2

such a hardship. For the reasons stated below, the Board grants Charleston’s variance request

subject to certain conditions recommended by the Agency.

PROCEDURAL MATTERS

 

The Agency filed its recommendation in response to the petition on October 1, 2001.

The Agency recommended that the Board grant the petition subject to certain conditions that are

listed in the order below. Rec. at 1, 10-11.

In its petition, Charleston requested a hearing on its petition pursuant to 35 Ill. Adm.

Code 104.204(n). On September 6, 2001, the Board accepted this matter for hearing. On

November 13, 2001, Charleston filed a waiver of hearing and acceptance of Agency

recommendations. The Board accepts Charleston’s waiver.

On September 21, 2001, the hearing officer ordered Charleston to provide information to

the Board that was not included in the petition. The hearing officer requested additional

information on topics such as construction of the new plant and additional data on

Giardia

and

Cryptosporidium.

On November 19, 2001

 

Charleston filed a response to the hearing officer

order.

FACILITY DESCRIPTION

Charleston’s existing plant is located at 2600 McKinley Avenue in Charleston, Coles

County. Charleston draws its drinking water from Lake Charleston. Charleston provides

drinking water to approximately 21,000 residents. The existing treatment plant was built in 1964

and employs seven fulltime certified operators. Pet. at 3, exh. B.

APPLICABLE REGULATIONS AND REQUESTED RELIEF

 

  

Charleston’s existing plant produces water that meets existing drinking water quality

regulations for turbidity. Turbidity is measured in nephelometric turbidity units (NTU). The

existing Board regulation requires Charleston to produce water with a turbidity of 0.5 NTU or

less 95% of the time. 35 Ill. Adm. Code 611.250(a)(1); pet. at 9.

On December 31, 2001, a new turbidity standard will come into effect at Subsection

611.743(a)(1) of the Board’s regulations. Charleston has requested a variance from Subsection

611.743(a)(1). Subsection 611.743(a)(1) applies to drinking water treatment plants that serve

more than 10,000 people and have a surface water source.

See

35 Ill. Adm. Code 611 Subpart R

and 611.101. Subsection 611.743(a)(1) provides:

A PWS [public water supply] subject to the requirements of this

Subpart that does not meet all of the standards in this Subpart and

Subpart B of this Part for avoiding filtration shall provide

treatment consisting of both disinfection, as specified in Section

611.242, and filtration treatment which complies with the

requirements of subsection (a) or (b) of this Section or Section

611.250 (b) or (c) by December 31, 2001.

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3

 

a) Conventional filtration treatment or direct filtration.

 

1) For systems using conventional filtration or direct

filtration, the turbidity level must be less than or

equal to 0.3 NTU in at least 95% of the

measurements taken each month, measured as

specified in Sections 611.531 and 611.533.

Thus, without the relief provided in a variance, Charleston will have to produce water

with an NTU of 0.3 or less 95% of the time by December 31, 2001. Based on Charleston’s data

from 1998-2001, its existing plant can only produce finished water with a turbidity of 0.3 NTU

or less 70% of the time. During that period, the lowest monthly compliance rate with the 0.3

NTU standard was just under 34%. Pet at 5, 9, 10 exh. A.

 

COMPLIANCE PLAN

 

In order for Charleston to produce 0.3 NTU combined finished water turbidities 95% of

the time, it must build a new plant. Charleston estimated that construction of the plant will take

36 months but will not be complete by the end of December 2001. Charleston began preliminary

engineering work in December 2000 and finished it in May 2001. It is in the process of design

and permitting the new plant that it began in June 2001 and expects to complete by April 2002.

Charleston predicted that construction, startup, and additional permitting activities will take from

May 2002 until December 2003. It estimated that the new plant will cost $8.192 million,

including $96,000 for preliminary design, $796,000 for design, and $7.3 million for construction.

