ILLINOIS POLLUTION CONTROL BOARD
March
11,
1993
HERMAN W.
PRESCOTT,
Complainant,
PCB 90—187
v.
)
(Enforcement)
CITY OF SYCAMORE,
Respondent.
SUPPLEMENTAL OPINION AND ORDER OF THE BOARD
(by R.
C.
Flernal):
This matter comes before the Board on a motion for
reconsideration filed by the complainant, Herman W. Prescott
(Prescott or complainant).
Prescott asks that the Board
reconsider
its order of December 17,
1992.
In that order,
the
Board dismissed the complaint finding that the complainant had
not brought this action based on applicable law;
consequently,
it
has not been shown that a violation of applicable law has
occurred.
The complaint,
filed October 16,
1990,
by Prescott against
the City of Sycamore (Sycamore or respondent), alleges that
Sycamore has violated 35 Ill. Adm. Code 653.604 of Subtitle F,
Public Water Supplies,
by failing to maintain the required amount
of chlorine residual in all active parts of the distribution
system.
Prescott requests that the Board order Sycamore “to
supply the Northeast section of the City with a steady supply of
chlorine up to standards
*
*
*“
and to conform to the
recommendations of the Illinois Environmental Protection Agency
(Agency),
as contained in a letter attached to the complaint.
(complaint at
¶9..)
For the reasons stated below,
the Board reconsiders
its
December 17,
1992 opinion and order.
REGULATORY FRAMEWORK
Central to this action is an understanding of the
regulations governing disinfection by public water supplies,
and
the amendments that these regulations have undergone.
Parts
of
this discussion are also contained in the Board’s December
17,
1992 opinion and order and are reiterated here for continuity.
The requirement of providing water that is adequately
disinfected
is a long-standing facet of regulation of public
water supplies.
However, the manner in which this requirement
is
manifest has evolved over time as a function of expanding
81 L~Q-OOO5
2
knowledge of the most beneficial methods and manners of achieving
disinfection.
The most recent major revision to disinfection regulations
occurred pursuant to requirements of the U.S. Safe Drinking Water
Act
(SDWA), and to regulations adopted by the U.S. Environmental
Protection Agency
(USEPA)
implementing the SDWA as found at 40
CFR 141,
142,
and 143
(1989).
These revisions were in turn
adopted into Illinois
law,
as required by the Environmental
Protection Act (415 ILCS 5/17.5
(1992) (Act)1, by Board order2 of
August
9,
1990,
with an effective date of September 20,
1990.
This date of September 20,
1990 is
a watershed date as regards
the instant action.
Prior to September 20,
1990 the applicable disinfection
requirements occurred at 35
Ill. Adm. Code 604.401 and 653.604.
Section 604.401 specified in pertinent part:
All supplies
.
.
.
shall chlorinate the water before it
enters the distribution system.
*
*
*
b)
The Agency may set levels and promulgate
procedures
for chlorination.
The Agency has set chlorine levels at Section 653.604, wherein
it
is required that:
A minimum free chlorine residual of 0.2 mg/L or a
minimum combined residual of 0.5 mg/L shall be
maintained in all active parts of the distribution
system at all times.
It
is this chlorine residual requirement contained in Section
653.604 that Prescott alleges Sycamore has violated.
Subsequent to September 20,
1990,
new disinfection
requirements were added at 35
Ill.
Adm. Code 61l.Subpart B,
in
particular at Sections 611.240,
611.241,
and 611.242.
The new
requirements are not only substantially more expansive, but also
amend
(1) the components that constitute residual chlorine,
(2)
the techniques permissible for measuring residual chlorine, and
(3) the numerical standard for residual chlorine from single
numeric values to a standard based upon averaging.
The Act was formerly codified at Ill.Rev.Stat.
1991,
ch
111½, par.
1001 et seq.
2
In re:
Safe Drinking Water Act Regulations
(August
9,
1990), R88—26,
114 PCB 149—397.
3
A provision of the change to the new regulations is that the
changeover date from the old to the new regulations
is dependent
upon the nature of the particular public water supply3.
