ILLINOIS POLLUTION CONTROL BOARD

September

 30, 1976

ENVIRONMENTAL PROTECTION AGENCY,

Complainant,

)

 PCB 75—218

E.

 LYSLE EPPERSON,

GLENN BUELTER,

GEORGE E.

 & SHARON M.

 DAVIS,

RICHARD A.

 & MARGO L. HOBKIRK,

NOELLE N.

 DARLINGTON,

RONALD

0.

 & DOROTHY

J.

 LAMKIN,

DONALD

L.

 & BETTY ~J.FOSS,

GEORGE

T.

 & LILA

 L. MOORE,

MICHAEL R.

 & KAREN R. WEBER,

)

EDWIN

L.

 & SHIRLEY HARRIS,

ALPHA FAY EPPERSON,

)

LOIS

M.

 HALL,

)

KEVIN P.

 & HELENA

 G. CORLEY,

KATHY

 M. BOATMAN,

RICHARD K.

 & DOROTHY M.

HAMPE,

THEODORE

R.

 & ELEANOR

Y.

 GIBSON,

)

ALPHONSE,

JR.

 & JANET

 E. ANTOINE,

)

CHARLES

L.

 & HELEN PARKER,

RICHARD

E.

BARBARA

WAHLS

)

CHARLES E.

 & CHARLOTTE J.

 BENNETT,

)

MARGUERITE E. FREEHILL,

)

DAVID

S.

 & RHODA J.

 BALDOCK,

)

RAYMOND

 & AUDREY BUCH,

STANLEY

&

MARY

R. COOPER,

RAYMOND W.

 & JUDITH C. VONDERAHE,

)

DELMAR

CAROL

AUKAMP,

EARL

~

JANET

I

ACUJ?

ARTHUR

JEANETTE

WILMERT,

THOMAS

MYRNA

LEITH,

and

LYSLEEN

HUNTER,

Respondents.

Mr. Steven Watts, Assistant Attorney General, appeared for

the

Complainant.

Mr.

 William

 S. Hanley appeared for all Respondents except

E.

 Lysle Epperson, Alpha Fay Epperson and Lysleen Hunter.

—

581

—2—

OPINION AND ORDER OF THE BOARD

 (by Dr. Satchell):

This matter comes before the Pollution Control Board

(Board)

 upon a Complaint filed May 28, 1975 by the Environ-

mental Protection Agency

 (Agency).

 An amended complaint was

filed on February 13, 1976.

 Of the fifty-six Respondents

named four were dismissed in a Board Order of March 25, 1976.

The four Respondents dismissed were Charles

T.

 and Sandra

S.

Merrill and George B. and Betty Kiockenga.

 The Complaint in

Count

 I alleges that Respondents owned or operated or caused

to be operated a public water supply system furnishing water

for drinking and general domestic use;

 that this public water

supply consists of a drilled well,

 a hydro-pneumatic storage

tank, and a distribution system;

 that before,

 on and after

July 1970 until December 21,

 1974, Respondents as a result of

maintenance and operation of the system violated Section 18

of the Environmental Protection Act

 (Act)

 and Rule 3.12 of

the Public Water Supply Systems Rules and Regulations

 (Regula-

tions) which are continued

 in effect by Section 49(c)

of

the

Act and incorporating by reference certain sections of the

“Great Lakes-Upper Mississippi River Board of State Sanitary

Engineers Report on Policies for the Review and Approval of

Plans and Specifications for Public Water Supplies”

 (Standards).

Specifically alleged are the following:

 The drilled well

was constructed in a pit without proper safety adaption, thus

subjecting

 it to flooding and possible contamination by surface

water

 in violation of Sections 3.2.3.14 and 6.2.2 of the

Standards and Rule 3.12 of the Regulations and Section 18

of the Act; the top ten feet of the well casing was not

encased in a concrete envelope to properly protect it from

 the entrance of shallow ground water

 in violation of Sec-

tion 3.2.3.4(a)

 of the Standards,

 Rule 3.12 of the Regulations

and Section 18 of the Act; the top of the casing was not

properly sealed, therefore allowing the possible entry of

unknown contaminants

 in violation of Section 3.2.1(a)

 of the

Standards and thereby Rule 3.12 of the Regulations and Sec-

tion

 18 of the Act;

 the Water Supply System contained

a

four inch Orangeburg tile directly connected into the well

casing;

 this tile discharged into a man-made lake approximately

two hundred fifty feet south of the well and as a result vio-

lated Rule 3.60 of the Regulations and Section

 18 of the Act;

the Water Supply System had inadequate pressure storage,

and the pressure storage tank was not equipped with a sight

glass

 or an air compressor to maintain proper air—to—water

ratio,

 in violation of Section 7.1.5 of the Standards and

—

582

—3—

Rule 3.30 of the Regulations and Section

 18 of the Act;

