ILLINOIS POLLUTION CONTROL BOARD
March 16,
1995
CITY OF PARIS,
ILLINOIS,
)
)
Petitioner,
)
v.
)
PCB 95-4
(Variance—PWS)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
OPINION AND ORDER OF THE BOARD
(by
J.
Yi):
This matter is before the Board on the January
6,
1995
filing by the City of Paris
(City)
of a petition for variance.
The City seeks relief from 35
Ill.
Adm. Code 602.105(a)
“Standards for Issuance”,
and 602.106(a),
“Restricted Status”,
but only as these rules relate to the Atrazine standard of 35
Ill. Adm. Code 611.311(c).
The City requests a variance for up
to and including January
1,
1996.
On February 14,
1995,
the Illinois Environmental Protection
Agency
(Agency) filed its variance recommendation.
The Agency
recommends that the variance be granted until January
1,
1996
subject to certain conditions.
The City waived hearing, and none
has been held.
For the following reasons, the Board finds, that the City 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.
Variance
is granted until January
1,
1996,
subject to conditions set forth in the attached order.
BACKGROUND
The City,
located in Edgar County,
is an Illinois
municipality which provides public services including a potable
water supply and distribution system.
These services are
provided to residential and business customers, totaling
approximately 9,000 consumers.
(Pet.
at
3.)1
The City’s source
of raw water is the Paris Twin lakes which consist of two
separate lakes with a combined surface area of 220 acres.
(Pet.
‘The City’s petition for variance will be references as
“Pet,
at
.“
and the Agency’s recommendation will be referenced
as “Rec.
at
.“
2
at 3.)
The City operates a treatment system consisting of:
flocculation2, chemical addition, clarification, filtration and
disinfection.
(Pet.
at 4.)
The City has contracted to replace
its four gravity filter’s anthracite media with granular
activated carbon
(GAC)
to reduce the level
of Atrazine passing
through to the finished water.
(Pet. at 4.)
The City requests the variance to allow extensions of its
service to new users,
both residential and commercial.
(Pet. at
4..)
Such proposed new users are two subdivisions, one to be
located around the Country Club on the east side of the City and
another on the north side of the City, and a 88—acre industrial
park.
(Pet. at 4.)
The City first learned of excessive levels of Atrazine in
its public water supply from an Agency letter dated June 15,
1994.
(Pet.
at 4.)
According to the Agency,
the City’s “tap 01”
tested at an annual average of 0.004 mg/l, which exceeds the
0.003 mg/l maximum concentration level
(MCL)
resulting in a Tier
1 violation.
(Pet. at 4.)
The City believes that the Atrazine
levels are the result of pesticide runoff from the farmland which
surrounds its lake water supply.
(Pet.
at 5.)
The City further
states that the treatment system it was utilizing at the time of
the violations did not remove the Atrazine.
(Pet.
at 5.)
However, the City believes that the GAC system put into operation
will achieve compliance with the Atrazine standards set forth at
35
Ill.
Adm. Code 611.311(c).
(Pet.
at 7.)
Pursuant to 35
Ill. Adm. Code 104.180(a),
the Agency has
investigated the facts alleged by the petitioner.
(Rec.
at 4.)
In accordance with 35
Ill.
Adm. Code 104.140(b),
the Agency
attempted to ascertain the views of persons who might be affected
by the grant of the variance by publishing in a newspaper of
general circulation in petitioner’s county a solicitation of
views of such persons and by sending notices of the petition for
the variance to the appropriate State legislators and county
officials.
According to the Agency there has been no response to
this newspaper solicitation or notices as of February 10,
1995.
REGULATORY FRAMEWORK
The instant variance request concerns two features of the
Board’s public water supply regulations:
“Standards for
Issuance” and “Restricted Status”, which are found at
35 Ill.
Adm.
Code 602.105 and 602.106.
