ILLINOIS POLLUTION CONTROL BOARD
    November 4, 1993
    VILLAGE
    OF GRANTFORX,
    )
    )
    Petitioner,
    )
    v.
    )
    PCB 93—147
    )
    (Variance)
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    OPINION AND ORDER OF THE BOARD (by J. Theodore Meyer):
    This matter is before the Board on the August 10, 1993
    filing by petitioner Village of Grantfork (Village) of a petition
    for variance. The Village seeks relief from 35 Iii. Adm. Code
    602.105(a), “Standards for Issuance”, and 602.106(a), “Restricted
    Status”, to the extent those rules relate to violation by the
    Village’s public water supply of the 0.10 mg/i standard for total
    trihalomethanes (TTHM).’ That standard is set forth at 35 Iii.
    Adm. Code. 611
    310
    (C).
    The Village requests a variance until
    February 28, 1996.
    On September 7, 1993, the Illinois Environmental Protection
    Agency (Agency) filed its variance recommendation. The Agency
    recommends that the variance be granted for thirty months,
    subject to certain conditions. On October 1, 1993, the Village
    filed its amended petition, in response to the Board’s previous
    order requesting more information. The Village waived hearing
    and none has been held.
    For the following reasons, the Board finds that the Village
    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 Village is a municipality located in Madison County,
    1
    The Village originally also requested a variance from the
    restricted status rules as they involve atrazine. (Pet. at 1.)
    However, in its recommendation, the Agency noted that the Village
    is not in violation of the atrazine standard. (Agency Rec. at 2.)
    Therefore, the Village has withdrawn its request for a variance for
    atrazine. (Amended Pet. at 1.)

    2
    Illinois. (Pet. at 1.) The Village provides potable water for
    residential, commercial, and industrial customers in the
    Village’s water district. The total population served by the
    water district is approximately 800 persons. (Pet. at 3.)
    Residential customers account for 95 of the total flow. (Pet.
    at 3.)
    The Village owns and operates the distribution system, but
    purchases treated water from the City of Highland. The Village
    has no treatment facilities of its own. (Pet. at 4.) The City
    of Highland was previously on restricted status for TTHM, but was
    removed from that list on May 23, 1993, after installing
    additional treatment modifications. (Agency Rec. at 5.) If the
    requested variance is granted, the Village anticipates extending
    its water mains to serve Prairie Road and Silver Lake View
    subdivision. (Pet. at 4.)
    The Village was first advised, by the Agency, that its water
    supply exceed the permissible level of TTHM on March 3, 1992. At
    that time, the Village’s water supply showed a level of 0
    13 mg/i
    for TTHN, thus exceeding the 0.10 mg/i standard. The Agency
    notified the Village on March 9, 1992 that the Village would be
    placed on restricted status. (Agency Rec. at 4-5.)
    REGULATORY
    FRAMEWORK
    The instant variance request concerns two features of the
    Board’s public water supply regulations: “Standards for Issuance”
    and “Restricted Status”. These features are found at 35 Ill.
    Adm. Code 602.105 and 602.106, which in pertinent part 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 (Ill. Rev. Stat. 1989, ch. 111
    ½,
    pars.
    1001 et seq.) (Act), or of this Chapter.
    Section 602.106
    Restricted Status
    b) The Agency shall publish and make available to the
    public, at intervals of not more than six months, a
    comprehensive and up-to—date list of supplies subject
    to restrictive status and the reasons why.
    The principal effect of these regulations is to provide that
    public 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

    3
    for finished water supplies. It is the Village’s request that it
    be allowed to extend its water service while it pursues
    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) (1992).) Furthermore, the burden is
    upon 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 (1st Dist. 1977), 135 Ill.App.3d 343, 481 N.E.2d.
    1032). Only with such showing can the claimed hardship rise to
    the level of arbitrary or 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 (Monsanto Co. v. IPCB (1977), 67 Iil.2d 276, 367
    N.E.2d 684), and compliance is to be sought regardless of the
    hardship which the task of eventual compliance presents an
    individual polluter
    (u.).
    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” does
    n~
    absolve a petitioner from compliance
    with the drinking water standards at issue, nor does it insulate
    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
    The Village notes that it does not have a treatment
    facility, and that it purchases treated water from the City of
    Highland. The Village states that rather than retreating water
    that has already been treated by Highland, it is more cost
    effective for Highland to reduce the concentration of TTHM. The
    Village notes that Highland has reduced that concentration, and
    that the Village’s most recent test results are significantly
    improved over the results from July 1992.2 The Village states
    2
    The Village’s water supply showed a level of 0.135 mg/L
    in July 1993, while the July 1992 test results showed a TTHM level
    of 0.235 mg/L. (Pet. at 5.)

