ILLINOIS POLLUTION

CONTROL

BOARD

December 17, 1992

HERMA~ W. PRESCOTT,

)

Complainant,

)

PcB 90—187

v.

)

(Enforcement)

)

CITY OF

SYCAMORE,

)

)

Respondent~

T

•

JORDAN

GALLAGHER

OF

GALL&GHPR,

KLEIN

6

BRADY,

APPEARED

~1

BEHALF

OF

COMPLAINANT;

PETER

THOMAS SMITH

OF

SMITH

6

STRAUSS

AND

‘TIMOTHY

JOHNSON

APPEARED

ON

BEHALF

OF

RESPONDENT.

OPINION

AND

ORDER

OF

THE

BOARD

(by

R.

C.

.fleaal):

This matter comeS

before

the Board

on a

coaplaint

filed

October

16,

1990,

by

Herman Prescott

(Prescott

or

co.plainai~t)

against

the

City

of

Sycamore

(Sycamore).

Tb.

oo~.aint

alleges

that

Sycamore

has

violated 35 Ill

•

Mm.

Codf

653.604 of

Subtitle

• Public Water Supplies, by failing to

maintain

the required

amount

of chlorine residual in all

active ~&tts

of the

distribution system.

Prescott

requests

that

the

Board

order

Sycalore “to supply the

Northeast

section

of

the

City with a

steady supply of chlorine up to

standards

*

*

*11

and

to conform

to

the

recommendations

of

the

Illinois

Enviraimantal

Protection

Agency

(Agency),

as

contained

in

a

letter

attached

to

the

óomplaint.

(complaint at

19.)

On December 20, 1990

the

Board denid

$ motion

filed by

Sycamore to dismiss this action.

(Pr.scott”v.

Sve~~.

(December

20,

1990),

PCB

90—187, 117 PCB 153.)

In its order, the Board

found that the alleged violations

of

35 Ill. Adm..’Oods 654.403

contained in the complaint were improper because

that

section

corita

ins unenforceable secondary

maximum

contaminant

levels for

finished water.

The

Board

also

found

that

allegations related

to

iron and manganese were contained in the complaint,

but

that the

complaint contained no citation to

any

applicable

section

of the

Board

regulations or Environmental Protection

Act (Act)

regarding

the

manganese and’

iron

concentrations

which

sycamore

is

claimed

to have violated.

The Board declined to

dismiss

the

matter

for

this reason,

stating

that the complainant could

either

file

an

amended complaint or amend his pleadings to conform to

the

proof

at hearing.

(~.

at 2.)

Prescott has not so amended his

complaint or pleadings, and the Board will proceed’on the

alleged

violation of Section 653.604 only.

0136-0025

---

2

Hearing was held on June 2 and 3,

1992,

in Sycamore,

Illinois.

No members of the public were in attendance, as noted

by the hearing officer.

Prescott filed his brief on July 16,

1992; Sycamore filed its response brief on July 31, 1992;

Prescott filed his reply to Sycamore’s response on August 7,

1992.

Prescott lives at 462 East Exchange Street in the northeast

section of the City of Sycamore.

The dwelling is one in a group

of condominiums in the area.

‘Prescott moved to

the

location in

November 1988.

The evidence at hearing

established

that the

Prescott residence receives water through a cix inch pipe

connected to a water main.

The pipe extends for approximately

230 feet until it dead ends at a hydrant.

(Tr. at 45, 145, 339-

~340.)Various tests of the water in the area were conducted for

chlorine ‘content by Prescott, Agency persoflnel, and Sycamore

personnel both before and after the complaint

was

filed.

A threshold issue is what rules apply to this water.aupply.

Whether the tests conducted indicate that a violation of the

applicable standards ‘has occurred is at issue in the

proceeding.

Whether this pipe system is owned and controlled by

the

condominium

residents

or

Sycamore

such that

one

-or the other

would carry the responsibility of maintaining the pipe

and

‘hydrant system is also at issue in this proceeding.

APPLICABLE

LAW

The

Board

regulations

at

35

Ill.

Mm.

Code 604.401 require

public water supplies to chlorinate their water before it enters

the distribution system.

Section 604.401(b) of the Board’s

regulations provides for the Agency to set levels and to

promulgate procedures for chlorination Of public water supplies.

The Agency has set chlorine levels at Section 653.604.

The

section requires as follows:

A minimum free chlorine residual of 0.2

ag/L or a

minimum combined residual of 0.5 ag/L shall be.

maintained in all active parts

of the distribution

system

at

all

times.

It is th~~ chlorine residual requirement contained

,in Section

653.604 that Prescott alleges Sycamore has violated.

The Board notes that prior to the filing of Prescott’s

complaint, the Board amended its public water -supply regulations

and that Section 604.401 was amended.

(In re Safe Drinking Water

Act Recmlations (August 9,

1990), R88—26, 114 PCB 149.)

