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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.

2

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