    4
    that Highland was recently removed from restricted status for
    TTHM, but notes that because TTHH levels increase with contact
    time in distribution mains, the Village must continue to test for
    TTHM. (Pet. at 5.)
    The Agency states that its records indicate that the Village
    has not previously sought a variance from regulations pertaining
    to TTHM. (Agency Rec. at 4)
    HARDSHIP
    The Village contends that the only methods for reducing
    TTHMS would be construction of the Village’s own treatment plant.
    The Village maintains that the cost for construction of a plant
    which would meet Agency guidelines is approximately $700,000, and
    that these costs are prohibitive. (Pet. at 5.) The Village
    notes that without obtaining a variance, construction within its
    service area could not resume. The Village argues that this
    would negatively impact prospective home purchasers as well as
    developers and the Village’s tax base. The Village contends that
    there is no significant risk of environmental harm or harm to the
    public health for the limited period of the requested variance,
    and that continuation of restricted status for TTHM would be an
    arbitrary or unreasonable hardship on the Village, its taxpayers,
    prospective developers, and persons and industries served by
    those developers. (Pet. at 7.)
    The Agency agrees that denial of the requested variance
    would result in an arbitrary or unreasonable hardship. (Agency
    Rec. at 9.)
    ENVIRONMENTAL
    IMPACT
    Although
    the Village has not undertaken a formal assessment
    of the environmental effects 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.) The Agency also maintains that an incremental~
    increase in the allowable concentration of TTHM should not cause
    a significant health risk for the limited population served by
    new watermain extensions for the time period of the requested
    variance. (Agency Rec. at 7—8.)
    CONSISTENCY WITH FEDERAL LAW
    The Agency states that the requested variance may be granted
    consistent with the Safe Drinking Water Act (42 U.S.C. 300(f))
    and corresponding regulations (40 CFR Part 141) because the
    variance does not grant relief from national primary drinking
    water regulations. Therefore, the Agency contends that there is
    no risk to Illinois of loss of primacy because there is no

    5
    federal variance to be presented to USEPA. (Agency Rec. at 10-
    11.)
    CONCLUSION
    Based upon 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 the Village. The Board also agrees with the parties
    that granting this variance does not pose a significant health
    risk to those persons served by any new water main extensions,
    assuming that compliance is timely forthcoming. The Board notes
    its concern over the lack of specific information on the projects
    to which watermains are to be extended. The Village did not
    furnish any information on the numbers of persons to be served by
    those extensions, or even if those projects are prospective, or
    tore definite. However, because the Village’s only apparent
    compliance option is construction of a $700,000 treatment plant
    to remedy a small exceedence of the allowable concentration3, and
    because the Village has provided at least minimal information on
    the new watermains, we will grant the variance.
    The variance is granted until February 28, 1996, or until
    analysis pursuant to 35 Ill. Adju. Code 605.104(a) shows
    compliance with the TTHM standard, whichever occurs first.
    Today’s action is solely a grant of variance from standards
    of issuance and restricted status. The Village is not granted
    variance from compliance with the TTHM standard, nor does today’s
    action insulate the Village in any manner against enforcement for
    violation of these standards.
    This opinion constitutes the Board’s findings of fact and
    conclusions of law in this matter.
    ORDER
    The Village of Grantfork 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 (TTHM) in drinking water as set forth
    in 35 Ill. Adm. Code 611.310(c), subject to the following
    conditions:
    1. Variance shall terminate on the earliest of the following
    As noted above, the Village’s most recent running average
    shows an annual average of 0.106 mg/L of TTHM, while the allowable
    limit is 0.10 mg/L. (Agency Rec. at 5.)

    6
    dates:
    a. February 28, 1996; or
    b. When analysis pursuant to 35 Ill. Adm. Code 611.684, or
    any analytical standards then in effect, shows
    compliance with standards for TTHN in drinking water
    then in effect.
    2. In consultation wit.h the Illinois Environmental Protection
    Agency (Agency), the Village shall continue its sampling
    program to determine as accurately as possible the. level of
    TTHM in its public water supply. Until this variance
    terminates, the Village 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 TTHM analysis. The
    results of the analyses shall be reported within 30 days of
    receipt of the most recent result to:
    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. Pursuant to 35 Ill. Adm. Code 611.851(b) (formerly 35 Ill.
    Adm. Code 606.201), 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, the Village
    will send to each user of its public water supply a written
    notice to the effect that the Village has been granted by
    the Pollution Control Board a variance from 35 Ill. Adm.
    Code 602.105(a) “Standards of Issuance” and 35 Ill. Adm.
    Code 602.106(a) “Restricted Status”, as they relate to the
    TTHN standard.
    4. If results or analyses performed on samples pursuant to 35
    Ill. Adm. Code 611.685 show a violation of the MCL, then
    public notice shall be made pursuant to 35 Ill. Adm. Code
    611.851(b).
    5. Until full compliance is achieved, the Village shall take
    all reasonable measures with its existing equipment to
    minimize the level of TTHN in its finished drinking water.
    6. The Village shall provide written progress reports to the

    7
    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
    7. Within forty-five days of the date of this order, the
    Village shall execute and forward to:
    Stephen C. Ewart
    Division of Legal Counsel
    Illinois Environmental Protection Agency
    P0. Box 19276
    2200 Churchill Road
    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 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 93-147, dated
    November 4, 1993.
    Petitioner
    Authorized Agent
    Title

    8
    Date
    IT IS SO ORDERED.
    Section 41 of the Environmental Protection Act (415 ILCS
    5/41 (1992)) provides for the appeal of final Board orders. The
    Rules of the Supreme Court of Illinois establish filing
    requirements. (See also 35 Ill.Adm.Code 101.246 “Motions for
    Reconsideration”.)
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certi~y~thatthe above o inion and order was
    adopted on the
    ~
    day of
    _________________,
    1993, by
    a vote of
    ___________
    ~
    ~Dorothy M./~unn, Clerk
    Illinois !~llutionControl Board

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