In pertinent part they read:
2Flocculation is the process by which solids are formed in
water through biological or chemical action so they can be
separated from the water.
3
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.
lii 1/2,
pars.
1001 et seq.)(Act),
or of this chapter.
Section 602.106
Restricted Status
(a)
Restricted status shall be defined as the Agency
determination pursuant to Section 39(a)
of the Act and
Section 602.105, that
a public water supply facility
may no longer be issued a construction permit without
causing a violation of the Act or this chapter.
The cumulative effect of these regulations is to provide
that community 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.
The City requests a
variance so that it be allowed to extend its water service while
it continues to pursue compliance with the Atrazine standards,
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,
(1985),
135 Ill. App.3d 343,
481 N.E.2d 1032.)
Only with such a 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, and compliance is to be sought regardless of the
hardship which the task of eventual compliance presents an
individual polluter.
(Monsanto Co.
v.
IPCB,
(1977),
67 Il1.2d
276,
367 N.E.2d 684.)
Accordingly, except in certain special
circumstances,
a variance petitioner is required,
as a condition
to grant of the variance, to commit to a plan which is reasonably
calculated to achieve compliance within the term of the variance.
It is important to recognize that grant of variance from
“Standards for Issuance” and “Restricted Status” neither absolves
a petitioner from compliance with the drinking water standards at
4
issue, nor insulates 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 City is committed to achieve compliance with the
Atrazine standards through the use of the GAC system.
The Agency
states that
“.
.
.the petitioner has sufficiently described and
committed to measures and methods of control to be undertaken to
achieve full compliance with the Act and the Board regulations.”
(Rec.
at
6.)
ENVIRONMENTAL IMPACT
Atrazine is a organic chemical used as
a herbicide which
usually migrates into water supplies as the result of runoff into
surface water during certain climatic conditions.
(Rec.
at 7.)
There are
rio reports of short—term adverse effects from exposure
at normal application rates and no long—term effects from
continued exposure of just Atrazine to humans.
(Rec.
at 7—8.)
Although there are no known effects of Atrazine, the United
States Environmental Protection Agency
(U.S.EPA) promulgated
federal regulations establishing a MCL of 0.003 mg/i for Atrazine
and monitoring schedules.
(56 Fed. Reg. 3593-94)
(January 30,
1991).)
(Rec. at 9.)
The federal regulations are part of the
Primary Safe Drinking Water Act
(40 C.F.R 141 (1992))
under the
federal Safe Water Drinking Act
(42 U.S.C.
§ 300f
(1989)).
(Rec.
at 9.)
The City has made no formal assessment of the effect of the
variance on the environment.
The City believes that the variance
will not pose any significant harm to the environment or the
consumers for the limited period of the variance.
(Pet.
at
7.)
The City also states that it is
in compliance on a daily basis.
(Pet.
at 8.)
The Agency states that “...grant of the requested
variance would impose no significant injury to the public or to
the environment for the limited time period of the requested
variance...”
(Rec. at 9.)
HARDSHIP
A grant of the requested variance only prohibits the Agency
from legally denying construction or operating permits based on
the City’s violation of the standards, and does not make less
strict the standards that petitioner must meet.
The City asserts
that a denial of the requested variance will prohibit the
expansion of its services thereby having a negative impact on the
economic viability of the entire service area.
(Pet.
at
8.)
The Agency believes that a denial of the variance would be
5
an arbitrary or unreasonable hardship to the petitioner.
(Rec.
at 10.)
The Agency believes that the hardship resulting from
denial of the variance from the effect of being on restricted
status would outweigh the injury to the public from grant of the
variance.
(Rec. at 10.)
Denial of a variance from the two rules
imposing restricted status on the City would result in an
arbitrary or unreasonable hardship because denial would require
that the Agency:
(1) publish the City on the Restricted Status
List,
and
(2) deny construction and operating permits until
compliance
is achieved.
