People ex rel. Ryan v. McHenry Shores Water Co.

No. 2--97--0500



IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

THE PEOPLE ex rel. JAMES E. ) Appeal from the Circuit Court
RYAN, Attorney General, and ) of McHenry County.
ex rel. GARY W. PACK, State s )
Attorney for McHenry County, )
)
Plaintiffs-Appellees, )
)
)
v. ) No. 94--CH--139
)
McHENRY SHORES WATER COMPANY )
and THOMAS P. MATHEWS, Indiv. )
and as Owner and Operator of )
McHenry Shores Water Company, ) Honorable
) Michael J. Sullivan,
Defendants-Appellants. ) Judge, Presiding.

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, judgment 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 that
he had allowed the fill to be placed there. According to Abad, the
casing of well No. 2 was below the surrounding ground level.
On April 24, 1996, at the conclusion of the trial, the trial
court entered an order finding the defendants liable on seven of
the eleven counts of the complaint (counts I, II, III, IV, IX, X,
and XI). The only counts at issue on appeal are counts II, III,
IX, and X. As to count II, the trial court found that the State
proved that the defendants had violated the provisions of the Act
by failing to provide a supply of water that was assuredly safe
and enjoined both McHenry Shores and Mathews from operating a
public water supply system in such a manner. As to count III, the
trial court found that the defendants had violated the requirement
that all well casings be at least 18 inches above the surrounding
ground surface and enjoined them from operating well No. 2 in
violation of that requirement. As to count IX, the trial court
found that the defendants had permitted the overflow pipe from the
water tower to remain in a condition of disrepair and enjoined them
from operating the overflow pipe without a permanent repair to the
break. As to count X, the trial court found that the defendants
were not in full compliance with the required cross-connection
contamination control program and enjoined them from operating the
water supply system without being in compliance with the applicable
cross-connection control program requirements.
As to counts II, III, IX, and X, the trial court found that
the imposition of civil penalties was warranted as an aid in the
enforcement of the Act. The trial court imposed penalties totaling
$85,000 ($50,000 for count II; $25,000 for count III; $5,000 for
count IX; and $5,000 for count X). The trial court stayed the
payment of these penalties for a period of six months and ordered
that it would consider remitting all or a portion of the penalties
upon satisfactory proof that the defendants had remedied the
violations. Although the trial court enjoined the defendants from
operating the water system in the manner detailed above, it did not
enjoin them from continuing to provide water service to the
affected residents.
On March 4, 1997, the trial court held a hearing on the
defendants petition to remit penalties. At the hearing, the
defendants called Abad, who testified that the defendants had
remedied the violations concerning the overflow pipe, the level of
the well casing, the number of hydrants, and the cross-connection
contamination control program. Abad also testified, however, that
the installation of additional hydrants would not necessarily
improve the water quality of the system. Abad also noted that the
defendants had been aware of the numerous violations in the early
1990s but had failed to cure the violations until 1996.
Mathews testified that the total cost to the company for
complying with the trial court s order was approximately $34,000.
Mathews testified that McHenry Shores had a gross revenue of
$82,101 in 1994 and that there was a loss of $27,549 that same
year.
On April 4, 1997, after considering all of the evidence, the
trial court entered an order granting partial remission of the
penalties. The trial court remitted the various civil penalties as
follows: (1) count II - $50,000 penalty remitted to $20,000; (2)
count III - $25,000 penalty remitted to $2,500; (3) count IX -
$5,000 penalty remitted to $2,500; (4) count X - $5,000 penalty
remitted in full. The final penalty amounted to $25,000. The
defendants filed a timely notice of appeal.
The defendants' first contention on appeal is that the trial
court erred in granting injunctive relief without first making a
specific finding that the water supply was contaminated. The
defendants argue that, although section 42(e) of the Act permits
the State to seek injunctions for violations of the Act (415 ILCS
5/42(e) (West 1994)), Illinois courts have generally imposed such
remedies in response to specific acts of pollution. See generally
People v. Fiorini, 143 Ill. 2d 318 (1991). The defendants conclude
that, because the water supply was found to be bacteriologically
safe for consumption, the trial court was without the authority to
issue an injunction under section 42(e) of the Act. The defendants
contend that, in issuing such an injunction, the trial court
improperly invaded the province of the Illinois Pollution Control
Board (the Board).
Section 18(a)(2) of the Act specifically prohibits any
individual from violating the regulations or standards adopted by
the Board pursuant to its authority under the Act. 415 ILCS
5/18(a)(2) (West 1994). Section 42(a) of the Act provides that any
person who violates any provision of th[e] Act or any regulation
adopted by the Board *** shall be liable to a civil penalty [] not
to exceed $50,000 for the violation and an additional civil penalty
[] not to exceed $10,000 for each day during which the violation
continues[.] 415 ILCS 5/42(a) (West 1994). Additionally, section
42(e) provides as follows:
(e) The State s Attorney of the county in which the
violation occurred, or the Attorney General, may, at the
request of the Agency or on his own motion, institute a civil
action for an injunction to restrain violations of this Act.
