ILLINOIS POLLUTION CONTROL
BOARD
March
28, 1974
ENVIRONMENTAL PROTECTION AGENCY
COMPLAINANT
v
)
PCB 73—422
THE CITY OF ARCOLA
RESPONDENT
THE CITY OF ARCOLA
)
COMPLAINANT
v
)
PCB 73—461
ENVIRONMENTAL
PROTECTION
AGENCY
RESPONDENT
DALE
TURNER,
ASSISTANT
ATTORNEY
GENERAL,
STEPHEN
GUNNING
in
behalf
of
the
ENVIRONMENTAL
PROTECTION
AGENCY
MR.
JAMES
LEMNA,
in
behalf
of
the
CITY
OF
ARCOLA,
and
MR.
THOMAS
J.
LOGUE,
appearing
for
intervenors
OPINION
AND
ORDER OF THE BOARD
(by Mr. Marder)
Environmental Protection Agency v.
City of Arcola, PCB 73-422,
comes to the Board on complaint filed October
3,
1973,
by the Environ-
mental Protection Agency.
Complaint alleges that a permit for water
main extension to the water system of the city of Arcola was denied on
March 1,
1973.
It was again denied on a re—petition on April 23, 1973.
The reason alleged for denial is an inadequate supply of water in the
Arcola
aquifer
to
supply
the needs of the town and a new development
to be built on the outskirts of Arcola.
The water main in question
is
alleged to have been completed by July 23,
1973,
such construction
having taken place without a permit’s having been issued by the En-
vironmental Protection Agency.
Such construction would be a violation
of Section
15 of the Environmental Protection Act.
City of Arcola v. Environmental Protection Agency, PCB
73-461,
is
a permit appeal case filed by the city of Arcola with the Board on Nov-
ember
1,
1973.
The permit appeal petition alleges denial of the con-
struction permit was unreasonable and not based on the facts that ex-
isted at the time of the application.
On December
3,
1973, the city of
Arcola waived its rights to have this matter decided within 90 days of
filing.
On March 25, 1974,
the city of Arcola filed a motion to dismiss
11
—6C’
—2—
this case without prejudice.
This motion is hereby granted.
A third
petition
was
filed
in
this
matter
on
November
1,
1973.
It
was
in
the
form
of
a
variance
petition
filed
by
Michael
E.
Martin,
Kenneth
E.
Webb,
Jack Zimmerman,
and
John
C.
Huffer,
a partnership, d/b/a JMJ Enterprises.
This petition, which was originally given Docket
Number
73—513, requested
equitable remedies from the Board, the allegation being made that the Pet-
itioners were innocent parties in the dispute between the Agency and the
city of Arcola and would suffer grave financial hardships.
On January
3,
1974,
the Board ordered all three cases
consolidated for hearing.
On
January 31,
1974,
the Board ordered that the petition for variance be
dismissed without prejudice and be considered
a petition for intervention
in the matter of City of Arcola v. Environmental Protection Agency, PCB
73—461,
and intervention was allowed.
Hearings were held on February 6,
1974, and February 14,
1974,
at the
Douglas County Courthouse, Tuscola, Illinois.
Statements and a proposed
order were filed by the parties jointly on March
11,
1974.
The pertinent section of the Agency’s complaint reads
as follows:
“That the city began construction on
the
abovementioned water
main
extension
without
written
approval
of
the
Agency
and
after
the
Agency
had
specifically
stated
in
writing
that
such
approv-
al
could
not
be
granted,
and
has
thus
violated
and
continued
to
violate
at least until the filing of this complaint,
Section
15
of the Environmental Protection Act.”
Section 15 of the Act reads
as follows:
“Owners of public water supplies, their authorized representa-
tives, or legal custodians
shall
submit
plans
and
specifica-
tions
to
the
Agency
and
obtain
written approval before con-
struction of
any
public
water
supply
installation,
changes,
or
additions is started...”
It is stipulated by the parties
that the city
of Arcola violated Sec.
15 of the Environmental Protection Act,
in
that
a
water
main
extension
was installed prior to obtaining an Environmental Protection Agency per-
mit
(P.
2 of Statement filed March 11, 1974).
The water main extension was laid to service a motel and restaurant
complex on the outskirts of the city.
The motel built on the site is
80
completed, with a total projected cost of $1,100,000.
There
is in-
terest on the money due for the project, which at the February 6th
hear-
ing
was $7,891.95.
On Jime 28, 1973,
the developers had received a let-
ter from the city of Arcola saying that water would be available at the
site.
They relied on this letter from the city of Arcola and continued
construction.
This complex will employ approximately
70 people and will
be one of the largest employers in the Arcola area.
The motel will use
5000 gallons of water per day.
