ILLINOIS POLLUTION CONTROL BOARD

March

11,

1993

HERMAN W.

PRESCOTT,

Complainant,

PCB 90—187

v.

)

(Enforcement)

CITY OF SYCAMORE,

Respondent.

SUPPLEMENTAL OPINION AND ORDER OF THE BOARD

(by R.

C.

Flernal):

This matter comes before the Board on a motion for

reconsideration filed by the complainant, Herman W. Prescott

(Prescott or complainant).

Prescott asks that the Board

reconsider

its order of December 17,

1992.

In that order,

the

Board dismissed the complaint finding that the complainant had

not brought this action based on applicable law;

consequently,

it

has not been shown that a violation of applicable law has

occurred.

The complaint,

filed October 16,

1990,

by Prescott against

the City of Sycamore (Sycamore or respondent), alleges that

Sycamore has violated 35 Ill. Adm. Code 653.604 of Subtitle F,

Public Water Supplies,

by failing to maintain the required amount

of chlorine residual in all active parts of the distribution

system.

Prescott requests that the Board order Sycamore “to

supply the Northeast section of the City with a steady supply of

chlorine up to standards

*

*

*“

and to conform to the

recommendations of the Illinois Environmental Protection Agency

(Agency),

as contained in a letter attached to the complaint.

(complaint at

¶9..)

For the reasons stated below,

the Board reconsiders

its

December 17,

1992 opinion and order.

REGULATORY FRAMEWORK

Central to this action is an understanding of the

regulations governing disinfection by public water supplies,

and

the amendments that these regulations have undergone.

Parts

of

this discussion are also contained in the Board’s December

17,

1992 opinion and order and are reiterated here for continuity.

The requirement of providing water that is adequately

disinfected

is a long-standing facet of regulation of public

water supplies.

However, the manner in which this requirement

is

manifest has evolved over time as a function of expanding

81 L~Q-OOO5

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2

knowledge of the most beneficial methods and manners of achieving

disinfection.

The most recent major revision to disinfection regulations

occurred pursuant to requirements of the U.S. Safe Drinking Water

Act

(SDWA), and to regulations adopted by the U.S. Environmental

Protection Agency

(USEPA)

implementing the SDWA as found at 40

CFR 141,

142,

and 143

(1989).

These revisions were in turn

adopted into Illinois

law,

as required by the Environmental

Protection Act (415 ILCS 5/17.5

(1992) (Act)1, by Board order2 of

August

9,

1990,

with an effective date of September 20,

1990.

This date of September 20,

1990 is

a watershed date as regards

the instant action.

Prior to September 20,

1990 the applicable disinfection

requirements occurred at 35

Ill. Adm. Code 604.401 and 653.604.

Section 604.401 specified in pertinent part:

All supplies

.

.

.

shall chlorinate the water before it

enters the distribution system.

*

*

*

b)

The Agency may set levels and promulgate

procedures

for chlorination.

The Agency has set chlorine levels at Section 653.604, wherein

it

is required that:

A minimum free chlorine residual of 0.2 mg/L or a

minimum combined residual of 0.5 mg/L shall be

maintained in all active parts of the distribution

system at all times.

It

is this chlorine residual requirement contained in Section

653.604 that Prescott alleges Sycamore has violated.

Subsequent to September 20,

1990,

new disinfection

requirements were added at 35

Ill.

Adm. Code 61l.Subpart B,

in

particular at Sections 611.240,

611.241,

and 611.242.

The new

requirements are not only substantially more expansive, but also

amend

(1) the components that constitute residual chlorine,

(2)

the techniques permissible for measuring residual chlorine, and

(3) the numerical standard for residual chlorine from single

numeric values to a standard based upon averaging.

The Act was formerly codified at Ill.Rev.Stat.

1991,

ch

111½, par.

1001 et seq.

2

In re:

Safe Drinking Water Act Regulations

(August

9,

1990), R88—26,

114 PCB 149—397.

---

3

A provision of the change to the new regulations is that the

changeover date from the old to the new regulations

is dependent

upon the nature of the particular public water supply3.

