ILLINOIS POLLUTION CONTROL BOARD
March 21, 2002
CITY OF SALEM,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 02-87
(Variance – Public Water Supply)
OPINION AND ORDER OF THE BOARD (by R.C. Flemal):
This matter is before the Board pursuant to a petition for variance (petition) filed by the
City of Salem (Salem), on December 28, 2001. Salem is seeking a variance for its water
treatment plant located on Spillway Road in Salem, Marion County. The requested variance is
from provisions of the Board’s primary drinking water standards: 35 Ill. Adm. Code 611.743,
611.744, and 611.745.
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These provisions relate to providing filtration and treatment, and
installing and recording data from turbidity monitors on each filter in the plant. The variance is
requested from January 1, 2002 until May 1, 2003, within which time Salem will complete plant
upgrades and install the turbidity monitors and recording system.
Pursuant to Section 35(a) of the Environmental Protection Act (Act), the Board is
charged with the responsibility of granting variances from Board regulations whenever
immediate compliance with Board regulations would impose an arbitrary or unreasonable
hardship on the petitioner. 415 ILCS 5/35(a) (2000). The Illinois Environmental Protection
Agency (Agency) is required to appear in hearings on variance petitions. 415 ILCS 5/4(f)
(2000). The Agency is also charged with the responsibility of investigating each variance
petition and making a recommendation to the Board as to the disposition of the petition. 415
ILCS 5/37(a) (2000).
On February 11, 2002, the Agency filed its recommendation in response to the petition.
The Agency recommends that the Board grant the petition subject to certain conditions. Rec. at
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These standards were adopted by the Board in SDWA Update, USEPA Regulations (July 1,
1998 through December 31, 1998), R99-12 (July 22, 1999). They became effective on August
11, 1999, with a compliance date of December 31, 2001, for Section 611.743 and January 1,
2002 for Sections 611.744 and 611.745.
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1.
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Salem initially requested a hearing, but filed a notice of withdrawal of the hearing
request on February 27, 2002. On March 7, 2002, the Board granted the request.
In a variance proceeding, the burden is on the petitioner to present proof that immediate
compliance with Board regulations would cause an arbitrary or unreasonable hardship, which
outweighs public interest in compliance with the regulations. Willowbrook Motel v. IPCB, 135
Ill. App. 3d 343, 349, 350, 481 N.E.2d 1032, 1036, 1037 (1st Dist. 1977). Pursuant to Section
35(a) of the Act, the Board finds that Salem has presented adequate proof that immediate
compliance with the Board regulations for which relief is being requested would impose such a
hardship. For the reasons stated below, the Board grants the Salem’s variance request, subject to
certain conditions.
FACILITY DESCRIPTION
Salem provides drinking water to over 10,000 people in Salem and surrounding
communities. Pet. at 3. The plant has existed since 1914. Pet. at 4. The plant has six full-time
employees.
The plant is a conventional surface water filtration plant. Pet. at 5. The plant includes a
rapid mix, flocculation basin, settling basins with tube settlers, seven dual media gravity filters
utilizing granular activated carbon over sand and support gravel, a clear well, and high service
pumps. Pet. at 6.
APPLICABLE REGULATIONS AND REQUESTED RELIEF
Three Board water quality regulations are at issue: 35 Ill. Adm. Code 611.743, which
describes specific filtration requirements, 35 Ill. Adm. Code 611.744, which requires public
water systems to install turbidity monitors on each filter in the system, and 35 Ill. Adm. Code
611.745, which imposes reporting and recordkeeping requirements from the turbidity monitors.
The compliance date for Section 611.743 was December 31, 2001. The compliance date for
Sections 611.744 and 611.745 was January 1, 2002. Salem requests that it be granted variance
with respect to all three regulations.
The regulations state in pertinent part:
Section 611.743 Filtration
A PWS 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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The Agency’s recommendations will be cited as “Rec. at ___”; the petition will be cited as
“Pet. at __.”
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a) Conventional filtration treatment or direct filtration.
1) For systems using conventional filtration or direct
filtration, the turbidity level of representative samples of a
system’s filtered water must be less than or equal to 0.3
NTU in at least 95 percent of the measurements taken each
month, measured as specified in Sections 611.531 and
611.533.
* * *
Section 611.744 Filtration Sampling Requirements
a) Monitoring requirements for systems using filtration treatment. In
addition to monitoring required by Sections 611.531 and 611.533,
a PWS subject to the requirements of this Subpart that provides
conventional filtration treatment or direct filtration shall conduct
continuous monitoring of turbidity for each individual filter using
an approved method in Section 611.531(a) and shall calibrate
turbidimeters using the procedure specified by the manufacturer.
