ILLINOIS POLLUTION CONTROL BOARD
APRIL 12,
1990
CITY OF EAST MOLINE,
Petitioner,
v.
)
PCB 89—188
(Variance)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
OPINION AND ORDER OF
THE BOARD
(by
J. Theodore Meyer):
This matter comes before the Board on
the petition
for
variance extension filed by the City of
East Moline (City)
on
November
14,
1989,
as amended January
9,
1990.
The City seeks
a
variance from the Board’s public water supply regulations namely
35
Ill. Adm. Code 602.105(a),
“Standards
for Issuance” and 35
Ill.
Adm.
Code 602.106(b),
“Restricted Status” to the extent
those
rules relate
to the maximum allowable concentration
(MAC)
for trihalomethanes
(THM)
in public drinking water.
The City
specifically requests the extension of
the variance granted
to
the City by the Board
in Order PCB 87-128
for the extended period
of January
22,
1991
to September
30,
1991.
On February 26,
1990,
the Illinois Environmental Protection
Agency (Agency)
filed its recommendation
in support of
the
variance subject
to conditions.
Hearing was waived and none has
been held.
Based upon the record before
it, the Board finds that the
City has presented adequate proof
that compliance
with
the
Board’s
regulations would impose an arbitrary or unreasonable
hardship.
Accordingly,
the variance extension will be granted
subject
to conditions.
PROCEDURAL
HI
STORY
The City filed a petition for variance (PCB 87-128)
on
August
14,
1987 and amended
that petition
on
October
5,
1987.
On
January 21,
1988,
the Board granted the City a variance from the
restricted status regulations as they pertained
to the maximum
allowable concentration of trihalomethanes
in
drinking water.
That variance was subject
to conditions and was
to terminate on
January 21,
1991.
BACKGROUND
lift-29
—2—
A complete discussion
of the City’s water system and the
hardships
that compliance with the Board’s public water
supply
regulations would cause are included
in the Board’s Opinion and
Order PCB 87—128.
That Opinion and Order
is incorporated by
reference
in this proceeding.
The Board had granted a variance
to the City
in PCB 87—128
from the public water
supply regulations,
subject
to conditions,
until January
21,
1991.
The conditions of
the variance included
submission
of
a final
report of its consultant’s studies
concerning
steps necessary
for compliance by April
1,
1989;
filing applications
for all constructions permits with the Agency
by July
1,
1988;
and completion of all phases of construction by
January
20,
1990.
The City
received the consultant’s report and received bids
on February 27,
1988
for the first phase
(Phase
I)
of
the project
to attain compliance.
Phase
I included revisions
to the existing
chlorination systems and flow monitoring
systems for basins
3 and
4, and installation of ammonia feed facilities.
Completion
of
Phase
I was scheduled
for December
15,
1989.
The City’s consultant, during performance of Phase
I,
designed a second phase
(Phase II) which included revisions
to
the carbon
feed, alum feed and lime feed systems.
Plans and
specifications
for Phase
II were submitted
to the Agency on March
9,
1989;
the City received
a permit
for construction on June
9,
1989.
The City received bids on July
13,
1989 which
“were
substantially and unexpectedly over the construction estimates
for Phase II”
(Petition at
3).
The City stated that the bids
ranged from $425,219
to $474,856,
well over the engineer’s
estimate of $200,000.
The City,
in
response
to the
recommendation
of its consulting
firm,
rejected all bids
received
on July
13, 1989,
and revised
the plans and specifications
for
Phase
II.
On October
2,
1989,
the City accepted the low bid of
$389,246 on the revised Phase
II plans and a contract was
awarded.
Completion of Phase
It
is
scheduled for June
30,
1990.
In addition,
the City anticipates
that completion
of
the
necessary equipment testing and minor process adjustments will
not
be completed before September
30,
1990.
Phase
it
construction
is necessary
for
the operation
of the water plant
anc~the City
is therefore requesting an extension of
its
variance.
The City has continued to monitor
the concentration of THM
since
the granting of
its variance.
The following
is
a table of
the average concentrations
of THM from 1987
until
the filing of
the instant petition:
DATE
Average THM Concentration
(mg/i)
08—03—89
0.196
05—08—89
0.106
02—06—89
0.082
1 10-3~~
—3—
11—08—88
0.078
08—25—88
0.102
05—02—88
0.087
02—16—88
0.083
12—16—87
0.052
12—02—87
0.082
09—08—87
0.120
(Petition at
5).
REGULATORY FRAMEWORK
In recognition of
the health risks occassioned by exposure
to THM,
the Board adopted a 0.10 mg/l MAC for THM
in R8l—ll for
water supplies serving over 10,000 individuals.
