ILLINOIS POLLUTION CONTROL BOARD

June 29,

1972

McHENRY SHORES WATER CO.

V.

)

#

72—137

ENVIRONMENTAL PROTECTION AGENCY

ROBERT HORWITZ, Attorney for Environmental Protection Agency

JOHN FUHLER,

President of McHenry Shores Water Company

OPINION OF THE BOARD

(BY MR. CURRIE):

This variance petition initially sought until June

15, 1972

to obtain Agency approval of plans

for correcting admitted inadequacies

of

a small public water supply system

in McHenry County.

At the

hearing the request was extended to July 15

(R.

57).

The Agency’s

recommendation alleged continuing violation of

the regulations des-

pite two years of complaints,

and asked that as conditions of any

variance

the company be required

to comply by July

1,

to post a $50,000

bond,

and

to make no further connections

to its system until

compliance was achieved.

A hearing was

held.

Agency tests* substantiate the admission that

iron content in

the water supplied by the company significantly exceeds the 0.3 mg/i

permitted by the regulations

(Ill.

Dept.

of Public Health, Public

Water Supply Systems Rules and Regulations, renumbered

as PCB

Regs.,

Ch.

6

Rule 3.13,

incorporating the United States Public

Health Service Standards

for Drinking Water,

Rule 5.21 of which

prescribed the iron

limit, which

is not to be exceeded if “other more

suitable supplies are or can be made available.”)

There have been

complaints about the water, the company president acknowledged,

“probably from the first day” after

the company was acquired in

1969

(R.

24,

10)

.

Complaints have included discolored water that

results in spots on laundry

(R.

44).

It is also conceded in the

petition

that fluoride content

is below that required

(0.9 mg/l)

by statute

(Ill.

Rev.

Stat.

ch.

111 1/2, ~ 121)

and by regulation

(Water Supply Rules,

supra,

Rule

5.28,

as amended 1/15/69),

and that water

quantity and storage capacity are below that required by Rules 3.14

and 3.30

of the regulations.

The petition admits that the system was

in bad shape when acquired;

complaints,

as noted, have been received

since the beginning;

the president admits he was contacted by the

Agency about violations

as early as 1970

(R.

15).

*R.

38-40.

The concentrations found were

0.8,

0.6, and

1.0 mg/l.

4

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745

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The evidence is that no effort was made to correct the violations

until

some six to ten weeks before

the hearing, when

two consultants

were employed

to propose solutions,

one with regard

to chemical

treatment and

the other for additional capacity

(H.

15-16,

4-6).

The reason given for the delay was financial.

The petition alleged

that the company suffered an operating

loss of $2,498 during its first

year;

that subsidies had been provided by the president’s real

estate company;

and

that the president had loaned the company $3,025.

The president testified that

the company has no money and that the

improvements

to be made will be financed by

a personal

loan

(H.

20).

He added that the reason nothing was done about the violations earlier

was that his first priority had been repairing the meters

in order to

build up revenue

(R.

30).

At the same time, while violations were left

uncorrected,

the company increased the number of homes

it served from

about 150

to about 230,

about

42 or 43 of the new connections being homes

built and

sold by

a real estate company owned by the water company’s

president

(H.

10-13).

Recently, however,

the federal Department

of Housing and Urban Development has indicated that in order to

restrict further overloading of the system it will no longer provide

mortgage assistance for new homes

in McHenry Shores

(R.

49).

As for the

future,

the consultants

report was expected June

15

(H.

19).

While the president expressed his intention to implement the

recommendations in order, to meet the

law

(see petition;

R.

19),

he also stated that he would provide ‘~serviceas we can afford”

(H.

19)

and that “financing may come

in the picture”

(H.

22).

No preliminary

steps toward financing had been taken at

the time of the hearing

(R.

24);

there was no program of specific improvements until

the consultants’

report was received;

there was no schedule for achieving compliance;

the president surmised

that construction

of “some of

it” might begin

“within 60 days after the recommendation from the engineer and then

the okay from

the Environmental Protection Agency”

(R.

23-24).

it

is evident that McHenry Shores Water Co.

has committed

continuing and multiple violations

of several different rules

respecting the serious business of public water supply for over two

years

in the

face of repeated complaints

and official Agency warning.

It is clear that the company has been unconscionably dilatory in

correcting the situation.

No reason

is given why money was not

borrowed at the outset,

instead of

in the future,

in order to satisfy

the important obligations of

a public utility.

No attempt

is

made to justify the deliberate, profitable course of making

a

large

number of new connections

to an already inadequate system, which put

money

into the pockets of the common owner while causing additional

violations.

We do not understand why the Agency has not filed

enforcement proceedings long since.

