NO. 4-96-0663
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
MARGARET GERNAND, HAROLD V. PERRY, ) Administrative Review
NORMA J. PERRY, SHIRLEY ACTON and ) of Illinois Commerce
PATSY A. WYMAN and LOREN L. WYMAN, ) Commission
as Trustees of the Loren L. Wyman ) No. 95-0237
Revocable Trust, )
Petitioners-Appellants, )
v. )
ILLINOIS COMMERCE COMMISSION, )
Respondent-Appellee, )
and )
INTER-STATE WATER COMPANY, now )
CONSUMERS ILLINOIS WATER COMPANY, )
Respondent-Appellee. )
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 necessary to
determine the effect of pumping water from the aquifer and the
resulting impact on existing wells. In addition, King questioned
the viability of operating permanent wells on CSX's right-of-way.
Harold Perry and Gordon Alexander, both of whom are
active in the Vermilion County agricultural community, testified in
opposition to the petition. Alexander indicated his belief that
water from abandoned strip mine pits located west of Danville and
in close proximity to the company's pumping station could be
utilized as an additional source of water for Lake Vermilion.
Alexander also indicated that other acceptable treatment methods
such as ion exchange, reverse osmosis, and charcoal filtration
should be considered. Finally, Alexander expressed his belief that
a great potential existed for area wells to be adversely affected
to the point of going dry, or having their output severely
curtailed if massive amounts of groundwater were removed from the
area. He based this belief upon his understanding that the area
upon which the wells are sought to be placed are located upon only
a finger of the Mahomet aquifer, making the amount of water
available smaller than other areas located over the main channel of
the aquifer.
Perry joined in Alexander's concerns that massive amounts
of ground-water removal from their private property would cause
their wells to dry up or severely curtail their water supply. He
testified that the CSX sites were sufficient to allow all the
requisite testing without recourse to the landowners' private
property. He was unconvinced of the nitrate problems with Lake
Vermilion since there had been no nitrate alerts for 3½ years at
that time. He believed the CIWC wanted to expand its water supply
at the expense of local residents' wells to allow it to serve
additional customers and not to correct nitrate problems with Lake
Vermilion.
Brett Carney, an employee of Hanson Engineers, Inc.
(Hanson), and a certified professional geologist and
hydrogeologist, also testified on behalf of the landowners. He
testified that he was unable to determine, from a review of the
materials submitted by CIWC in support of the petition, whether
testing on the landowners' properties was a "necessity" or whether
the CSX sites alone would be sufficient to provide CIWC with
adequate information concerning the nature of the aquifer. He
indicated the CSX sites were in close proximity to the sites
requested in the petition and "could yield valuable information."
Carney also indicated the company could place piezometers along
county roads to use in conjunction with the CSX sites to determine
if the CSX sites alone would provide enough information to map and
evaluate the aquifer.
Carney testified since the details of the CIWC
investigation were unclear, it was difficult for him to evaluate
the feasibility of the project. He concluded that given the lack
of specific details for the investigation proposed by CIWC, he saw
no reason why its present plan could not be implemented on the
existing CSX railroad sites.
Deborah Ramsey, a senior chemical engineer/process
engineer for Hanson, testified for the landowners. She said she
reviewed a document entitled "February 1989 Update for Proposed
Water Treatment Facilities for Inter-State Water Company by Himmel
and Oliver." The 1989 report evaluates three water treatment
alternatives for nitrate removal: reverse osmosis, ion exchange,
and biological treatment. She said the report rejects biological
treatment due to start-up time frame problems and finds ion
exchange more cost effective than reverse osmosis. The report
discusses dilution options, finding the development of a well field
more cost effective than the construction of a second reservoir.
Following Ramsey's review of the 1989 report and the testimony of
Cummings, she concluded that while the company's conclusion may be
correct, the information provided is not sufficient for the
formation of an opinion as to whether the well-field proposal is
the most cost-effective alternative.
Ramsey went on to testify that, in her opinion, some type
of watershed management program should be instituted. She said
this would entail working with the local agricultural community in
the reservoir watershed to try to reduce nitrate runoff into Lake
Vermilion. She said the farmers would be encouraged to reduce the
amount of fertilizer applied, change the method of application, and
create grassed waterways and drainageways to reduce the levels of
nitrate and runoff.