In the

circumstance at hand,

the Sycamore public water supply system

is

a

“groundwater system not under the direct influence of surface

water”,

and as such the effective date of the new disinfection

requirements is the same as the general effective

date of the

Part 611 regulations,

i.e.,

September 20,

l990~. The Board so

found

in its dismissal order of December 17,

1992; this finding

is not disputed.

September 20,

1990

is prior

to October 16,

1990,

the date

upon which the instant complaint was

filed.

Accordingly,

the

complaint was filed after the date upon which Section 604.401

(and Section 653.604 which proceeds from Section 604.401)

ceased

to be applicable to Sycamore.

The consequences that flow from

these facts

is what remains at issue.

MOTION FOR RECONSIDERATION

In his motion Prescott asks the Board to reconsider alleged

violations prior to September 1990, specifically violations

alleged to have occurred between November

22,

1989 and January

22,

1990.

Prescott argues that the Board’s December 17,

1992

decision would have the effect of

barring all enforcement actions

where the violation was not occurring at the time of the filing

of the complaint5.

Prescott cites Modine Manufacturing v.

PCB

(2nd Dist.

1990),

549 N.E.2d 1379, where the court allowed the

imposition of penalties

for wholly past violations.

~ See 35

Ill.

Adm. Code

604.401, as amended effective

September

20,

1990,

and 35

Ill. Adm.

Code 611.240.

Section

604.401 ceases to be applicable to any particular public water

supply though the action of the statement:

This Section applies until the effective date for the

filtration and disinfection requirements of

35

Ill.

Adm.

Code 6l1.Subpart B as applicable to each supply.

which was added to Section 604.401 effective September 20,

1990.

~ See 35

Iii.

Adm. Code 611.240(g).

~ Prescott also argues that retroactive application of the

current Part 611 regulations

is improper.

The Board finds

Prescott’s arguments on retroactivity inapplicable because the

Board never applied nor intends to apply retroactively the Part

611 regulations in this case.

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4

Sycamore filed its response to the motion for

reconsideration

on January 29,

1993.

Sycamore states that since

the Board “repealed”

Section 604.401 and with it the basis

for

Section 653.604,

and

did not provide a “saving clause”

to

continue the regulation in effect,

the Board was correct in

dismissing the complaint.

Sycamore argues that under Illinois law, where a remedial

statute is repealed without a “saving clause”,

it stops all

pending actions where the repeal finds them.

If final relief has

not been granted before the repeal goes into effect,

it can not

be granted afterward.

(Shelton v.

City of Chicago

(1st Dist.

1969),

42 Ill.2d 462,

248 N.E.2d

121;

Stefani

v.

Baird

& Warner,

Inc.

(1st Dist.

1987),

157

Ill.App.3d 167.)

The cases cited by Sycamore deal with statutory amendments

that totally extinguish a right of action for damages

or to

enforce regulations that were promulgated pursuant to that

statutory right of action.

The effect of the amendments on

pending cases brought in exercise of that now extinguished right

is that the cases were dismissed.

Although in this matter the

regulations were changed in response to

identical—in—substance

directives contained in the Act as discussed above,

the Board

finds here that the right to bring an action was not totally

extinguished in this instance for those alleged violations prior

to the effective date of the amendments.

Furthermore, although

Sycamore asserts that the repealed Board regulations are

remedial,

it gives no support for that conclusion.

Sycamore incorrectly characterizes the September 20,

1990

action with respect to Section 604.401 as a “repeal”.

The

regulation’s provisions were not expunged through a repeal;

rather,

its provisions ceased to be effective after a date

certain.

While it

is clear that the regulation’s provisions are

unenforceable for alleged violations occurring after that date,

we do not construe its provisions as being unenforceable for past

violations that occurred before the regulation’s provisions

ceased to be effective.

We note that we are not making a holding

on the enforceability of a repealed regulation,

as that issue is

not before us.

