2

the Board to allow it to continue to comply with the old turbidity standards while it makes the

proposed improvements to the facility.

On Aug. 30, 2002, Carlyle filed an open waiver of decision deadline. On September 9,

2002, the Illinois Environmental Protection Agency (Agency) filed a recommendation in

response to the petition. On October 18, 2002, Carlyle withdrew its request for a public hearing

that it is entitled to pursuant to 35 Ill. Adm. Code 104.204(n). The Agency recommends that the

variance be granted, subject to certain conditions, until April 1, 2003. Rec. at 2.

In a variance proceeding, the burden is on the petitioner to present proof that immediate

compliance with Board regulations would cause an arbitrary or unreasonable hardship, which

outweighs public interest in compliance with the regulations. Willowbrook Motel v. PCB, 135

Ill. App. 3d 343, 349, 350, 481 N.E.2d 1032, 1036, 1037 (1st Dist. 1977). Pursuant to Section

35(a) of the Act, the Board finds that Carlyle has presented adequate proof that immediate

compliance with the Board regulations for which relief is being requested would impose such a

hardship. 415 ILCS 5/35(a) (2000).

The Board grants Carlyle’s requested variance, subject to certain conditions

recommended by the Agency. The variance will be granted as of November 7, 2002, until April

1, 2003, for the reasons set forth below.

BACKGROUND

Carlyle received a letter from the Agency on December 18, 2001, notifying Carlyle that it

was subject to Sections 611.743, 611.744, and 611.745. Pet. at 9; rec. at 11. These sections

apply to public water supply systems that serve 10,000 or more people and require these systems

to maintain a turbidity level of 0.3 nephelometric turbidity units

2

(NTU) 95% of the time, with

compliance dates of December 31, 2001 and January 1, 2002. Prior to December 18, Carlyle

believed it served fewer than 10,000 people, and therefore, was instead subject to Section

611.250(a)(1) of the Board’s regulations. Pet. at 9. Section 611.250 requires systems to

maintain a 0.5 NTU turbidity level 95% of the time.

After December 31, 2001, Carlyle could no longer remain in compliance with the newly

applicable requirements and filed its variance request seven months later. Carlyle has not

petitioned for, nor received, any prior variance or other relief concerning the water treatment

plant at issue.

2

A nephelometric turbidity unit is a measuring unit of turbidity in water determined by passing

light through a sample of water and measuring the amount of light that is deflected. A device

called a nephelometer is used to measure turbidity.

---

 

3

The Facility

Carlyle owns and operates a water treatment plant (plant) located on 151 Jefferson in

Carlyle.

3

Pet. at 4. The city provides drinking water to 12,209 residents within the city limits

and surrounding communities.

4

  

Id

. The plant has been in existence since 1889 and currently

employs five full-time operators. Pet. at 5.

The Carlyle plant is a conventional surface water filtration plant. The plant draws raw

water from the Kaskaskia River, which is immediately east of the plant and immediately

downstream of Carlyle Lake. Pet. at 6. Agricultural runoff from livestock farms and animal

wildlife areas compose part of the water draining into the Kaskaskia River and Carlyle Lake.

Id

.

The plant uses a static rapid mixer, four upflow ballasted bed clarifiers, four dual media

gravity filters utilizing anthracite over sand and support gravel, a clear well, and high service

pumps. Chemical treatment includes: (1) the addition of potassium permanganate and powdered

activated carbon for the control of organic compounds associated with objectionable taste and

odor and total organic carbon; (2) Hyper

+

Ion 1090 and Cat Floc TL for coagulation; (3)

hydrofluosilicic acid to provide fluoride ion to the drinking water as required by state statutes for

dental hygiene; (4) chlorine gas for disinfection; and (5) ammonia to deliver a predominantly

monochloramine residual to the distribution system.

Id.

 

Carlyle has been issued various construction and operating permits in the past for making

modifications to the plant. The facility also discharges process wastewater to the Carlyle

Wastewater Treatment Plant. The wastewater treatment plant has a National Pollutant Discharge

Elimination System (NPDES) permit. Granting the variance at issue today would not impact

these permits. Pet. at 5.

