ILLINOIS POLLUTION CONTROL BOARD

May

15, 1975

ENVIRONMENTAL PROTECTION AGENCY~

Complainant,        

)

PCB 73-279

DONALD F. SIZELOVE, individually and

d/b,/a CENTRAL REALTY AND DEVELOPMENT

CO., and THE MARK 

CORPORATION, a

corporation,

Respondents.

OPINION AND ORDER of the Board (by Mr. Zeitlin)

This case was originally filed by the Environmental 

Protection Agency

(Agency) as an enforcement action on July 10, 1973, It concerns the water supply

for residents 

the Washington Heights Subdivision, .and the first addition

thereto, located in McLean County, Illinois, near the City of Bloomington.

The action has been the subject of~several prior orders of the Board, on

motions, which will be discussed below. After nearly one and one-half years

of dispute, however, the parties arrived at~amutually acceptable Stipula-

tion and Proposal for Settlement (Stipulation), which, with a subsequent

A~iì~ndnient,forms the basis of this Opinion and Order.

The complaint alleged in essence that Respondent violated various pro-

visions of the old Public Water Supply Rules and Regulations. (Rules),which

were continued in effect by Section 49 (c) of. the Environmental Protection

Act (Act). (He~einafteronly Respondent Sizeldve will be referred to, and all

activity or other matters attributed to him shall be understood to apply to

all Respondents, except as noted). The Complaint also alleges that Respondent~s

actions were in violation of the Act itself; the specific violations included:

1.  Inadequate pressure, 

(20

p.s.i. standard), in violation of Sec. 1$

of the Act, old Rule 3.40 of th~Rules, and Sec~8.10 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, (here~

inafter ustandardsu), incorporated by reference in the old Rules.

Inadequate water storage capacity, 

(35

gallon per person standardj,

in violation of old Rule 3.30.

3. Excessive levels of iron in the water, (0.30 mg/I 

standard),

in

violation of old Rule

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4. Failure to submit water samples for analysis, or operation

reports, in violation Sec. 19 of the Act.

5. Failure to submit plans and specifications to the Agency, and

failure to obtain approval before construction, of a public water supply

installation, in violation of Sec. 15 of the Act.

6. Distribution of water with objectionable odor, color and taste,

in violation of Sec. 18 of the Act.

(Note that the Board has since the inception of this action promulgated the

new Chapter 6, Public Water Supply Rules and Regulations, superceding the

old Rules at issue here).

HISTORY

Respondent Donald Sizelove, individually and d/b/a Central Realty and

Development Company, originally purchased the Washington Heights Subdivision

on or about May 20, 1970. (Beverly Sizelove, a joint tenant in the subdivision,

is not a party to this action). The first addition to the subdivision was

platted and recorded on or about July 24, 1970. The subdivision and its addi-

tion contain 25 lots, each of which contains an individual residence. At the

time this action was commenced by the Agency, 24 of those houses were occupied.

In the course of developing the Washington Heights Subdivision, Respondent

Sizelove constructed three wells, designed to provide domestic water to each

of the houses. The first of these, drilled in June, 1970, was set up originally

to serve lots 2 through 10. Well No. 2 was drilled in December 1970, and de-

signed to serve lots 13 through 18, 26, and 27. Well No. 3 was drilled in August

or September, 1971, and designed to serve lots 1  and 19 through 25. Each of

the th.ree wells has a separate 550 gallon pressure storage reservoir; the wells

areconstructed in pits, each having a pump served by separately metered elec-

trical systems. Water is distributed to the lots in two inch plastic pipe.

Respondent’s Supplementary Answer to Written Interrogatories and Motion to

Produce Compliance, together with the Stipulation, indicate that Respondent was

responsible for all construction and maintenance of the water distribution system

for the Subdivision, with one. exception. (That exception, a pump replacenent

by

the

affected residents, is not material to the findings here). Respondent was

originally informed in August, 1970, that the Agency considered the water distribution

system in the subdivision to be a Public Water Supply. At that time, Wells 1

and 2 were in operation andwere not interconnected; Respondent claimed that as

each well served less than 10 homes, he did not consider the distribution of

water within the subdivision to constitute a Public Water Supply. In 1971 Wells

2 and

3 were inter :~nnectedwith manual valves.