The Board accordingly does not find this facet of

Sycamore’s arguments persuasive.

Sycamore further argues that the Modirie case,

cited

by

Prescott,

is not applicable since that case did not deal with the

issue of regulatory effectiveness, but rather with subsequent

compliance with still applicable regulations.

We believe that

Sycamore is correct in that in Modine the violator did come into

compliance, and no regulatory change was involved.

However, the

effect of the subsequent compliance in Nodine is similar to the

instant matter.

The only difference

is that here,

if violation

is found, the violation could terminate due to subsequent

inapplicability

of the regulation, rather than subsequent

U ~

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5

compliance with the regulation.

Again,

the Board

is not

persuaded by Sycamore’s arguments.

Prescott is correct that the complaint contains allegations

of violations between November 22,

1989 and January 22,

1990.

The Board also notes,

however, that the complaint and hearing

record indicate that complainant sought to present allegations

and to seek relief of a continuing violation beyond the dates

specified in the motion for reconsideration.

Complainant never

sought to amend his complaint,

and neither party recognized the

existence of new regulations governing the actions of

respondent6.

Nevertheless, the Board will reconsider complainant’s

action,

as it pertains to the dates

of alleged violations between

November 22,

1989 and January 22,

1990,

since these dates were

presented in the complaint,

and are prior to the effective date

of the new regulations for this source.

Therefore,

the Board

vacates its prior order only as it pertains to violations that

are alleged to have occurred between November 22,

1989 and

January 22,

1990.

FACTS

The essential facts

in this matter have been set out

in the

December

17,

1992 Board opinion.

Among these are:

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 six—inch pipe

connected to a water main (hereinafter,

“water main extension”).

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 personnel, and Sycamore personnel both before

and after the complaint was filed.

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 and operating the

water main extension and hydrant system is at issue

in this

6

The Board is bemused by complainant’s insinuations that

the Board adopted revised disinfection regulations to somehow

circumvent complainant’s case.

(Compi. motion at 4).

The

revision was not only mandated by federal and state law,

but

occurred prior to the filing of the instant complaint.

See

above.

01

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6

proceeding.

Whether the tests conducted (pertaining to dates

between November 22,

1989 and January 22,

1990)

indicate that a

violation of the applicable standards has occurred is also at

issue in the proceeding.

DISCUSSION

Ownersht~

In defense of the action, the respondent alleges that the

developer of the property,

and subsequently Prescott,

owns the

water main extension.

Therefore,

any liability for violation of

regulations due to inadequate maintenance of the water main

extension and hydrant should be borne by Prescott and the other

condominium owners.

Prescott argues that. Sycamore is solely responsible for the

operation and maintenance of the water main extension,

and

is the

official custodian of the public water supply including the water

main and its extensions.

Pertinent regulations in effect between November 22,

1989

and January 22,

1990 state:

Section 601.101

General Requirements

Owners and official custodians of a public water supply

in the State of Illinois shall provide pursuant to the

Environmental Protection Act

*

*

*,

the Pollution

Control Board

*

*

*

Rules,

and the Safe Drinking Water

Act

*

*

*

continuous operation and maintenance of

public water supply facilities so that the water shall

be assuredly safe in quality,

clean, adequate in

quantity,

and of satisfactory mineral characteristics

for ordinary domestic consumption.

Section 601.102

Applicability

The provisions of this Chapter shall apply to public

water supplies, as defined in the Act, except for those

designated as non-community water supplies.

A public

water supply shall be considered to end at each service

connection.

Section 601.105

Definitions

*

*

*

“Service Connection”

is the opening,

including all

fittings and appurtenances,

at the water main through

which water is supplied to the user.

0! ~0-OOI 0

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7

Also,

the parties presented evidence and testimony on the

ownership/liability issue.

Prior to Prescott’s residency at the

property,

a developer of the property,

Donald J.

Kohier,

applied

to the Illinois Environmental Protection Agency for a

construction permit for the water supply system.

(Compl.

