ILLINOIS POLLUTION CONTROL BOARD
December 7,
1995
CITY OF ALTANONT,
)
)
Petitioner,
)
V.
)
PCB 96—65
)
(Variance
—
ILLINOIS ENVIRONMENTAL
)
Public Water Supply)
PROTECTION AGENCY,
)
)
Respondent.
OPINION
AND
ORDER OF THE BOARD
(by M. McFawn):
This matter is before the Board on the September 18,
1995
variance petition filed by the City of Altamont (Altamont).
Altamont seeks relief from 35 Ill. Adm. Code 602.106(a),
“Restricted Status”, to the extent the rule relates to violation
by Altamont’s public water supply of the 0.10 mg/l standard for
total trihalomethanes
(TTHM).
(35 Ill.
Adm. Code 602.106(a).)
The standard for TTHN is set forth at 35
Ill. Adm. Code
611.310(c).
Altamont requests a variance until January
1,
1997
for continued operation of its water supply and the removal of
its water supply from the Illinois Environmental Protection
Agency’s Restricted Status1List for TTHM.
Altamont waived
hearing and none was held.
The Board’s responsibility in this matter arises from the
Environmental Protection Act
(Act)
(415 ILCS 5/1 et
seq.
(1994).)
The Board is charged there with responsibility of
granting a variance from Board regulations whenever it is found
that compliance with the regulations would impose an arbitrary or
unreasonable hardship upon the petitioner.
(415 ILCS 5/35(a).)
The Illinois Environmental Protection Agency
(Agency)
is required
to appear in hearings on variance petitions.
(415 ILCS 5/4(f).)
The Agency is also charged with the responsibility of
investigating each variance petition and making a recommendation
to the Board as to the dispositon of the petition.
(415 ILCS
5/37(a).)
On October 23,
1995, the Agency filed its variance
recommendation.
The Agency recommends that a varia~cefrom 35
Ill. Adm. Code 602.105(a),
“Standards for Issuance”
and 35
Iii.
Altamont’s petition for
variance
shall hereinafter be referred to as
(Pet.
at
_.);
the Illinois Environmental
Protection Agency’s recommendation
shall be referred to as
(Ag.
Rec.
at
.).
2 While the City of Altamont does not specifically request
a variance
from 35
Ill.
Adm. Code 602.105(a),
“Standards of Issuance”, the Agency
2
Adm. Code 602.106(a),
“Restricted Status” be granted to Altamont,
but only as they relate to the requirements for TTHM.
The Agency
recommends the variance be granted for eighteen months, subject
to certain conditions.
Altamont did not file a reply to the
Agency ‘s recommendation.
For the following reasons,
the Board finds that Altamont has
presented adequate proof that immediate compliance with the
Board’s regulations for “Standards for Issuance” and “Restricted
Status” would result
in the imposition of an arbitrary or
unreasonable hardship.
Accordingly, the variance is granted,
subject to conditions set forth in the attached order.
BACKGROUND
The City of Altamont is located in Effingham County,
Illinois.
Altamont provides potable water for the residents and
commercial and industrial customers within the corporate
boundaries of the City of Altamont.
(Pet.
at 3.)
Altamont owns
and operates its own water treatment plant and water distribution
system which serves approximately 2,636 users.
(Pet.
at 3.)
Water is provided to all residential, commercial and industrial
users,
as needed,
and the customers are charged for the water
service as established by city ordinance.
(Pet.
at 3.)
Residential customers account for 90
of the total water flow and
commercial customers account for 10.
(Pet. at 3.)
The Agency first advised Altamont teat it exceeded the
maximum contaminate level
(MCL)
for TTHM
on February 24,
1992.
(Ag. Rec. at 5.)
Altamont’s water supply showed a level of 0.135
mg/L for TTHM,
thus exceeding the 0.10 mg/L standard.
(Ag.
Rec.
at 5.)
The Agency had taken an annual composite of four
consecutive quarterly samples from 1991 to 1992 and found that in
three out of the four samples, Altamont was over the .10 NCL for
TTHM.