Cummings testified in rebuttal, responding to the
testimony of the witnesses for the landowners. He stated: (1)
although the information from the CSX sites is helpful, it is not
enough to make an adequate evaluation of the groundwater resources
in the area; (2) one such site was not usable for a well, and none
would make good places for permanent wells; (3) abandoned strip
mine pits would be inadequate sources of additional water because
of uncertain volume and poor quality due to mineral buildup from
the mine tailings, as well as possible high nitrate levels from the
runoff of nearby farmlands, or even possible septic systems
discharging into the open pit; (4) the ion-exchange process had
been tested at the Danville plant and problems arose concerning the
disposal of the backwash at a reasonable cost as the Danville
Sanitary District had refused to accept this substance; and (5) the
engineering aspect of incorporating the procedure into the existing
system was uncertain.
Cummings noted that CIWC had not yet determined the
option it would select to consider the nitrate problem, but the
results from the testing, which is subject to this case, would be
very helpful in making the decision. Cummings further pointed out
that CIWC was in no position to implement a watershed management
program to control the nitrate level in Lake Vermilion, as it
controlled less than 1% of the watershed and had no governmental
power over the watershed, which extends into Indiana. He also
noted that the installation of piezometers along county roads could
interfere unduly with the normal flow of traffic. He responded to
Perry's concern about damage to the local water supply by pointing
out that the test wells would not pump out a large quantity of
water, and that the avoidance of imposing dry wells on the
landowners was a primary reason for testing before permanent wells
were sunk.
Jansen testified in rebuttal that railroad right-of-ways
would be bad places for any kind of wells because of the limited
space available and the danger of an entire well field being
contaminated by a chemical spill from a railroad car near a well.
The rebuttal testimony of King supported that of Cummings and
Jansen in regard to the lack of feasibility of using only railroad
right-of-ways for test wells.
After the landowners refused CIWC permission to enter
their land for the purpose of doing the proposed testing, CIWC
filed a petition in the circuit court of Vermilion County seeking
an order authorizing entry of the land for test purposes pursuant
to section 8-510 of the Act (220 ILCS 5/8-510 (West 1994)), which
provides that utilities with a certificate of convenience and
necessity may enter the lands of others under certain conditions
"[f]or the purpose of making land surveys." 220 ILCS 5/8-10 (West
1994). The circuit court of Vermilion County denied that request,
ruling that the testing procedures requested here go beyond the
making of a survey.
The instant proceeding has been brought to obtain
authority to enter landowners' property for a temporary easement to
drill the test wells and perform the testing procedures. CIWC
sought the power to condemn under section 8-509 of the Act and a
certificate of convenience and necessity to construct the test
wells and other fixtures necessary to do the testing procedures,
pursuant to section 8-406 of the Act. Section 8-509 of the Act
states:
"When necessary for the construction of
any alterations, additions, extensions or
improvements ordered or authorized under
Section 8-503 or 12-218 of this Act, any
public utility may enter upon, take or damage
private property in the manner provided for by
the law of eminent domain." 220 ILCS 5/8-509
(West 1994).
Accordingly, CIWC sought authority under section 8-503 of
the Act to construct the temporary test wells and other facilities
necessary for the testing. Section 8-503 of the Act provides:
"Whenever the Commission, after a
hearing, shall find that additions,
extensions, repairs or improvements to, or
changes in, the existing plant, equipment,
apparatus, facilities or other physical
property of any public utility or of any two
or more public utilities are necessary and
ought reasonably to be made or that a new
structure or structures is or are necessary
and should be erected, to promote the security
or convenience of its employees or the public,
or in any other way to secure adequate service
or facilities, the Commission shall make and
serve an order authorizing or directing that
such additions, extensions, repairs,
improvements or changes be made, or such
structure or structures be erected at the
location, in the manner and within the time
specified in said order." 220 ILCS 5/8-503
Section 8-406 of the Act, which provides for a
certificate of convenience and necessity, states, in part, that the
Commission may issue a certificate to a public utility to begin the
construction of any new plant, equipment, property or facility upon
a showing by the utility of the following relevant factors: (1)
the proposed construction is necessary to provide adequate,
reliable and efficient service to its customers and is the least-
cost means of satisfying the service needs of its customers; (2)
the utility is capable of efficiently managing and supervising the
construction process and has taken sufficient action to ensure
adequate and efficient construction and supervision thereof; and
(3) the utility is capable of financing the proposed construction
without significant adverse financial consequences for the utility
or its customers.