Relevant Pollution Control Equipment in Use

The point at which the Carlyle plant reduces turbidity is at the four 140 square foot dual

media gravity filters. The flow of water decreases in turbidity as it passes through the filter

media consisting of anthracite, sand and support gravel. Such media is currently 30 inches deep

at each filter. Pet. Exhibit A. Filtered water turbidity is monitored at each filter automatically

and at a point representing the combined filter effluent while the plant is in operation. Turbidity

is measured using Great Lakes Turbidimeters and the results are recorded on a spreadsheet. Pet.

at 7.

3

Illinois Environmental Protection Agency Facility #0270300.

4

The Carlyle plant provides or sells water to the following areas: City of Carlyle, Clinton

County East Public Water District, Village of Keyesport, FMC Water Company, Village of

Breckemeyer, Hoffman Rural Water District, Carlyle Southwest Water Public District, and the

Carlyle North Water Company, Inc.

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4

Carlyle is currently unable to continually document the turbidity levels at each filter

because the existing equipment (nephelometers) is unreliable and needs to be replaced.

Additionally, the chart recorders in place cannot provide turbidity readings at 15-minute

intervals as required by Section 611.744.

Id.

Cryptosporidium

 

The Illinois Department of Public Health (IDPH) has no record of any outbreak of

Cryptosporidium

in any Illinois public water in the last 25 years since

Cryptosporidium

was

discovered. Rec. Exhibit A. Furthermore, the IDPH has no knowledge of any outbreak of

waterborne disease at the Carlyle water treatment plant. Pet. at 10.

APPLICABLE REGULATIONS

Carlyle seeks a variance from 35 Ill. Adm. Code 611.743, 611.744, and 611.745:

35 Ill. Adm. Code 611.743 states in pertinent part:

(a) Conventional filtration treatment or direct filtration.

(1) For a supplier using conventional or direct filtration, the turbidity

level of representative samples of a system’s filtered water must be

less than or equal to 0.3 NTU in at least 95 percent of the

measurements taken each month, measured as specified in Sections

611.531 and 611.533.

Section 611.744 states in full:

Section 611.744 Filtration Sampling Requirements

(a) Monitoring requirements for systems using filtration treatment. In

addition to monitoring required by Sections 611.531 and 611.533, a

[public water supply] PWS subject to the requirements of this Subpart that

provides conventional filtration treatment or direct filtration shall conduct

continuous monitoring of turbidity for each individual filter using an

approved method in section 611.531(a) and shall calibrate turbidimeters

using the procedure specified by the manufacturer. Systems shall record

the results of individual filter monitoring every 15 minutes.

(b) If there is a failure in the continuous monitoring equipment, the system

shall conduct grab sampling every four hours in lieu of continuous

monitoring, until the turbidimeter is back online. A system shall repair the

equipment within a maximum of five working days after failure.

Section 611.745 imposes reporting and recordkeeping requirements regarding the data obtained

by the turbidimeters and states in pertinent part:

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5

In addition to the reporting and recordkeeping requirements in Sections 611.261

and 611.262, a PWS supplier subject to the requirements of this Subpart that

provides conventional filtration treatment or direct filtration must report monthly

to the Agency the information [relating to turbidity measurements and individual

filter monitoring specified in subsection (a), (b), and (c) of this section] . . . [.]

COMPLIANCE PLAN

Carlyle has outlined a detailed compliance plan. In order to achieve compliance, Carlyle

must install accurate recording nephelometers on each individual filter, and on the combined

effluent, with the Supervisory Controls and Data Acquisition (“SCADA”) system modified for

continuous monitoring and 15 minute reporting of the filtered water turbidity. Pet. at 10.