(Pet.
at 3, Exhibit A; Ag. Rec.
at 5.)
As a result, the
Agency notified Altamont that it would be placed on restricted
status on March
3,
1992.
(Pet.
at
4; Ag. Rec. at 5.)
Altamont requests the variance to extend its water
distribution system to serve new users
in two developing
subdivisions, South Towers Acres and Camp Ground Court,
located
within the corporate boundaries of the City of Altamont.
(Pet.
at
3,
4.)
South Towers Acres Subdivision has fourteen lots
designed for single—family residences.
Two of these lots have
already been sold to third parties without notice or knowledge
that Altamont is and was on the Agency’s Restricted Status List.
recommends that
a variance
from this section also be granted in order for
Altamont to pursue extensions to its water mains.
(Ag.
Rec.
at
1.)
Total trihalomethanes
(TTHMS)
are organic chemicals consisting of one
carbon atom and three halogen atoms.
These are formed when free chlorine
reacts with naturally occurring compounds which are generally produced by
decaying vegetation.
(Ag.
Rec.
at 8.)
3
(Pet.
at 4.)
Six of these lots are subject to sale pending the
outcome of this variance request.
(Pet. at 4.)
Camp Ground
Court Subdivision has fifteen lots designed for single—family
residences.
Two of these lots ar~subject to sale pending the
outcome of this variance request.
(Pet.
at 4.)
If the requested variance
is granted, Altamont foresees
continuing to operate,
expand,
improve and extend its water
distribution system into South Towers Acres Subdivision and Camp
Ground Court Subdivision.
(Pet.
at 5-6.)
REGULATORY
FRAMEWORK
The
instant
variance
request
concerns
two
features
of
the
Board’s
public
water
supply
regulations:
“Standards
for
Issuance” and “Restricted Status”, which are found at
35
Ill.
Adm. Code 602.105 and 602.106.
In pertinent part they read:
Section 602.105
Standards for Issuance
(a)
The Agency shall not grant any construction or
operating permit required by this part unless the
applicant submits adequate proof that the public
water supply will be constructed, modified or
operated so as not to cause a violation of the
Environmental Protection Act
(415 ILCS
5
(1994).)(Act),
or of this chapter.
Section 602.106
Restricted Status
(a)
Restricted status shall be defined as the Agency
determination pursuant to Section 39(a)
of the Act
and Section 602.105, that a public water supply
facility may no longer be issued a construction
permit without causing a violation of the Act or
this chapter.
The developers of the South Towers Acres Subdivision are Mr. Jim Baker
and Mr. Gene Haker. The developer of Camp Ground Court Subdivision
is Mr.
W.T.
Frederkthg.
(Pet.
at 4.)
Mr. Baker and Mr. Raker installed a water main in
the subdivision that was just short of connection to the Altamont public water
supply.
(Ag.
Rec.
at
4.)
The developers of both subdivisions proceeded to
develop the subdivisions allegedly without notice or knowledge that Altamont
is and was on the Agency’s Restricted Status List.
(Pet.
at 4.)
The Agency’s
inspections disclosed that this water main was installed without
a
construction permit.
According to the Agency’s recommendation, the Agency
intends to initiate formal enforcement against Mr.
Baker and Mr. Raker for
violation of Section 602.101 of Subtitle
F,
the Public Water Supply
regulations
promulgated by the Board.
However, the Agency believes that the
City of Altarnont had no involvement
in the apparent construction and
installation of this water main without the required construction permit and
is therefore supporting a grant of the variance from the Restricted Status
List.
(Ag.
Rec.
at 4.)
4
The cumulative effect of these regulations
is to provide
that community water supply systems are prohibited from extending
water service, by virtue of not being able to obtain the
requisite permits, unless and until their water meets all of the
standards for finished water supplies.
Altamont requests this
variance in order to extend its water service while it continues
to pursue compliance with the TTHM standard,
as opposed to
extending service only after attaining compliance.
In determining whether any variance is to be granted, the
Act requires the Board to determine whether a petitioner has
presented adequate proof that immediate compliance with the Board
regulations at issue would impose an arbitrary or unreasonable
hardship.
