ILLINOIS POLLUTION CONTROL BOARD
January 11, 1995
VILLAGE OF
HOFFMAN ESTATES,
Petitioner,
v.
)
PCB 94—222
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
OPINION AND ORDER OF THE BOARD (by C.A. Manning):
This matter is before the Illinois Pollution Control Board
(Board) on an amended petition for variance filed by the Village
of Hoffman Estates (Village) on September 30, 1994.’ The Village
is seeking a variance from the Board’s public notification
requirements found at 35 Ill. Adm. Code 611.851 through 611.855
which are applicable to a public water supplier when its public
water supply is in noncompliance with a maximum contaminant level
(MCL).
The Board’s responsibility in this matter arises from the
Environmental Protection Act (Act) (415 ILCS 5/1 et seq. (1992).)
The Board is charged there with the responsibility of granting
variance from Board regulations whenever it is found that
immediate 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, among other
matters, with the responsibility of investigating each variance
petition and making a recommendation to the Board as to the
disposition of the petition. (415 ILCS 5/37(a).)
The Agency recommends that the Board deny the Village’s
variance petition. No public hearing in this matter has been
held. The Village waived a hearing, and the Board received no
requests to hold a hearing.
For the reasons set forth below, the Board denies the
Village’s petition for variance; accordingly, this matter will be
dismissed.
1The
Village originally filed its petition on
August 16,
1994. However on
September 1, 1994, the Board found the petition deficient and directed that an
amended petition be filed within 45 days of the Board’s order.
2
PROCEDURAL AND FACTUAL
BACKGROUND
This case involves the Village of Hoffman Estates which is a
municipal corporation of approximately 50,000 people. The
Village owns and operates a public water supply and is a member
of the Joint Action Water Agency (JAWA). As a public water
supplier, the Village is required to collect water samples for
bacteriological testing in monthly sampling periods. From
February 21, 1994 through March 27, 1994 the Village collected 55
water samples. It is undisputed that of these 55 samples, four
samples were total coliform positive, and as such the Village was
in noncompliance with the MCL for coliform bacteria.
(~
35
Ill. Adm. Code 611.325.)
Upon receipt of the laboratory results showing the four
positive samples, the Village took one “resample” for each of the
positive four samples. According to the Village, it contacted
the Agency and was told that only one resample was required2.
(Am. Pet. at 2.) The resamples tested negative for coliform and
therefore because the Village was following an older version of
the Board’s rule, the Village believed that it was under no duty
to give public notice of a coliform violation3.
There are no facts in the record before us that the Village
took any measures to “invalidate” the positive samples as it
could have done had the total coliform samples tested positive
due to improper sampling procedures. (~g~35 Ill. Adin. Code
Section 611.523.) Thus we can assume the Agency had no evidence
that would allow it to determine whether the total coliform
positive samples were from anything other than total coliform
being present in the public water supply.
Accordingly, on April 25, 1994, the Agency sent a “Notice of
Violation” letter (Pet. Exh. “A”) to the Village notifying the
Village that it had exceeded the coliforin MCL and that the
Village had failed to submit to the Agency the required number of
2According to the Agency, none of its employees recalls a conversation
wherein the Agency instructed the Village to take only one resample at each
source of the positive total coliform samples. (Agency Rec. at 6.) The
Agency urges that even if such a conversation took place, the Board’s rules
establish minimum standards, and any good faith efforts that fall below the
Board requirements still constitute violation of the rules. (Agency Rec. at
4.) Had the Village properly resampled, the Village would not be in violation
of the resampling procedures of 35 Ill. Adm. Code 611.522, and would not now
be seeking a permanent variance from the public notice requirements.
3mere is no statement in the record from the Village indicating the
rules upon which it was relying. We note however, that the current primary
drinking water standards found at 35 Ill. Adin. Code Part 611 have been effect
since 1989.
3
repeat samples within 24 hours of the exceedences. The letter
informed the Village that it was under a regulatory requirement
to take three resamples for each positive sample: one at the
source, one upstream and one downstream.
(~
35 Ill. Adm. Code
611.522.) The letter also informed the Village that it was under
three public notice requirements: (1) that the violations of the
MCL must be published in a newspaper within 14 days of the
sampling period (in this case, by approximately April 10, 1994);
(2) that the Village must also publicly notice the MCL violation
by direct mail to the public water supply customers within 45
days of the sampling period (by approximately May 11, 1994); and
(3) that the Village is required to give public notice of its
failure to properly take repeat samples within 90 days of the
sampling period. (Pet. Exh. “A”.) It is these three public
notice requirements from which the Village is seeking a variance
before the Board. The notice also informed the Village that
failure to make the public notices, and failure to provide copies
of the notice to the Agency, are violations of both state and
federal law, and may result in an enforcement action.
(~~)
In response to the Agency’s “Notice of Violation” letter,
the Village on June 13, 1994 sent a letter to the Agency
requesting a waiver from the direct mail notification requirement
only. (Pet. Exh. “B”.) The Village expressed concern that “mail
notice will unduly alarm citizens who have a high level of
confidence in “Lake Michigan water”.
(~~)
The Village admitted
to the exceedences but, without evidence, attributed the
exceedences to contaminated sampling bottles rather than coliform
being present in the public water supply. The Village notified
the Agency that it had conducted an investigation of the positive
coliform samples and determined that there were no ill health
effects, and that the resamples the Village did retake were
negative. The Village further admitted that it failed to follow
the regulatory—required “resampling” procedures, but that the
Village’sOn
Julyfailure26, 1994,to
dotheso
Agencywas
in gooddeniedfaith.the
Village’s(~,j4 request to
waive direct mail public notice since the Village had not first
satisfied the requirement to give newspaper public notice. (~g
Pet. Exh. “C”.) The Agency further stated that it did have the
power to give the public notice under the regulations, but that
public notices made by the public water supplier itself are more
favorable.