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The Agency first received a complaint in June, 1972, regarding the

quality and quantity of the water being distributed, from one of the

residents of the subdivision. After that, the Agency made inspection

visits to the Washington Heights Subdivision on several occasions in

1972 and 1973. The results of those visits, Group Exhibits A, B and C

to the Stipulation submitted by the parties, indicate violations supported

by discolored water, gas presence in the water, low pressure, and excessive

quantities of iron in the water. (These findings are also assented to by

the parties in the Stipulation itself). This enforcement action was

then instituted by the Agency, through the Attorney General, on July 10,

1973.

Respondent’s Motion to Strike Complaint and Dismiss, filed on

January 18, 1974, was denied by a Board Order of January 24, 1974. Nor

did the Board grant Respondent’s Motion for Amended Complaint or Bill of

Particulars. And on November 22, 1974, the Board denied the Agency’s

Motion to Add Parties, which would have added as parties three “Homeowner’s

Associations”. (Those Associations are further discussed below).

In the Fall of 1973, the parties received information concerning a

possible expansion of the Bloomington Township Water District (District),

which would allow that District to supply water to an area including the

Washington Heights Subdivision. The District had applied for a grant

from the Farmer’s Home Administration for that purpose, and was soliciting

commitments for water purchase from individual residents of the area.

Further, the District had entered negotiations with the City of Bloomington

for the purchase of water, (The Bloomington City Council later, on

January 27, 1975 approved a contract to sell water to the District.) In

July, 1974, the District received a suitable commitment from the Farmer’s

Home Administration, conditioned upon commitments from 80 of the residents

to be served. The District anticipates being able to supply water to

the Washington Heights Subdivision area in late Summer, 1975.

A hearing was held in the matter on November 26, 1974, in Bloomington,

Illinois. The parties at that time entered a Stipulation, and renewed

orally their Motion to Add Parties. (The latter Motion was resubmitted

to the Board in written form on December 6, 1974). In essence, the

parties by this document adopted water service from the Bloomington

Township Water District as the long term solution to their problems, and

proposed an interim plan pending connection to that District.

In an Interim Order adopted January 23, 1975, the Board rejected

the Stipulation submitted by the parties. The Board at that time stated

that it was not opposed to the factual provisions of the proposed Stipulation,

or to the provisions for penalty and compliance. But the Board found

that several technical difficulties in the Stipulation provisions prohibited

acceptance, and returned the matter to the parties for further negotiation

and some redrafting of the Stipulation.

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An Amended Stipulation and Proposal for Settlement (Amended Stipulation)

was then submitted to the Board on March 19, 1975, after a further hearing

held in Bloomington on March 18, 1975. In compliance with our Interim Order

of January 23, 1975, the parties in that Amended Stipulation accomplished the

fol lowing:

1.  Submitted proof that three “Homeowners Associations” had acquired

the necessary legal status to allow their assumption of certain property

and responsibilities which would be required under the interim compliance

plan;

2.  Submitted binding agreements under which those Homeowners Asso-

ciations are bound to the terms of the Amended Stipulation;

3.  Submitted a written communication from the Bloomington Township

Water District evidencing the intent of that District to supply water to

the Washington Heights Subdivision, which will be required to achieve long

term compliance in this matter;

4.  Deleted from the original Stipulation certain deficient clauses

regarding final termination of cause and the disposition of any penalty to

be levied.

AMENDED

STIPULATION

With its later Amendment, the Stipulation in this case now provides facts

on which the Board may base its decision, a provision for penalty should the

Board find that those facts support a finding of violation on the part of

Respondent, and an interim plan to provide water to the Washington Heights

Subdivision until the Bloomington Township Water District 

can provide such

water.

Both the

Agency and Respondent in this case indicate that connection

with the District is the best long run 

solution

to water supply problems in

the Washington Heights Subdivision. 

The parties have estimated that an up-

grading of the present system to meet public water supply standards would

cost between $2O~000and $100,000. Plans near the lower end of that range

would require at least 400 days to construct, (by which time a 

hookup

to the

District is

expected), and could not be guaranteed 

to assure

compliance with

the Boards requirements for a

Public Water Supply. A plan costing up to

$100,000 would ~til1 take in excess of 18 months to become effective.

Pendinqhook~~upto the District, an 

interim

plan provides that Respondent

will convByto 

the t.hree ~.Honieowners4sscci at ions

al lo f his remaining

interest in the Subdivision, 

including the

present 

water distribution system.