(415 ILCS 5/35(a) (1994).)
Furthermore, the burden is
on the petitioner to show that its claimed hardship outweighs the
public interest in attaining compliance with regulations designed
to protect the public.
(Willowbrook Motel
v. Pollution Control
Board
(1985),
135 111. App.3d
343,
481 N.E.2d
1032.)
Only with
such a showing can the claimed hardship rise to the level of
arbitrary unreasonable hardship.
A further feature of a variance is that it is, by its
nature,
a temporary reprieve from compliance with the Board’s
regulations, and compliance is to be sought regardless of the
hardship which the task of eventual compliance presents an
individual polluter.
(Monsanto Co.
V.
IPCB
(1977),
67 Ill.2d
276,
367 N.E.2d
684.)
Accordingly, except in certain special
circumstances,
a variance petitioner is required,
as a condition
to grant of variance, to commit to a plan which is reasonably
calculated to achieve compliance within the term of the variance.
A grant of variance from “Standards for Issuance” and
“Restricted Status” neither absolves a petitioner from compliance
with the drinking water standards at issue,
nor insulates a
petitioner from possible enforcement action brought for violation
of those standards.
The underlying standards remain applicable
to the petitioner regardless of whether variance is granted or
denied.
COMPLIANCE
PLAN
In striving to achieve compliance with Agency regulations
and to protect the health of its water customers, Altamont has:
(1) installed a destratifier to improve raw water quality,
(2)
improved water quality and minimized the impact of Atrazine and
other synthetic organic chemicals by disallowing farming
operations in the tributary watershed and
(3)
installed ammonia
feed equipment to institute the chlorination process to minimize
TTHM formation in the distribution system.
(Pet.
at 6.)
Due to
inadequate water storage capability, Altamont also uses pre—
5
chlorination protocols in the water treatment process to assure
proper disinfection of drinking water.
(Pet.
at 6.)
Altamont
is expending $1.8 million to update its water
treatment plant and water distribution system that will be
operational in December,
1995.
(Pet.
at
6.)
The updated system
will include a granular activated carbon filter media and a
powdered activated carbon feed system to aid in the removal of
organic precursors associated with TTHM formation.
(Pet.
at 6.)
Further, the new water treatment plant will provide additional
onsite water storage in order to improve the disinfection process
and provide 5—log Giardia inactivation.
(Pet. at 7.)
The new onsite water storage facilities will enable Altamont
to discontinue using pre-chlorination protocols.
As a result of
discontinuing
pre-chlorination, both parties believe TTHM levels
should be reduced.
(Pet. at
7;
Ag. Rec.
at
6.)
These
improvements will allow Altainont to achieve compliance with the
TTHN
standard.
(Pet.
at
7; Ag.
Rec. at 6.)
The Agency states that Altamont has not previously sought a
variance from regulations pertaining to
TTHN.
(Ag. Rec.
at 4.)
Additionally, Altamont is not presently on restricted status for
exceeding any other contaminant.
(Ag. Rec.
at
7.)
HARDSHIP
Altamont
contends
that
failure
to
obtain
a
variance
would
disallow new water main extensions and halt construction of new
subdivision homes.
(Pet. at
5.)
The City
of Altamont has
experienced and continues to experience population growth and
remains committed to prov~deeverything possible to its
residential subdivisions.
(Pet.
at 5.)
Altamont
is expending
$1.8 million to update its facility by December,
1995,
in order
to achieve compliance with the MCL for TTHM.
Further, Altamont
argues that it would be a hardship to remain on the Agency’s
Restricted Status List while demonstrating compliance over the
course of the coming year.
The Agency agrees that denial of a variance would result in
an arbitrary or unreasonable hardship because denial of that
variance would require the Agency to continue to deny
construction and operating permits for new water main extensions
until compliance is achieved.
(Ag. Rec.
at
10.)
Imposition of
restricted status means that no new water main extensions
could
According to Altamont, pre—chlorination of raw water forms the highest
possible TTRM concentration in the treated water.
