ILLINOIS POLLUTION CONTROL BOARD
Nay
5,
1994
AUBURN,
DIVERNON,
GIRARD,
)
PAWNEE,
THAYER,
VIRDEN
WATER
COMMISSION,
)
)
Petitioner,
v.
)
PCB 94—86
)
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
OPINION
AND
ORDER OF THE BOARD
(by E.
Dunham):
This matter comes before the Board on the March 14,
1994,
filing by petitioner,
Auburn, Divernon, Girard,
Pawnee, Thayer,
Virden Water Commission (Water Commission),
of a petition for
variance.
On April 18,
1994,
the Water Commission filed a motion
for expedited decision.
The Board hereby grants that motion.
The Water Commission seeks relief from 35 Ill. Adm. Code
602.105(a),
“Standards for Issuance”,
and 602.106(a),
“Restricted
Status”, but only to the extent those rules involve the maximum
contaminant level
(MCL)
for atrazine in 35 Iii.
Adin.
Code
611.310(c).
The Water Commission requests a variance for five
years or until analysis pursuant to 35 Ill. Adm. Code 611.684
shows compliance with the standard regulating atrazine, whichever
comes first.
The Water Commission waived hearing and an
objection to the variance requesting a hearing was not filed
therefore,
a hearing was not held.
On April
4,
1994,
the Illinois Environmental Protection
Agency (Agency)
filed its variance recommendation.
The Agency
recommends that the variance be granted for a period of
approximately 2½ years,
subject to certain conditions.
The
Agency also recommends that the variance expire on October
1,
1996,
the date that the Water Commission has agreed to obtain
compliance with the atrazine standard.
The petitioner did not
file a reply to the recommendation.
The Board’s responsibility in this matter arises from the
Environmental Protection Act
(Act)
(415 ILCS 5/1 et seq.
(1992).)
The Board is charged therein with the responsibility to “grant
individual variances beyond the limitations prescribed in this
Act, whenever it is found upon presentation of adequate proof,
that compliance with any rule or regulation, requirement or order
of the Board would impose an arbitrary or unreasonable hardship.”
(415 ILCS 5/35(a)
(1992).)
More generally, the Board’s
responsibility in this matter
is based on the system of checks
2
and balances integral to Illinois environmental governance: the
Board is charged with the rulemaking and principal adjudicatory
functions,
and the
Agency is responsible.for carrying out the
principal administrative duties.
The requested variance is not a variance from the atrazine
standard.
The variance is also not a variance from U.S. EPA’S
national primary drinking water regulations and does not suspend
the effect of the Safe Drinking Water Act
(SDWA), PL 93-523, as
amended by PL 96—502,
42 U.S.C.
300(f)
(1989).
The requested
variance relates only to the standards of issuance and restricted
status provisions of the Board’s regulations.
For the following reasons, the Board finds that the Water
Commission has presented adequate proof that immediate compliance
with the Board’s regulations for “Standards for Issuance” and
“Restricted Status” would result in the imposition of an
arbitrary or unreasonable hardship.
Accordingly, the variance is
granted, subject to conditions set forth in the attached order.
BACKGROUND
The Water Commission owns and operates a water treatment and
distribution system.
The Water Commission provides potable water
for the residents and commercial and industrial customers in
Auburn,
Divernon, Girard,
Pawnee, Thayer, and Virden and Milwood.
The Water Commission serves a population of approximately 14,000.
Approximately 430 retail customers throughout the 30 mile
distribution system are serviced by the Water Commission.
Water
rates are established by ordinance.
Water is drawn from Otter
Lake.
Otter Lake is a 765 surface acre lake constructed in 1968
with 39 miles of shoreline.
(Pet. at 4.)
On August 16,
1993,
the Agency notified the Water Commission
that the maximum contaminant level for atrazine had been
exceeded.
(Pet. at
5.)
The average of samples collected over one
year was 0.005 mg/i exceeding the NCL for atrazine of 0.003 mg/i.
