ILLINOIS POLLUTION CONTROL BOARD
May 5,
1994
CITY OF STAUNTON,
)
)
Petitioner,
)
V.
)
PCB 94—95
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
OPINION
AND
ORDER OF THE BOARD
(by
E. Dunham):
This matter is before the Board on the March 23,
1994,
filing by petitioner, City of Staunton (Staunton),
of a petition
for variance.
Staunton seeks relief from 35 Ill.
Adm. Code
602.106(a),
“Restricted Status,” to the extent the rule relates
to violation by Staunton’s public water supply of the 0.10 mg/l
standard for total trihaloinethanes
(TTHM).
The standard for TTNM
is set forth at 35 Ill.
Adm. Code 611.310(c).
Staunton requests
a variance up to and including December 31,
1997.
Staunton
waived hearing and none was held.
On April 19,
1994, the Illinois Environmental Protection
Agency (Agency)
filed its variance recommendation.
The Agency
recommends that a variance from 35 Ill.
Adm. Code 602.105(a),
“Standards for Issuance” and 35 Ill.
Adm. Code 602.106(a)
“Restricted Status” be granted to Staunton, but only as they
relate to the requirements for TTHN.
The Agency recommends
a
grant of the variance for thirty months,
subject to certain
conditions.
Staunton did not file a reply to the Agency’s
recommendation.
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 therein with the responsibility to “grant
individual variances beyond the limitations prescribed in this
Act, whenever it is found upon presentation of adequate proof,
that compliance with any rule or regulation, requirement or order
of the Board would impose an arbitrary or unreasonable hardship.”
(415 ILCS 5/35(a)
(1992).)
More generally, the Board’s
responsibility in this matter is based on the system of checks
and balances integral to Illinois environmental governance: the
Board
is charged with the rulemaking and principal adjudicatory
While Staunton does not specifically request a variance from
the Standards of Issuance in
its petition,
a variance from this
section
is required for Staunton to pursue the extensions to its
water mains.
2
functions,
and the Agency is responsible for carrying out the
principal administrative duties.
Based on the record before the Board,
the Board finds that
Staunton 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
Staunton is located in Macoupin County and provides potable
water for the residents and commercial and industrial customers
in the City of Staunton, Prairietown Road Water District,
Reservoir Road Water District and Silvester Water District.
(Pet.
at 5.)
The total population served is approximately 5,000.
(Pet.
at 5.)
The petitioner owns and operates the water supply,
treatment facility and distribution system in the City of
Staunton.
(Pet. at 5.)
Staunton does not own or operate the
distribution system of the Prairietown Road Water District.
(Pet.
at 5.)
The system is provided to all residential, commercial and
industrial users as needed with charges to all users established
by ordinance.
(Pet.
at 5.)
Staunton was first advised, by the Agency, that its water
supply exceeded the permissible level of TTHN by a letter dated
March
3,
1992.
(Pet. at 6.)
Then,
Staunton’s water supply showed
a level of 0.15 mg/i for TTHM,
thus exceeding the 0.10 mg/l
standard.
(Pet.
at 6.)
In the same letter, the Agency notified
Staunton that it would be placed on restricted status.
(Ag. Rec.
at 6.)
If the requested variance is granted, Staunton foresees
extending its water mains to serve new users
in the Fleming
Addition and Staunton High School Expansion.
(Pet. at 6.)
A new
10” water main would also be added to provide adequate fire
protection to Community Memorial Hospital and County Care Center
Nursing Home.
(Pet. at 6.)
REGULP~TORY FRAMEWORK
The
instant variance 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
3
supply will be constructed,
modified or operated so as
not to cause a violation of the Environmental
Protection Act
(Ill. Rev. Stat.
1989,
ch.
ill 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
for finished water supplies.
It is Staunton’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.
IPCB
(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 Ill.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 ~
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.
4
COMPLIANCE
PLAN
The
existing
treatment
facility
was
built
in
1926.
(Pet.
at
7.)
The
petitioner
contends
that
it
is
unable
to
meet
the
requirements for
TTHM
because inadequacies of the treatment
facility.
(Pet. at 7.)
After receiving notification of the TTHM
violation,
petitioner modified the treatment process at its
facility.
(Pet. at 8.)