Respondents did not submit samples of water for analysis

and such reports

 of operation pertaining

to

 sanitary quality,

mineral quality, or adequacy of such supplies as were demanded

by the Agency,

 in violation of Section 19 of the Act;

 a portion

 of the Water Supply System was constructed of two inch galvani-

zed pipe,

 an unapproved material,

 in violation of Section 8.0.1

of the Standards,

 Rule 3.40 of the Regulations and Section 18

of the Act.

 Count II alleges these same conditions as viola-

tions

 of Section 3.2.3.14 and 6.2.2 of the Standards,

 Technical

Policy Statement 212(B)

 (Edition of January 13,

 1975)

 which

was submitted in conformance with Rules 103B and 212

 (Technical

Policy Statement)

 and therefore in violation of Rule 212 of

Chapter

 6: Public Water Supplies and Section 18

 of the act,

and

also Sections 3.2.3.4(a),

 7.1.5, and 8.0.1 of the Standards,

Technical Policy Statement 212(B)

 2l2E(l)

 2l2E(2)

 212G,

Rules

 212,

 312,

 314(a),

 314(b)

 of Chapter 6, and Sections

 18 and

19 of the Act.

 Count II also alleges that Respondents failed to

add fluoride to the water of the Public Water Supply System as

required by Section 7(a)

 of “An Act to Provide for Safeguarding

the Public Health by Vesting Certain Measures of Control and

Supervision in the Department of Public Health over Public Water

Supplies in the State” and therefore Rule 306 of Chapter

6.

Count

 III alleges that on or before May 24,

1965

 to at least

the filing of the complaint Respondents allowed the operation

of the water supply without the employment of a person properly

certified as competent to operate

 the system in violation of

Section

 1 of “An Act to Regulate the Operating of a Public

Water Supply,”

 Ill.

 Rev.

 Stat.

Ch.

 111 1/2 Par.

501

 (1975)

A hearing was held April

21,

 1976 in Lincoln, Illinois.

Respondents

E.

 Lysle Epperson, Alpha Fay Epperson and Lysleen

Hunter did not appear.

 The Agency made a motion for default

pursuant to Procedural Rule 320.

 The Board does find

 E. Lysle

Epperson, Alpha Fay Epperson and Lysleen Hunter in default

and on the hasis of

the

 aD eqations of

owner~h i

 and operation

the

Lakcvi.cw

Subdivision

Public

Water

Supply,

now

Lakun

true,

the

Board

finds

these

Respondents

violation

all

the

alleged

Standards,

Regulations

and

Acts

set

out

the

complaint.

the

hearing

the

remaining

Respondents

and

the

Agency

submitted

Stipulation

 Facts

 and a Proposed Settlement

Agreement

for

Board

approval.

Subsequent

the

hearing

the

parties submitted

 a Proposed Settlement Agreement with

Modification.

23

—

583

—4—

The Stipulated Facts of the Agreement are as follows.

Forty-nine Respondents participated

 in this agreement

 (i.e.

all

Respondents but those in default).

 The area in question is

Lakeview Subdivision located in the Southeast 1/4

 of the

Northwest 1/4 of Section 18, Township 20 North, Range

 2 West

of the Third Principal Meridian in Logan County,

 Illinois.

This subdivision was developed by E. Lysle Epperson and in-

cludes those subdivisions known as Lakeview Acres Subdivision

filed October 26, 1960 in Plat Book 12, pages

 6 and

 7 of the

Logan County Recorder’s Office, Sunny Acres Subdivision filed

November 10,

 1960, recorded in Plat Book 12, pages 10 and 11

of the Recorder’s Office and Sunny Acres Second Subdivision

filed December

 17, 1963 recorded in Plat Book 12, pages

74

and 75

 of the Recorder’s Office.

The subdivision is presently served by a public water

 supply system consisting of a drilled well,

 a hydro-pneumatic

storage tank estimated at a capacity of approximately 500

gallons,

 and a distribution system consisting of both

galvanized and plastic pipe.

