ILLINOIS POLLUTION CONTROL BOARD
July 18,
1974
ENVIRONMENTAL PROTECTION
AGENCY
COMPLAINANT
PCB
74—50
POW WOW
CLUB,
INC.,
a not-for-
profit Illinois corporation
RESPONDENT
MR.
STEPHEN
Z. WEISS, ASSISTANT ATTORNEY GENERkL, and MR.
STEPHEN
H.
GUNNING,
ATTORNEY,
in
behalf of the ENVIRONMENTAL
PROTECTION
AGENCY
MR.
RICHARD HALDEMAN, ATTORNEY,
in behalf of the POW WOW CLUB,
INC.
OPINION AND ORDER OF THE BOARD
(by Mr. Harder)
This case comes to
the Board on complaint of the
Illinois
Environ-
mental Protection Agency (hereinafter referred to as the Agency),
filed January 28, 1974.
On March
1,
1974, the Agency filed an amended complaint.
Hearing was held April
30,
1974,
The amended complaint charges that:
1)
The
Pow
Wow
Club,
an Illinois not-for-profit corporation,
at
all times pertinent to the amended complaint owned, operated,
and
con-
trolled a public water supply system furnishing drinking water to the
Tuliock Wood Trails Subdivision near Rockford, Illinois,
2)
From March
3,
1972,
and continuing every day to the filing of
the Amended Complaint, Respondent has failed to ~direct and maintain
the continuous operation and maintenance of the public water supply
system so
that
water
shall
be
assuredly
safe
in
quality
for
ordinary
domestic
consumptioiP
in
violation
of
Sec.
18
of
the
Environmental
Protection
Act.
3)
That from on or
about
March
3,
1972,
and every day to the filing
of the Amended Complaint,
Respondent has operated wells numbered
1,
3,4,6,8,9,10,11,12,13, and
14
constructed in pits without proper
safety adaption in violation of Rule 3.12 of the Public Water Supply
Systems Rules
and
Regulations which incorporate Sec.
3.2.3.14 and
6.2.2 of the Great
Lakes-Upper Mississippi River Board of Generating
Engineers Recommended Standards for Water Works
(hereinafter referred
13— 113
—2—
to as 10-State Standards).
4)
From on or about March
3,
1972,
and
continuing every day to the
filing of the Amended Complaint,
Respondent has failed to provide a
water storage capacity of
35 gallons per person
and
failed
to
locate
the water storage tank above the ground completely housed or earth-
mounded with one end projecting into an operating house, to prevent
freezing in violation of Rules
3.30 of the Regulations
and
Sec.
7.15
(a)
of the Standards and Technical Release 10-8.
5)
From on or about March
3,
1972,
and continuing every day to
the filing of the Amended Complaint,
Respondent has failed to fluori-
date such public water supply so
as to maintain a fluoride ion concen-
tration of 0.9 to 1.2 mg/i in all water discharged into the distribut-
ion system violating Rule
5.28 of the Regulations.
6)
That from on or about August
3,
1970, and continuing every day
to the date
of filing the Amended Complaint,
including but not limited
to March 4,
1971,
April 16, 1971,
June
9, 1971,
July 22, 1971, August
3,
1971,
October 21, 1971, November 18,
1971,
and
February 10, 1972,
Respondent has failed to submit plans and specifications of charges
or additions to the public water supply system to the Agency for written
approval and has received no such written approval before beginning
construction, violating Sec. 15 of the Environmental Protection Act.
7)
From on or about April
27,
1972,
and continuing to the date of
the filing of the Amended Complaint,
Respondent has failed to submit
water samples for
analysis
and reports of operation as required by
Sec.
19
of
the Environmental Protection Act.
8)
That from on or about September 12,
1973, to the filing of the
Amended Complaint,
Respondent has failed .to employ a certified
water
supply operator as required by Sec. I of an Act to Regulate the Opera-
tions of Public Water Supply
(ill,
Rev,
Stat.
Chap.
iii 1/2, Sec.
501).
