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03/05/97 MARGARET GERNAND v. ILLINOIS COMMERCE

March 5, 1997

MARGARET GERNAND, HAROLD V. PERRY, NORMA J. PERRY, SHIRLEY ACTON AND PATSY A. WYMAN AND LOREN L. WYMAN, AS TRUSTEES OF THE LOREN L. WYMAN REVOCABLE TRUST, PETITIONERS-APPELLANTS,
v.
ILLINOIS COMMERCE COMMISSION, RESPONDENT-APPELLEE, AND INTER-STATE WATER COMPANY, NOW CONSUMERS ILLINOIS WATER COMPANY, RESPONDENT-APPELLEE.



Administrative Review of Illinois Commerce Commission. No. 95-0237.

As Corrected March 24, 1997.

Honorable Frederick S. Green, J., Honorable Robert J. Steigmann, P.j. - Concur, Honorable James A. Knecht, J. - Concur. Justice Green delivered the opinion of the court.

The opinion of the court was delivered by: Green

JUSTICE GREEN delivered the opinion of the court:

On June 1, 1995, respondent, Inter-State Water Company, now Consumers Illinois Water Company (CIWC), filed a petition with respondent, the Illinois Commerce Commission (Commission), requesting issuance of a certificate of convenience and necessity under section 8-406 of the Illinois Public Utilities Act (Act) (220 ILCS 5/8-406 (West 1994)), and orders under sections 8-503 and 8-509 of the Act (220 ILCS 5/8-503, 8-509 (West 1994)) authorizing CIWC to seek to obtain, by eminent domain, temporary easements for test-boring surveys to find groundwater, construct test wells, extract groundwater, and measure the effect of removing groundwater on the water supply in a rural area of Vermilion County, Illinois.

The area involved was outside the area served by CIWC and approximately 15 miles from CIWC's plant in Danville. Persons owning land in the areas upon which entry was sought (landowners) were granted leave to intervene. On June 26, 1996, a divided Commission entered an order allowing the petition and on July 17, 1996, denied landowners application for rehearing. Acting pursuant to section 10-201(a) of the Act (220 ILCS 5/10-201(a) (West 1994)) and Supreme Court Rule 335 (155 Ill. 2d R. 335), the landowners filed a timely petition for judicial review by this court.

On judicial review, the landowners maintain (1) sections 8-406, 8-503, and 8-509 of the Act do not give the Commission authority to issue the type of order sought here; (2) even if the Act provided for that type of relief, CIWC did not make the required proof; (3) the Commission's order violated the state and federal constitutions; and (4) seismic testing by CIWC in roadways next to landowners' fields precluded CIWC from being entitled to the order on review. The question of whether the Act authorizes CIWC or other similar utility to obtain an easement for testing purposes rather than to obtain a permanent right to drill for and obtain water for use by its customers is a close and complicated question. We conclude the Act does so provide. We find no merit in the landowners' other claims of error. We affirm.

A substantial amount of evidence was presented to the hearing examiner for the Commission. Craig Cummings, executive vice-president and general manager of CIWC, gave the following explanation of CIWC's request.

CIWC was seeking relief in this proceeding in an effort to resolve a public health concern and assure the continued provision of safe drinking water to the approximately 55,000 residents of the Vermilion County district. The United States Environmental Protection Agency determined that at times the nitrate levels in the water of Lake Vermilion, where the company obtains its water supply, were excessively high. In response to the nitrate problems, the Illinois Environmental Protection Agency (IEPA) required CIWC to execute a letter of commitment in the summer of 1992 that it would bring the nitrate levels in the water it supplies to its customers to the levels that comply with the federal primary drinking water standards by April 1, 1997. Cummings indicated the CIWC was evaluating several options of complying with its letter of commitment with the IEPA.

Cummings further explained that those alternatives included a groundwater blending option, which is the subject matter of the petition here. He stated that information from the well-testing program proposed by CIWC was essential to permit a thorough evaluation of the groundwater option. He stated that CIWC, together with the Illinois State Geological Survey (ISGS) and the Illinois State Water Survey (ISWS), conducted test-boring surveys on the west side of Lake Vermilion. The survey results showed the finger of the aquifer closest to CIWC's system did not offer a reliable long-term source of water. Accordingly, CIWC, in its consultation with ISGS and ISWS, sought an appropriate alternative. CIWC determined that additional tests should be conducted north of the lake and south of the City of Henning to determine (1) whether that aquifer there provided an adequate source of supply, and (2), to minimize costs, how far south production wells could be located.

Cummings further testified that to evaluate the feasibility and cost of the proposed groundwater project, CIWC would be required to enter private property in the agricultural areas which CIWC, in consultation with ISGS and ISWS, had identified as being best for the drilling of test wells and other testing. He stated that the landowners had refused permission for CIWC to enter their land and perform the drilling and testing. He explained that CIWC would construct temporary wells on some properties and two-inch piezometers on other properties, all for the purpose of determining the ground-water supply in the area and the damage, if any, that withdrawal of substantial quantities of the water would have on the supply available for the landowners. Cummings asserted that without this testing, CIWC could not completely determine which method of solving the nitrate problems would be the most cost efficient.

John Jansen, vice-president of a water resource discovery and management company, Ted Zorich and Associates, Inc., testified regarding seismic testing in the area from which he had concluded that test wells should be dropped on the properties subject to this petition. He described the program that would be followed in the event the requested relief is granted, which would likely consist of several controlled pumping tests. He stated that on properties where wells are not dropped, the two-inch piezometers would be installed to record the effect of pumping on the overall water table. Jansen also stated the temporary wells would be pumped at a sufficient rate and duration to determine the safe, continuous yield and boundary condition of the aquifer. He said if the data results were favorable, they would be used to design a well field, project the long-term water levels of the aquifer, and predict the potential effect of the well field on neighboring wells and surface water bodies. Jansen indicated that a capacity of 5 to 7 million gallons per day would be necessary to supplement the water supply from Lake Vermilion, and this would require the eventual installation of approximately five wells with capacities of 1,000 gallons per minute.

Jansen testified that the data from the test wells, when taken in conjunction with regional studies of the ISGS, would eventually allow the company to select well sites in the deepest portion of the Danville bedrock valley, which are likely to have the greatest thickness of Mahomet sand and provide the highest production capacity with the least impact on surrounding wells. He stated that based upon the current knowledge of the aquifer, he did not believe the operation of the test wells would have any significant impact upon existing wells. He also testified that if any adverse effects were detected, the pumping test at the site would be discontinued, and that this was one of the purposes of the proposed test wells.

Roy King, an employee of the Commission as a utility engineer in the water/sewer program, testified that testing was needed and recommended to allow CIWC to reduce the nitrate level in its water supply as mandated by IEPA. It was his understanding that to reduce the nitrate levels in the water supply required either a new source of supply, treatment of the existing source, or some kind of combination, such as an alternative supply, which could be blended with the existing supply. He noted that following the filing of the instant petition, CIWC had entered into a contract with CSX Transportation, Inc. (CSX), to drill five test wells along its railroad right-of-way. He believed the need for the sites requested in the petition remained, despite the CSX sites, because additional observation points were ...


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