In the
circumstance at hand,
the Sycamore public water supply system
is
a
“groundwater system not under the direct influence of surface
water”,
and as such the effective date of the new disinfection
requirements is the same as the general effective
date of the
Part 611 regulations,
i.e.,
September 20,
l990~. The Board so
found
in its dismissal order of December 17,
1992; this finding
is not disputed.
September 20,
1990
is prior
to October 16,
1990,
the date
upon which the instant complaint was
filed.
Accordingly,
the
complaint was filed after the date upon which Section 604.401
(and Section 653.604 which proceeds from Section 604.401)
ceased
to be applicable to Sycamore.
The consequences that flow from
these facts
is what remains at issue.
MOTION FOR RECONSIDERATION
In his motion Prescott asks the Board to reconsider alleged
violations prior to September 1990, specifically violations
alleged to have occurred between November
22,
1989 and January
22,
1990.
Prescott argues that the Board’s December 17,
1992
decision would have the effect of
barring all enforcement actions
where the violation was not occurring at the time of the filing
of the complaint5.
Prescott cites Modine Manufacturing v.
PCB
(2nd Dist.
1990),
549 N.E.2d 1379, where the court allowed the
imposition of penalties
for wholly past violations.
~ See 35
Ill.
Adm. Code
604.401, as amended effective
September
20,
1990,
and 35
Ill. Adm.
Code 611.240.
Section
604.401 ceases to be applicable to any particular public water
supply though the action of the statement:
This Section applies until the effective date for the
filtration and disinfection requirements of
35
Ill.
Adm.
Code 6l1.Subpart B as applicable to each supply.
which was added to Section 604.401 effective September 20,
1990.
~ See 35
Iii.
Adm. Code 611.240(g).
~ Prescott also argues that retroactive application of the
current Part 611 regulations
is improper.
The Board finds
Prescott’s arguments on retroactivity inapplicable because the
Board never applied nor intends to apply retroactively the Part
611 regulations in this case.
0
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4
Sycamore filed its response to the motion for
reconsideration
on January 29,
1993.
Sycamore states that since
the Board “repealed”
Section 604.401 and with it the basis
for
Section 653.604,
and
did not provide a “saving clause”
to
continue the regulation in effect,
the Board was correct in
dismissing the complaint.
Sycamore argues that under Illinois law, where a remedial
statute is repealed without a “saving clause”,
it stops all
pending actions where the repeal finds them.
If final relief has
not been granted before the repeal goes into effect,
it can not
be granted afterward.
(Shelton v.
City of Chicago
(1st Dist.
1969),
42 Ill.2d 462,
248 N.E.2d
121;
Stefani
v.
Baird
& Warner,
Inc.
(1st Dist.
1987),
157
Ill.App.3d 167.)
The cases cited by Sycamore deal with statutory amendments
that totally extinguish a right of action for damages
or to
enforce regulations that were promulgated pursuant to that
statutory right of action.
The effect of the amendments on
pending cases brought in exercise of that now extinguished right
is that the cases were dismissed.
Although in this matter the
regulations were changed in response to
identical—in—substance
directives contained in the Act as discussed above,
the Board
finds here that the right to bring an action was not totally
extinguished in this instance for those alleged violations prior
to the effective date of the amendments.
Furthermore, although
Sycamore asserts that the repealed Board regulations are
remedial,
it gives no support for that conclusion.
Sycamore incorrectly characterizes the September 20,
1990
action with respect to Section 604.401 as a “repeal”.
The
regulation’s provisions were not expunged through a repeal;
rather,
its provisions ceased to be effective after a date
certain.
While it
is clear that the regulation’s provisions are
unenforceable for alleged violations occurring after that date,
we do not construe its provisions as being unenforceable for past
violations that occurred before the regulation’s provisions
ceased to be effective.
We note that we are not making a holding
on the enforceability of a repealed regulation,
as that issue is
not before us.
The Board accordingly does not find this facet of
Sycamore’s arguments persuasive.
Sycamore further argues that the Modirie case,
cited
by
Prescott,
is not applicable since that case did not deal with the
issue of regulatory effectiveness, but rather with subsequent
compliance with still applicable regulations.