The threshold question in this action is whether the water supply
system operated by Respondent is a public water supply system.
A public water supply system is defined as,
“All mains, pipes, structures through which water is
obtained and distributed to the public, including wells
and well structures
(emphasis added), intakes
and
cribs,
pumping stations, treatment plants, reservoirs, storage
tanks
(emphasis added), and appurtenances, collectively
or
severally,
actually used (emphasis added) or intended
for use for the purpose of furnishing water for drinking
or general domestic use in incorporated municipalities
or unincorporated communities where
10 or more separate
lots or properties
are being served, or intended to be
served; state—owned parks and memorials; and state—owned
educational,
charitable, or penal institutions.”
(Ill.
Rev. Stat., Chap.
111 1/2, Sec.
3
ii),
13—114
—3—
In interpreting
a regulation that is health—relatedq the Board
will interpret it to cover as many situations
as
fall
under the
Act
with
a strict construction.
The Public Water Supply Regulations
were promulgated to protect the public health, safety,
and welfare.
The Board finds that the water supply system operated by the Pow
Wow Club
is a public water supply.
This water supply system services the Tuiiock~sWoods Subdivision.
It was the intent of the developer to have each group of
9 homes ser-
viced by one well,
for the express purpose of keeping the water sup-
plies
as private
CR.
146).
Each home owner was to own one-ninth of
the well serving his property
(H. ‘146)
.
In 1965, before the entire
system could be completed,
the developer went bankrupt
(R.
144).
In
order to provide a continuity in ownership and water
supply to the
subdivision
(and to clear things cut of the bankruptcy),
Respondent
purchased the water system on
a bill of sale
(H.
145)
It appears Respondent was originally incorporated to manage a park
and clubhouse facility located in the subdivision
(R.
149).
It now
charges residents of the subdivision $8 per month for water
(R.
140).
There is also a substantial charge to new homeowners who want to tap
into the water system
(H.
139).
Whatever the intent of the original developer was, the fact
is
to-
day there
is
a unified water supply system serving the subdivision.
As Environmental Protection Agency Exhibit
#9 points out, eight wells
are now serving more than nine lots.
There are gate valves located
throughout the system to linkthe wells together.
There is unified
management and charges throughout the system.
Therefore,
it
is the
conclusion
of the Board that the water supply system operated by Re-
spondent is a public water supply.
Sec.
1, Act to Regulate the Operations
of Public Water Supply, re-
quires that all public water supplies in Illinois shall have on their
operational staff at least one natural person certified as competent
as
a water supply operator under the provisions
of this Act.
Hr.
Dooley, manager of the Pow Wow Club, stated that he had no license to
be
a qualified water operator and that he was not aware of anyone on
the staff being so certified
(H,
127).
Also, there appeared to be no
record of a certified operator at the RespondentTs system in the rec--
ords of the Agency
(H,
50).
The Board finds
the Respondent violated
Sec.
I of An Act to Regulate the Operation of Public Water Supply.
Sec.
19 of the Environmental Protection Act requires that owners and
custodians of public water supplies submit samples for analysis and
such reports of operation pertaining to the sanitary quality or ade-
quacy of such supplies as may be requested by the Agency.
It is admit—
ted by Mr. Dooley that upon receiving water sample bottles from the
Agency, they were not returned, and in fact were put in storage
(H.
135).
Since they were not returned within 15 days as required by Sec.
19 of the Act, the Board finds Respondent violated Sec.
19 of the En-
vironmental Protection Act,
13— 115
—4—
Section 15 of the Act requires owners of public water supplies or
custodians
to
submit
plans and specifications to the Agency
and
to ob-
tain written approval before construction of any of any proposed pub-
lic water supply installations, changes, or additions are started,
Mr. Palm, of the Environmental Protection Agency~sDivision of Pub-
lic Water Supply Permit Section, testified that after search of the
Agency~s files, no record of plans or designs has been filed in the
last
2 1/2 years
(H. 16—17)
Mr.
Dooley admitted that no designs or plans have been submitted to
the Agency, when changes were constructed in the system
(H.
