ILLINOIS POLLUTION CONTROL BOARD

January

7,

1993

CITY OF HIGHLAND,

Petitioner,

)

v.

)

PCB

92144

)

(Variance)

ILLINOIS

ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

OPINION

AND

ORDER

OF

THE

BOARD

(by

J

•

C.

JJar1i~):

This

matter is befor. the Board

on the October 5, 1992,

petition

(“Pet.”) for variance filed by th.

city

of

Hiqttand

(“City”).

The city

seeks

relief from 35 Ill.’Ada. Cod.

602.105(a),

“Standards

for Issuance”

and

602.1.06(a),

“Restricted

Status”, to the

extent

those

rules relate to the

‘violation by the

City’s public water supply of the

maximum contaminant

level

()ICL)

of 0.10 mgfL for total trihalomethanes

(TTHM)

as set

forth in 35

Ill.

Adin. Code 611.310(c),(d).

The City seeks

a

variance of

thirty-three

months

lasting up to, and

inc1udi~g,February

28,

1995.

On

December

7,

1992,

the

Illinois

~nviros~.nta1

Protection

Agency

(Agency)

filed

a

variance

r.a~.ndatimn

(“R.”)..

The

Agency

recommends

that the Board grant the varianc, subject to

certain conditions.: The

Agency r.ccuasnds

that a

variance

of

eighteen

(18)

months be

granted

to

petitioner

to

give

petitioner

time

to

complete

construction

projects,

perform

four

quarterly

tests

of

the

water

for

post-construction

Contaminant,

levels,

and

submit

the

test

results.

Hearing

on

this

matter

was

waived,

and

none

was

held.

For the reasons discussed below,

the

Board

finds

that

the

record

contains

adequate

proof

that

to

require imasdiate

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

the

conditions

specified

in the

Board’s

order.

Petitioner

is a

municipality

which

owns

and

operates

the

water supply, treatment facility, and distribution

system,

for the

City of Highland in Madison County, Illinois.

Water is provided

to all residential, commercial, and industrial users as needed,

and charges are made according to ordinance.

Petitioner is not

0138-0273

---

2

part of a regional water supply.

(Pet. at 5)

Agency records

indicate the City has not sought a variance from regulations

concerning TTHN prior to this petition.

(R. at

4)

RIGULMORY P1RXIWORE

The

instant

variance

request

concerns

two features of the

Board’s public water

supply

regulations:

“Standards

f

or

Issuance” and

“Restricted

Status”.

These

features

are

found

at

35 Ill.

Adm. Code 602.105 and

602.106,

which

in

pertinnt 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 op.rát.d so

as

not

to

cause

a violation of

the Environmental

Protection

Act

(Ill. Rev.

Stat.

1989, ch.

113.

1/2,

pars.

1001

•t seq.)

(Act)., or of

this

Chapter.

Section 602.106

Restricted

Statq~

a)

Restrióted

status

shall

be

defined

as

the

Agency

determination,

pursuant

to

Section

.39(a)

of.the

Act

and

Section

602.105,

that

a

public

water

supply

facility

say

no

longer be

issued’

a

construction

permit

without causing

a

violation

of

the

Act

or this

~aptar.

These

regulations

authorize

the

issuance

of

construction

permits

only

where

the

applicant

submits proof

that

the

public

water

supply will be constructed, modified

or

operated

in

accordance with the Act.

In this

case, a

denial of

the

construction permit

would

prevent

the

City

from

building

and

operating

new

water

main

extensions.

(R.

at

9~

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.

(l~1.

Rev.

Stat.

1991,

ch.

111

1/2,

par.

103’ (a)).

Furthermore,

the

burden

upon

the

petitioner

to

show

that

its

claimed

h~rdship outweighs

the

public

interest

in

attaining

compliance

with

regulation~

designed

to

protect

the

public

(Willovbrook

Motel

v.

Pollution

Control

Board

(1977),

133

Ill.App.3d

343,

481

N.E.2d

1032).

Only

with

such

shoving

can

the

claimed

hardship

rise to

the

level

of

arbitrary

or

unreasonable

hardship.

Where

the

petitioner

seeks

to

extend

a

variance,

the

01 38-027L~

---

3

petitioner must show satisfactory progress.

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

IlLad

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.

(Zn.)

Accordingly,

except

in

c.rtain

special

circumstances,

a variance

petitioner

.

is

required,

.~“

~

condition

to

grant

of

variance, to

commit to

a

plan

which

is

reasonably

calculated

to

achieve

compliance

within

the

term

of

the

variance.

