ILLINOIS POLLUTION CONTROL BOARD
September 20, 1979
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Complainant,
v.
)
PCB 78—133
BOARD OF TRUSTEES, MURDALE WATER
)
DISTRICT,
an Illinois public
)
corporation, DR.
C. NORMAN GEYER,
)
EDWARD
C.
BERNHARDT, RICHARD L.
)
PETERMAN,
RICHARD BRECHT, MAX L.
)
WEBEL, GORDON ISCO, MRS. KENNETH
)
SERFASS, WILLIAM CORACY, JAMES
)
WATKINS, JAMES CARLOCK, ROBIN MARCY,
)
EDMUND KUNCE, RICHARD RICHMAN,
)
CHARLES GARRISON,
CHARLES WOELFEL,
)
JERRY KENNEDY, WILLIAM R. HAMILTON,
BARRY BEIN, JACOB
J.
METZGER, and
)
ALBERT SCWEGEL,
as individuals,
)
Respondents.
MR. BRIAN REYNOLDS, ASSISTANT ATTORNEY GENERAL, APPEARED ON BEHALF
OF THE COMPLAINANT.
RIDGWAY AND DECKER, ATTORNEYS AT LAW
(MR. CHARLES W. DECKER,
OF
COUNSEL), APPEARED ON BEHALF OF THE RESPONDENT BOARD OF TRUSTEES,
MURDALE WATER DISTRICT,
an ILLINOIS PUBLIC CORPORATION.
FEIRICH, SCHOEN, MAGER, GREEN
AND
ASSOCIATES,
ATTORNEYS AT LAW
(MR.
T. RICHARD MAGER, OF COUNSEL), APPEARED ON BEHALF OF
RESPONDENT GORDON ISCO.
GILBERT AND GORDON, ATTORNEYS AT LAW
(MR. JOHN
G.
GILBERT, OF COUNSEL),
APPEARED ON BEHALF OF RESPONDENT DR.
C. NORMAN GEYER.
TWOMEY & HINES
(MR.
GEORGE M.
TWOMEY, OF COUNSEL), APPEARED ON BEHALF
OF RESPONDENTS EDWARD
C. BERNHARDT, RICHARD
L. PETERMAN, RICHARD
BRECHT,
MAX
L. WEBEL, MRS. KENNETH SERFASS, WILLIAM CORACY,
JAMES
WATKINS,
JAMES
CARLOCK, ROBIN MARCY, EDMUND KUNCE, RICHARD
RICHNAN,
CHARLES GARRISON,
CHARLES WOELFEL, JERRY KENNEDY, WILLIAM
R.
HAMILTON, BARRY BAIN, JACOB J. METZGER,
AND
ALBERT SCHWEGEL.
—2--
OPINION AND ORDER OF THE BOARD
(by Mr. Werner):
This matter comes before the Board on the May 10,
1978 Complaint
brought by the Illinois Environmental Protection Agency
(“Agency”).
The Complaint alleged that Respondent Board of Trustees, Murdale Water
District
(“District”)
is an Illinois public corporation which operates
sanitary sewers and a single cell waste stabilization lagoon
(i.e., the
wastewater source)
which treats the domestic sewage of the individual
Respondent—homeowners who reside in the Fairway Vista Subdivision
which
is located approximately 3 miles west of Carbondale in Jackson
County, Illinois.
It is alleged that Respondent Dr.
C.
Norman Geyer
has,
at all times pertinent to this Complaint, maintained control over
the land on which the wastewater source is located.
Additionally,
the Complaint alleged that, from July
1,
1970 until the date of filing
of the Complaint,
Respondents caused or allowed the sanitary
sewers
and the waste stabilization pond
(the “facility”)
to transport
water-carried human and related wastes into Mud Creek which
is a
tributary
to the Big Muddy River.
Count
I of the Complaint alleged that at no time since October
24,
1977 have any of the Respondents possessed an NPDES Permit for point
source discharges and thus, by discharging contaminants and pollutants
into the water of the State of Illinois from their wastewater source
without possessing an NPDES Permit,
the Respondents have violated
Rules 901 and 902(e) of Chapter 3:
Water Pollution Control Regulations
(“Chapter 3”) and Section 12(f)
of the Illinois Environmental Protection
Act
(“Act”)
Count
II alleged that,
on March 19, 1976, the effluent discharge
from the facility caused Mud Creek
(downstream from the discharge)
to
have an unnatural grayish color, a septic odor, unnatural bottom
deposits, and
an unnatural turbidity
in violation of Rules 203(a) and
402,
thereby violating Section 12(a)
of the Act.