(Pet at 5.)
The Agency also informed the Water Commission that
it would be placed on the restricted status list.’
(Exh.
B.)
The
Water Commission
is not on restricted status for exceeding any
other contaminant.
(Ag. Rec. at 7.)
The Water Commission
believes that atrazine has been used on farm fields that drain
into the Otter Lake Watershed Basin.
Atrazine is not removed by
the current treatment at the water treatment facility.
1
Public water supplies on the restricted status list will not
be
issued permits for water main extensions,
except for certain
limited situations or unless a variance has been granted.
3
REGULATORY
FRAMEWORK
The
instant
variance request concerns two features of the
Board’s
public
water
supply regulations: “Standards for Issuance”
and “Restricted Status”.
These features are found at 35
Ill.
Adm. Code 602.105 and 602.106, which in pertinent part read:
Section 602.105
Standards for Issuance
a)
The Agency shall not grant any construction or
operating permit required by this Part unless the
applicant submits adequate proof that the public water
supply will be constructed, modified or operated so as
not to cause a violation of the Environmental
Protection Act
(Ill. Rev.
Stat.
1989,
ch.
lii
½,
pars.
1001 et seq.)
(Act), or of this Chapter.
Section 602.106
Restricted Status
b)
The Agency shall publish and make available to the
public, at intervals of not more than six months,
a
comprehensive and up—to—date list of supplies subject
to restrictive status and the reasons why.
The principal effect of these regulations
is to provide that
public water supply systems are prohibited from extending water
service, by virtue of not being able to obtain the requisite
permits, unless and until their water meets all of the standards
for finished water supplies.
The Water Commission requests that
it be allowed to extend the water service while they pursue
compliance with the atrazine standard,
as opposed to extending
service only after attaining compliance.
In determining whether any variance
is to be granted, the
Act requires the Board to determine whether a petitioner has
presented adequate proof that immediate compliance with the Board
regulations at issue would impose an arbitrary or unreasonable
hardship.
(415 ILCS 5/35(a)
(1992).)
Furthermore, the burden is
upon the petitioner to show that its claimed hardship outweighs
the public interest in attaining compliance with regulations
designed to protect the public (Willowbrook Motel v. Pollution
Control Board
(1st Dist.
1977),
135 Ill. App.
3d 343,
481 N.E.2d
1032).
Only with such a showing can the claimed hardship rise to
the level of arbitrary or unreasonable hardship.
A further feature of a variance is that it is,
by its
nature,
a temporary reprieve from compliance with the Board’s
regulations
(Monsanto Co.
v. IPCB
(1977),
67 Ill.2d
276,
367
N.E.2d
684), and compliance is to be sought regardless of the
hardship which the task of eventual compliance presents an
individual polluter
(u.).
Accordingly, except in certain
special circumstances,
a variance petitioner is required, as a
4
condition to grant of variance, to commit to a plan which is
reasonably calculated to achieve compliance within the term of
the variance.
A grant of variance from “Standards for Issuance” and
“Restricted Status” does not absolve a petitioner from compliance
with the drinking water standards at issue, nor does it insulate
a petitioner from possible enforcement action brought for
violation of those standards.
The underlying standards remain
applicable to the petitioner regardless of whether variance is
granted or denied.
COMPLIANCE
PLAN
A resource planning committee consisting of members of the
agricultural community, agribusiness leaders, business leaders
and local government was established in June of 1992.
The
committee was formed to define concerns with respect to water
quality, soil erosion, fish and animal wildlife,
recreation,
sedimentation and shoreline erosion in the Otter Lake Watershed.
The Water Commission entered a letter of commitment with the
Agency on February 24,
1994.
(Pet. at
6.)
The letter of
commitment requires the Water Commission to conduct a
multifaceted program to comply with the atrazine MCL by October
1,
1996.
(Ag. Rec. at 6.)
The Water Commission has committed to
a compliance plan that will utilize control of
atrazine
into
Otter Lake through watershed management practices and treatment
of atrazine.