415 ILCS 5/42(e) (West 1994).
Our reading of these provisions leads us to conclude that the
State s Attorney and the Attorney General may institute a civil
action in the appropriate circuit court to restrain violations of
the Act. People v. Staunton Landfill, Inc., 245 Ill. App. 3d 757,
768 (1993). Indeed, the plain language of section 42(e) envisions
that the circuit court will issue an injunction to prevent
continuing violations of the Act. See Fiorini, 143 Ill. 2d at 346.
In the instant case, the State s Attorney of McHenry County
and the Attorney General instituted a civil action seeking to
enjoin McHenry Shores and Mathews from violating specific Board
regulations. As noted above, section 18(a)(2) provides that any
violation of the Board s regulations is also a violation of the
Act. 415 ILCS 5/18(a)(2) (West 1994). Therefore, provided that
the State has met its burden in proving that the defendants
violated the Board regulations described above, the trial court
acted within its authority under section 42(e) in issuing an
injunction. See Staunton Landfill, 245 Ill. App. 3d at 768.
Additionally, contrary to the defendants assertions, we do
not believe that the trial court is limited under section 42(e) to
imposing injunctions only in those cases where there have been
specific acts of pollution. Rather, our reading of the applicable
case law demonstrates that the trial court may enjoin the offender
from committing even technical violations of the Board s
regulations. See People v. Mika Timber Co., 221 Ill. App. 3d 192,
194 (1991) (State justified in seeking injunctive relief against
operator of a wood-treatment facility for violation of permit
requirements); People v. Keeven, 68 Ill. App. 3d 91, 97 (1979)
(State entitled to injunctive relief upon demonstrating that the
defendant had violated the Act by failing to secure the necessary
permit). For these reasons, we conclude that the trial court had
authority under section 42(e) to enjoin the defendants from
violating those Board regulations detailed above.
The defendants second argument on appeal is that the trial
court s refusal to shut down the water system was irreconcilably
inconsistent with its determination that the water failed to meet
the regulatory standards in terms of quality, cleanliness,
quantity, and mineral content. The defendants argue that, if the
water supply posed a real threat to human health, then the trial
court should have issued a temporary restraining order shutting
down McHenry Shores.
We believe that such an argument is without merit. As noted
by the State, the trial court could have reasonably concluded that
the public health risk posed by not having any water at all was
greater than the risk posed by consuming the water provided by
McHenry Shores. Although the water was often discolored, cloudy,
and had a foul odor, there was no evidence presented that the water
posed a direct health hazard beyond mere discomfort or
unpleasantness. Nor are we aware of any authority which prohibited
the trial court from limiting the scope of its injunction to
specific violations of the Act. For these reasons, we do not
believe that the trial court s findings were irreconcilably
inconsistent.
The defendants next argument on appeal is that the trial
court s finding that the water supplied by McHenry Shores was not
assuredly safe was against the manifest weight of the evidence.
As noted above, in imposing injunctive relief and civil penalties
as to count II of the State s complaint, the trial court found that
McHenry Shores had violated the Board s regulations by failing to
provide water that was assuredly safe in quality, clean, adequate
in quantity, and of satisfactory mineral characteristics for
ordinary domestic consumption. In support of their argument, the
defendants rely on Batt s testimony that the water supply was
bacteriologically safe for consumption.
It is well settled that the trial court's findings of fact
will not be disturbed unless they are clearly contrary to the
manifest weight of the evidence. Yale Development Co. v. Texaco,
Inc., 51 Ill. App. 3d 616, 619 (1977). A judgment is against the
manifest weight of the evidence when an opposite conclusion is
apparent, or when the findings appear to be unreasonable,
arbitrary, or not based on the evidence. Leonardi v. Loyola
University of Chicago, 168 Ill. 2d 83, 106 (1995). We will not
overturn a judgment merely because we disagree with it or because
we might have come to a different conclusion had we been the trier
of fact. Greene v. City of Chicago, 73 Ill. 2d 100, 110 (1978).
As to count II, the trial court specifically found that the
defendants had violated Board regulation 601.101. 35 Ill. Adm.
Code  601.101 (1994). The regulation provides as follows:
Owners and official custodians of a public water supply in
the State of Illinois shall provide pursuant to the
Environmental Protection Act [citation] *** , the Pollution
Control Board *** Rules, and the Safe Drinking Water Act
[citation] continuous operation and maintenance of public
water facilities so that the water shall be assuredly safe in
quality, clean, adequate in quantity, and of satisfactory
mineral characteristics for ordinary domestic consumption.