 Inspections of this system by

the Department of Public Health and the Illinois Environmental

Protection Agency have disclosed conditions as those alleged

in the complaint.

The Respondents participating in this settlement agreement

are owners of the residences

 located in the Lakeview Subdivision.

it was further stipulated that the present ownership of the

well and distribution system is in dispute between the developer,

E. Lysle Epperson, and the various homeowner users.

 Since 1965

there has existed an unincorporated ad hoc committee or

association of homeowners

 in the subdivision known as the Sunny

Lake Water Association also known as the Lakeview Water Committee.

The Association has accepted payment by residents which monies

have been applied to the costs of the operation of the public

water supply system.

 Various homeowners within the subdivision

and E. Lysle Epperson, developer of the subdivision, whether or

not members of the homeowners’

 association, have helped repair,

maintain and operate the public water supply system.

To resolve this situation Respondents agree to discontinue

use of the present well and distribution system on or before

November

1,

 1976.

 The Respondents agree to replace the present

 public water supply system by drilling a series of wells.

The

following Respondents each agree to dig a well solely for the

use of their residence in Lakeview Subdivision:

Alphonse,

 Jr. and Janet E. Antoine

Charles E. and Charlotte J.

 Bennett

—

584

—5—

Kathy

Boatman

Raymond and Audrey Buch

Marguerite

 E. Freehill

Theodore

 R. and Eleanor Y. Gibson

Richard K.

 and Dorothy M. Hampe

Ronald 0.

 and Dorothy J. Lamkin

Thomas

C.

 and Myrna Pleasant Leith

George T.

 and Lila L.

 Moore

Charles L. and Helen Parker

Richard E. and Barbara Wahis

Michael

 R. and Karen Weber

Donald L. and Betty

 J. Foss

Respondents Edwin L.

 and Shirley Harris have drilled and

installed a private well serving their own residence.

Respondents Helena G. and Kevin P. Corley agree to drill

one well to serve the residence owned by them in Lakeview Sub-

division.

 This well is to also serve one other residence

in

the subdivision.

 Respondents George E.

 and Sharon M. Davis

and Lois Hall agree to drill one well to serve the residences

owned by each of them in Lakeview Subdivision.

 This well will

serve two other residences

 in the subdivision.

 Respondents

Noelle M. Darlington, Glenn Buelter and Richard A.

 and Margo L.

Hobkirk agree to drill one well to serve the residences owned

by each of them in Lakeview Subdivision.

 Respondents David S.

and Rhoda J. Baldock agree to dig one well

 solely for the use

of the residence owned by them or alternatively to be served

by the well to be drilled by Respondents Noelle M.

 Darlington,

Glenn Buelter and Richard A. and Margo L.

 Hobkirk.

The Respondents Arthur G. and Jeanette Wilmert, Earl R.

and Janet I. Acup,

 Stanley and Mary R. Cooper, Raymond W.

and Judith

 C. Vonderahe and Delmar W.

 and Carol A. Aukamp

agree to drill one well to serve the residences owned by

them in Lakeview Subdivision or alternatively to continue

to use the aforesaid well and distribution system con-

ditioned upon completion of the following modifications

in the present system.

1.

 The distribution system will be properly severed

and capped so that the system will be able to

serve only the above residences.

2.

 The top of the well casing will be properly sealed.

The

Orangeburg

tile

directly

connected

into

the

well casing will be disconnected and the well

casing

properly

sealed.

—

585

—6—

The Respondents stipulating

 to this agreement reserved

the right to elect to drill their own wells rather than share

a well

 as stated above or to share a well with Respondents

other than those stated, provided that the drilling and

sharing of new wells will be accomplished by November

1,

1976.

 One of the objects and purposes of the agreement is

to terminate the present distribution system and to remove

it and any future system of shared wells as provided under

the agreement from the jurisdiction of the Public Water

Supply Act as now enacted.

The Agency recognizes the cost to these residential

property owners of installation of new wells.

 The Agency

stipulated that in light of these costs that a penalty

would not serve as an aid to the enforcement of the Act

and that the Agency’s interest will be satisfied by a

Board Order requiring the Respondents

 to complete their

action by November 1, 1976.

The Board

 finds that all the stipulating Respondents

were in violation of all the alleged Standards, Regulations

and Acts as set out in the complaint.

