2

Section 38(a) of the Environmental Protection Act. 415 ILCS 5/38(a) (2000);

see also

City of

Canton v. IEPA, PCB 02-42 (Jan. 10, 2002 and Dec. 6, 2001), 35 Ill. Adm. Code 104.228 and

104.332. The statutory decision deadline in this matter is April 30, 2002.

 

On November 15, 2001, 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

1.

2

  

 

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. PCB, 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 Canton 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 Canton’s variance request, subject to

certain conditions.

 

FACILITY DESCRIPTION

Canton provides potable water service to an estimated 19,750 consumers. Pet. at 3. The

plant was constructed in 1939 and has eight filters. Pet. at 4. The plant has seven full-time

employees who are certified operators, and one full-time employee who is not a certified

operator. Pet. at 4.

  

The plant is a conventional lime softening plant. Pet. at 5. Source water is gravity fed to

the plant except in times of diminished elevation when the water is pumped from a pump station.

Id

. Potassium permanganate is added to the raw water as a pretreatment for disinfection and

taste and odor control. Next, powdered activated carbon is added; also for taste and odor.

Id

. A

coagulant, alum, is added immediately prior to the water entering the mixing chamber of the

accelerator and lime is added to the mixing chamber for softening.

Id

.

 

After flowing through a recarbination chamber, the water is filtered through multi-media

filters beds of anthracite, sand and graduated gravel. Pet. at 4-5. At this point, the filtered water

enters the clearwell where ammonia is added before being pumped into the distribution system.

Pet. at 5. The water quality is monitored as required by the SDWA, and process residuals are

monitored by manual sampling, with a grab sample being collected from each filter every four

hours.

Id

. Turbidity is automatically monitored using a Hach turbidimeter.

Id

. Canton’s eight

filters are not monitored by constant turbidity monitors.

Id

.

 

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

2

The Agency’s recommendations will be cited as “Rec. at __”; the petition will be cited as “Pet.

at __”; the supplemental information filed on December 31, 2001, will be cited as Supp. at __.”

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3

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. Canton 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.

 

* * *

 

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

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4

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

 

 

Canton states that the existing filter media and underdrain systems on all eight filters will

be removed and replaced with new HDPE inderdrains with porous plates. Pet. at 9. Canton will

remove existing troughs and replace them with fiberglass troughs at higher elevations to

maximize filter depth.

Id

. Duel filter media (sand and anthracite) will be used. Filter walls will

be coated with elastomeric polyurethane coating to control the exfiltration of water.

Id

. Canton

notes that six of the eight filters have a radial surface wash that will be raised in order to

maximize filter media depth on six of the filters. Canton will install radial surface washers on

the remaining two filters.

Id

. Turbidity monitors will be installed on each filter and computer

and software will be installed for recording and reporting.

Id

.

 

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

9. Canton is currently entering the construction phase of the project.

Id

. According to the

schedule, Canton received an Agency construction permit on August 8, 2000; received bids for

construction of the project on February 6, 2001; awarded the contract on July 11, 2001; and

notified the contractor to proceed on August 1, 2001. Pet. at 10. Canton plans to finish

construction by April 27, 2002, and conduct start up and software training on May 1, 2002.

Testing to assure compliance is scheduled to take place from May 28, 2002 to November 29,

2002.

Id

. Canton anticipates that full compliance with be reached by November 30, 2002. The

estimated cost to achieve compliance is $445,500. Supp. at 2.

 

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). Canton asserts that they

are poised on the edge of construction, that funding has been approved, that water rates have

been increased, and that materials are on order for the project. Pet. at 8-9. Canton contends that

it is not feasible to renovate all eight filters at one time due to their level of demand, and that it

would impose an arbitrary or unreasonable hardship on Canton if they are required to meet the

January 1, 2002 deadline

 

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

unreasonable hardship because the hardship resulting from a denial outweighs any injury to the

public or the environment from a grant of a variance. Rec. at 9. The Agency explains that

Canton has to renovate filters one through eight in its surface water treatment plant at the same

time in order to meet the 0.3 Nephelometric Turbidity Unit (NTU) turbidity requirement. Rec. at

9. Canton must also install new turbidity monitors on each renovated filter and a computer with

the software to collect and record the information from each monitor. Rec. at 9-10. The Agency

believes that the hardship associated with requiring compliance is real and unavoidable, while

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5

granting the variance will impose no significant injury to the public or the environment. Rec. at

10.