The landowners' theory that the Commission had no
authority under sections 8-509, 8-503, and 8-406 of the Act to
grant the relief requested begins with the contention that no
statutory authority for a utility to drill for water was cited
before the Commission. The short answer to that assertion comes
from sections 11-138-1 and 11-138-2 of the Illinois Municipal Code
(Code) (65 ILCS 5/11-138-1, 11-138-2 (West 1994)). Section 11-138-
1 of the Code permits a water company such as CIWC to "locate its
source of supply at, or change its source of supply to, a point not
more than 20 miles beyond the corporate limits of the municipality"
served and "take and damage private property" to do so. 65 ILCS
5/11-138-1 (West 1994).
Section 11-138-2 of the Code authorizes proceeding in
eminent domain to do so. The landowners assert that we should not
consider these statutory provisions because they were not presented
to the Commission. However, we conclude that the rule that permits
this court to search the record to affirm, regardless of whether it
was relied upon by the trial court and regardless of whether the
reason given was correct (Material Service Corp. v. Department of
Revenue, 98 Ill. 2d 382, 387, 457 N.E.2d 9, 12 (1983)), is
applicable to this administrative review.
More importantly, the landowners contend that sections
8-406, 8-503, and 8-509 of the Act seem to refer only to takings of
property for permanent facilities and not for temporary easements
for testing purposes as sought here. They call attention to the
reference to "alterations, additions, extensions or improvements"
described in section 8-509 of the Act and the "extensions, repairs
or improvements to, or changes in, the existing plant, equipment,
apparatus, facilities or other physical property" referred to in
section 8-503 of the Act. The landowners also point to somewhat
similar language in section 8-406 of the Act.
The landowners note a rule that any statutory authority
which purports to permit agents of utilities to enter private land
is in derogation of the landowners' common law rights should be
strictly construed. Diamond v. General Telephone Co., 211 Ill.
App. 3d 37, 49, 569 N.E.2d 1263, 1270 (1991). The landowners
conclude that even a moderately strict construction of sections
8-406, 8-503, and 8-509 of the Act negates any statutory authority
for the ruling provided by CIWC. They maintain the Commission
should have dismissed CIWC's petition for lack of authority to
proceed.
We recognize the lack of any clear express authority
under the Act for the Commission to give a utility authority to
condemn for temporary easements to make tests to determine whether
permanent interests in property should later be condemned.
However, in interpreting the somewhat uncertain legislation, we
give some deference to the Commission, which is the agency charged
with its administration. See Illinois Consolidated Telephone Co.
v. Illinois Commerce Comm'n, 95 Ill. 2d 142, 152, 447 N.E.2d 295,
300 (1983); Adams v. Jewel Cos., 63 Ill. 2d 336, 344-45, 348 N.E.2d
161, 165 (1976). The Commission had no difficulty in holding that
it had statutory authority to issue a certificate of convenience
and necessity for authorizing condemnation for the proposed
temporary testing project.
We also note that in Wilcox v. Illinois Commerce Comm'n,
23 Ill. 2d 432, 439-40, 178 N.E.2d 873, 877 (1961), the Supreme
Court of Illinois upheld a Commission's order issued under "An Act
concerning the use of eminent domain ***" (Gas Act) (Ill. Rev.
Stat. 1959, ch. 104, par. 104 et seq.) permitting condemnation for
underground gas storage even though the project was on an
"experimental basis." Nothing in that legislation specifically
authorized condemnation for temporary purposes. Most condemnations
authorized under the Act are undoubtedly for easements for electric
power lines or gas and water mains. The need to condemn to run
test wells in regard to underground sources of water would not
arise as often and may well explain the lack of precedent here.
The testing in regard to the gas storage dome in Wilcox is similar
to the testing proposed here.
Considering the deference we give to the Commission, the
construction the supreme court gave to the Gas Act and the common
sense of permitting condemnation to test the quality of a water
source before making permanent facilities, we hold that the
temporary testing wells and the installation of the piezometers and
other testing devices testified about are proposed "additions"
within the meaning of sections 8-503 and 8-509 of the Act, which
could be found to be "necessary" for CIWC to "secure adequate
service" to its customers by enabling CIWC to determine the best
method to reduce the nitrate content of its water. In much the
same manner, these wells and other testing devices could be found
to be facilities necessary for efficient low-cost service, which
CIWC was capable of constructing and which was economically
feasible, all within the meaning of section 8-406 of the Act. The
Commission properly denied landowners' motion to dismiss CIWC's
petition for failure to set forth grounds for relief.