The

grant

of

variance

.

from

“Standards

for Issuance” and

“Restricted

Status”

does fl~t~

absolve

a

petitioner

from

compliance

with

the

KCL

at

issue,

nor

does

it

insulat,

a

petitioner

from

possible

enforcement

action

brought

for

violation of

that

*CL.

The

underlying

MCL

remains

applicable

to

th.

petitioner

regardless

of whether variance

is

granted

or

denied.

‘i2

~~.)‘s’~j

i~.-~.’s’~~j

~

On

July

22,

1992,

the

city received

an Agency letter

notifying

the

City

that

the

level

of

!ftift(

in

its

water

distribution

system

exceeded

the

regulatory

~CL for

Ti~ItPI. ‘?be

letter

stated

that the

TTHM

average

for

the

past

four

consecutive

quarters

was 0.l15.mg/L, which eXceeded the

:0.3.0

ag/L

KCL

standard.

On July

31,

1992,

the Agency notified

petitioner

that

petitioner

would

be

placed

on

restricted

status.

(Pet.

at

6)

‘Ry

a letter dated August 14,

1992, the City submitted additional

laboratory

test

results

from

Agency

certified laboratories on

sbmples

taken

from

the

previous

threl

quarters.

The average

of

these

results

taken together with previous Agency

test

results

produced

an

average

level

of

0.11

,

ag/L

for

T1~.

This

level

was

very

close to,

but still

in

excess

of, the 0.10

ag/L

standard.

(Pet.

at

7)

Prior to notification of noncompliance, the emisting

treatment plant operated as follows.

Raw

water was

pumped

from

Silver Lake to

the

rapid

mix

chamber

where

powdered

activated

carbon

could

be

added

to

the

rapid

mix

chamber.

The

flow

was

then

split

in

the

rapid

mix

chamber with

the

flow

going

to

one

rectangular sedimentation

basin

(without sludge

removal

equipment) and to one circular sedimentation

basin (with sludge

removal equipment).

Polymer and lime were added in the basins

The

water

then

flowed

through

five

rapid chamber

sand

filters

which have a six inch layer of anthracite on top of the sand.

Chlorine could be added before and after the filters.

After

filtration, the water flowed into the clearwell where it was

pumped into the distribution system.

Polyphosphate was added

prior to filtration and fluoride was added after filtration.

(Pet.

at 7—8)

0138-0275

---

4

There are two primary methods

for

achieving compliance.

The

first method is to optimize the treatment process

to remove

tribelometbane precursors, thereby reducing~TnuI formation.

(Pet.

at 9)

The second primary method of achieving compliance

is

to

use an alternative disinfection.

The

most

common alternative

disinfection method is an ammonia

feed

process.

Ozone is another

commonly used disinfectant.

(P.t. at 10)

Petitioner began

to

modify

it.

water

treatment

process

by

using the first method of

compliance

a. soon

as

it

became

aware

of

the

violation.

Petitioner reports

that

it

resumed feeding

potassium permanganate at the low

service

pamps An

lieu

~f

chlorine and

removed the

sludge

from the rectangular basin

at

more frequent, but unspecified, intervals.

(Pet.

*t

1.0)

In

addition, when the

water treatment

expansion

is

‘complete,

petitioner will

resume

feeding

chlorine

into th.

process after

filtration rather than before filtration.

Petitioner believes

these improvement will

reduc.

the level

of TThN in

its water

system and bring the

system

into

complianceliith the IICL

requirements.

(Pet.

at

8)

Petitioner’s water

treatment

plant

is

under construct

Lon

to

expand its capacity and to

improve

the

quality

of

its treated

water.

The

construction

is

approximately 75

complete and is

scheduled to be

entirely complete by Itarcfr~3.1993.

Petitioner

expects

the

new

construction

iaprovSaents

will

~ing

it into

compliance

with

the

1-rw(

.t~ndard.

(Pet.

at 5)~~Tn addition, the

Agency reports that it

has

Issued

petitioner

a

construction

permit

(Permit #3.057FY92) for an

ammonia ~ed

system tobe

used

if the construction improvements prove

unsuccessful

in reducing

the

TTHM’concentrations.

(R. at 5)’

The

Agency ribs

a

variance of eighteen

months

to allow

petitioner

*.~

complete

the

construction,

adjust

and

monitor

the new

tristmsnt

processes, and

install

the

ammonia

feed

system

if the

f*iitidl

~o6ifications

do

not

reduce

the

?PHM

concentrations

to

an

acceptable

level.