Additionally, Carlyle will improve filtering efficiency to meet IESWTR standards by replacing

the two filter backwash water supply valves with slower closing valves. Id. Carlyle will also

reprogram the filter control PLC to maximize filter performance and purge air trapped in the

filters that has been causing short circuits and high turbidity. Finally, Carlyle will replace the

dual sand and anthracite filter media in all four filters that was lost due to the rapidly opening

valves. Id. Carlyle will replace the media in filters 2, 3 and 4 as it was. Carlyle also agreed that

it will replace the media in filter 1 with 12 inches of filter sand and 15 inches of granular

activated carbon (GAC) in accordance with Agency recommendations (see 35 Ill. Adm. Code

602.115), as opposed to 9 inches of filter sand and 18 inches of GAC as found in petitioner’s

construction permit. Rec. at 7. It would take about 90 days for the Agency permit review and

approximately 9 months for Carlyle to obtain and install the requisite equipment. Carlyle

estimates the project cost at $36,600. Pet. at 12; rec. at 8. The cost estimates Carlyle provides

actually add up to a total of $38,600.

THE REQUESTED VARIANCE AND AGENCY RECOMMENDATION

Carlyle’s petition seeks relief from Sections 611.743, 611.744, and 611.745 of the

Board’s rules. 35 Ill. Admin. Code 611.743, 611.744, 611.745. Pet. at 15-16. Section 611.743

requires a turbidity level of less than or equal to 0.3 NTU 95% of the time, compared to 0.5 NTU

95% of the time before this rule was amended. Section 611.744 requires continuous monitoring

of turbidity for each individual filter, and Section 611.745 requires that results collected with the

previous two sections are reported monthly and that the records are kept for at least three years.

Carlyle seeks a variance consistent with the current Section 611.250(a)(1), to which it

was subject prior to January 1, 2002. Carlyle states it will continue to comply with the 0.5 NTU

turbidity level found therein. Pet. at 14.

Carlyle seeks the variance beginning January 1, 2002 and ending March 1, 2003. The

Agency recommends the variance be granted until April 1, 2003, in order to give the Agency 90

days to review Carlyle’s construction permit application. Rec. at 2.

 

The Agency recommends that the Board grant the requested variance but also require

Carlyle to comply with the following additional conditions while it is updating its facility: (1)

Carlyle must take all reasonable measures with existing equipment to minimize the level of

turbidity in its finished water until it reaches full compliance; (2) Carlyle must produce finished

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6

water that meets the new 0.3 NTU turbidity level 45% of the time in accordance with the

analytical and sampling requirements found at 35 Ill. Adm. Code 611.531 and 35 Ill. Adm. Code

611.533; (3) Carlyle must comply with the monitoring and recordkeeping requirements in 35 Ill.

Adm. Code 611.745(c)(1), which require Carlyle to contact the Agency by the end of the next

business day anytime the turbidity exceeds 1 NTU; (4) Carlyle must replace the filter media in

filter 1 with 12 inches of filter sand and 15 inches of GAC, rather than 9 inches of filter sand and

18 inches of GAC; and (5) Carlyle must provide written progress reports to the Agency’s

Division of Public Water Supplies, Field Operations Section, the first of which is due 90 days

after the grant of the variance. Rec. at 14-15.

HARDSHIP

Carlyle argues that the amount of hardship resulting from a denial of the requested

variance outweighs any injury to the public or environment should the Board grant this variance.

In its consideration of a variance, the Board is required, pursuant to Section 35(a) of the Act, to

determine whether the petitioner has presented adequate proof that it would suffer an arbitrary or

unreasonable hardship if required to comply with the Board's regulation at issue. 415 ILCS

5/35(a) (2000). In order to comply with the Board’s 0.3 NTU turbidity requirement at 35 Ill.

Adm. Code 611.743, Carlyle must improve filter efficiency by replacing the two backwash feed

valves; replacing the filter media; and modifying the filter control cycle to include backwash

bumping. Rec. at 6.

To meet the monitoring and recordkeeping requirements in Sections 611.744, and

611.745 of the Board’s regulations, Carlyle must install new continuous turbidity monitors on

each individual filter, with the SCADA system modified for continuous monitoring and 15-

minute reporting. Rec. at 7. The costs of making the above improvements will cost Carlyle an

estimated $39000. Rec. at 8.

ENVIRONMENTAL IMPACT

When deciding to grant or deny a variance petition, the Board is required to balance the

petitioner’s hardship in complying with Board regulations against the impact that the requested

variance will have on human health and the environment. Monsanto Co. v. PCB, 67 Ill. 2d 276,

292, 367 N.E.2d 684, 691 (1977).