Count
III alleged that, on March 19,
1976, the discharge from the
Respondent’s wastewater facility caused Mud Creek
(downstream from the
discharge)
to contain an ammonia nitrogen
(as N) concentration of
3 mg/l
which
is twice the maximum concentration standard of 1.5 mg/l for
ammonia nitrogen
(as N)
in violation of Rules
203(f)
and 402 of
Chapter
3 and Section 12(a)
of the Act.
Count IV alleged that, from December 27, 1972 until the date of
filing of the Complaint
(including, but not limited to, December 27,
1972, February 16, 1973, March 6,
1973, May 16,
1973, February 28,
1974,
June 14,
1974, and March 16,
1976), the effluents discharged from the
Respondent’s wastewater facilities were of a color and/or turbidity
above prescribed levels
in violation of Rule 403 of Chapter
3 and
Section 12(a)
of the Act.
Count V alleged that,
on February 28,
1974, June
14,
1974, and
March 19, 1976, the effluents discharged from the facility contained
excessive levels of BOD5 and suspended solids
in violation of Rules
401(c)
and 404(f)
and Section 12(a) of the Act.
35—37 2
—3—
Count VI alleged that,
on December 27, 1972, February 16,
1973,
March 6, 1973, December
9, 1975, and March 19, 1976,
the discharged
effluents contained excessive levels of fecal coliform in violation
of Rules
401(c)
and 405(c) of Chapter
3 and Section 12(a)
of the Act.
Count VII alleged that, from April 16, 1972 until the date of
the filing of the Complaint, the Respondents have failed to submit
the requisite wastewater source operating reports
to the Agency in
violation of Rule 501(a) of Chapter
3 and Section 12(a)
of the Act.
Count VIII alleged that, on March 19,
1976,
the discharge from a
raw sewage bypass of the wastewater facility caused Mud Creek
(downstream from the discharge)
to have an unnatural grayish color,
unnatural bottom deposits,
a septic odor,
and excessive ammonia
nitrogen concentration
in violation of Rules 203(a),
203(f),
402,
and
602(c)
of Chapter
3 and Section 12(a)
of the Act.
Count IX alleged that, from June 30, 1975 until October 23,
1977,
the Respondents operated their facility without an Operating Permit
from
the Agency in violation of Rule 953(a) of Chapter
3 and
Section 12(b)
of the Act.
Count
X alleged
that,
from July 27, 1973 until the date of filing
of the Complaint,
the Respondents operated their wastewater treatment
works without an Agency certified operator in violation of Rule 1201
of Chapter 3 and Section 12(b)
of the Act.
On May 31, 1978, the Board of Trustees of the Murdale Water
District filed a Motion to Dismiss the Complaint as it relates to
the District on the grounds that the District does not operate or have
access to the sewage treatment facility or the real estate upon which
the facility is situated because the developer,
Mr. Marvin Muckelroy,
did not complete the construction of the facility in accordance with
approved plans and specifications and dedicate the facility to the
District.
On June
2,
1978, the Agency filed its Response to this Motion to
Dismiss.
On June
8,
1978, the Board denied the District’s Motion to
Dismiss the Complaint.
On June 19, 1978, Mr. Gordon Isco filed a
Motion to Dismiss the Complaint as it relates to Respondent Isco on
the ground that he was not currently residing as a home owner in the
Fairway Vista Subdivision on the date that the Complaint was filed.
On June 22, 1978, the Agency filed its Response to the Motion to
Dismiss.
On June
23, 1978, Respondent Gordon Isco filed a Rejoinder
to the Agency Response to his Motion to Dismiss.
On June 30,
1978, the Agency filed a Motion to Amend its Complaint
and an Amended Complaint.
This Amended Complaint basically alleged
that same violations but:
(1) changed various dates of alleged
violations in the Complaint to reflect the filing date of the Amended
Complaint;
(2)
added three additional Respondents,
Mr. Barry Bain,
Mr. Jacob
J. Metzger, and Mr. Albert Scwegel
(Mr. Bain and Mr. Metzger
are new home owners who resided in the Fairway Vista Subdivision
—4—
since April of 1978);
(3)
excluded two new home owners
(Mr. Bain and
Mr. Metzger) from the allegations charged in Counts II,
III,
V, VI,
VIII, and
IX of the Complaint,
and
(4) clarified the status of Mr.
