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People v. McHenry Shores Water Co.

March 31, 1998


The opinion of the court was delivered by: Presiding Justice Geiger delivered the opinion of the court:

The defendants, McHenry Shores Water Company (McHenry Shores) and Thomas Mathews, appeal from the April 4, 1997, Judgement of the circuit court of McHenry County ordering them to pay civil penalties in the amount of $25,000. The trial court imposed these penalties after finding that the defendants had violated section 18 of the Illinois Environmental Protection Act (the Act) (415 ILCS 5/18 (West 1994). We affirm.

The facts relevant to the Disposition of this appeal are as follows. McHenry Shores is a public water supply company that supplies water to several hundred residents in the City of McHenry. Thomas Mathews is the sole shareholder of McHenry Shores.

On February 15, 1994, Manny Abad, acting supervisor of the Division of Public Water Supply, Elgin Region, of the Illinois Environmental Protection Agency (the Agency), conducted a routine on-site inspection of the McHenry Shores water system, with Mathews present. During this inspection, Abad noted numerous violations of the Act and its related regulations. These violations were as follows: (1) the casing of well No. 2 was less than 18 inches above the ground level; (2) the water system lacked a sufficient number of hydrants to adequately flush the system; (3) McHenry Shores had failed to submit sufficient raw water samples for bacteriological testing; (4) McHenry Shores had failed to comply with the testing and reporting requirements for fluoride and chlorine levels; (5) the water system violated the rules governing the discharge of water from overflow pipes of water storage tanks; (6) McHenry Shores lacked a cross-connection contamination ordinance and survey; and (7) the fluoride concentration in well No. 1 was below the required minimum level.

On June 17, 1994, the Agency followed up Abad's inspection with an enforcement letter. This letter informed Mathews of the specific violations and provided him seven days to respond. The Agency did not receive a response from Mathews within seven days.

In July 1994, the residents served by McHenry Shores held a meeting. A representative of the Agency attended the meeting to take the residents' complaints about the water supply. Numerous residents complained that their water was discolored and had an offensive odor. Other residents complained of heavy sedimentation or inadequate water pressure. Based on these complaints, the Agency tested the McHenry Shores system for pumping capacity and found that well No. 2 was overpumping.

On August 26, 1994, Mathews telephoned the Agency in response to the enforcement letter and expressed his desire to remedy the violations without litigation. During the month of August 1995, McHenry Shores dug a third well in order to increase the pumping capacity of the system. McHenry Shores also started to comply with the sampling and testing requirements of raw water samples for bacteria, as well as with the requirement that it compile monthly reports detailing the daily levels of chlorine and fluoride.

McHenry Shores' efforts, however, were insufficient to cure all of the violations. For example, in an effort to comply with the requirement that all well casings be at least 18 inches above the surrounding ground level, McHenry Shores simply dug a ditch near the pump house for well No. 2 so that water would not flood the well. Additionally, while McHenry Shores adopted a cross-connection contamination ordinance, it did not perform the required survey. Although McHenry Shores attempted to repair the broken overflow pipe, it only effected a temporary repair using rubber and duct tape. Finally, McHenry Shores made no effort to add the necessary hydrants to adequately flush the system.

On December 21, 1994, the State of Illinois filed an eleven-count complaint against McHenry Shores and Mathews alleging various violations of the Act and of the regulations of the Illinois Pollution Control Board (Board). The complaint alleged that the defendants (1) failed to operate a water system with the capacity to meet the average daily demand (count I); (2) failed to operate a public water supply system that provided water that was assuredly safe in quality, clean, adequate in quantity, and of satisfactory mineral characteristics for ordinary domestic consumption (count II); (3) failed to extend the well casing at least 18 inches above the surrounding ground surface at well No. 2 (count III); (4) failed to have a sufficient number of hydrants to adequately flush the distribution system (count IV); (5) failed to submit sufficient numbers of raw water bacteriological samples (count V); (6) failed to submit water samples for testing of volatile organic compounds (count VI); (7) failed to report the fluoride ion concentration and chlorine residuals in the finished water (count VII); (8) failed to test and record the fluoride ion concentration and chlorine residuals on a daily basis (count VIII); (9) failed to release overflow from the water storage tank within 12 to 24 inches of the ground level (count IX); (10) failed to adopt a cross-connection contamination ordinance, survey, and control program (count X); and (11) failed to maintain the required fluoride ion concentration (count XI). The complaint sought an order enjoining the defendants from violating each of these regulations promulgated by the Board.

The cause proceeded to a bench trial on October 30, 1995. At the trial, the State elicited the testimony of nine McHenry residents who received their water service from McHenry Shores. These witnesses testified that sometimes the water had a strong smell of chlorine and other times smelled foul, putrid, and like "river water." All of the residents found these odors to be offensive and occasionally even nauseating. Frequently, the water had a rusty, orangish appearance. The discolored water stained the residents' toilet bowls, bathtubs, and any clothes that were washed in a washing machine. Additionally, the water often appeared cloudy or effervescent. Many residents also experienced periods of both low or no water pressure.

Some of the residents testified that they believed that the water had caused health problems. One resident, John Zappetillo, testified that he suffered a tremendous burning sensation in his eyes from excessive chlorine after using the water to rinse his contact lenses. Other residents testified to having experienced diarrhea and stomachaches after drinking the water. However, no doctor ever attributed any of the residents' illnesses to the water supply.

Another resident, Gill Buchanan, testified that his house was located near the McHenry Shores' water storage tank. Buchanan testified that, for several years, the tank's overflow pipe was broken at a point 80 feet above the ground surface. The pipe leaked so much that, in instances when the wind was blowing in the right direction, the water would spray all over his house. Buchanan testified that he would wake up in the middle of the night and think that it was raining, when in fact it was actually the water from the overflow pipe spraying onto the house.

Abad also testified on behalf of the State. According to Abad, the Agency had received numerous complaints from the residents about the water supplied by McHenry Shores. In addition to those complaints received at the July 1994 residents' meeting, the Agency had received at least 30 complaints about water quality between 1993 and 1995.

Fred Batt, the director of public works for the City of McHenry, testified on behalf of the defendants. He testified that he had been instructed by the City of McHenry to conduct auxiliary tests of the water system and that he had conducted these tests over a period of 12 months. All of his test samples of the water were found to be bacteriologically safe and were also found to have met all of the applicable standards for drinking water.

Mathews testified regarding the steps McHenry Shores had taken to improve its performance. Mathews testified that McHenry Shores had complied with all bacteriological testing in 1995. He also testified that he had fixed the broken overflow pipe with industrial rubber and duct tape. As for the level of the casing of well No. 2, he stated that the City of McHenry piled dirt on the lots near the pump house for well No. 2. Mathews admitted that McHenry Shores owned the land on which the fill was placed and ...

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