Altamont argues that pre—
chlorination caused above—normal TTHM levels
in the treated water.
(Pet.
at
3.)
6 Altamont argues that both the developers
and third parties had no
notice or knowledge that Altaniont is and was on the Agency’s Restricted Status
List.
(Pet. at 4.)
6
be issued permits by the Agency, and economic growth dependent on
those water main extensions could not occur.
(Ag. Rec. at 10.)
ENVIRONMENTAL
IMPACT
Although Altamont has not undertaken a formal assessment of
the environmental impact of its requested variance,
it contends
that the granting of the variance for the limited time requested
will not cause any significant harm to the environment or to the
people served by potential water main extensions.
(Pet.
at 5.)
Altamont has established a comprehensive plan to come into
compliance with TTHN standards and to correct the TTHM levels by
January
1,
1997.
The Agency also maintains that a variance from “Standards
for Issuance” and “Restricted Status”, and any requisite increase
in the allowable MCL for TTHN should not cause a significant
health risk for the limited population served by new water main
extensions for the time period of the recommended variance.
(Ag.
Rec. at 10.)
The Agency further contends that the grant of the
requested variance would impose no significant injury to the
public or to the environment for the limited time period of the
requested variance.
(Ag. Rec.
at
10.)
CONSISTENCY WITH FEDERAL LAW
The Agency states that Altamont may be granted a variance
consistent with the requirements of the Safe Drinking Water Act
(42 U.S.C.
300(f)),
and
U.S.
EPA
Drinking Water Regulations
(40
CFR Part 141
(1993)) because the requested relief would not
represent a variance from national primary drinking water
standards.
(Ag.
Rec.
at 11.) Specifically, granting a variance
from the effects of restricted status means that only the state’s
criteria for variances are relevant.
(Ag.
Rec. at 11.)
The Agency states that Altamont remains subject to the
possibility of federal enforcement for violations of the MCL for
TTHM.
(Ag. Rec. at 11.)
The Agency notes, however, that because
of continuing progress being made towards compliance,
US EPA
would probably accept the issuance of variance, should the Board
so decide.
(Ag.
Rec. at 12.)
TERMS
OF
VARIANCE
Altamont requests that the term of variance be until January
1,
1997, after the collection and analysis of four quarterly
samples in 1996.
(Pet.
at
7.)
The Agency, however, recommends
that the variance be granted for eighteen months from the date
the variance is granted.
(Ag. Rec.
at 13.)
This will give
Altamont time to monitor its water and make any needed
adjustments or take any further action as required by the Agency.
The additional time will also give Altamont four quarters for
testing its samples to determine whether Altamont has come into
compliance with the MCL for TTHN.
(Ag. Rec.
at 13.)
7
CONCLUSION
Based on the record, the Board finds that immediate
compliance with the “Standards for Issuance” and “Restricted
Status” regulations would impose an arbitrary or unreasonable
hardship on Altamont.
The Board also agrees that granting this
variance does not pose a significant health risk to those persons
served by any new water main extensions, particularly since
compliance is to be achieved during the period of the variance.
Consistent
with
the
Agency’s
recommendation, we will grant
Altamont
a
variance
which
will
expire
June
7,
1997.
This
amount
of time will allow Altamont to complete the comprehensive water
quality improvement plan in December 1995, perform additional
sampling and make any additional changes to achieve compliance
during the term of the variance.
The Board’s action is solely a grant of variance from
“Standards of Issuance” and “Restricted Status”.
Altamont is not
granted variance from compliance with the TTHM standard and
Altamont does not stand insulated against enforcement for
violation
of
these
staandards.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The City of Altamont is hereby granted a variance from
35 Ill. Adm. Code 602.105(a),
“Standards for Issuance”,
and
602.106(b),
“Restricted Status”, as they relate to the standards
for total trihalomethanes
(TTF~M) in drinking water as set forth
in 35 Ill. Adm. Code 611.310(c),
subject to the following
conditions:
1.
The variance terminates on June 7,
1997.
2.