Gordon Isco and Mr. Charles Woelfel to reflect the fact that they are
former home owners who resided in the Fairway Vista Subdivision at the
time the alleged violations occurred.
On July
6,
1978, the Board entered an Order which granted the
Complainant’s Motion for Leave to File the Amended Complaint and the
Board dismissed Respondent Isco’s Motion to Dismiss.
A hearing was
held on August
3,
1979.
The parties filed a Stipulation and Proposal
for Settlement on August 20, 1979 and concurrently, the Agency filed a
Motion to Dismiss without prejudice,
as to Respondent Dr.
C.
Norman
Geyer only, the Complaint in this matter.
(See Joint Exhibit No.
2).
The Board hereby grants the Agency’s motion,
and Dr.
C. Norman Geyer
will be dismissed as
a Respondent in this case.
It.
is stipulated that in September of 1965,
a developer,
Mr.
Marvin Muckelroy, proposed the construction of a sanitary sewage
treatment facility to serve the Fairway Vista Subdivision and which,
upon completion, was to be dedicated to the Murdale Water District
for maintenance and operation.
(Stip.
4)
.
The Board of Trustees of
the District agreed to accept Mr. Muckelroy’s proposition upon final
completion of construction in accordance with the approved plans and
specifications at their meeting of September 29,
1965.
Subsequently,
the District and Mr. Muckelroy made a joint application to the Il1ino~
Sanitary Water Board for the construction by Mr. Muckeiroy and
operation by the District of the sewage treatment facility.
(See
Exhibits A and B of the Stipulation and Proposal for Settlement).
The
Sanitary Water Board issued Joint Permit No. l966—CA-25l to the
District and Mr. Muckelroy on May 4, 1966 for the construction and
operation of the facility.
(See Exhibit C).
Seven years later, on
May 11,
1973, the Board of Trustees of the Murdale Water District
sent a letter to the Agency in which the District indicated that it
wanted to disassociate itself from the operation of the facility and
claimed that since Mr. Muckelroy had not constructed or completed the
facility in accordance with the plans and specifications previously
submitted, the District was not bound to operate or maintain the
sewage treatment plant.
(See Exhibit D).
It
is stipulated that the Agency subsequently issued a notice
of violation to the Murdale Water District and on February
10, 1976,
the District responded to this notice of violation.
In its response,
the District reiterated its previous position that the sewage system
and treatment facilities had not been properly constructed
(a
condition precedent to the District’s acceptance of the facility for
operation)
and stated it was not responsible for maintenance.
In its
letter of February 10, 1976, the District referred to a letter it had
received from C.
W. Klassen
(Technical Secretary of the~nitaryWater
Board)
dated April 19, 1968 which stated the Sanitary Water Board’s
recognition that the District would not be held responsible for the
maintenance of the sewage treatment facility until it was properly
completed.
(See Exhibits
E,
F, and G).
Nevertheless,
it
is the
position and claim of the present and former property owners in the
Fairway Vista Subdivision that the Murdale Water District was
35—~Th
—5—
previously, and currently is, responsible for the maintenance and
operation of the sewage system and treatment facilities.
(Stip.
6).
It is also stipulated that the Respondents neither admit or deny
the allegations contained in the Amended Complaint.
(Stip.
7).
The
Board of Trustees of the Murdale Water District specifically denies
that the District has ever caused or allowed the use or operation of
the
wastewater source in question.
(See Exhibits D,
F, and G).
All
remaining Respondents
(with the exception of Dr.
C. Norman Geyer)
specifically
deny
that,
as either present or past residents of the
subdivision served by the wastewater source,
they have ever caused
or allowed the use of
the
wastewater source.
These remaining
Respondents contend that the Board of Trustees of the Murdale Water
District is the responsible party, while the District denies any
responsibility.
(Stip.
7).
However,
all of the Respondents contended
that the developer,
Mr. Marvin Muckelroy
(who died in April of 1976),
is,
in
fact,
the responsible party.
It is stipulated that the Agency
takes no position as to the various conflicting contentions of the
Respondents as to
who
has the ultimate responsibility for the
complained of wastewater source.
(Stip.
7).
The proposed settlement
agreement reflects an attempt to avoid the inherent problems of
attempting to join the estate of Mr. Muckelroy
as a party Respondent
to this cause and attempts to resolve the various differences of the
parties
by
fashioning an environmentally acceptable solution to this
problem.