135)
Testimony of Charles Bell, of the Agency1s Division of
Public
Water Supply, showed that during the period of his investigation, sump
pumps were added to certain of the wells in the system
(R.
47).
Therefore,
the
Board finds that Respondent has violated Sec.
15
of
the Environmental Protection Act.
Rule
5.28
of the Regulations requires
that
a
fluoride
ion
concentra-
tion
of
0.9
to
1.2
mg/i
be
maintained in all water discharged to the
distribution
system.
Mr~ Bell
testified
that
he
saw
no fluoridation equipment attached
to
the
system
(H.
48).
Mr.
Dooley
also
admitted
that
there
was
no
fluoridation
equipment
attached
to
the
S
stem,
and
no
fluoride
was
being added
(H.
133).
There
being
no
rebuttal
to
the
Agency
allege-
t~orithat the fluoride :Level is not maintained at
the
level
as
required
by
Rule
5.28,
the
Board
finds
Respondent
violated Rule 5,28
of
the
Regu1ation~
Rule
3.30
provides
that
detailed
data
shall
be
submitted
as
to
con-
struction
and
location
of
storage
reservoirs.
The
construction
is
to
meet
the
requirements
of
the
10—State
Standards and
the
provisions
of
Technical Releases 10-i and 10—8
of
the
Department
of
Public
Health.
As
stated
above,
no
design
data
has
ever been submitted to the Agency,
and
so
Respondent
is
in
violation
of
Rule
3.30.
As
a
further
violation
of
the
rule,
the
storage
tanks
are
not
located
above
ground
level
sur-
face
or
completely
housed.
In
fact,
they
are
buried
next
to
the
well
pit
(H.
46)
Location
of
the
tanks
above
ground
level
or
completely
housing
them
is
required
by
Sec..
7.1.5
(a)
of the 10-State Standards
as
incorporated
in
Rule
3.30.
Also,
the
evidence
has
shown
that
insuf f-
icient storage capacity has been
maintained
in
the
pressure
tanks,
con-
trary
to
the
requirement
of
Technical
Release
10-8
which
recommends
35
gallons
per
capita
capacity..
Testimony
by
Mr.
Dooley
indicated
that
each
of
the
tanks
holds
at
a
maximum
750
gallons
(R.
134).
With
13
act-
ive
wells
(Exhibit
9),
each
with
a
storage
of
750
gallons,
the
system
has
a
storage
capacity
of
9750
gallons.
With
a
reputed
population
of
504
persons
in
the
subdivision
(Exhibit
6
A)
not
rebutted,
the
capac-
ity of the system should be 17,640 gallons.
The
Board
finds
Respondent
violated
Rule
3.30
of
the
Regulations
by
not submitting design criteria and by having insufficient storage cap-
13—116
—5—
acity in tanks
above ground.
Rule 3.12 of the Regulations requires that detailed information as
to the type of construction to be used, geological formations
to
be
penetrated, and type of well seal to be employed must be furnished.
Also construction must conform with the 10-State Standards.
Sec. 3.2~-
3.14
(a) of the Standards states that the upper terminal of well re-
quirements
are:
a) protective casing for all ground water sources must
project not less than six inches, and preferably
12 inches, above the
pumphouse floor or cover installed;
b)
site not subject
to
flooding
mi~t
have
floor
of pumphouse
at
least one foot above original ground
su,rface.
Environmental Protection Agency Exhibit
#7,
taken
along
with
the
testimony
of
Mr.
Bell
(H.
54),
shows
that
these
well
pumps
are
locat-
ed
in
pits
under
the
ground,
~so
that
the
pumphouse
floor,
which
in
fact
is
the
bottom
of
the
pit,
is
not
located
at
least
one
foot
above
ground
level.
Therefore,
the
Board
finds
Respondent
violated
Rule
3.12
of
the
Regulations
by
failing
to
submit
plans
and
design
criteria
and
by
fail-
ing
to
properly
place
the
well
pump..
Sec.