(Ag. Rec. at 6.)
The Agency asserts that the Water
Commission has sufficiently described and committed to measures
and methods of control to be undertaken to achieve full
compliance.
(Ag. Rec.
at 7.)
The requirements of the letter of
commitment have been incorporated into the conditions of this
variance.
HARDSHIP
The Water Commission is aware of numerous projects in the
geographic area that envision the extension of water mains to
serve new customers.
(Pet. at 4.)
Imposition of the restricted
status would mean that permits for the water main extensions
would be denied.
(Ag. Rec. at 11.)
Economic growth dependent on
the extension of the water mains would not be allowed.
(Ag. Rec.
at 11.)
This negatively impacts prospective home purchasers as
well as business developers and the area’s tax base.
(Ag.
Rec. at
11.)
The Water Commission contends that extension of the water
mains will not cause any significant harm to the environment or
to the people served by the extensions.
(Pet. at 11.)
The Agency agrees that denial of the variance would impose
an arbitrary or unreasonable hardship on the Water Commission.
(Ag. Rec.
at 8.)
5
ENVIRONMENTAL
IMPACT
Although
the
Water
Commission
has
not
undertaken
a
formal
assessment
of
the
environmental
effects
of
the
requested
variance,
it contends that the granting of the variance for the
limited time period will not cause any significant harm to the
environment or to the people now served or to be served by
potential water main extensions.
(Pet. at 9.)
The Agency states that there are no reports of long—term
effects from continued exposure to atrazine.
(Ag. Rec. at 9.)
Studies have shown that atrazine can cause changes in blood
parameters
in rats and mice,
increase liver and kidney weights in
rats, affect the hearts of dogs and mice, and decrease rat
weanling body weights in the second generation of offspring in
a
2—generation reproduction study.
(Ag. Rec. at
9.)
The Agency recommendation also presents the following
information concerning atrazine.
Two cancer bioassays have been
conducted with atrazine.
(Ag. Rec. at 10.)
One study with mice
showed no tumors in excess of the numbers seen in the control
group.
(Ag. Rec. at 10.)
A recent study with rats produced an
excess number of mammary gland tumors in the female rats.
(Ag.
Rec. at 10.)
This study is still being evaluated.
(Ag. Rec.
at
10.)
The U.S. EPA regards atrazine as a possible human
carcinogen,
but does not regulate it as a carcinogen
(i.e.
regulations are based upon its non—cancer effects using the
reference dose).
(Ag. Rec. at 10.)
In recognition of the
possible adverse health effects from atrazine the U.S. EPA
established a maximum contaminant level of 0.003
tng/l for
atrazine.
(Ag. Rec. at 10.)
The Agency believes that an increase in the allowable
concentration for the contaminant in question should cause no
significant health risk for the limited population served by new
water main extensions for the time period of the variance.
(Ag.
Rec.
at 10.)
The Agency contends that the granting of this
variance should not affect the status of the rest of the
population drawing water from the existing water lines,
except
insofar as the variance by its conditions may hasten compliance.
(Ag. Rec. at 14.)
The Agency believes that grant of the
requested variance would impose no significant injury to the
public or the environment for the limited time period.
(Ag. Rec.
at 11.)
CONSISTENCY WITH FEDERAL
LAW
The Agency states that the requested variance may be granted
consistent with the SDWA and corresponding regulations
(40 CFR
Part 141) because the variance does not grant relief from
compliance with the federal primary drinking water regulations.
(Ag.
Rec.
at 12.)
The Agency states that granting a variance
6
from the effects of restricted status affects State and not
federal law and regulations;
a variance, from the effect of
restricted status would allow water main extensions,
under the
Act and Board regulations.
(Ag. Rec. at 13.)
The Agency asserts
that a federal variance is not at issue, and there should be no
risk to the State of Illinois of loss of primacy.
(Ag. Rec. at
13.)