Exh.

1.)

Correspondence from the Agency to Warner Engineering dated

April

8,

1988 indicates that the Agency viewed the six-inch water

main extension as a water main,

and reported to the developer

that his organization would be viewed as a public water supply if

it retained ownership of the water main extension.

The Agency

further informed the developer of minimum compliance requirements

for public water supplies.

The Agency then suggested two

alternatives for the developer in order to avoid being viewed as

a public water supply:

The situation of the proposed Exchange Street

townhouses7

being a public water supply may be

avoided

if the necessary easements could be granted

with ownership of the proposed

6 inch watermain being

turned over to the City of Sycamore.

If this

is to be

the case,

a revised page

3

of the Application for

Construction Permit must be submitted citing the City

of Sycamore as the owner of the completed project.

Another acceptable alternative would be for Donald

3.

Kohler,

*

*

*

to retain ownership of the proposed

watermains

(sic),

and enter into an agreement with the

City of Sycamore where the official representatives of

the City would supervise operation, maintenance and

repair of the proposed waterinain.

Any cost incurred

would be borne by the terms

of an agreement accepted

and signed by the respective officials.

(Compl.

Exh.

1.)

Correspondence from Sycamore8 indicates that the second

option was chosen and a revised page

3 of the application was

submitted to the Agency which states in pertinent part:

Agreement to Furnish Water

*

*

*

~ The subject property is referred to in the record as both

townhouses and condominium property.

The record indicates that

the property is condominium property and that the area through

which the water main runs is part of the common elements of the

condominium property.

(Tr.

46-47;

Resp.

Exh. 3).

8

Letter from Sycamore to the Agency dated April

15,

1988,

Compl.

Exh.

1.

01L~0-o0I

I

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8

The undersigned acknowledges the public water supply’s

responsibility for examining the plans and

specifications to determine that the proposed

extensions meet local laws,

regulations and ordinances.

The City of SYcamore shall have the sole responsibility

for the “Supervision” and “Operation”

of all water main

extensions upon completion of installation and in

perpetuity.

~signed by Harold Johnson,

as the mayor of the City of

Sycamore

*

*

*

*

*

*

I/We hereby agree to accept ownership of the

project upon satisfactory completion, sublect to the

City of SYcamore having sole responsibility for

“Supervision” and “Operation” of all water main

extensions upon completion of installation and in

perpetuity.

Actual maintenance costs shall be borne by

Owner.

signed

by Donald Kohler as owner

of the completed

project

(Compl.

Exh.

1.)

(underlining in original)

The above agreement indicates that the developer would

retain ownership of the completed project.

That the agreement

was reached is supported by testimony.

John Brady,

city

engineer, testified that no “formal” agreement was entered into

and that page three was not in the form of an agreement.

However, he acknowledged that page three of the application was

signed by the mayor of Sycamore and Mr. Kohler,

and that it

contains the language as suggested by the Agency for option

2.

(Tr. 346—347.)

The permit application, by which this agreement was

submitted, was not approved by the Agency.

(Compl.

Exh.

1.)

The

Board finds that the fact that the permit application was not

approved at some later time does not affect the contents of the

agreement,

nor does it affect the fact that it is valid as

entered into between the parties.

The Board further finds that

the agreement is not inconsistent with the applicable regulations

cited

above.

The Board finds that Prescott is co—owner of the water main

extension,

and that the terms of the agreement between Sycamore

and Kohler passed with all rights and claims to the owners of the

condominiums.

When ownership of the condominium property unit

passed to Mr.

& Mrs. Prescott,

a percentage of the ownership of

the common elements also passed to Mr. and Mrs. Prescott,

together with the appurtenances belonging to the property.

(Resp. Exh. J.)

The deed was entered into within the

01

I~O-OO1

2

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9

contemplation of the Illinois Condominium Property Act,

765 ILCS

605/1 et sep.

(Condominium Property Act)9.

Even if the agreement were not valid, Prescott would be co-

owner,

as no easements have been given to Sycamore,

and no

subsequent transfer of ownership of the water main extension has

taken place.