Systems shall record the results of individual filter monitoring
every 15 minutes.
b) If there is a failure in the continuous turbidity monitoring
equipment, the system shall conduct grab sampling every four
hours in lieu of continuous monitoring, until the turbidimeter is
back online. A system shall repair the equipment within a
maximum of five working days after failure.
Section 611.745 Reporting and Recordkeeping Requirements
In addition to the reporting and recordkeeping requirements in Sections 611.261
and 611.262, a public water system subject to the requirements of this Subpart
that provides conventional filtration treatment or direct filtration must report
monthly to the Agency the information [relating to turbidity measurements and
individual filter monitoring specified in subsection (a), (b), and (c) of this section]
. . . .
COMPLIANCE PLAN
Salem states that it will install individual continuous recording nephelometers on each
filter effluent to continuously measure and record filtered water turbidity. Pet. at 11. Salem will
also install a Supervisory Control and Data Acquisition (SCADA) system to continuously
monitor and record various process and system functions, including turbidity from each
individual filter. Pet. at 11. Salem will modify the filter re-wash piping so individual and
combined filter turbidity is not adversely impacted following backwash of the filters. Pet. at 11.
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Salem plant to install a “filter aid” chemical feed system for each of the filter banks. Pet. at
12. Salem will also modify the filter influent piping to increase capacity to meet future needs.
Pet. at 12.
Salem prepared a schedule for implementing the phases of the control program. Pet. at
12. Beginning on February 15, 2002, Salem was scheduled to submit plans and specifications to
the Agency for a construction permit. Pet. at 13. Salem plans to begin construction on
September 3, 2002. Pet. at 13. Salem anticipates full compliance with the regulations by May 1,
2003. Pet. at 13. By September 1, 2003, Salem plans to complete remaining improvements and
start full operations. Pet. at 13. Salem estimates it will cost $1,201,600 to complete the project.
Pet. at 15.
HARDSHIP
Section 35(a) of the Act requires the Board to determine whether the petitioner has
presented adequate proof that it would suffer an arbitrary or unreasonable hardship if required to
comply with the Board's regulation at issue. 415 ILCS 5/35(a) (2000). Salem contends the
Agency first notified Salem of the new rule on April 12, 2001. Pet. at 10. Salem argues this late
notification put them in the “awkward position” of having less than nine months to make the
required modifications. Pet. at 10.
Salem further argues that on May 14, 2001, Salem’s engineering consultant, Curry &
Associates, sent a response to the Agency’s April 12, 2001 letter, indicating that Salem could not
comply with the new rule by January 1, 2002, and described items required for compliance and a
proposed timetable. Pet. at 9-10. On October 12, 2001, an Agency representative telephoned
Curry & Associates, regarding Salem’s proposed plan and compliance schedule, and told Curry
& Associates that compliance must occur by January 1, 2002. Pet. at 10. Salem argues that five
months after Salem responded to the Agency’s letter, the Agency responded by merely restating
the compliance date. Pet. at 10.
Salem contends that it only had eight months to prepare the required documents and get
funding for the project. Pet. at 10. Salem argues that the circumstance would impose an
arbitrary or unreasonable hardship to comply by January 1, 2002. Pet. at 10.
The Agency believes that denying the variance would result in an arbitrary or
unreasonable hardship because the hardship resulting from denial would outweigh any injury to
the public or the environment from a grant of a variance. Rec. at 10.
The Agency states that Salem wants to complete all the improvements as a single project
to avoid financing complications. Rec. at 11. The Agency argues that requiring Salem to
complete the improvements necessary for compliance with the monitoring and recordkeeping
requirements as a separate project will cause financing complications because Salem will have to
budget and expend general funds on the improvements, rather than using loan funding to cover
all the improvements as a single project. Rec. at 11. The Agency concludes that the hardship
associated with requiring compliance is real and unavoidable, while health or environmental
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impact would be negligible. Rec. at 11. The hardship, therefore, is arbitrary or
unreasonable. Rec. at 11.
ENVIRONMENTAL CONSIDERATIONS
Salem argues that the overall risk to the health of the consumers supplied by Salem’s
plant, should the variance be granted, seems “tolerable and consistent” with the rule’s intent.
Pet. at 16. Salem claims that the plant’s filters currently can meet the new 0.3 nephelometric
turbidity unit (NTU) requirement 95% of the time on the average, using the current turbidity
monitoring protocol. Pet. at 15. Additionally, Salem claims that the plant can continue to
produce finished water with a turbidity level of 0.5 NTU or less 95% of the time, which 35 Ill.
Adm. Code 611.250(a)(1) currently requires. Pet. at 15.