The Agency asserts that petitioner will remain subject to
the possibility of enforcement for violations of the MCL for the
contaminant in question under state and federal law.
(Ag. Rec. at
13.)
The Agency concludes that because continuing progress is
being made towards compliance,
it is unlikely that U.S. EPA will
object to the issuance of the recommended variance.
(Ag. Rec. at
13.)
CONCLUSION
Based upon the record, the Board finds that immediate
compliance with the “Standards for Issuance” and “Restricted
Status” regulations would impose an arbitrary or unreasonable
hardship on the Water Commission.
In assessing the environmental
impact of grant of this variance, the Board places great weight
on the fact that the atrazine exceedance is not great, that the
violation is not of longstanding duration, and that grant of this
variance with its conditions will commit the Water Commission to
correction of its problem within roughly thirty months.
Under
these circumstances, the Board
agrees with the parties that
granting this variance does not pose a significant health risk to
those persons served by the new water main extensions,
assuming
that compliance is achieved during the period of the variance.
Today’s action is solely
a grant of variance from standards
of issuance and restricted status.
The Water Commission is
neither granted a variance from compliance with the atrazine
standard, nor does today’s action insulate the Water Commission
in any manner against enforcement for violation of this standard.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Auburn,
Divernon, Girard, Pawnee,
Thayer, Virden Water
Commission is hereby granted a variance from 35 Ill. Adm. Code
602.105(a),
“Standards for Issuance”, and 602.106(a),
“Restricted
Status”, but only as they relate to the maximum contaminant level
(MCL)
for atrazine as set forth in 35 Ill. Adm. Code 611.311(c)
subject to the following conditions:
(A)
The variance shall expire on October
1,
1996 or when
analysis pursuant to 35 Ill. Adm. Code 611.684,
or any
analytical standard then in effect,
shows compliance with
the MCL for atrazine, whichever shall occur first.
7
(B)
In consultation with the Agency, petitioner shall continue
its sampling program to determine as accurately as possible
the level of atrazine in its public water supply.
Until
this variance expires, petitioner shall collect and analyze
quarterly samples of its water from its distribution system
at locations approved by the Agency,
in accordance with 35
Ill.
Adm. Code 611.648(c).
Analysis shall be done by a
laboratory certified by the State of Illinois for atrazine
analysis so as to determine the concentration of atrazirie.
The results of the analyses in question shall be reported
to:
Illinois Environmental Protection Agency
Compliance Assurance Section
Division of Public Water Supplies
2200 Churchill Road
Springfield, IL
62794—9276
within 30 days of receipt of each analysis.
The running
average of the most recent four quarterly sample results
shall be reported to the above address within 30 days of
receipt of the most recent quarterly sample.
If the
petitioner elects to conduct weekly or monthly analyses for
atrazine, the petitioner shall report the analyses results
to the Agency within 30 days of receipt of the analyses.
(C)
Pursuant to 35 Ill. Adm. Code 611.851(b),
in its first set
of water bills,
or within three months after the date of
this order, whichever occurs first, and every three months
thereafter, the petitioner will send to each user of its
public water supply
a written notice to the effect that
petitioner has been granted by the Illinois Pollution
Control Board a variance from 35 Ill. Adm. Code 602.105(a),
Standards of Issuance, and 35
Ill.
Adin.
Code 602.106(a),
Restricted Status,
as it relates to the maximum contaminant
level for atrazine.
(D)
If results of analyses performed on samples pursuant to 35
Ill.
Adm. Code 611.648 show a violation of the MCL for
atrazine, then public notice shall be made pursuant to 35
Ill. Adm. Code 611.851,
611.854, and 611.855.
(E)
Until full compliance is reached, petitioner shall take all
reasonable measures with its existing equipment to minimize
the level of the contaminant in question in its finished
drinking water.
(F)
By May 1,
1994, the petitioner shall submit to the Agency’s
DPWS/FOS, a Preliminary Report, that shall describe in
detail, the compliance measures investigated by the
petitioner in order to bring their public water supply into
compliance with the MCL for atrazine.
