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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 Centralia 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 Centralia’s variance request, subject to

certain conditions.

 

FACILITY DESCRIPTION

Centralia provides potable water service to an estimated 37,000 consumers. Pet. at 3-4.

The plant is 77 years old and has eight filters. Pet. at 4. The plant has eight full-time employees.

Pet. at 4.

  

The plant is a 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 5. The plant has eight filters 1-8. Pet. at 5-6. Filters 7 and 8 have the recording

nephelometers, but filters 1-6 do not.

 

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. Centralia 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.

 

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.

 

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* * *

 

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

 

Centralia states that it will install recording nephelometers on the remaining six of its

eight filters (filters 1-6). Pet. at 9. Centralia will also reconstruct the underdrains and filter

bottoms on filters 1-6, including the replacement of the existing filter media with 12 inches of

filter sand topped with 24 inches of granular activated carbon. Pet. at 9. Centralia will complete

the protective coating restoration and installation of tube settlers in the existing square clarifiers

to improve efficiency. Pet. at 9. Centralia intends to replace the deteriorated influent, effluent,

and backwash supply valves on filters 1-6. Pet. at 9.

 

 

Centralia prepared a schedule for implementing the phases of the control program. Pet. at

9. Beginning on February 15, 2002, Centralia submitted plans and specifications to the Agency

for a construction permit. Pet. at 9. Centralia plans to begin construction on September 3, 2002.

Pet. at 10. By July 1, 2003, Centralia plans to attain compliance with the regulation and start full

operations with new improvements. Pet. at 10. Centralia estimates it will cost $899,600 to

complete the project. Pet. at 11.

 

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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). Centralia contends the

Agency first notified Centralia of the new rule on April 12, 2001. Pet. at 8. Centralia argues this

late notification put them in the “awkward position” of having less than eight months to make the

required modifications. Pet. at 8.

 

Centralia contends that it only had eight months to prepare the required documents and

get funding for the project. Pet. at 9. Centralia argues that the circumstances would impose an

arbitrary or unreasonable hardship to comply by January 1, 2002. Pet. at 9.

 

The Agency believes that denying the variance would result in an arbitrary or

unreasonable hardship because the hardship caused by a denial outweighs any injury to the

public or the environment from a grant of a variance. Rec. at 10. The Agency explains that

Centralia has to renovate filters 1 through 6 in its surface water treatment plant. Rec. at 10.

Centralia must also add tube settlers to the two existing square clarifiers to meet the 0.3 NTU

requirement. Rec. at 10. Additionally, Centralia must install new continuous turbidity monitors

on the six renovated filters. Rec. at 10.

 

ENVIRONMENTAL CONSIDERATIONS

 

Centralia argues that the overall risk to the health of the plant’s consumers seems

“tolerable and consistent” with the rule’s intent. Pet. at 12-13. Centralia claims that the plant’s

filters currently can meet the new 0.3 NTU requirement 91.93% of the time. Pet. at 11.

Additionally, Centralia claims that the plant can currently 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 11.

 

Centralia contends that the plant has been producing potable water for its customers for

77 years without any known or documented outbreak of waterborne disease. Additionally,

during the variance period, Centralia will comply with all the Primary Drinking Water Standards.

Pet. at 13. Further, Centralia will continue to comply with the 0.5 NTU/95th percentile

combined filter water turbidity requirement presently in place and continue the monitoring of

filters every three hours. Pet. at 13.

 

The Agency agrees that granting the variance would not impose a significant injury to the

public or the environment. Rec. at 9. Under Section 611.743(a)(1) Centralia must produce

finished water with a turbidity level less than or equal to 0.3 NTU in at least 95% of the monthly

measurements. 35 Ill. Adm. Code 611.743(a)(1). The previously applicable standard of Section

611.250(a)(1) required Centralia to produce finished water with a turbidity level less than or

equal to 0.5 NTU in at least 95% of the monthly measurements. 35 Ill. Adm. Code

611.250(a)(1). According to the Agency, Centralia is in compliance with Section 611.250(a)(1).

Rec. at 9. Based on 2001 sampling results, however, Centralia would only meet Section

611.743(a)(1)’s 0.3 NTU standard 63.44% of the time. Rec. at 8.

 

  

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Centralia also will monitor the clarification and filtration processes to try and comply

with the new turbidity standards. Pet. at 13. Centralia will implement actions if

Cryptosporidium

were detected in the treated water. Pet. at 13. The Agency notes that if

Cryptosporidium

were detected in Centralia’s treated water, Centralia would issue a system-wide

“boil order” to its customers; determine the cause of the process failure; and take remedial action

to correct the process failure. Rec. at 9.

 

The Agency concludes that granting the variance would pose no significant injury to the

public or the environment. Rec. at 9.

 

CONSISTENCY WITH FEDERAL LAWS

Centralia 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 15. Rec. at

11. 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

 

Centralia requests a variance beginning January 1, 2002, which would be a retroactive

variance. The Board has previously considered requests for retroactive variances. The Board

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).

 

Centralia did not file the instant petition until December 31, 2001. Centralia does not

provide any reason for filing the petition the day of the first compliance date of December 31,

2001. The Board will not grant a retroactive 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 Centralia

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.

 

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

ORDER

The Board hereby grants petitioner, City of Centralia, variance from 35 Ill. Adm. Code

611.743(a)(1), 611.744 and 611.745 for its water treatment plant located at 2219 Old 51 Road, in

Centralia, Marion County from March 21, 2002, to July 1, 2003, subject to the following

conditions:

 

1. City of Centralia 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 Centralia will produce finished water meeting the new 0.3 NTU

requirement contained in 35 Ill. Adm. Code 611.743(a)(1) in at least 50% of the

measurements taken each month as specified in 35 Ill. Adm. Code 611.531 and 35

Ill. Adm. Code 611.533.

 

3. City of Centralia will continue to comply with 35 Ill. Adm. Code 611.250(a)(1),

which requires the turbidity level of representative samples to be less than or

equal to 0.5 NTU in at least 95% of the measurements taken each month.

 

4. City of Centralia will comply with the monitoring and recordkeeping

requirements in 35 Ill. Adm. Code 611.744 and 611.745(b) as they apply to filters

7 and 8.

 

5. City of Centralia will comply with the monitoring and recordkeeping

requirements in 35 Ill. Adm. Code 611.745(c)(1).

 

6. City of Centralia will provide written progress reports to the Agency’s Division of

Public Water Supplies, Field Operations Section every three months concerning

steps taken to renovate filters 1 through 6 at its surface water treatment plant, and

to install continuous turbidity monitors on these six filters. The first of these

reports is due June 19, 2002.

 

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

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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 Centralia accepts and agrees to be bound by all terms and

conditions of the Pollution Control Board’s March 21, 2002 order in PCB 02-88.

____________________________________________________________

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.

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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.

 

 

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board