The second action would prevent further
development from taking place in the City,
while the first might
mislead developers and other persons who check this list and
their contemplated economic activity might be delayed or
discontinued.
(Rec.
at 11.)
The Agency observes that this grant of the variance from
restricted status should affect only those users who consume
water drawn from any newly extended water lines and states that
an increase in the allowable concentration for these contaminants
should cause no significant health risk for this limited
population.
(Rec.
at 12.)
This variance should not affect the
status of the rest of petitioner’s population drawing water from
existing water lines,
except insofar as the variance by its
conditions may hasten compliance.
(Rec. at 12.)
The Board notes
that the granting of this variance should not cause any “increase
in the allowable concentration of these contaminants,” but agrees
with the Agency’s latter statement that compliance may be
hastened.
CONSISTENCY WITH FEDERAL LAW
The Agency states that the requested variance may be granted
consistent with the Safe Drinking Water Act, PL 93—523,
as
amended by PL 96-502,
42 U.S.C.
§300(f) (1992), and the USEPA
Drinking Water Regulations
(40 CFR Part 141
(1991)), because the
variance does not grant relief from compliance with the National
Primary Drinking Water Regulations.
(Rec.
at 11.)
Granting a variance from the effects of restricted status
affects State and not federal law and regulations.
(Rec.
at 11.)
Therefore,
a variance under the Act and Board regulations is not
a variance from USEPA’s National Primary Drinking Water
Regulations.
The Agency believes there should be no resulting
risk to the State of Illinois of loss of its primary enforcement
responsibility (“primacy”) under the Safe Drinking Water Act.
(Rec. at 12.)
CONCLUSION
Based on the record, the Board finds that the City has
presented adequate proof that immediate compliance with the
“Standards for Issuance” and “Restricted Status” regulations
6
would impose an unreasonable hardship on the City pursuant to
Section 35(a)
of the Act.
The Board will grant this variance for
a period of one year subject to conditions similar to those
recommended by the Agency.
The Board’s grant of this variance
does not relieve the City from the Atrazine standard as set forth
at 35 Ill. Adm. Code 611.311(b), the variance is for the limited
purposes of allowing the City to obtain the necessary permits
from the Agency to extend its water supply system.
The Agency recommends that the term of the variance be
limited to 12 months or less for the reasons recounted above.
Pursuant to the conditions recommended by the Agency and adopted
by the Board hereunder,
the City,
in consultation with the
Agency, will be required to continue its sampling program to
determine as accurately as possible the Atrazine levels in its
water supply.
The petitioner will send to the consumers a
notification that it has been given a variance from 35
Ill. Adm.
Code 602.105(a)
“Standards for Issuance”,
and 602.106(a)
“Restricted Status”, but only as these rules relate to the
Atrazine standard of 35
Ill. Adm. Code 611.311(c).
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The City of Paris is hereby granted a one—year variance from
35
Ill. Adm.
Code 602.105(a),
“Standards for Issuance”,
and
602.106(a),
“Restricted Status”, as they relate to the standard
for Atrazine as set forth in 35 Ill.
Adm. Code 611.311(b),
subject to the following conditions:
(A)
The variance commences from the date of this order and
ends on January
1,
1996.
(B)
In consultation with the Agency, petitioner shall
continue its sampling program to determine as
accurately as possible the level
of Atrazine in its
public water supply.
Until this variance expires,
petitioner shall collect and analyze quarterly samples
of its water from its entry point into the distribution
system at locations approved by the Agency,
in
accordance with 35 Ill. Adm.
Code 611.680.
Analysis
shall be done by the Agency laboratory or
a laboratory
certified by the State of Illinois for Atrazine
analysis so as to determine the concentration of the
contaminant in question.
These results of the analyses
in question shall be reported to the Illinois
Environmental Protection Agency, Compliance Assurance
Section, Division of Public Water Supplies,
2200
Churchill Road,
Springfield,
IL 62794—9276,
within
30
7
days of receipt of each analysis.
