Trust Fund, pay the stipulated penalty of $1,100.00 (for
    violations in PCB 84—120) and the stipulated penalty of
    $400.00 (for violations in PCB 84—121) which are to be
    sent to:
    Illinois Environmental Protection Agency

    —7—
    Fiscal Services Division
    2200 Churchill Road
    Springfield,
    Illinois
    62706
    6. The Respondents shall comply with all the terms and
    conditions of the Stipulation and Proposal for
    Settlement filed on October 28, 1985, which is
    incorporated by reference as if fully set forth herein.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby cer~tifythat the ~ove Opinion and Order was
    adopted on the ~
    day of
    _____________,
    1986 by a vote
    p77.
    Dorothy M. GCrnn, Clerk
    Illinois Pollution Control Board

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