It is on an unsuitable site for well
drilling and there is no alternate source of water available on the site.
The city will not allow
a connection into their water supply system at
~1-684
—3--
this
time
(R.
60—81)
The
Environmental Protection Agency filed an agreed motion on March
25,
1974,
to admit to the record the affidavit of Roger Selburg of the
Agency.
This
motion
is
granted.
The affidavit states that Mr. Selburg
is manager of the Permit Section of the Division of Public Water Supply
of the Agency.
It further states that Mr.
Selburg has seen and
examined
the
proposed
order
of
the
parties
and
believes
that
implementation
of
this order would not result in environmental damage or unwarranted dis-
ruption of the aquifer presently serving the city of Arcola.
It appears from the reccrd that there is adequate water to supply the
motel complex that is serviced by the water main extension
(affidavit of
Mr. Selburg).
The record further shows a measure of concern by the city
of Arcola and the Agency for a water supply to meet the city’s future
needs
(R.
96).
The city has entered into negotiations with the Eastern
Illinois Water Company of Robinson, Illinois.
In agreeing to settle this
enforcement matter, the Agency has proposed and the city has agreed to
certain conditions
as consideration for prompt settlement.
These con-
ditions will be incorporated
as the Order of the Board.
Enforcement
actions involving
a public water supply involve a diff-
erent kind of resolution than the average case.
Here the Board must
weigh the value of having a water supply that is in violation as
com-
pared
to having no water supply at all.
The major problem here is that of guaranteeing an adequate water sup-
ply to the city of Arcola in the future.
The parties here have worked
out
a proposed order that
takes
into
account
any
short-term
problem
the
city may have with its water supply, while proposing to take care of
the long-term problem as expeditiously as possible witt~ ~.gencysupervis-
ion.
The Board finds this settlement order adequate.
In their agreed order, Order Number
6 proposed by the parties stated
that there shall be no additional tap on or connection of greater than
500 g.p.d.
to the water system without approval of the Agency.
The
Board cannot issue such an order.
Sec.
33
(c)
(iv)
of the Act states as
follows:
“Whenever
a
proceeding
before
the
Board
may
affect
the
right
of the public individually
or
collectively
to
the
use
of a com-
munity sewer or water facilities provided by
a municipally owned,
or publicly regulated company, the Board shall at least
30 days
prior to the scheduled date of the first hearing in such proceed-
ing,
give notice of the date, time,
place and purpose of such
hearing, by public advertisement in a newspaper of general cir-
culation in the area of the state concerned.
The Board shall
conduct a full and complete hearing into the social and econom-
ic impact which would result from restriction or denial of the
right to use such facilities
and allow all persons claiming an
interest to intervene and present evidence of social and econ-
omic impact.”
ii —685
—4--
This
procedure was not followed in this case,
and
as such,
proposed
Order Number
6 cannot be entered.
Should the Environmental Protection Agency feel the need for such a
restriction on the city water system, it may bring an action before
the Board, which will be held according to the mandate of Sec.
33
(c)
(iv)
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 motion of the City of Az-cola to dismiss PCB 73—461 with-
out prejudice is granted.
2)
The motion of th
Environmental Protection Agency to admit
the affidavit of
gêr Selburg to the record is granted.
3)
The City of Arcola shall continue negotiations with Eastern
Illinois Water Company
to obtain a contract to supply
an ade-
quate quantity of water; the aforesaid contract to be entered
into within twelve months from adoption of this Order.
4)
If the aforementioned contract for supply of water is obtained
within the twelve months,
the City of Arcola shall have an
additional twelve months to physically obtain the additional
water.
5)
If no agreement as previously described is obtained within
twelve months of adoption of this Order, then the City of
Arcola shall within an additional six months
(18 months from
Board Order) provide an additional source of water from a
source approved by the Environmental Protection Agency.
6)
The City of Arcola shall provide
a surety bond in the amount
of $20,000 to assure its obligation of 2aragraph Five of this
Order to provide water if
a cont~:actas described within
Para-
graph
Three
is
not
obtained.
7)
The City of Arcola shall be permitted to supply water to the
Schrock Industrial
Park for the use of the motel, restaurant,
and gas station presently under construction.
8)
The City of Arcola shall pay a penalty in the amount of
$250.00 within
35 days after adoption of this Order.
Said
penalty payable by certified check to the State of Illinois,
Fiscal Services Division, Environmental Protection Agency,
2200 Churchill Road,
Springfield,
Illinois
62706.
IT
IS SO ORDERED.
—5—
I, Christan L. Moffett,
Clerk of the Illinois Pollution Control
Board, certify that the above Opinion and Order was adopted by the
Board on the 28th day of March,
1974, by a vote of
5 to
0.
11—687