Future annualized costs are expected to be $1.6 million including debt service and operating

expenses. Pet. at 5-6, 8. Charleston predicted that the turbidity in the water from the new plant

will be 0.1 NTU or less 95% of the time, thereby exceeding the new standard. Pet. at 8-9.

During the term of the variance, Charleston proposes to comply with the current turbidity

requirement of 0.5 NTU or less 95% of the time at Section 611.250(a)(1) of the Board’s

regulations. Pet. at 11.

Charleston’s new plant will include a new rapid mixer; a pre-sedimentation basin to

reduce turbidity; new lime softening contact units for hardness and reduced turbidity; new

recarbonation basins for pH adjustment; a new ozone contact basin to control taste, odor, and

microbial contaminants; and new granular activated carbon filters to control taste, odor, and

turbidity. Pet. at 7-8.

 

 

 

  

HARDSHIP

 

Charleston began investigating and implementing a number of strategies to comply with

Subsection 611.743(a)(1) of the Board’s regulations even before the associated federal

regulations were published in late 1998 (

see

below). Charleston tested “process modifications”

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4

such as coagulants, coagulant aids, chemical injection point adjustments, hydraulic loading

reductions, and new filters. It also tried diverting stormwater runoff away from the raw water

intake and acidifying finished water samples. None of these methods achieved compliance with

Subsection 611.743(a)(1). Pet. at 6-7; resp. at 1-2.

Charleston studied other methods to achieve compliance. It considered relocating the

water intake to another less turbid part of Lake Charleston, but those areas of the Lake deep

enough for an intake pipe are as turbid as the area where the existing intake pipe is located.

Charleston also found that increasing the depth of the existing filter beds or raising the filter beds

was not plausible. Pet. at 6-7.

Charleston claimed that the only viable option to comply with the turbidity requirements

of Subsection 611.743(a)(1) is to build a new plant. Based on the schedule above, Charleston

claimed that it would be an arbitrary or unreasonable hardship for it to comply by the December

31, 2001 deadline. Pet. at 7.

The Agency stated that denial of the variance petition would result in an unreasonable

and arbitrary hardship. Such hardship would outweigh any injury to the public or the

environment if the Board granted the variance. In support of its position, the Agency cited the

fact that Charleston will comply with the current turbidity regulations during the term of the

requested variance and that Charleston has investigated other options without success. Rec. at 7-

8.

 

ENVIRONMENTAL CONSIDERATIONS

 

Cryptosporidium

is a protozoan associated with the disease cryptosporidosis.

Cryptosporidosis may cause acute diarrhea, abdominal pain, vomiting, and a fever lasting from 1

to 2 weeks in healthy adults. However, it may be chronic or fatal to immuno-compromised

persons.

Giardia

is also a protozoan and is associated with the disease giardiasis. Symptoms

include diarrhea, fatigue, and cramps. Both

Cryptosporidium

and

Giardia

can be transmitted in

drinking water. U.S. Environmental Protection Agency Office of Water, Water on Tap: A

Consumer’s Guide to the Nation’s Drinking Water Supply (visited November 27, 2001)

<http://www.epa.gov/safewater/wot/appd.html>.

Charleston stated that the primary reason for stricter turbidity requirements is to reduce

the amount of particles in the water which in turn reduces the chance that consumers contract a

waterborne disease from microbial contamination, particularly from

Cryptosporidium

. Pet. at 9-

10. Charleston analyzed Lake Charleston during January 1999 and detected

Cryptosporidium

 

but found no

Giardia

. It last analyzed the Lake on May 29, 2001 and detected no

Giardia

or

Cryptosporidium

. As of mid-2001, no

Cryptosporidium

or

Giardia

has ever been detected in the

finished water. Charleston claimed that the health risk to its consumers during the requested

two-year term of the variance will be minimal. Pet. at 9-10; resp. at 2, exh. B.