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.
If the
petitioner elects to conduct weekly or monthly analyses
for Atrazine, the petitioner shall report the results
of analyses of to the Agency within 30 days of receipt
of the analyses.
(C)
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 order, whichever occurs first,
and every
three months thereafter,
the petitioner will send to
each user of its public water supply a written notice
to the effect that petitioner has been granted a
variance from 35
Ill.
Adin.
Code 602.105(a), Standards
of Issuance, and 35 Ill. Adm. Code 602.106(a),
Restricted Status,
as
it relates to the maximum
contaminant level for Atrazine.
(D)
If results of analyses performed on samples pursuant to
35 Ill. Adm. Code 611.648
show a violation of the
Atrazine maximum concentration limit
(MCL), then public
notice shall be made pursuant to
35 Ill. Adm. Code
611.851(b).
(E)
Until full compliance
is reached, petitioner shall take
all reasonable measures with its existing equipment to
minimize the level of the contaminant in question in
its finished drinking water.
(F)
Within six
(6) months after the date of this variance,
petitioner shall submit to the Agency’s DPWS/FOS,
a
Compliance Report, that shall describe in detail the
compliance measures including the design and additional
construction measures
(as well as any modifications)
that have been necessary to bring petitioner’s public
water supply into compliance with the Atrazine MCL.
If
further compliance measures are necessary, the
petitioner shall include in the Compliance Report
milestones for each compliance measure including
compliance with the Atrazine MCL that are required to
bring the petitioner into compliance including,
but not
limited to:
1.
Dates of applications for all permits necessary
for construction of installations changes or
additions to the public water supply needed for
achieving compliance with federal and State
statutes and regulations;
2.
Date for advertisements of bids for said
8
construction;
3.
Dates for initiation of construction allowed by
the construction permits;
4.
Dates for completion of said construction; and
5.
Dates for achieving compliance with federal and
State statutes and regulations.
Petitioner shall also submit with this Compliance
Report a statement regarding the financial resources
that are or may be available to bring their public
water supply into compliance with all federal and State
statutes and regulations,
listed in this compliance
plan.
(G)
One
(1) month prior to the close of the variance
petitioner shall also submit an updated Compliance
Report of sufficient detail to demonstrate the progress
made by the petitioner in achieving the milestones and
goals outlined in the first Compliance Report.
(H)
All reports and correspondence that is required by this
Board order shall be sent to:
Illinois Environmental Protection Agency
Field Operations Services
2200 Churchill Road
P.O.
Box 19276
Springfield,
IL 62794—9276
IT IS SO ORDERED.
If the City of Paris chooses to accept this variance subject
to the above order, within forty-five days of the grant of the
variance, the City must execute and forward the attached
certificate of acceptance and agreement to:
Stephen C.
Ewart
Division of Legal Counsel
Illinois Environmental Protection Agency
P.
0. Box 19276
2200 Churchill Road
Springfield, IL
62794—9276
Once executed and received, that certificate of acceptance
and agreement shall bind the Village 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
9
to execute and forward the certificate within 45—days renders
this variance void.
The form of certificate is as follows:
CERTIFICATION
I
(we),
,
hereby
accept and agree to be bound by all terms and conditions of the
Order of the Pollution Control Board in PCB 95—4,
March
16,
1995.
Petitioner
_______________________________
Authorized Agent
______________________________
Title
_______________________________
Date
___________________________________
Section 41 of the Environmental Protection Act,
Ill.
Rev.
Stat.
1989,
ch.
111 1/2 par.
1041, provides for appeal of final
Orders of the Board within 35 days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
Board Member
3.
Theodore Meyer dissented.
I,
Dorothy
M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above opinion and order was
adopted on the
/~‘~
day of _______________________
1995,
by a vote of
~
~
~
Dorothy M.
,
Clerk
Illinois Pollution Control Board