Petitioner shall
8
consider and investigate the measures for compliance with
the atrazine MCL as follows:
a.
treatment technology,
b.
location of a new source,
c.
connection to another public water supply,
d.
blending with an alternative source, and
e.
use of watershed management program measures.
(G)
In the Preliminary Report, petitioner shall identify the
measures and develop compliance schedules necessary to bring
the facility into compliance with State and federal law and
regulations for the atrazine concentration in the finished
water on or before October 1,
1996.
(H)
The Agency shall review the Preliminary Report submitted by
the petitioner including the compliance plan and compliance
schedules and shall accept or reject the Preliminary Report,
the compliance plan,
the compliance schedule,
or any other
part of this report.
If the Agency rejects the Preliminary
Report or any part thereof, the Agency shall describe the
deficiencies in detail.
Petitioner shall have 30 days to
make the necessary changes from receipt of the Agency’s
description of the deficiencies.
If the petitioner fails to
provide a Preliminary Report aôceptable to the Agency, the
Agency shall notify the Board of the failure to comply with
the conditions of the Board order.
(I)
Within six
(6) months after the date of this variance,
petitioner shall submit to the Agency’s DPWS/FOS,
a
Compliance Report, that shall describe in detail, the
compliance measures including the design and construction
measures that are necessary to bring petitioner’s public
water supply into compliance with the MCL for atrazine.
The
Compliance Report shall contain milestones for each
compliance measure
including,
but not limited to:
a.
Dates of applications for all permits necessary for
construction of installations changes or additions to
the public water supply needed for achieving compliance
with federal and State statutes and regulations;
b.
Date for advertisements of bids for said construction;
c.
Dates for initiation of construction allowed by the
construction permits;
d.
Dates for completion of said construction; and
e.
Dates for achieving compliance with federal and State
statutes and regulations.
9
(3)
Petitioner shall also submit with this Compliance Report a
statement regarding the financial resources that are or may
be available to bring their public water supply into
compliance with all federal and State statute and
regulations,
listed in the compliance plan.
(K)
Petitioner shall also submit, every six
(6) months after the
date of the Compliance Report, an updated report of
sufficient detail to demonstrate the progress made or
impediment encountered by the petitioner in achieving the
milestones and goals outlined in the initial Compliance
Report.
Each updated report shall quote each of the
milestones and immediately below each paragraph state what
steps have been taken to comply with that paragraph.
(L)
Failure to comply with the conditions of this Board order
shall constitute a violation of this Board order and subject
the petitioner to the enforcement and penalty provisions of
Sections 18 and 42 of the Act.
(M)
All reports and correspondence that are required by this
Board order shall be sent to:
Illinois Environmental Protection Agency
Field Operations Services
2200 Churchill Road
P.O. Box 19276
Springfield,
IL
62794—9276
(N)
Within forty-five days of the date of this order, petitioner
shall execute and forward to:
Stephen
C.
Ewart
Division of Legal Counsel
Illinois Environmental Protection Agency
2200 Churchill Road
P.O. Box 19276
Springfield, Illinois 62794—9276
a certificate of acceptance and agreement to be bound to all
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 and of
no force and effect as a shield against enforcement of rules
from which this variance is granted.
The form of the
certificate is as follows.
10
I
(We),
hereby accept and agree to be bound by all terms and
conditions of the order of the Pollution Control Board in
PCB 94—86, May 5,
1994.
Petitioner
Authorized Agent
Title
Date
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act, 415 ILCS
5/41, provides for appeal of final orders of the Board within 35
days of the date of service of this order.
The Rules of the
Supreme Court of Illinois establish filing requirements.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certiy that the above o inion and order was
adopted on the
~
day of
__________________,
1994,
by
a vote of
__________
~
~.
Dorothy M. c~hn,Clerk
Illinois Poljlution Control Board