This proposed settlement agreement provides that the Respondents
agree to upgrade and maintain the facility so that its use and
operation will be in compliance with the Board’s Water Pollution
Control Regulations and the Act by December
31, 1979.
Furthermore,
on June 12, 1979,
the Respondents Edward C.
Bernhardt, Richard L.
Peterman, Richard Brecht, Max L. Webel, Mrs. Kenneth Serfass, William
Coracy, James Watkins, James Carlock, Robin Marcy,
Edmund Kunce,
Richard Richman, Charles Garrison, Charles Woelfel, Jerry Kennedy,
William
R.
Hamilton, Barry Bain,
Jacob J. Metzger, and Albert Scwegel
agreed to form a not—for—profit corporation which would be responsible
for the use
and operation of the facility
(this not-for—profit
corporation will be formed by the aforementioned Respondents within
14
days
after notice of the Board’s Order in this case).
It is further
agreed
that the previously mentioned Respondents, or
a not-for-profit
corporation
to
be
formed by them, will enter into
a contract with the
Board of Trustees of the Murdale Water District wherein the District
agrees to construct an upgraded facility and operate this wastewater
facility for the Respondents
or their not-for-profit corporation.
Pursuant to this contract, these Respondents or their corporation will
provide the necessary funds to the District to construct and upgrade
the
facility.
The Murdale Water District will direct such construction,
and,3lpon completion, will be responsible for the proper operation and
maintenance of the facility subject to the provision of the contract.
(See
Exhibit
I).
The
proposed plans for upgrading the facility
35—375
—6—
envision an estimated maximum project cost of $43,415.00.
(See
Exhibit J).
It
is stipulated that the Respondents
or their not-for-
profit corporation and the Murdale Water District will apply to the
Agency for all necessary permits prior to the construction and/or
operation of the upgraded facility, will insure that a properly
certified operator is employed to run the facility, and will submit
all necessary reports to the Agency.
Additionally, the parties have
provided that their obligations
to meet the specified time require-
ments may be extended due to various circumstances which are beyond
the Respondents’ control.
(Stip.
10).
Moreover, the Respondents
agree to jointly and severally pay a stipulated penalty of $200.00.
The Murdale Water District has asserted that it has entered into
the Stipulation by way of compromise to resolve a present problem
which grew out of a “prior limited involvement of the District with
the Fairway Vista Subdivision application for a permit” and states
that it
is not intended that this limited involvement as an independent
contractor will provide or constitute any precedent for future
involvement of the District for any sewage related operations with
others.
(Stip.
11).
The Agency takes no position as to the District’s
contentions
in this regard.
(Stip.
11).
In evaluating this enforcement action and proposed settlement,
the Board has taken into consideration all the facts and circumstances
in light of
the specific
criteria delineated in Section
33(c)
of the
Illinois Environmental Protection Act.
The Board finds the stipulated
agreement acceptable under Procedural Rule 331 and Section 33(c)
of
the Act.
The Board orders that the Respondents shall upgrade and
maintain their sewage treatment facility so that
its
use and operation
will promptly come into compliance with the applicable provisions of
Chapter
3:
Water Pollution Control Regulations and the Act.
Accordingly, the Respondents shall jointly and severally ~ay the
stipulated penalty of $200.00.
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.
The Respondents shall upgrade and maintain the sewage
treatment facility so that its use and operation will promptly come
into compliance with the applicable provisions of Chapter
3:
Water
Pollution Control Regulations and the Act.
2.
Dr.
C. Norman Geyer is hereby dismissed as
a Respondent in
this case.
3.
Within
30 days of the date of this Order, the Respondents
shall jointly and severally pay the stipulated penalty of $200.00,
payment to be made by certified check or money order to:
35— 376
—7
State of Illinois
Illinois Environmental Proteôtion Agency
Fiscal Services Division
2200 Churchill Road
Springfield, Illinois
62706
4.
The Respondents shall comply with all the terms and
conditions with the Stipulation and Proposal for Settlement filed
on August
3, 1979, which is incorporated by reference as
if fully
set forth herein.
I,
Christan
L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify th t t
abo e Opinion and Order were
adopted o,n~the
~tP’~—
day of
~
,
1979 by a
vote of
~
Qf~~ioffe~k~
Illinois Pollution
t ol Board