The situation would merely be as

it was prior to

the entering of the agreement:

i.e.

the owner(s)

of the property

would be owner(s)

of the water main.

Moreover, Prescott agreed

that if the water main extension were not dedicated to Sycamore

and there were no easements given to Sycamore, he would be

considered part owner as he is

a member of the condominium

association.

(Tr. at 46—47.)

In addition, the Condominium

Property Act states that unit owners

(or

a percentage thereof)

“may elect to dedicate a portion of the common elements to a

public body for use as,

or in connection with,

a street or

utility”.

(765 ILCS 605/14.2)

There is no evidence in the

record that dedication of the water main extensiQn to Sycamore

has ever taken place.

Since Prescott is part-owner and Sycamore has sole authority

to supervise and operate the water main extension,

any liability

for violations would be per the terms

of the agreement.

Since

Sycamore has sole responsibility for supervision and operation,

Sycamore would be responsible for violations involving

supervision and operations.

If the maintenance is necessary for

operation of the main,

Sycamore,

as solely responsible for

operations, would have to perform that maintenance.

Any

maintenance costs incurred would be borne by the condominium

owners as stated in the agreement.

Alleged Violations

As stated in the complaint, Prescott alleges Sycamore

violated Section 653.604 by failing to maintain

a minimum free

chlorine residual of 0.2 mg/L or a minimum combined chlorine

residual of 0.5 mg/L in all active parts

of the distribution

system at all times.

As noted above,

the dates of the alleged

violations were to have occurred between November 22,

1989 and

January 22,

1990.

Mr. Prescott submitted test results he conducted for total

chlorine’0 using a Hach test kit.

He recorded results ranging

~ This Act was formerly codified at Ill. Rev.

Stat.

1991,

ch.

30, pars.

301 et seq.

10

Total chlorine is the sum of free and combined chlorine.

(Tr.

at 98,

388)

.

An accurate total chlorine measurement under

0.5 mg/L would thus indicate combined chlorine under 0.5 mg/L.

0

i ~o-00I3

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10

from 0.0 to 0.4 on days between November 22,

1989 and January 22,

1990.

(Compl.

Exh.

3).

Prescott testified that in conducting the tests,

he ran

water through a vinyl hose

(Resp.

Exh.

A) connected to an faucet

outside his residence.

He testified that he filled the test vial

with water and put it in the kit,

added material from a capsule

to the water in the vial,

covered the vial with his index finger

to shake

it,

and then waited three minutes or less before taking

the reading.

(Tr.

at 55-57,

68.)

He testified that he waited no

longer than three minutes, but that he sometimes waited 2½

minutes.

He could not recall how many times he took readings at

2½

minutes.

(Tr. at 68,

71.)

Mr.

Leonard Lindstrom, Regional Manager of the Agency’s

Division of Public Water Supplies, testified on behalf of

complainant.

He testified regarding field or lab testing in

general that,

if, for example,

he wants a certified test,

he uses

a lab test.

He stated that to test what they think is present,

he uses

a field test.

(Tr. 164—165.)

He characterized the Hach

test as

a field test that “is not one

in which there are

a lot of

doubts about what the results are”.

(Tr.

at 165.)

He stated that

he has not taken any chlorine tests to the lab.

(Tr.

at 165.)

Mr. Lindstrom described the reaction in the test,

and stated that

the color or lack of color would be readily apparent.

(Tr.

at

158.)

He also stated that one would not have to wait the full

three minutes “to get most of the residual”.

(Tr.

at 167.)

Kevin Lookis, vice president of Hydronics,

Inc., testified

on behalf of Sycamore.

He testified that the Hach test had

a

margin of error of plus or minus 20

to 25

and is not suitable

for detecting very low levels of chlorine,

such as

.2

parts per

million.

(Tr. at 375-377.)