The Agency generally agreed, mentioning that Charleston has not had an outbreak of a

waterborne disease since its current plant was constructed in 1964 and that the variance should

not impose a significant risk to the public or the environment. Rec. at 8.

 

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5

CONSISTENCY WITH FEDERAL LAWS

 

The basis for Subsection 611.743(a)(1) of the Board’s regulations is the “Interim

Enhanced Surface Water Treatment Rule” (IESWTR).

See

63 Fed. Reg. 69,478 (Dec. 16, 1998);

codified at 40 C.F.R. § 141.173 (2000).

 

 

Charleston and the Agency agreed that the requested variance may be granted consistent

with Section 1412(b)(10) of the Safe Drinking Water Act. 42 U.S.C. Sec. 300g-1(b)(10); pet. at

12; rec. at 8-9. That section provides, in pertinent part:

 

[A] State . . . may allow up to 2 additional years [beyond the

effective date of the regulation] to comply with a . . . treatment

technique if the . . . State . . . determines that additional time is

necessary for capital improvements.

 

Both Charleston and the Agency agreed that constructing the new plant is a capital

improvement necessary to comply with Subsection 611.743(a)(1) of the Board’s regulations.

Pet. at 12; rec. at 9.

 

Illinois has not yet received federal primacy authorization for the IESWTR. The variance

thus only provides relief from state turbidity standards.

 

CONCLUSION

The Board finds that, if the instant variance petition is not granted, Charleston will incur

an arbitrary or unreasonable hardship. For this reason, the Board will grant the requested

variance, subject to the conditions recommended by the Agency.

This opinion constitutes the Board's findings of fact and conclusions of law.

ORDER

The Board hereby grants petitioner, the City of Charleston, a variance from 35 Ill. Adm.

Code 611.743(a)(1)

 

for its existing drinking water treatment plant (plant) in Charleston, Coles

County, Illinois, subject to the following conditions:

 

 

1. Charleston will take all reasonable measures with existing equipment to minimize

the turbidity level in its finished drinking water.

 

2. Charleston will produce finished water that is 0.3 nephelometric turbidity units

(NTU) or lower in at least 34% of the measurements taken each month as

specified in 35 Ill. Adm. Code 611.531 and 35 Ill. Adm. Code 611.533.

 

3. Charleston will continue to comply with the turbidity requirements of 35 Ill.

Adm. Code 611.250(a)(1) which requires that the turbidity level of representative

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6

samples to be less than or equal to 0.5 NTU in at least 95% of the

measurements taken each month.

 

4. Charleston will provide written progress reports to the Agency’s Division of

Public Water Supplies, Field Operations Section every three months concerning

steps taken to construct the new plant required for compliance with 35 Ill. Adm.

Code 611.743(a)(1). The first of these reports shall be due 90 days after the grant

of the instant variance which is March 6, 2002.

 

5. This variance will begin on December 31, 2001, and will expire on December

30, 2003.

 

IT IS SO ORDERED.

If Charleston chooses to accept this variance, within 45 days after the date of this opinion

and order, it shall execute and forward to:

Vera Herst

Division of Legal Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Mail Code #21

Springfield, Illinois 62794-9276

 

a certificate of acceptance and agreement to be bound by all the 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:

CERTIFICATE OF ACCEPTANCE

The City of Charleston accepts and agrees to be bound by all terms and conditions of the

Pollution Control Board’s December 6, 2001 order in PCB 02-20.

____________________________________________________________

Petitioner

____________________________________________________________

Authorized Agent

____________________________________________________________

Title

____________________________________________________________

Date

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7

Section 41(a) of the Environmental

Protection Act provides that final Board orders

may be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the

order. 415 ILCS 5/41(a) (2000);

see also

35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.

Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois

Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The

Board’s procedural rules provide that motions for the Board to reconsider or modify its final

orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code

101.520;

see also

35 Ill. Adm. Code 101.902, 102.700, 102.702.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above opinion and order on December 6, by a vote of 5-0.

 

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board