In R84—l2,
the
Board adopted
a rule which extended the
THM
standard to include
public water supplies serving
less than 10,000 individuals.
The
City is not seeking
a variance from the
MAC
for THM;
rather,
the
City requests the temporary lifting of prohibitions
imposed
pursuant
to
35 Ill. Adm. Code 602.105 and 602.106.
Board
regulations provide
that communities are prohibited
from extending water
service, by virtue
of not being able
to
obtain the requisite permits,
if
their water
fails
to meet any of
the several standards for finished water supplies.
This
provision
is a feature
of Board regulations not found
in federal
law.
It
is from this prohibition which
the City requests an
extension of
its variance.
In consideration of any variance,
the Board is required to
determines
whether the petitioner would suffer an arbitrary or
unreasonable hardship
if required to comply with the Board’s
regulations at
issue
(Ill.
Rev.
Stat.
1987,
ch. l1l~par.
1035(a)).
It
is normally not difficult
to make a showing
that
compliance with regulations
involves some hardship, since
compliance with regulations usually requires some effort and
expenditure.
Demonstration of such simple hardship alone
is
insufficient
to allow
the Board
to find for
a petitioner.
Also
a
petitioner must demonstrate
that the hardship resulting from
denial
of variance would outweiah the injury of the public
from a
grant of the petition
(Caterpillar Tractor
Co.
v.
IPCB
(1977),
48
Ill. App.
3d
655,
363 N.E.
2d 419).
Only with such showing can
hardship rise
to the level of arbitrary or unreasonable hardship.
Moreover,
a variance by its nature
is a temporary reprieve
from compliance with the Board’s fegulations
(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
(Id.)
Accordingly,
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.
1.10—31
—4—
HARDSHIP
The City asserted
in its prior petition that
to keep the
City on restricted status would impose an arbitrary and
unreasonable hardship.
The City also states that:
Restricted
status prevents
East Moline
from expanding,
extending
or modifying
its water distribution system.
Recently,
East Moline has lost much of
its
industrial base and has suffered
a
resulting loss
in water
users.
This has
served to
increase water
rates while
it
discourages both industry and residents
from using
the public water supply
system.
As
a
result,
East Moline does
not have the funding required
to
implement many necessary improvements
to
the water treatment plant and
distribution system.
(City of East Moline
v.
IEPA,
PCB 87—128
(January 21, 1988).
The City further discussed
the hardship that restricted
status would impose by explaining the City’s need
to attract new
industry
to improve the depressed economic conditions
in the
City,
in part caused by a loss
of
industry.
Inclusion on the
restricted status list effectively prohibits the City from
establishing new industry as
it
cannot modify its water
distribution system to accommodate that industry.
The City
in
its
instant petition states that:
East Moline has endeavored,
and continues
to endeavor,
in good faith and
with
its
best efforts
to comply fully and
in a
timely manner with
the terms of
the
Order.
However,
because of the
unexpected delay caused by the
surprisingly high Phase
II
bids,
completion cf Phase
II and the necessary
equipment testing and minor process
adjustments cannot
be completed before
September
30,
1990,
so as
to achieve
THM
compliance before
the expiration
of the
requested variance extension until
September
30,
1991.
(R.
at
4,
petition)
The Agency agrees that
to deny the requested extension
“would result in an arbitrary or unreasonable hardship”
(Recommendation at
5)
11 n-i :~
—5—
AGENCY RECOMMENDATION
The Agency’s recommendation indicates that the extension of
the variance would not cause a significant health risk.
The
Agency stated
in its recommendation
to grant
the variance
extension that:
The Agency believes an incremental
increase
in the allowable concentration
for the contaminant
in question even up
to a maximum of four times the MAC for
the contaminant
in question,
should cause
no significant health risk for the
limited population served by new water
main extensions
for the time period of
this recommended variance.
The table submitted by the City indicate that
it at various
times,
since
the grant of the original variance,
the City’s water
supply
is within the THM standard and the table further indicates
that the average THM concentration,
as measured, has not been
higher than 0.196 mg/l.
CONSISTENCY WITH FEDERAL LAW
The Agency believes the Board may grant
the City the
extension of the variance,
consistent with the Safe Drinking
Water Act
(SDWA), PL 93—523, as amended by PL 96-502,
42 U.S.C
Section
300(f), and corresponding regulations because the
recommended relief
is not
a variance from a national primary
drinking water regulation.