He stated that factors that could

adversely affect the accuracy of the Hach test for total chlorine

include not allowing enough time for the reagent to react,

the

condition of the eyes,

the condition of the reagent powder,

and

the sample size.

(Tr. at 378—380.)

Mr. Lookis testified that

the hose used by complainant contained a film indicating

a

buildup of iron which could create a chlorine demand that could

use up or reduce some of the chlorine during testing.

(Tr.

at

380—383.)

Thomas Mangan,

president of Prairie Environmental

Specialists, also testified on behalf of Sycamore.

He testified

that the Hach test was considered a qualitative test,

i.e.,

a

test used to give benchmark readings subject to field conditions.

He stated that the Hach test has a 10

to 20

margin of error.

(Tr. at 417-418.)

He also stated factors that could affect the

accuracy of the test as not waiting the full three minutes as

recommended by the manufacturer, covering the tube with a finger

when mixing the reagent in the vial,

and the use of

a rubber or

vinyl hose.

(Tr. at 420-422.)

Mr. Mangan testified that he

ORO-UOjt,~

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11

would recommend that a quantitative test be conducted if

a field

test indicated a

.0 residual.

(Tr.

at 432.)

He stated that in

doing the quantitative test,

certain procedures had to be

followed due to the fact that chlorine dissipates quickly.

(Tr.

at 432—433.)

Based on the above, the Board finds that the test results

presented by Prescott do not give the definitive indication of

the level of free or combined chlorine needed to conclude that

a

violation of Section 653.604 has occurred.

The respondent’s

witnesses rebutted the accuracy of the results yielded by the

method of field testing used by Prescott.

The Board is

particularly persuaded that the test results do not accurately

depict a violation based on the fact that the Each test

is a

qualitative field test that the respondent’s witnesses testified

has a margin of error ranging between 10

and 25,

and that

it

is

particularly suspect at lower levels of detection.

Also,

testimony indicates that complainant did not wait the full three

minutes on some occasions, and that he could not recall how many

times he did not wait the full three minutes.

At best the test

results are suggestive of a problem and would lead one to further

investigate whether a violation is occurring,

but are not

accurate enough to prove that a violation actually occurred.

The fact that Sycamore officials or officials of other water

supplies use the Hach test to check chlorine residual

(Tr.

at

260,

270; 396—7),

or that the test colors are apparent as stated

by Mr. Lindstrom, and as argued by complainant, does not bear on

the lack of accuracy of the Each test for a definitive finding of

violation.

Also,

the fact that chlorine dissipates quickly and

that certain procedures need to be followed to conduct a

quantitative test does not mean it cannot be done,

nor does this

bear on the lack of accuracy of the field test conducted here.

Complainant mischaracterizes respondent’s witness as stating that

the tests for chlorine residual “must” be run at the site.

(Compl.

brief at

5.)

The correct responses were affirmative

answers to questions concerning quick dissipation of chlorine as

one of the reasons why these tests are “generally” done at the

site.

(Tr. at 433.)

The Board finds that the complainant has failed to show that

a violation of 35 Ill. Adm. Code 653.604 has occurred between

November 22,

1989 and January 22,

1990.

This supplemental opinion,

and the December 17,

1992 opinion

(as modified in today’s opinion)

constitute the Board’s findings

of fact and conclusions of law in this matter.

ORDER

The complainant has failed to show that the violation as

alleged has occurred.

Therefore, this complaint is dismissed.

01 ~0-QO15

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12

IT IS SO ORDERED.

Board Member Bill Forcade dissented.

Section 41 of the Environmental Protection Act,

415 ILCS

5/41

(1992), 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 35 Ill. Adm. Code

101.246, Motions for Reconsideration,

and Castenada v.

Illinois

Human Rights Commission

(1989),

132 Ill.2d 304,

547 N.E.2d 437.)

I, Dorothy M. Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify that the above supplemental opinion and

order was adopted on the //~ day of

____________________

1993,

by a vote of

__________________

Dorothy M. C~nn,Clerk

Illinois P6~/lutionControl Board

01 ~.0-ü016