 

ENVIRONMENTAL CONSIDERATIONS

 

 

Canton argues that the overall risk to the health of the plant’s water consumers during

the requested 11 month variance period seems “tolerable and consistent” with the rule’s intent.

Pet. at 12-13. Canton claims that the plant’s filters currently can meet the new 0.3 NTU

requirement 60% of the time on average, with a minimum turbidity monthly compliance rate to

date as low as 25%. Pet. at 11-12; Supp. at 1. Additionally, Canton 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.

 

Canton contends that the plant has been producing potable water for its customers for 60

years without any known or documented outbreak of waterborne disease. Pet. at 12.

Additionally, during the variance period, Canton will comply with all the Primary Drinking

Water Standards. Pet. at 13. Further, Canton 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 four 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 7. Under Section 611.743(a)(1) Canton 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 Canton 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, Canton is in compliance with Section 611.250(a)(1). Rec. at 8.

Based on sampling results, however, Canton would only meet Section 611.743(a)(1)’s 0.3 NTU

standard 51% of the time. Rec. at 8.

 

Canton will implement actions if

Cryptosporidium

were detected in the treated water.

Supp. at 4. If

Cryptosporidium

were detected in Canton’s treated water, Canton would contact

the Agency, the local health department, the local hospitals and the media as well as their public

officials. Supp. at 4.

 

The Agency notes that the provisions of Section 611.744 and 611.745 impose certain monitoring

and reporting requirements that Canton will be unable to meet. Rec. at 8. However, the Agency

concludes that granting the variance would pose no significant injury to the public or the

environment. Rec. at 9.

 

The Board agrees, and finds that, if granted, the variance will not result in significant

injury to the public or the environment.

 

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6

CONSISTENCY WITH FEDERAL LAWS

Canton 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 14. 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

 

Canton 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).

 

Canton did not file the instant petition until October 1, 2001. In order to address

technical concerns of the Board, Canton was required to provide additional information to the

Board by December 31, 2001. As noted, the submittal of the additional information restarted the

statutory decision deadline resulting in a new deadline of April 30, 2002.

 

The statutory decision deadline for variances is 120 days. In order to meet the

compliance date of December 31, 2001, Canton should have filed the petition on or before

September 3, 2001. Canton did not file their petition by September 3, 2001, and they were

required to submit additional information to address technical issues not adequately addressed in

the petition. In addition, Canton did not provide any reason for not filing the petition on or

before September 3, 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 Canton

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.

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7

ORDER

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

611.743(a)(1), 611.744 and 611.745 for its water treatment plant located at 25495 Lakeshore

Drive, Canton, Fulton County from April 4, 2002 to November 30, 2002, subject to the following

conditions:

 

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

contained in 35 Ill. Adm. Code 611.743(a)(1) in at least 51% 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 Canton 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 Canton 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 the insides of eight filters at its surface water treatment

plant, and to install continuous turbidity monitors and a computer and software to

collect and record the turbidity readings, as required for compliance with 35 Ill.

Adm. Code 611.743(a)(1), 611.744, and 611.745. The first of these reports is due

July 3, 2002.

 

IT IS SO ORDERED.

 

 

Board Member S.T. Lawton Concurred.

 

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:

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8

 

CERTIFICATE OF ACCEPTANCE

 

The City of Centralia accepts and agrees to be bound by all terms and

conditions of the Pollution Control Board’s April 4, 2002 order in PCB 02-42.

____________________________________________________________

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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9

 

 

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

adopted the above opinion and order on April 4, 2002, by a vote of 6-0.

 

 

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board