18
of
the
Environmental
Protection
Act
states
that
owners
and
official
custodians
of
public
water
supplies
shall
direct
and
maintain
the
continuous
operation
and
maintenance
of
water
supply
facilities
so
that.
water
shall
be
assuredly
safe
in
quality,
clean,
adequate
in
quantity
and
of
satisfactory
mineral
character
for
ordinary
domestic
consumption.
Violations
of
the
Rules
above
tend
to
prove
a
violation
of
Section
18
of
the
Act,
as
these
rules
were
promulgated
to
assure
a
safe
and
adequate
supply.
Therefore
the
Board finds Respondent
vio-
lated
Sec.
18
of
the
Act.
Testimony
was
elicited
by
Respondent
from
David
Conklin
that
Re-
spondent
did
not
have
adequate
funds
to
upgrade
the
system.
The
Board
does
not find this to he
a
mitigating
factor.
Though
the
Board
is
re-
quired to
consider
the
impact
of
enforcement
on
a
respondent,
with
health-related
subjects
such
as
water
suPply
a
true
showing
that
the
rule is
arbitrary
and
unreasonable
must
be
shown.
The evidence showed
that Respondent charges
$8 per month for water.
If it is necessary
to raise these rates to bring the system into conformity with
the
Reg-
ulations,
then
Respondent
will
have
to
take
this
action.
We will order Respondent to file a compliance plan with the Agency
within 150 days of the entry of this Order, outlining a plan to comply
with all applicable Regulations.
The extended time for filing the plan
is granted because at this time the Board
is
considering
new
regula-
tions concerning the operation of public water
supplies,, which should
be adopted during the month of September.
Therefore Respondent should
be advised of these regulations in submitting its compliance plan.
Upon submittal of
the
compliance plan Respondent shall have
90 days
to construct the needed improvements, after which it shall cease and
desist all violations of the Act and Regulations,
13
—
117
—6—
The
Board
feels
that
though
Respondent
is
a
not-for-profit
corpora-
tion,
the
failure
to
comply with the Act and Rules is of such a nature
as to
warrant
a
fine,,
The fine will not be large,
as
it
is the opinion
of the Board that money used
in
a fine can better be used to upgrade
the system.
The conflict over whether this
is
a private or public sup-
ply mitigates the fine assessed.
It should also be noted that there have been no citizen complaints
filed with the Agency regarding this system.
This Opinion constitutes the findings of fact and conclusions of law
of the Board.
ORDER
IT
IS THE ORDER of the Pollution Control Board that:
1)
The Pow-Wow Club,
Inc.
is found to have violated:
a)
Secs.
15, 18, and 19 of the Environmental Protection
Act.
b)
Rules
3.12,
3.30,
and 5.28 of the Public Water Supply
Systems Rules and Regulations.
c)
Sec.
1
of
the Act to Regulate the
Operating
of
a
Pub-
lic Water Supply
(Ill.
Rev.
Stat.,
Chap.
111 1/2, Sec.
502)
2)
Respondent Pow-Wow Club,
Inc. shall pay to the state of Ill-
inois the
sum
of $350 within 35 days from the date of this
Order.
Penalty payment by certified check or money order
payable to the State of Illinois shall be made to:
Fiscal
Services Division, Illinois Environmental Protection Agency,
2200 Churchill Road,
Springfield, Illinois 62706.
3)
Pow-Wow Club,
Inc.
shall submit to the Agency within 150 days
of entry of this Order a plan of compliance for bringing the
water supply system of Tullock Woods Trails Subdivision into
conformance with all applicable statutes and regulations at
the time of such submittal.
4)
Pow-Wow Club,
Inc.
shall cease and desist violation of all
applicable statutes and regulations in the operation of the
water supply system of Tullock Woods Trails Subdivision with-
in 240 days of the entry of this Order.
I,
Christan
L.
Moffett,
Clerk
of
the
Illinois
Pollution
Control
Board,
certify
that
the
above
Opin~on and
Order
was
adopted
by
the
Board on the
/8’~
day of
_________,
1974,
by
a
vote
of
,,~
I
13—118