In guarding against microbial contamination of drinking water, the fewer the number of

particulates present in the water, the less statistical chance consumers have of contracting a

waterborne disease. Pet. at 13. The current IESWTR requires a 99% (2 log) removal rate of

Cryptosporidium

and automatically gives the 2 log removal credit to conventional treatment

plants with combined filter water turbidities of 0.30 NTU or less. If an individual ingests a

single viable

Cryptosporidium

oocyst, the individual has about a 0.5% chance of contracting

Cryptosporidiosis. Pet. at 13; 63 Fed. Reg. 69484.

There has been no recorded outbreak of

Cryptosporidium

in the past 25 years, and there

is no reported outbreak of any waterborne disease originating from the Carlyle plant. Thus, the

Agency believes continual compliance with the 0.5 NTU turbidity level required by 35 Ill. Adm.

---

 

7

Code 611.250(a)(1) during the life of the variance poses no significant injury to public health or

the environment. Rec. at 9-10.

CONTAMINANT RESPONSE PLAN

Carlyle has created a response plan should

Cryptosporidium

be detected in the City of

Carlyle’s treated water. First, the city would issue a system-wide “boil order” to inform

customers of the presence of contaminants. Pet. at 14. Carlyle would recommend that

customers boil water before ingestion. The “boil order” would remain effective until tests show

that microbial contaminants no longer exist in the treated water. Pet. at 14. Second, the City

would analyze the water treatment process to determine the cause of the contamination, followed

by remedial action to correct the process failure.

CONSISTENCY WITH FEDERAL LAW

Both Carlyle and the Agency state that granting the variance is consistent with federal

law. Pet. at 14; rec. at 13. In accordance with Section 35 of the Act, the Board may grant a

variance only where it is consistent with federal law. 415 ILCS 5/35 (2000). The Safe Drinking

Water Act provides that states may allow up to two years to comply with a maximum

contaminant level or treatment technique if additional time is necessary for capital

improvements. 42 U.S.C. 300g-I(b)(10); pet. at 16; rec. at 12-13. The modifications Carlyle

must make at the water treatment plant constitute a major improvement. Therefore, the Board

agrees that allowing Carlyle a variance while it purchases and installs new equipment and

software that will bring it into compliance with the IESWTR is consistent with federal law.

RETROACTIVE VARIANCES

Carlyle requests a variance beginning January 1, 2002, which would be a retroactive

variance. The Agency supports Carlyle’s retroactive variance request. The Board has

previously considered requests for retroactive variances, and as a general rule, absent unusual or

extraordinary circumstances, the Board renders a variance as effective on the date of the Board

order in which it grants the variance. LCN Closers, Inc. v. IEPA, PCB 89-27 (July 27, 1989). A

petitioner must file a petition for variance at least 120 days prior to that date it wishes the

variance to begin. 415 ILCS 5/38(a); 35 Ill. Adm. Code 104.232.

As a matter of law, a variance is not retroactive and the Board does not grant retroactive

variances unless such relief is specially justified. Deere & Co. v. IEPA, PCB 88-22 (Sept. 8,

1988). Also, the Board generally will not apply a variance retroactively if the petitioner’s

hardship is self-imposed as a result of the petitioner’s inactivity or faulty decision-making.

Marathon Oil Co. v. IEPA, PCB 95-150 (May 16, 1996).

Carlyle states it was not aware that the Carlyle Water Treatment Plant served more than

10,000 customers and, consequently, was unaware that the turbidity standards at issue were

applicable to its facility. The Carlyle water treatment plant actually serves 12,209 residents. Pet.

at 4. The Board finds that this oversight is a result of Carlyle’s inactivity and lack of diligence in

determining whether these new regulations were to affect Carlyle’s facility. Furthermore,

Carlyle did not request a provisional variance nor did Carlyle file the instant petition for variance

---

 

8

until seven months after it knew it must comply with the new regulations. The Board will not

grant Carlyle a retroactive variance as it requests, but will instead grant the variance effective as

of the date of this order.