CONCLUSION
The Board notes
that
the City has already taken several
steps
in order
to bring
its public water supply into compliance
with
the THM standard and
the City has met certain of
the
deadlines set forth in the Board Order at PCB 87—128.
However,
unforeseen difficulties have arisen which render the possibility
of
the City being able
to achieve compliance by January
21,
1991
unlikely.
The Board
finds
that,
in light
of all facts and
circumstances of this case, denial of variance would impose an
arbitrary
or unreasonable hardship upon the City.
The Board
further
finds
that satisfactory progress toward compliance has
been shown.
The Board also agrees with the parties
that
no
significant health risk will be
incurred by persons who are
served by any new water main extensions,
assuming that compliance
is timely forthcoming.
Therefore,
the Board will grant
an
extension of the City’s variance until September
30,
1991 subject
to conditions similar
to those outlined by the Agency.
110—33
—6—
This Opinion constitutes
the Board’s findings of
fact and
conclusions of law
in this matter.
ORDER
Petitioner,
the City of East Moline,
is hereby granted an
extension of
its variance from 35
Ill.
Adm. Code 602.105(a)
“Standards for Issuance’,
and 602.106(b),
“Restricted Status”,
solely as they relate
to excursions
of
the 0.10 mg/i
trihalomethane
(THM)
standard of Section 604.202, subject
to the
following conditions:
(A)
Compliance
shall
be achieved with the THM
standard of 0.10 mg/l no
later
than
September
30,
1991.
(B)
This variance expires September
30,
1991
or when analysis pursuant
to 35
Ill. Adm.
Code 605.104(a)
shows compliance with the
THM standard,
whichever occurs first.
(C)
In consultation with the Agency,
Petitioner
shall continue its sampling
program to determine as accurately as
possible the level of THM in its finished
water.
(D)
Construction allowed on construction
permits shall begin within
a reasonable
time of bids being accepted, but
in any
case, construction
of all installations,
changes or additions necessary
to achieve
compliance with the THM standard of 0.10
mg/l shall
be completed no later
than
September
30,
1990.
(E)
Pursuant
to
35
Ill.
Adm.
Code 606.201,
in
its first
set
of water
bills or within
three months after
the date of
this
variance order, whichever occurs first,
and every three months thereafter,
Petitioner will send
to each user of its
public water
supply a written
notice to
the effect
that Petitioner
has been
granted by the Pollution Control Board a
variance from 35
Ill. Adm. Code
602.105(a)
Standards for Issuance and 35
Ill. Adm.
Code 602.106(b)
Restricted
Status,
as
it
relates
to
the THM
standard.
110—34
—7—
(F)
Pursuant •to 35
Ill. Adm.
Code 606.201, 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, Petitioner will
~send to each user of
its public water
supply a written notice to the effect
that Petitioner
is not
in compliance with
the THM standard.
The notice shall
state
the average content of THM in samples
taken since the last notice period during
which samples were taken.
(G)
Until
full compliance
is reached,
Petitioner
shall take all reasonable
measures with its existing equipment
to
minimize the level of THM in its finished
drinking water.
(H)
The Petitioner shall provide written
progress
report
to Illinois Environmental
Protection Agency, Department of Public
Water Supply, Field Operations Section
every six months concerning steps taken
to comply with paragraphs A
-
G.
Progress reports shall quote each of
said
paragraphs and immediately below each
paragraph state what steps have been
taken to comply with each paragraph.
(I)
Within forty—five days
of the grant
of
the variance, Petitioner shall execute
and forward
to Bobella Glatz, Enforcement
Programs,
Illinois Environmental
Protection Agency,
2200 Churchill Road,
Springfield,
Illinois 62794—9276, a
Certificate of Acceptance and Agreement
to be bound
to all terms and conditions
of the granted variance.
This forty—five
(45) day period shall
be held
in abeyance
for any period during which this matter
is being appealed.
If the Petitioner
fails
to execute and forward the
agreement within a forty—five
(45)
day
period,
the variance
shall be
void.
The
form of Certification shall be
as
follows.
110—35
—8—
CERTIFICATE
I
(We),
,
hereby
accept and agree to be bound by all terms and conditions
of the
Order of
the Pollution Control Board
in PCB 89—188, April
—,
1990.
Petitioner
Authorized Agent
Title
Date
Section
41 of the Environmental Protection Act,
Ill. Rev.
Stat.
1985,
ch. lll~, 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.
IT
IS SO ORDERED
Board Members
J. Dumelle and B.
Forcade concurred.
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 /Y~~
1990,
by a vote of
~
.
/~
~‘.
Dorothy
M.
~unn, Clerk,
Illinois Pollution Control Board
110—36