 The Board further finds

that the parties

 in stipulating that a penalty would not aid

in the enforcement of the Act have stipulated beyond the pro-

vision of Procedural Rule 333 and the law.

 The stipulating

Respondents have admitted and all Respondents are found in

violation of Section

 1 of “An Act to Regulate the Operating

of a Public Water Supply,”

 Ill.

 Rev. Stat.

Ch.

 111 1/2 Par.

501

(1975).

 This Act provides for a minimum penalty of not less

than $100.

 For this reason the Board shall assess

 a penalty

of $100.

 This penalty shall be suspended for all Respondents.

The Board must consider the factors of Section 33(c)

of the Act;

(1)

 the character and degree of injury,

(2)

the

social and economic value of the pollution source,

(3)

the

suitability of locations and

 (4) thetechnical and economic

reasonableness of compliance.

 The existence and accessi-

bility of a water supply is an absolute necessity to the

subdivision.

 There has been no. presentation in evidence of

any injury to the public by the failure to comply with the

regulations and the law.

 The stipulating Respondents have

shown mitigation by putting money. and effort into alleviating

the situation.

 Defaulting Respondents have not made any

attempt to show mitigation.

As for the defaulting Respondents the Board finds a

penalty necessary.

 The burden of presenting mitigating

—

586

—7—

factors under Section 33(c)

 of the Act is upon Respondents,

Ill.

 Rev. Stat.

Ch.

111

 1/2 §31

 (1975), Processing and Books,

 ~Pollution

 Control Board,

____

 Ill.

2d

____,

____

 N.E.

____

 (1976).

 Respondents by default have not made any

presentation of this information.

 A properly run public water

supply has high social and economic value.

 In this case

E.

 Lysle Epperson, as the developer, had the first and best

opportunity to provide a properly built well and distribution

system and by not doing so has ignored his responsibility to

the public health.

 Mr. Epperson has waived his right to present

mitigation as have the two other defaulting Respondents by not

participating in the resolution of the problem.

 The Board

assesses a penalty of $2,000 against E. Lysle Epperson to aid

in the enforcement of the Act and penalties of $200 each are

assessed against Alpha Fay Epperson and Lysleen Hunter.

This Opinion constitutes the Board’s findings of fact

and conclusions of law.

ORDER

It is the Order of the Pollution Control Board that:

1.

 Respondents are found to be in violation of

Sections 3.2.3.14,

 6.2.2, 3.2.3.4(a),

 3.2.1(a)

of the Standards and Rule 3.12 of the Regulations

and Section

18

 of the Act; Rule 3.60 of the Regu-

lations,

 Section 7.1.5 of the Standards and

Rule 3.30 of the Regulations and Section 18 of

the Act; Section 19 of the Act and Section 8.0.1

of the Standards,

 and thus, Rule 3.40 of the

Regulations and Section 18 of the Act; Technical

Policy Statements 212(B),

 2l2E(l), 2l2E(2), 2l2G

Rules

 212,

 312, 314(a),

 and 314(b)

 of Chapter

6:

Public Water Supplies, and Sections

 18 and 19 of

the Act; Section 7(a)

 of “An Act to Provide for

Safe-guarding the Public Health by Vesting Certain

Measures of Control and Supervision in the Depart-

ment of Public Health over Public Water Supplies in

the State” and Rule 306 of Chapter

 6: and Section 1

of “An Act to Regulate the Operating of a Public

Water Supply.”

2.

 The stipulating Respondents shall build wells

in

conformance with the agreement set out in the

Opinion.

3.

 Respondents E. Lysle Epperson, Alpha Fay Epperson

and Lysleen Hunter are found in default.

—

587

—8—

4.

 E. Lysle Epperson shall pay a penalty of $2,000

and Alpha Fay Epperson and Lysleen Hunter shall

each pay a penalty of $200.

 Payment shall be made

within

 35 days of this Order by certified check or

money order payable to:

State of Illinois

Fiscal Services Division

 Environmental Protection Agency

2200 Churchill Road

Springfield, Illinois 62706

5.

 A penalty of

 $100 is assessed in conformance with

“An Act to Regulate the Operating of

 a Public

Water Supply.”

 This penalty is suspended.

I,

 Christan L. Moffett, Clerk of the Illinois Pollution

Control Board, hereby ce,~tifythe above 0 inion and Order

were adopte~onthe

~

“~

 day ~

 1976 by

Christan L. Moffet

 lerk

Illinois Pollution

 trol Board

—

588