DISCUSSION

The Board grants Carlyle a variance from Sections 611.743, 611.744, and 611.745 of the

Board rules. This variance will allow Carlyle to continue to comply with the current, less

stringent turbidity requirements while Carlyle updates its water treatment plant at a cost of

roughly $39,000 to achieve compliance with the lower turbidity requirements. Maintaining the

current turbidity levels will not increase the risk of

Cryptosporidium

, and should an outbreak

occur, Carlyle has a response plan in place that includes issuing a “boil order” to its customers, a

system-wide process analysis, and taking immediate action to remediate the process failure. The

Board, in agreement with the Agency, believes that granting the variance will pose no significant

threat to public health or the environment.

There is only one discrepancy between the petition for variance and the Agency’s

recommendation: the length of the variance. Carlyle requests that the variance be granted until

March 1, 2003, however, the Agency recommends the variance be granted until April 1, 2003, so

the Agency may have additional time to review Carlyle’s construction application. The Board

finds this extra time is reasonable. The term of this variance will be from November 7, 2002

through April 1, 2003.

This order does not relieve Carlyle of its duty to contact the Agency should turbidity

levels surpass 1 NTU or its responsibility to minimize the levels of turbidity in its finished

drinking water until it reaches full compliance.

CONCLUSION

The Board finds that if this variance petition is not granted, Carlyle will incur an arbitrary

or unreasonable hardship. Therefore, the Board grants Carlyle’s petition for variance, subject to

the conditions recommended by the Agency.

This constitutes the Board's findings of fact and conclusions of law.

ORDER

The City of Carlyle is hereby granted a variance from 35 Ill. Adm. Code 611.743,

611.744, and 611.745, from November 7, 2002 to April 1, 2003, subject to the following

conditions:

1. Carlyle must take all reasonable measures to minimize the level of turbidity in its

finished drinking water until full compliance is reached.

2. Carlyle’s finished drinking water must meet the turbidity level of 0.3 NTU set

forth in Section 611.743(a)(1) in at least 45 percent of the measurements taken

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9

each month as specified in 35 Ill. Adm. Code 611.531 and 35 Ill. Adm. Code

611.533.

3. Carlyle must continue to comply with 35 Ill. Adm. Code 611.250(a)(1), which

requires a 0.5 NTU turbidity level in at least 95 percent of the measurements

taken each month.

4. Carlyle must comply with the monitoring and recordkeeping requirements in 35

Ill. Code 611.745(c)(1).

5. Carlyle must replace the filter media in all four filters, and specifically in filter 1

with 12 inches of filter sand and 15 inches of GAC, rather than with nine inches

of filter and sand and 18 inches of GAC, as stated in Carlyle’s construction permit

application.

6. Every three months Carlyle must provide written progress reports to the Agency’s

Division of Public Water Supplies, Field Operations Section concerning steps

taken to replace the backwash feed valves; replace the filter media; modify the

filter control cycle; install continuous turbidity monitors and modify the SCADA

system. The first of these reports will be due 90 days after the grant of the

variance.

IT IS SO ORDERED.

If petitioner chooses to accept this variance, within 45 days after the date of this opinion

and order, petitioner shall execute and forward to:

Vera Herst

Division of Legal Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Mail Code #21

Springfield, IL 62794-9276

 

a certificate of acceptance and agreement to be bound by all the 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:

CERTIFICATE OF ACCEPTANCE

The City of Carlyle, having read the opinion and order of the Illinois Pollution Control

Board in PCB 03-11, dated November 7, 2002, accepts and agrees to be bound by all terms and

conditions found therein.

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10

____________________________________________________________

Petitioner

____________________________________________________________

By:

Authorized

Agent

____________________________________________________________

Title

____________________________________________________________

 

  

Date

Section 41(a) of the Environmental Protection Act provides that final Board orders may

be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the

order. 415 ILCS 5/41(a) (2000);

see also

35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.

Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois

Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The

Board’s procedural rules provide that motions for the Board to reconsider or modify its final

orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code

101.520;

see also

35 Ill. Adm. Code 101.902, 102.700, 102.702.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above opinion and order on November 7, 2002, by a vote of 6-0.

 

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board