We believe that
Sycamore is correct in that in Modine the violator did come into
compliance, and no regulatory change was involved.
However, the
effect of the subsequent compliance in Nodine is similar to the
instant matter.
The only difference
is that here,
if violation
is found, the violation could terminate due to subsequent
inapplicability
of the regulation, rather than subsequent
U ~
5
compliance with the regulation.
Again,
the Board
is not
persuaded by Sycamore’s arguments.
Prescott is correct that the complaint contains allegations
of violations between November 22,
1989 and January 22,
1990.
The Board also notes,
however, that the complaint and hearing
record indicate that complainant sought to present allegations
and to seek relief of a continuing violation beyond the dates
specified in the motion for reconsideration.
Complainant never
sought to amend his complaint,
and neither party recognized the
existence of new regulations governing the actions of
respondent6.
Nevertheless, the Board will reconsider complainant’s
action,
as it pertains to the dates
of alleged violations between
November 22,
1989 and January 22,
1990,
since these dates were
presented in the complaint,
and are prior to the effective date
of the new regulations for this source.
Therefore,
the Board
vacates its prior order only as it pertains to violations that
are alleged to have occurred between November 22,
1989 and
January 22,
1990.
FACTS
The essential facts
in this matter have been set out
in the
December
17,
1992 Board opinion.
Among these are:
Prescott lives at 462 East Exchange Street
in the northeast
section of the City of Sycamore.
The dwelling is one in
a group
of condominiums in the area.
Prescott moved to the location
in
November 1988.
The evidence at hearing established that the
Prescott residence receives water through a six—inch pipe
connected to a water main (hereinafter,
“water main extension”).
The pipe extends for approximately 230 feet until
it dead ends at
a hydrant.
(Tr. at 45,
145,
339—340.)
Various tests of the
water
in the area were conducted for chlorine content by
Prescott, Agency personnel, and Sycamore personnel both before
and after the complaint was filed.
Whether this pipe system is owned and controlled by the
condominium residents or Sycamore such that one or the other
would carry the responsibility of maintaining and operating the
water main extension and hydrant system is at issue
in this
6
The Board is bemused by complainant’s insinuations that
the Board adopted revised disinfection regulations to somehow
circumvent complainant’s case.
(Compi. motion at 4).
The
revision was not only mandated by federal and state law,
but
occurred prior to the filing of the instant complaint.
See
above.
01
L~.U-OOO9
6
proceeding.
Whether the tests conducted (pertaining to dates
between November 22,
1989 and January 22,
1990)
indicate that a
violation of the applicable standards has occurred is also at
issue in the proceeding.
DISCUSSION
Ownersht~
In defense of the action, the respondent alleges that the
developer of the property,
and subsequently Prescott,
owns the
water main extension.
Therefore,
any liability for violation of
regulations due to inadequate maintenance of the water main
extension and hydrant should be borne by Prescott and the other
condominium owners.
Prescott argues that. Sycamore is solely responsible for the
operation and maintenance of the water main extension,
and
is the
official custodian of the public water supply including the water
main and its extensions.
Pertinent regulations in effect between November 22,
1989
and January 22,
1990 state:
Section 601.101
General Requirements
Owners and official custodians of a public water supply
in the State of Illinois shall provide pursuant to the
Environmental Protection Act
*
*
*,
the Pollution
Control Board
*
*
*
Rules,
and the Safe Drinking Water
Act
*
*
*
continuous operation and maintenance of
public water supply facilities so that the water shall
be assuredly safe in quality,
clean, adequate in
quantity,
and of satisfactory mineral characteristics
for ordinary domestic consumption.
Section 601.102
Applicability
The provisions of this Chapter shall apply to public
water supplies, as defined in the Act, except for those
designated as non-community water supplies.
A public
water supply shall be considered to end at each service
connection.
Section 601.105
Definitions
*
*
*
“Service Connection”
is the opening,
including all
fittings and appurtenances,
at the water main through
which water is supplied to the user.
0! ~0-OOI 0
7
Also,
the parties presented evidence and testimony on the
ownership/liability issue.