Salem contends that with a few exceptions, during the term of the variance, Salem will
comply with the Primary Drinking Water Standards and the Safe Drinking Water Act, and the
turbidity requirements contained in the new rules. Pet. at 17. The exceptions include 0.3
NTU/95th percentile combined filter water turbidity requirement, the continuous filter turbidity
monitoring, and the recordkeeping and reporting requirements. Pet. at 17.
The Agency responds that granting a variance from Section 611.744 and 611.745 should
impose no significant injury to the public or the environment. Rec. at 9, 10. The Agency
contends, however, that Salem’s plant currently distributes finished water that meets the standard
in Section 611.743(a)(1). Rec. at 4. The Agency argues that Section 611.743 has a turbidity
standard for no more than 0.3 NTUs in at least 95% of the measurement taken each month, with
no measurement exceeding 1 NTU. Rec. at 10. Because the Agency believes Salem will
continue to meet the more stringent turbidity standard in Section 611.743(a)(1) throughout the
variance, the Agency does not believe a variance from this standard is necessary. Rec. at 2, 10.
In its notice of withdrawal of hearing request, filed February 27, 2002, Salem recognized the
Agency’s observation and stated Salem is willing to accept the terms of the Agency’s
recommendation. Notice at 2.
CONSISTENCY WITH FEDERAL LAWS
Salem and the Agency agree that the 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 20. Rec. at
12. 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. 42 U.S.C.
Sec. 300g-1(b)(10).
RETROACTIVE VARIANCES
Salem requests a variance beginning January 1, 2002, which would be a retroactive
variance. The Board has previously considered requests for retroactive variances. The Board
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will not apply retroactive starting dates for variances where the petitioner has filed late and
the delay was the petitioner's fault. Marathon Oil Co. v. IEPA, PCB 95-150 (May 16, 1996).
Another reason for not applying a retroactive starting date is if the petitioner's hardship is self-
imposed as a result of the petitioner's inactivity or faulty decision-making. Marathon Oil Co. v.
IEPA, PCB 95-150 (May 16, 1996). The Board may grant a retroactive variance if the petitioner
has diligently sought relief and has made a good faith effort toward achieving compliance with
Board regulations. Marathon Oil Co. v. IEPA, PCB 95-150 (May 16, 1996); Deere & Co. v.
IEPA, PCB 88-22 (Sept. 8, 1988). The Board has also provided retroactive variances where
there was a procedural delay that was not the petitioner's fault or was the result of confusion over
federal regulations. Marathon Oil Co. v. IEPA, PCB 95-150 (May 16, 1996); Allied
Signal v. IEPA, PCB 88-172 (Nov. 2, 1989).
Salem did not file the instant petition until December 28, 2001. Salem does not
provide any reason for filing the petition so close to the compliance dates of December
31, 2001, and January 1, 2002. The Board will not grant a retroactive variance, but will
instead grant the variance effective as of the date of this order.
CONCLUSION
The Board finds that, if the instant variance petition is not granted, the City of Salem will
incur an arbitrary or unreasonable hardship. For this reason, the Board will grant a variance
from 35 Ill. Adm. Code 611.744 and 611.745, 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, City of Salem, variance from 35 Ill. Adm. Code
611.744 and 611.745 for its water treatment plant in Salem, Marion County from
March 21, 2002, to May 1, 2003, subject to the following conditions:
1. City of Salem will take all reasonable measures with existing equipment to
minimize the level of turbidity in its finished drinking water, until full compliance
is reached.
2. City of Salem will comply with the requirements of 35 Ill. Adm. Code 611.745(a)
and 611.745(c), which do not apply to individual filter monitoring.
3. City of Salem shall provide written progress reports to the Agency’s Division of
Public Water Supplies, Field Operations Section every three months concerning
steps taken to modify the filter rewash (filter-to-waste) piping and valves; and to
complete the installation of the turbidity monitors and a new SCADA system to
collect and record the turbidity readings, as required for compliance with 35 Ill.
Adm. Code 611.744 and 611.745. The first of these reports is due
June 19, 2002.
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IT IS SO ORDERED.
If petitioner chooses to accept this variance, within 45 days after the date of this opinion
and order, petitioner shall execute and forward to:
Vera Herst
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue
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 Salem accepts and agrees to be bound by all terms and
conditions of the Pollution Control Board’s March 21, 2002 order in PCB 02-87.
____________________________________________________________
Petitioner
____________________________________________________________
Authorized Agent
____________________________________________________________
Title
____________________________________________________________
Date
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 order on March 21, 2002, by a vote of 7-0.
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Dorothy M. Gunn, Clerk
Illinois Pollution Control Board