In consultation with the Illinois Environmental Protection
Agency
(Agency), Altamont shall continue its sampling
program to determine,
as accurately as possible, the level
of TTHM in its public water supply.Until this variance
terminates, Altamont shall collect and analyze quarterly
samples of its water from its distribution system at
locations approved by the Agency,
in accordance with 35 Ill.
Adm. Code 611.680.
Analysis shall be done by a laboratory
certified by the State of Illinois for TTHN analysis.
The
results of the analyses shall be reported within 30 days of
receipt of the most recent result to:
8
Illinois Environmental Protection Agency
Compliance Assurance Section
Division of Public Water Supplies
2200 Churchill Road
Springfield,
Illinois
62794—9276
The
running
average
of
the
most
recent
four
quarterly
sample
results
shall
be
reported
to
the above address
within
30 days of receipt of the most recent quarterly
sample.
3.
If
Altamont
takes
additional
samples
within any quarter,
said
additional
samples
shall
be
reported
within
30 days to
the
Agency
per
the
above
requirements.
The
average
of
all
results
taken
in
a
quarter
shall then be used to calculate
the
running
average
of
four
quarterly sampling results.
4.
Pursuant
to
35 Ill.
Adm. Code
611.851(b),
in
its
first set
of
water
bills
or
within
three
months
after
the date
of this
order,
whichever
occurs
first,
and
every
three
months
thereafter, Altamont
will
send
to
each
user
of
its
public
water supply a written notice to the effect that Altamont
has been granted by the Pollution Control Board a variance
from 35 Ill.
Adm. Code 602.105(a)
“Standards of Issuance”
and 35 111. Adm. Code 602.106(a)
“Restricted Status”,
as
they relate to the TTHM standard.
5.
If results or analyses performed on samples pursuant to
35 Ill. Adm. Code 611.685 show a violation of the
maximum contaminant level
(MCL)
for TTHN, then public
notice shall be made pursuant to 35
Ill. Adm. Code
611.851(b).
6.
Until
full
compliance
is achieved, Altamont shall take
all reasonable measures with its existing equipment to
minimize the level of TTHM in its finished drinking
water.
7.
Altamont shall provide written progress reports to the
Agency at the address below every six months concerning
steps taken to comply with this order.
Progress reports
shall quote each paragraph and immediately below each
paragraph state what steps have been taken to comply with
each
paragraph:
Illinois
Environmental
Protection
Agency
Division
of
Public
Water
Supply
Field Operations Section
2200
Churchill
Road
P.
0. Box 19276
Springfield,
Illinois 62794—9276
IT IS SO ORDERED.
9
If
the
City of Altamont chooses to accept this variance
subject to the above order, within 45 days of the date of this
order, Altamont shall execute and forward to:
Stephen
C.
Ewart
Division
of
Legal
Counsel
Illinois
Environmental
Protection
Agency
2200
Churchill
Road,
P.O.
Box
19276
Springfield,
Illinois
62794—9276
a
Certificate
of
Acceptance
and
agreement
to
be
bound
to
all
terms and
conditions
of
the
granted
variance.
The
45—day
period
shall be held in abeyance during any period that this matter is
appealed.
Failure to execute and forward the Certificate within
45-days renders this variance void.
The form of the Certificate
is as follows:
I(We),
hereby
accept
and
agree
to
be
bound
by
all
terms
and
conditions
of
the
order
of
the
Pollution
Control
Board
in
PCB
96-65,
dated
December
7,
1995.
Petitioner
Authorized Agent
Title
Date
Section
41
of
the
Environmental
Protection
Act,
(415
ILCS
5/41
(1994)),
provides
for
appeal
of
final
orders
of
the
Board
within 35 days of the date of service of this order.
The Rules
of
the
Supreme
Court
of
Illinois
establish
filing
requirements.
(See
also
35
Ill.
Adm.
Code
101.246,
Motion
for
Reconsideration.)
I,
Dorothy
M.
Gunn,
Clerk
of the Illinois Pollution Control
Board,
hereby
certify
that
the
above
opinion
and
order
was
adopted
on
the
7~/~iday
of
~
,
1995,
by a vote
of
.