Prior to Prescott’s residency at the
property,
a developer of the property,
Donald J.
Kohier,
applied
to the Illinois Environmental Protection Agency for a
construction permit for the water supply system.
(Compl.
Exh.
1.)
Correspondence from the Agency to Warner Engineering dated
April
8,
1988 indicates that the Agency viewed the six-inch water
main extension as a water main,
and reported to the developer
that his organization would be viewed as a public water supply if
it retained ownership of the water main extension.
The Agency
further informed the developer of minimum compliance requirements
for public water supplies.
The Agency then suggested two
alternatives for the developer in order to avoid being viewed as
a public water supply:
The situation of the proposed Exchange Street
townhouses7
being a public water supply may be
avoided
if the necessary easements could be granted
with ownership of the proposed
6 inch watermain being
turned over to the City of Sycamore.
If this
is to be
the case,
a revised page
3
of the Application for
Construction Permit must be submitted citing the City
of Sycamore as the owner of the completed project.
Another acceptable alternative would be for Donald
3.
Kohler,
*
*
*
to retain ownership of the proposed
watermains
(sic),
and enter into an agreement with the
City of Sycamore where the official representatives of
the City would supervise operation, maintenance and
repair of the proposed waterinain.
Any cost incurred
would be borne by the terms
of an agreement accepted
and signed by the respective officials.
(Compl.
Exh.
1.)
Correspondence from Sycamore8 indicates that the second
option was chosen and a revised page
3 of the application was
submitted to the Agency which states in pertinent part:
Agreement to Furnish Water
*
*
*
~ The subject property is referred to in the record as both
townhouses and condominium property.
The record indicates that
the property is condominium property and that the area through
which the water main runs is part of the common elements of the
condominium property.
(Tr.
46-47;
Resp.
Exh. 3).
8
Letter from Sycamore to the Agency dated April
15,
1988,
Compl.
Exh.
1.
01L~0-o0I
I
8
The undersigned acknowledges the public water supply’s
responsibility for examining the plans and
specifications to determine that the proposed
extensions meet local laws,
regulations and ordinances.
The City of SYcamore shall have the sole responsibility
for the “Supervision” and “Operation”
of all water main
extensions upon completion of installation and in
perpetuity.
~signed by Harold Johnson,
as the mayor of the City of
Sycamore
*
*
*
*
*
*
I/We hereby agree to accept ownership of the
project upon satisfactory completion, sublect to the
City of SYcamore having sole responsibility for
“Supervision” and “Operation” of all water main
extensions upon completion of installation and in
perpetuity.
Actual maintenance costs shall be borne by
Owner.
signed
by Donald Kohler as owner
of the completed
project
(Compl.
Exh.
1.)
(underlining in original)
The above agreement indicates that the developer would
retain ownership of the completed project.
That the agreement
was reached is supported by testimony.
John Brady,
city
engineer, testified that no “formal” agreement was entered into
and that page three was not in the form of an agreement.
However, he acknowledged that page three of the application was
signed by the mayor of Sycamore and Mr. Kohler,
and that it
contains the language as suggested by the Agency for option
2.
(Tr. 346—347.)
The permit application, by which this agreement was
submitted, was not approved by the Agency.
(Compl.
Exh.
1.)
The
Board finds that the fact that the permit application was not
approved at some later time does not affect the contents of the
agreement,
nor does it affect the fact that it is valid as
entered into between the parties.
The Board further finds that
the agreement is not inconsistent with the applicable regulations
cited
above.
The Board finds that Prescott is co—owner of the water main
extension,
and that the terms of the agreement between Sycamore
and Kohler passed with all rights and claims to the owners of the
condominiums.
When ownership of the condominium property unit
passed to Mr.
& Mrs. Prescott,
a percentage of the ownership of
the common elements also passed to Mr. and Mrs. Prescott,
together with the appurtenances belonging to the property.
(Resp. Exh. J.)
The deed was entered into within the
01
I~O-OO1
2
9
contemplation of the Illinois Condominium Property Act,
765 ILCS
605/1 et sep.