(~.)
The Agency restated, as it did in the April
25, 1994 letter, that failure to make the public notices and
4Though the letter from the Village states it is seeking a “waiver”
rather than a “special exception
permit”, in light of
the primary drinking
water standard regulations, we assume that any relief from the public notice
requirements would have granted by the Agency pursuant to the “special
exception permit” provisions in 35 Ill. Adm. Code 611.851(a) (2).
4
forward copies of the notice to the Agency is a violation of
federal and state law. (Id.)
Accordingly, the Village filed the instant petition for
variance seeking relief from all of the public notification
requirements set forth in 35 Ill. Adm. Code 611.851 through
611.855. To date, the Village has given no notice of any kind to
its public water supply customers.
On October 28, 1994, the Illinois Environmental Protection
Agency (Agency) filed its recommendation in this matter. The
recommendation asks that the Board deny the requested relief and
as one of the basis, the Agency argues that granting a variance
would be inconsistent with federal law.
RELIEF REQUESTED
The Village argues that it would be appropriate for the
Board to grant a variance from the public notice requirements
found in 35 Ill. Adm. Code 611.851 through 611.855 because in
these circumstances public notice would be an arbitrary and
unreasonable hardship. The Village is asking that the Board
permanently excuse it from the regulatory duty to notify its
customers that the Village’s public water supply was in
noncompliance with the MCL for coliform from February 21, 1994
through March 27, 1994. The Village is also asking that the
Board permanently excuse the Village from giving public notice
that the Village failed to comply with the regulatorily-required
resampling procedures when routine total coliform samples are
found to be positive5.
According to the Village, public notice is an arbitrary and
unreasonable hardship because there was no real violation. The
Village believes that the noncompliance occurred as a result of
the contaminated sample bottles. The Village is concerned that
any notice to the public would confuse the public, cause
unnecessary alarm to the public and create a permanent loss of
public confidence in the Village of Hoffman Estates’ public water
supply. (Am. Pet, at 3.)
5section 611.851 contains the requirements governing newspaper and mail
public notice when there is noncompliance with an MCL. Section 611.852
contains the requirements for newspaper public notice when a public water
supplier fails to perform monitoring as required by Part 611, or when improper
testing procedures occur. Section 611.853 provides that public notice must be
given to new customers when they come on—line. Section 611.854 controls the
content of the public notice and Section 611.855 directs that the notice must
contain information about the health effects of the
violation.
5
AGENCY RECOMMENDATION
In response, the Agency argues that granting a variance from
the public notice requirements would be improper in this case.
The Agency argues that the Village has not provided a sufficient
compliance plan and it has not demonstrated that ultimate
compliance with the public notice requirements would cause an
unreasonable or arbitrary hardship. The Agency also argues that
a variance in this case would jeopardize Illinois’ drinking water
program because a variance from the public notice requirements
would be inconsistent, if not less stringent than federal law.
DECISION
An essential feature of an environmental variance under
Illinois law is that it is, by its nature, a temporary reprieve
from compliance with regulations. (Monsanto Co. v. Pollution
Control Bo~ (1977), 67 Ill.2d 276, 367 N.E.2d 684.) The
reprieve consists of a shield from enforcement for the period
during which the variance holder is actively engaged in achieving
compliance. A successful petitioner for a variance must not only
be actively pursuing compliance, but must also demonstrate that
coming into immediate compliance would constitute an arbitrary or
unreasonable hardship. (415 ILCS 5/35(a) (1994); Willowbrook
Motel v. Pollution Control Board (1st Dist. 1977), 135 Ill.App.3d
343, 481 N.E.2d 1032.)
The request for variance here before the Board fails to
conform to this model in several essential respects. Most
critically, the request is for a time period fully in the past,
rather than for a current and future time. The effect of grant
of variance under this circumstance would be to provide a shield
against enforcement for acts entirely in the past. However, it
is well settled that such after—the—fact grants of variance are
inconsistent with the intent of the Act and are not to be used to
legitimize past failure to comply with rules and regulations.
(E.g., Modine Mfg. v. IEPA (December 22, 1987), PCB 85—154, 84
PCB 739.)
Moreover, the instant variance request fails to conform with
the elements necessary for grant of variance in that it asks that
compliance be excused rather than delayed. The Village requests
that it be granted variance from past failure to give notice as
required by law. Each of these notices was required by a date
certain, with each date certain now past. It is accordingly no
longer possible for the Village to come into compliance with the
regulations from which variance is sought.
The Board has sympathy with the Village and the position in
which it has found itself. Further, the Board has no reason to
question that the Village acted in other than good faith.
Nevertheless, the Board finds that remedy that the Village
6
proposes, which is grant of variance, is inappropriate, and
accordingly, beyond the ability of this Board to grant.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The request for variance filed by the Village of Hoffman
Estates on September 30, 1994 is denied. The docket in this
matter is hereby closed.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act, (415 ILCS
5/41 (1992)), 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 Iii. Adm. Code 101.246, Motion for Reconsideration.)
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the aboy,~opinion and order was
adopted on the
//CZ~
day of
________________,
1995, by a vote
of ~
.
//
Dorothy M,/Gunn,
A-
Clerk
Illinois ollution Control Board