Existing 

Well

No. 2 

is to

be dropped from the system, 

a new well dug, and

trie three wells then remaining disconnected from each other; the three Home-

owners Assoc, 

iooions will

then each operate an independent system to supply

oiter 

thoir 

respective members, The resulting arrangement, to operate

until water is supplied by the District, would be:

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Existing Well No. 1     

Existing Well No. 3    

New Well

Lots served:    

1 thru 9            

19 thru 27   

10, 13 thru 18

(Association No. 2)   

(Association No. 3) (Association No. 1)

Under this arrangement, Respondent Sizelove will take the following

actions:

1.  Pay for the work described above.

2.  Pay for the examination, and rehabilitation where necessary,

of the existing distribution system.

3.  Pay all repair and maintenance on the new well for a

period of one year, exclusive of electrical operating costs.

4.  Convey his remaining interest in the Washington Heights

Subdivision to the

respective Homeowners Associations,

including the wells, distribution

lines, pumps, and

~outlot No. 28”, on which

one of the wells is situated.

5.  Deposit with an 

escrow agent $625,

amounting to $25 per

house, to be used as payment to the Bloomington Township

Water District for the required sign-up charge.

Pay to each

of

the three Homeowners Associations

an

amount equaling $75 per house for payment

of the final

tap-on fee, which

will be charged by the Bloomington

Township Water District, and an additional

amount to be

used for the rental of commercial water filters by the

individual homeowners. That amount breaks down as

follows:

Association No. I

980

Association No. 2     

1,260

Association No. 3     

1,260

TOTAL:    

$3,500

The Amended Stipulation also provides that the Board may, based on

the facts presented, find that Respondent Sizelove has violated the Act

and/or the old Rules, as charged 

in the Complaint. In

the event that

the’ Board should so find, the Amended Stipulation makes provision for a

penalty 

of $750.

was noted above, the evidence submitted at the November 26, 1974

hearing,

and the Stipulation as originally entered on that date, clearly

provide a sufficient basis for the Board to reach a finding of violation

on each of the points alleged in the Complaint. Insofar as the parties

have assented to such a finding, it is not necessary that we consider

here each of the provisions of Section 33(c) of the Environmental Protection

Act, as would normally be the case.

As to the penalty provision of the original Stipulation, (the amount

which was not affected by the changes contained in the Amended Stipulation),

we would not normally find the sum of $750 sufficient in a case of tvis

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type. The record here indicates that Respondent was notified very early

in the history of the Washington Heights Subdivision that the Agency

considered the subdivision water system to constitute a Public Water

Supply; Respondent nonetheless continued operation in violation of the

Old Rules and the Act. But in mitigation, Respondent’s considerable

outlays to achieve compliance, and his apparent cooperation with the

Agency in achieving such compliance, permit us to find that amount

acceptable.

Finally, the Agency consents to the dismissal of Respondent Mark IV

Corporation, as there is no indication that that Respondent is in any

way connected to the Washington Heights Subdivision or with the subject

matter of this action.

This Opinion constitutes the Board’s findings of fact and conclusions

of law of the Board in this matter.

ORDER

IT IS THE ORDER of the Pollution Control Board that:

1.  Respondent Mark IV Corporation is dismissed as a party

Respondent.

2.  Respondent Donald F. Sizelove, individually and d/b/a

Central Realty and Development Co., is found to have

violated or permitted violations of Sections 15, 18, and

19 of the Illinois Environmental Protection Act, and to

have violated or allowed to be violated Rules 3.13, 3.30,

and 3.40 of the old Public Water Supply Rules and Regulations,

continued in effect by Section 49(c) of the Act.

3.  Respondent Donald F. Sizelove, individually and d/b/a Central

Realty and Development Co., shall pay a penalty of $750

for said violations. Payment is to be made within 35

days by certified check or money order to the State of

Illinois, Fiscal Services Division, Illinois Environmental

Protection Agency, 2200 Churchill Road, Springfield,

Illinois 62706.

4.  Respondent Sizelove, individually and d/b/a Central

Realty and Development Co., shall conform fully with the

provisions of paragraphs 3 through 7 of the Stipulation

and Proposal for Settlement as Amended, submitted in this

proceeding.

I, Christan L. Moffett, Clerk of the Illinois Pollution Control

Board,, hereby certify the above Opinion and Order were adopted on the

J4~~dayof 

___________________,

1975 by a vote of ~ to 0

~rnE~

Christan L. Moffett, C 

çy~

Illinois Pollution Cont’6~’ Board

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