(Condominium Property Act)9.
Even if the agreement were not valid, Prescott would be co-
owner,
as no easements have been given to Sycamore,
and no
subsequent transfer of ownership of the water main extension has
taken place.
The situation would merely be as
it was prior to
the entering of the agreement:
i.e.
the owner(s)
of the property
would be owner(s)
of the water main.
Moreover, Prescott agreed
that if the water main extension were not dedicated to Sycamore
and there were no easements given to Sycamore, he would be
considered part owner as he is
a member of the condominium
association.
(Tr. at 46—47.)
In addition, the Condominium
Property Act states that unit owners
(or
a percentage thereof)
“may elect to dedicate a portion of the common elements to a
public body for use as,
or in connection with,
a street or
utility”.
(765 ILCS 605/14.2)
There is no evidence in the
record that dedication of the water main extensiQn to Sycamore
has ever taken place.
Since Prescott is part-owner and Sycamore has sole authority
to supervise and operate the water main extension,
any liability
for violations would be per the terms
of the agreement.
Since
Sycamore has sole responsibility for supervision and operation,
Sycamore would be responsible for violations involving
supervision and operations.
If the maintenance is necessary for
operation of the main,
Sycamore,
as solely responsible for
operations, would have to perform that maintenance.
Any
maintenance costs incurred would be borne by the condominium
owners as stated in the agreement.
Alleged Violations
As stated in the complaint, Prescott alleges Sycamore
violated Section 653.604 by failing to maintain
a minimum free
chlorine residual of 0.2 mg/L or a minimum combined chlorine
residual of 0.5 mg/L in all active parts
of the distribution
system at all times.
As noted above,
the dates of the alleged
violations were to have occurred between November 22,
1989 and
January 22,
1990.
Mr. Prescott submitted test results he conducted for total
chlorine’0 using a Hach test kit.
He recorded results ranging
~ This Act was formerly codified at Ill. Rev.
Stat.
1991,
ch.
30, pars.
301 et seq.
10
Total chlorine is the sum of free and combined chlorine.
(Tr.
at 98,
388)
.
An accurate total chlorine measurement under
0.5 mg/L would thus indicate combined chlorine under 0.5 mg/L.
0
i ~o-00I3
10
from 0.0 to 0.4 on days between November 22,
1989 and January 22,
1990.
(Compl.
Exh.
3).
Prescott testified that in conducting the tests,
he ran
water through a vinyl hose
(Resp.
Exh.
A) connected to an faucet
outside his residence.
He testified that he filled the test vial
with water and put it in the kit,
added material from a capsule
to the water in the vial,
covered the vial with his index finger
to shake
it,
and then waited three minutes or less before taking
the reading.
(Tr.
at 55-57,
68.)
He testified that he waited no
longer than three minutes, but that he sometimes waited 2½
minutes.
He could not recall how many times he took readings at
2½
minutes.
(Tr. at 68,
71.)
Mr.
Leonard Lindstrom, Regional Manager of the Agency’s
Division of Public Water Supplies, testified on behalf of
complainant.
He testified regarding field or lab testing in
general that,
if, for example,
he wants a certified test,
he uses
a lab test.
He stated that to test what they think is present,
he uses
a field test.
(Tr. 164—165.)
He characterized the Hach
test as
a field test that “is not one
in which there are
a lot of
doubts about what the results are”.
(Tr.
at 165.)
He stated that
he has not taken any chlorine tests to the lab.
(Tr.
at 165.)
Mr. Lindstrom described the reaction in the test,
and stated that
the color or lack of color would be readily apparent.
(Tr.
at
158.)
He also stated that one would not have to wait the full
three minutes “to get most of the residual”.
(Tr.
at 167.)
Kevin Lookis, vice president of Hydronics,
Inc., testified
on behalf of Sycamore.
He testified that the Hach test had
a
margin of error of plus or minus 20
to 25
and is not suitable
for detecting very low levels of chlorine,
such as
.2
parts per
million.
(Tr. at 375-377.)