We can properly overturn the Commission's decision for
lack of proof only if that decision is not supported by substantial
evidence. See Business & Professional People for the Public
Interest v. Illinois Commerce Comm'n, 136 Ill. 2d 192, 204, 555
N.E.2d 693, 698 (1989); People ex rel. Hartigan v. Illinois
Commerce Comm'n, 117 Ill. 2d 120, 142, 510 N.E.2d 865, 874 (1987).
CIWC's proof here clearly meets that standard of substance. The
Commission could find from the testing that CIWC was not likely to
be able to put into operation a scheme whereby the runoff into Lake
Vermilion would have a reduced content of nitrates and that the use
of water in abandoned open mine pits would not be favorable. The
Commission could also properly find that the use of chemicals to
remove nitrates in the water supply lacked feasibility.
From time to time, both before the Commission and here,
the landowners' argument has confused the question of whether
drilling of test wells to determine the feasibility of removing
water from the vicinity of their land with the question of whether
the permanent wells should ultimately be drilled. The evidence
permitted the Commission to conclude that no great damage was
likely to result to the landowners from the drilling of the
temporary wells, and that these wells would enhance the ability to
make a subsequent decision as to whether permanent wells should be
placed there. We can understand the concern of the landowners as
to preserving their water supply, but if a subsequent condemnation
suit is brought to condemn for permanent wells, they will have more
information as to the danger involved than is now available.
In regard to both the right to condemn and the issuance
of the certificate of convenience and necessity, the necessity for
the testing is a significant issue. In that regard, the
"necessity" does not require that element in issue be
"indispensably requisite" but only needful and useful to the
public. Eagle Bus Lines, Inc. v. Illinois Commerce Comm'n, 3 Ill.
2d 66, 78, 119 N.E.2d 915, 922 (1954). The information presented
as to the feasibility of effectively obtaining water to dilute the
nitrates in the utility's major source of supply meets that
requirement.
More specifically, section 8-406 of the Act requires that
for issuance of a certificate of convenience and necessity, the
Commission must not only find the necessity for the construction,
but also that it is the "least-cost means of satisfying the service
needs of its customers," and that the utility is capable of
managing the construction and financially able to do so. 220 ILCS
5/8-406(b) (West 1994). The landowners contend that proof of the
"least-cost means" was not made here. No evidence was presented as
to the cost of the temporary wells or the other testing devices.
However, the Commission could conclude from the evidence that the
proposed method of adding well water to the main source of supply
appeared to be the only feasible method of proceeding and was,
thus, the "least-cost means."
The landowners argue that the Commission's order violates
the state and federal constitutional provisions against the public
taking of private property. U.S. Const., amend. V; Ill. Const.
1970, art. I, §15. Their position is apparently based upon a
theory that the order entitling CIWC to seek easements was, in
fact, an order permitting seeking of a permanent taking of the land
on which the wells were located, along with a permanent easement of
access to the wells for piping therefrom. Such is simply not so.
Further proceedings before the Commission would be required before
proceedings under eminent domain could be started for the purpose
of obtaining permanent rights. The information sought to be gained
by the granting of a temporary easement may be such as to be
protection to the landowners. The case of Hendler v. United
States, 952 F.2d 1364 (Fed. Cir. 1991), relied upon by the
landowners in contending the Commission's order is in violation of
their constitutional rights, is authority for the legal theory that
the temporary easements sought here are a taking requiring just
compensation to the landowners. That just compensation would be
granted to the landowners in the subsequent eminent domain
proceeding ordered by the Commission.
Evidence presented at the hearing before the Commission
indicated that agents of CIWC had conducted some seismic testing on
the edge of roads by property of the landowners in order to obtain
data relevant to the availability of underground water in those
spots. We are aware of the interest of landowners in one-half of
the road adjacent to their land. See Thompson v. Maloney, 199 Ill.
276, 285-90, 65 N.E. 236, 238-40 (1902). Landowners do not present
a clear argument as to whatever relief they may be entitled for
whatever trespassing might have resulted. We know of no rule which
would require suppression of any information obtained thereby, and
the instant proceeding is not one in which any compensation could
be awarded for any tort that might have been committed.
Accordingly, we affirm the Commission's order on review.
Affirmed.
STEIGMANN, P.J., and KNECHT, J., concur.