These modifications included construction
of a potassium permanganate feeder, more frequent removal of
sludge from the rectangular basin and feeding chlorine before
filtration.
(Pet.
at 8.)
These modifications have decreased the
annual average level of TTHN concentrations from 0.150 mg/i to
0.121 mg/i.
(Pet.
at 8.)
However, additional modifications to
the treatment process are required to meet the 0.10 mg/i maximum
contaminant level
(MCL)
for TTHN.
Staunton has retained the services of an engineering company
to design additional modifications to the treatment facility.
(Pet. at 8.)
The proposed modifications include the addition of
a third rapid sand filter, rehabilitation of existing sand
filters, rehabilitation of existing backwash and construction of
a new chemical feed building.
(Pet.
at 8.)
These improvements
will allow petitioner to achieve compliance with the TTHM
standard.
(Pet.
at 8.)
Construction is scheduled to begin in
late 1994 and should be completed by Spring of 1995.
(Pet.
at 8.)
The Agency states that its records indicate that Staunton
has not previously sought a variance from regulations pertaining
to TTHM.
(Ag. Rec.
at 4.)
HARDSHIP
Staunton contends that failure to obtain a variance would
mean that all construction within the service area requiring the
extension of the water supply system could not resume.
(Pet.
at
10.)
Staunton argues that this would negatively impact
prospective home purchasers as well as developers and Staunton’s
tax base.
(Pet.
at
10.)
Staunton 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 Staunton,
its taxpayers, prospective
developers,
and persons and industries served by those
developers.
(Pet.
at 10.)
The Agency agrees that denial of the requested variance
would result in an arbitrary or unreasonable hardship.
(Ag. Rec.
at 9.)
5
ENVIRONMENTAL IMPACT
Although Staunton 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 9.)
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 water main
extensions for the time period of the requested variance.
(Ag.
Rec. at 9.)
The Agency states that the variance should not
affect the status of those drawing water from the existing water
lines,
except insofar as the variance will hasten compliance with
the TTHM standard.
(Ag. Rec. at 12.)
CONSISTENCY WITH FEDERAL LAW
The petitioner and the Agency state 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 parties
contend that there is no risk to Illinois of loss of primacy
because there is no federal variance to be presented to the U.S.
EPA.
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 Staunton.
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 obtained during the period of the
variance.
The variance is granted until December 31,
1996,
or until
analysis pursuant to 35 Ill.
Adm. Code 605.104(a)
shows
compliance with the TTHN standard, whichever occurs first.
This
will allow Staunton to complete the modifications to the facility
in the Spring of 1995, perform additional sampling and make any
additional changes to achieve compliance during the term of the
variance.
Today’s action
is solely a grant of variance from standards
of issuance and restricted status.
Staunton is not granted
variance from compliance with the TTHM standard, nor does today’s
action insulate Staunton in any manner against enforcement for
violation of these standards.
6
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The
City
of Staunton 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 trihaloinethanes
(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
dates:
a.
December 31,
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 TTHM in drinking water
then in effect.
2.
In consultation with the Illinois Environmental Protection
Agency (Agency),
Staunton shall continue its sampling
program to determine as accurately as possible the level of
TTHM in its public water supply.
Until this variance
terminates,
Staunton 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:
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 Staunton takes additional samples within any quarter,
said additional samples shall be reported within 30 days to
the Agency as above.
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
7
order, whichever occurs first, and every three months
thereafter, Staunton will send to each user of its public
water supply
a written notice to the effect that Staunton
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 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
(NCL)
for
TTHI’l, then public notice shall
be made pursuant to 35 Ill. Adm. Code 611.851(b).
6.
Until full compliance is achieved, Staunton shall take all
reasonable measures with its existing equipment to minimize
the level of TTHM in its finished drinking water.
7.
Staunton 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
8.
Within forty—five days of the date of this order,
Staunton
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.
8
I
(We),
hereby accept and agree to be bound by all terms and conditions
of the order of the Pollution Control Board in PCB 94-95, dated
May 5,
1994.
Petitioner
Authorized Agent
Title
Date
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 Ill. Adm. Code 101.246, Motion for Reconsideration.)
I, Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board,
hereby certifyjthat the above opinion and order was
adopted on the
____________
day of
~
1994, by a vote of
~C
.
1~’
Dorothy N. Minn, Clerk
Illinois Pollution Control Board