He stated that factors that could
adversely affect the accuracy of the Hach test for total chlorine
include not allowing enough time for the reagent to react,
the
condition of the eyes,
the condition of the reagent powder,
and
the sample size.
(Tr. at 378—380.)
Mr. Lookis testified that
the hose used by complainant contained a film indicating
a
buildup of iron which could create a chlorine demand that could
use up or reduce some of the chlorine during testing.
(Tr.
at
380—383.)
Thomas Mangan,
president of Prairie Environmental
Specialists, also testified on behalf of Sycamore.
He testified
that the Hach test was considered a qualitative test,
i.e.,
a
test used to give benchmark readings subject to field conditions.
He stated that the Hach test has a 10
to 20
margin of error.
(Tr. at 417-418.)
He also stated factors that could affect the
accuracy of the test as not waiting the full three minutes as
recommended by the manufacturer, covering the tube with a finger
when mixing the reagent in the vial,
and the use of
a rubber or
vinyl hose.
(Tr. at 420-422.)
Mr. Mangan testified that he
ORO-UOjt,~
11
would recommend that a quantitative test be conducted if
a field
test indicated a
.0 residual.
(Tr.
at 432.)
He stated that in
doing the quantitative test,
certain procedures had to be
followed due to the fact that chlorine dissipates quickly.
(Tr.
at 432—433.)
Based on the above, the Board finds that the test results
presented by Prescott do not give the definitive indication of
the level of free or combined chlorine needed to conclude that
a
violation of Section 653.604 has occurred.
The respondent’s
witnesses rebutted the accuracy of the results yielded by the
method of field testing used by Prescott.
The Board is
particularly persuaded that the test results do not accurately
depict a violation based on the fact that the Each test
is a
qualitative field test that the respondent’s witnesses testified
has a margin of error ranging between 10
and 25,
and that
it
is
particularly suspect at lower levels of detection.
Also,
testimony indicates that complainant did not wait the full three
minutes on some occasions, and that he could not recall how many
times he did not wait the full three minutes.
At best the test
results are suggestive of a problem and would lead one to further
investigate whether a violation is occurring,
but are not
accurate enough to prove that a violation actually occurred.
The fact that Sycamore officials or officials of other water
supplies use the Hach test to check chlorine residual
(Tr.
at
260,
270; 396—7),
or that the test colors are apparent as stated
by Mr. Lindstrom, and as argued by complainant, does not bear on
the lack of accuracy of the Each test for a definitive finding of
violation.
Also,
the fact that chlorine dissipates quickly and
that certain procedures need to be followed to conduct a
quantitative test does not mean it cannot be done,
nor does this
bear on the lack of accuracy of the field test conducted here.
Complainant mischaracterizes respondent’s witness as stating that
the tests for chlorine residual “must” be run at the site.
(Compl.
brief at
5.)
The correct responses were affirmative
answers to questions concerning quick dissipation of chlorine as
one of the reasons why these tests are “generally” done at the
site.
(Tr. at 433.)
The Board finds that the complainant has failed to show that
a violation of 35 Ill. Adm. Code 653.604 has occurred between
November 22,
1989 and January 22,
1990.
This supplemental opinion,
and the December 17,
1992 opinion
(as modified in today’s opinion)
constitute the Board’s findings
of fact and conclusions of law in this matter.
ORDER
The complainant has failed to show that the violation as
alleged has occurred.
Therefore, this complaint is dismissed.
01 ~0-QO15
12
IT IS SO ORDERED.
Board Member Bill Forcade dissented.
Section 41 of the Environmental Protection Act,
415 ILCS
5/41
(1992), provides for appeal of final orders of the Board
within 35 days.
The Rules of the Supreme Court of Illinois
establish filing requirements.
(But see also 35 Ill. Adm. Code
101.246, Motions for Reconsideration,
and Castenada v.
Illinois
Human Rights Commission
(1989),
132 Ill.2d 304,
547 N.E.2d 437.)
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above supplemental opinion and
order was adopted on the //~ day of
____________________
1993,
by a vote of
__________________
Dorothy M. C~nn,Clerk
Illinois P6~/lutionControl Board
01 ~.0-ü016