The company plainly does not qualify for an unconditional

variance that would shield it from penalties for its improper actions.

Its inability to comply with

the regulations today was brought about

by its

own inexcusable inaction,

and such self—inflicted hardship cannot

4

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746

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be the basis

for immunity from enforcement. See EPA v.

Lindgren

Foundry Co.,

#70—1

(Sept.

25,

1970); Decatur Sanitary District

V.

EPA,

#71-37 (March 22,

1971).

The flat denial of

a variance,

as we have said before, would not require a shutdown of the

offending

facilities;

it would merely leave the operator subject

to whatever sanctions might be imposed

in an enforcement proceeding.

See Flintkote Co.

v.

EPA,

#71-68

(Nov.

11, 1971).

Moreover,

a firm

and adequate program for correcting violations by

a stated and expedit-

ious date is generally a requisite for a variance of

the kind sought

here.

See Godfrey Township Utility Board

v.

EPA,

#72-68

(June 27,

1972),

and cases cited.

In the present case there is no program of specific

improvements

to be made;

there is no date for compliance;

there is

inadequate commitment

to do the job,

since the whole

thing remains

contingent upon “financing.”

To deny relief completely, however, would not promote

a rapid

resolution of

the problem,

as further proceedings would have to be

filed and further delay might.result.

In appropriate cases in the

past we have granted limited variances upon strict conditions

in order

to avoid further litigation and resolve an entire dispute in a

single proceeding.

See,

e.g., Marquette Cement Mfg.

Co.

v.

EPA,

#71-23

(Jan.

6,

1971).

In

the present case,

as in Marquette,

we

must condition the variance on

payment

of

the penalty for past

inexcusable violations.

In view of the importance

of public water

supply and the long failure to correct known violations,

the penalty

must

be

$3000.

Payment

of

this

sum

will,

we

believe,

justify

granting

protection against further penalties

in the future so long

as the

company actively pursues and completes

its correction program.

Without

the penalty there would be no justification for any variance

at all.

The request is for

a variance until July 15 to permit filing

of detailed plans with the Agency.

Those plans must provide for

construction of facilities adequate to meet the regulations within the

shortest practicable

time, which must be explicitly stated.

A

request for extension

of the variance during the construction period shall

be included,

and the Agency will be given the opportunity to respond.

To assure performance,

a $50,000 security will be required, as the

Agency requests.

The failure to adhere to any of these conditions

will void the protection given by the variance and

leave the company

open to

full statutory penalties

in any proceeding the Agency may

bring.

The Agency asks

us

to make it

a further condition that no new

connections be allowed.

There are special statutory notice provisions

applicable if such an order

is contemplated,

and they have not been

met in this case

(Environmental Protection Act,

~ 33(c)).

This

does not mean that additional connections

are permissible.

Any new

connection would be one more violation of the regulations regarding

water quality and quantity,

and we have before us no request for

a

variance to allow such new violations.

No Board order is necessary.

4

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747

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ORDER

McHenry Shores Water

Co.

(McHenry)

is hereby granted

a

variance from Rules

3.13,

3.14,

3.30, and

5.28 of the Public

Water Supply Systems Rules and Regulations until July

15,

1972,

provided the following conditions

are met:

1.

McHenry shall submit to the Agency and to the Board,

on or before July

15,

1972,

a firm and specific program

for construction of improvements sufficient to achieve

compliance with the above Rules

in the shortest practicable

time, which

shall be explicitly stated.

Such program

shall include a request for extension of this variance

during the construction period.

2.

The filing of the program required in condition one of

this order shall extend this variance

for thirty days

to allow Agency and Board consideration

of the program.

The Agency shall respond to the program within twenty

days after

its receipt,

and McHenry may file comments

in reply.

3.

Within 35 days after receipt of this order, McHenry shall

post with the Agency

a bond

or other security in form

satisfactory to the Agency in the amount of $50,000 to

assure compliance with

the terms and conditions

of this

order.

4.

McHenry shall

so operate its facilities during the

period of this variance as

to furnish the best service

practicable under

the circumstances.

5.

Within 35 days after receipt of this order, McHenry

shall pay to the State of Illinois the sum of $3000

as

a penalty for the violations

found in the Board’s opinion.

Such payment shall be made by check payable to the

Fiscal Service Division of

the, Environmental Protection

Agency,

2200 Churchill Road,

Springfield,

Illinois

62706.

6.

Failure

to

comply with

the conditions

of this order shall

render this variance null

and void.

I, Christan

L. Moffett, Clerk of the Pollution Control Board,

certi,~ythat the Board adopted the above Opinion and Order this

~

day of June,

1972, by a vote

of

~‘-~

4

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748