35 Ill. Adm. Code  601.101 (1994).
Contrary to the defendants assertions, this provision goes
beyond the mere requirement that the water be bacteriologically
safe for consumption. Rather, the water supply must be clean and
not cause offense to the user. See Farmer v. Stahl, Ill. Pollution
Control Bd. Op. 84-149 (March 14, 1986). In Farmer, the water
provided by a public water company had a strong chlorine odor and
a rusty color. Several residents also testified that the water was
fizzy and cloudy and that there were often periods of both low
and no water pressure. Although no chemical analysis of the water
was undertaken, it was nonetheless found to violate the
requirements of regulation 601.101. Farmer, Op. 84-149 at 6-7.
A review of the record in the instant case confirms the trial
court s conclusion that the defendants violated Board regulation
601.101 by failing to provide a public water system that was
assuredly safe in quality, clean, adequate in quantity, and of
satisfactory mineral characteristics for ordinary domestic
consumption (35 Ill. Adm. Code  601.101 (1994)). As detailed
above, numerous residents testified that the water supplied to them
by the defendants was discolored, ranging from yellow to red to
brown. Residents also testified that the water had a foul chlorine
odor and contained various types of particulate matter. One
resident produced a water sample that he drew from his kitchen tap
and described it as looking like iced tea.
The State also presented substantial evidence that the water
supplied by the defendants was not adequate in quantity. One
resident testified that she had had inadequate water pressure every
summer since 1990 and that, during the summer of 1995, she did not
have water on the second floor of her house for a period of three
days. Another resident testified that, shortly after moving into
the subdivision in 1994, he experienced an extreme drop in water
pressure to the point where he had almost no water at all. Several
other residents gave similar accounts of inadequate water pressure
or complete outages.
Based on such evidence, we agree with the trial court that the
State satisfied its burden of proving that the water provided by
McHenry Shores was in violation of Board regulation 601.101. We
therefore conclude that the trial court s findings were not
contrary to the manifest weight of the evidence.
As its final contention on appeal, the defendants argue that
the civil penalties assessed against them were excessive and
punitive in nature. As noted above, the trial court imposed a
total of $25,000 in civil penalties. The defendants note that this
amount represents 33% of its gross revenues and argue that such an
amount is punitive and not an aid to enforcement of the Act. The
defendants contend that the trial court s order will place McHenry
Shores in a position where it may need to seek bankruptcy
protection.
Section 42(a) of the Act permits the court to impose penalties
against those who violate any provision of the Act or any
regulation adopted by the Board. 415 ILCS 5/42(a) (West 1994). As
noted above, the trial court may impose a maximum penalty of
$50,000 for each violation of the Act, and an additional $10,000
penalty for each day that the violation continues. 415 ILCS
5/42(a) (West 1994). Although the potential penalties under
section 42(a) are large, the purpose of the penalties is primarily
to aid in the enforcement of the Act; punitive considerations are
secondary. Fiorini, 143 Ill. 2d at 349. The imposition of civil
penalties under section 42(a) is discretionary, and such a
determination will not be disturbed on review unless it is clearly
arbitrary, capricious or unreasonable. ESG Watts, Inc. v.
Pollution Control Board, 282 Ill. App. 3d 43, 50-51 (1996).
In determining the appropriate civil penalty to be imposed,
the trial court is authorized, but not limited, by section 42(h) to
consider the following factors:
(1) the duration and gravity of the violation;
(2) the presence or absence of due diligence on the part
of the violator in attempting to comply with requirements of
this Act and regulations thereunder or to secure relief
therefrom as provided by this Act;
(3) any economic benefits accrued by the violator because
of delay in compliance with requirements;
(4) the amount of monetary penalty which will serve to
deter further violations by the violator and to otherwise aid
in enhancing voluntary compliance with this Act by the
violator and other persons similarly subject to the Act; and
(5) the number, proximity in time, and gravity of
previously adjudicated violations of this Act by the
violator. 415 ILCS 5/42(h) (West 1994).
A review of the record in the instant case reveals that the
trial court considered the factors set forth in section 42(h). The
trial court specifically cited the first four factors as the basis
for its decision as to the final penalty amount. The court
particularly emphasized the fourth factor, concerning the need to
deter further violations by the violator and to otherwise aid in
enhancing voluntary compliance with the Act by the violator and
others. 415 ILCS 5/42(h)(4) (West 1994)). In view of the
defendants numerous and long-standing violations of the provisions
of the Act and the regulations of the Board, we believe the trial
court s determination of civil penalties to be well founded, and we
will not disturb its findings. See ESG Watts, Inc., 282 Ill. App.
3d at 52.
In so ruling, we note that there is no specific statutory
provision which limits the amount of civil penalties that can be
imposed to a certain percentage of the violator s gross annual
income. Rather, the trial court has the discretion to determine
the appropriate penalty in light of the factors enunciated above.
ESG Watts, Inc., 282 Ill. App. 3d at 52. As we have already noted,
we believe that the $25,000 penalty imposed by the trial court was
appropriate to aid in the enforcement of the Act and to deter the
defendants from future violations.
For the foregoing reasons, the judgment of the circuit court
of McHenry County is affirmed.
Affirmed.
BOWMAN and THOMAS, JJ., concur.