Section

604.401 applies only until the effective date has passed for the

filtration and disinfection requirements of new 35 Ill. Mm. Code

0138-0026

---

3

611.Subpart B, pertaining to a particular public water supply.

The dates are set out for each type

of

public

water

supply,

classified by source, in Section 611.240.

One

of the following

effective dates for different types of groundwater’ sources would

apply to Sycamore’s water source:

b)

A supplier that uses a groundwater source under

the influence of surface water and does not

provide filtration treatment shall provide

disinfection treatment specified in Section

611.241 beginning December 30,

1991, or 18 months

after the Agency determines that

the

groundwater

source is under the influence of surface water,

whichever is later, unless the Agency has

determined that ,filtration is required.

C)

If the Agency determines that filtration is

‘required, the Agency may, by special exception

permit,

require

the

supplier

to

comply with

interim disinfection requirements -‘before

filtration

is

installed.

*

*

*

A

system

that

uses

a

groundwater

source

under

the

direct influence of surface water and -provides

filtration treatment shall

provide disinfection

treatment- as specified in Section 611.242 by June

29,

1993 or beginning when filtration is

installed, whichever is later.-

*

*

*

g)

CWS

suppliers

using groundwater which is not under

the

direct

influence

of

surface

hater shall

provide disinfection pursuant to Sction 611.241

or 611.242, unless the Agency has granted the

supplier an exemption pursuant to SectiOn 17(b) of

the Act.

(The Board notes that the effective date

for this subsection

(g) is.Septeaber 20,

1990, the

same as the effective date of this Section

611.240.

(Section 611.240.)

On

October

29,

1992,

by

interim

order,

the Board found

that

it

is

possible

that

disinfection

requirements

of

35

Ill.

Ada.

Code 611 apply to this system, and that the chlorination

requirements of Section

604.401

(and

of

Section

653.604

which

proceeds from Section 604.401) are no longer in effect for this

source, or have not been

in

effect

prior

to

the

filing

of

the

complaint.

Prior to the interim order, neither the complainant

nor any other party had supplied the Board with information of

0136-0027

---

4

what

type

of supply this is, other than it is a groundwater

system.

Therefore,

the

Board

ordered

the

parties

to

submit

a

document

to

inform

the

Board

of

the

type

of

public

water

system

used

by

Sycamore,

according

to

the

categories

listed

above

from

Section

611.24 0,

so

that

the

correct

effective

date and

sampling

requirements may be applied.

On November 13, 1992, Sycamore and Prescott

filed a

stipulation of facts which states that:

The public water system

used by the

Respondent,

CITY

OF

SYCANORE,

at

all

pertinent

times

in

the

above

captioned

case

used

groundwater

which

is

not

under t.be

direct

influence

of

surface

water.

As

the

parties

indicate,

this

system

is

a

groundwater

system

not

under

the

direct

influence

of

surface ‘water.

Therefore,

the

ef-feätive date of the new requirements

f

or- filtration

and

disinfection found at 35 Ill. Ada. Cod.-611Subpart

B

for

this

system is September 20, 1990,

a date

prior to the

filing

of

this

complaint.

By

the

time of

the

filing

of

the

-complaint,

Section

604.401, and Section 653.604 which

proceeds

from

Section

604.401,

were no longer in effect for this source.

The Part

611

rules

include different sampling requirements then*hose found at

Section’ 653.604.

The Board finds that the ~Uouplainanthas not

brought this action

based

on

applicable

law;

~canmequently,

he

has

not

shown

that a violation of applicable

law ~ss *oecurred.

Therefore, based on the record before

-it,

-the *oard

must dismiss

this

complaint as no violation can be

found.

.Th.thoard

does

not

reach the issue of ownership and

control

of

the hydrant

since

no

violation’ of the applicable law can be found.

If

the complainant

believes

Sycamore

4a

~4.nviolation

of

the

applicable disinfection requirements

of

35111.

Ada.

Code

611,

he

may

file a new complaint.

This

opinion

constitutes

the

Board’s finding,

of fact

and

conclusions of law

in, this matter.

ORDER

For the reasons contained in the above opinion,

no violation

is found and this matter is dismissed.

IT

IS

SO

ORDERED.

B.

F’orcade

dissented.

Section

41

of

the

Environmental

ProtectiOn Act, Ill. Rev.

Stat.

1991,

cli.

111½, 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

(But

see

also

0138-0028

---

5

35 Ill.

Adm.

Code 101.246, Motions for Reconsideration, and

Castenada v. Illinois Human Rihts Commission

(-1989),

132 I11.2d

304, 547 N.E.2d 437.)

I,

Dorothy

M.

Gunn,

Clerk

of

the Illinois Pollution

Control

Board, hereby certify that the above opinion and order was

adopted on the

/7ZZ

day of

_________________,

1992,

by a

vote of

______

Dorothy K. ann,

Clerk

Illinois P4llution

Control

Board

0138-0029.