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Therefore, the Village has withdrawn its request for a variance for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