(R.

at

6)

Denial

of

the

variance

would

prevent

the Agency from

‘issuing

construction

and

operating

permits

until compliance

is

achieved.

Without the construction

and

operating

permits,

all

construction

requiring

water

extensions

within

the

petitioner’s

service

area

~‘ou1d

be

halted.

Petitioner

plans

to

extarad

its

water

main

service to Cambridge Meadows

(Subdivision

T

i),

~

& Country

Estates

(Sub. ‘visions

Eight

and

Nine), Northwest Highland

Development

(Subdivision

Three),

and construction of a water main

(approximately

700

linear

feet)

to provide a loop between

Paradise

Drive

and

vicinity.

(Pet.

at

6)

Petitioner

does

not

provide an estimate of the

cost of compliance or an

estimate

of

the number of people to

be served by the new water extensions.

0138-0276

---

5

Petitioner argues that denial of

the

variance

will

negatively impact prospective home

purchasers

and

developers, as

well as negatively affecting petitioner’s tax base’.

(Pet. at

10)

Petitioner

further

states that

there

is

no

significant

risk

of

environmental harm or risk to

the public

health

for

the

limited

time of this variance.

Petitioner

concludes

that

th.

hardship,

relulting from a denial of the variance

outweighs

the

harm to

the

public resulting from a grant

of

the

variance

and

therefore,

denial of the variance would constitute an

arbitrary

or

unreasonable hardship.

(Pet. at 11)

The

Agency

agrees

that under

the

circumstances in this cams,

a

denial

of

the

requested

vaz~iance

would result in

arbitrary

or

unreasonable

hardship.

CR.

at

9)

The Agency

believes an i~ea

in the allowable concentration of

T’IIDI will cause no significant

health risk for the limited population served by the new water

main extensions for. the time period

recommended.

(R. at

9)

The

Agency

further

agrees

with

petitioner

that

denial of

the

variance

would

stymie

any

economic

growth

dependent an

the

new water

sam

extensions.

Therefore,

the Agency

believes

that a

denial. of

tha

variance

would result

in

arbitrary

or

unreasonabl.

hardship

to

petitioner.

(R. at 9)

~IVIROIMIMTALIMPACT.

Petitioner asserts that “the granting of

this

variance Zg~

the limited time

period

of

the

r.auest.d

varianc,

will

not cause

any. significant harm to the

environment or to

the people

served

by potential water main

extensions that would be

allowed

if_this

variance

is granted.

The petitioner

dos

not

consider

the

?TU~

Ooncentration of this community

water

supply

to

be

a

significant

health risk for

the

limited

time

period

of the requested

variance.”

(Pet. at 9) (emphasis in original)

Although petitioner

does not state the basis for this belief,

the

City’s petition

together with the Agency’s recommendation sufficiently addresses

this matter.

The

Agency believes an incremental

increase

in the allowable

concentration for

‘I’rIØ4 will cause no

‘significant

health

risk

for

the limited population served by new water main eXtensions_for

the time

period

of

the recommended variance.

(Re

at

9)

~-i~ad

are

organic chemicals consisting of one

carbon atom and three

halogen

atoms.

TTHI4 are formed when

free

chlorine ‘reacts with

naturally

occurring

compounds

which

are generally produced by decaying

vegetation.

Research by the National Cancer Institute

and the

National

Academy of

Sciences

indicates

that

T110I

may

be

carcinogenic

and

can

lead

to

liver

and

kidney

disorders,

birth

defects,

and

central

nervous

system

damage.

(R. at 7)

The

United

States Environmental Protection Agency (USEPA) promulgated

federal regulation 44 Fed. Reg. 68624, R81—11, Es.

4, R81—1l, 23—

24 in response to the potential adverse health effects of TriiM.

These regulations establish

art MCL for

TTBM of .0.10 mg/L.

0138-0277

---

6

The TTHM standard in Illinois is also 0.2Oag/L and is

applicable to public water supplies

serving

over

10,000’ people

and after ~anuary 1,

1992, is applicable to public water supplieE

serving less than 10,000 people.

(35 Ill. Ada. Code 611310(C)

and

(d)).

This

standard is estimated to allow for one excess

cancer death for every 10,000 to 100,000 people

with a lifetime

exposure to TTHN at the MCL in their

drinking

water.

(R.

at 8)

CO~8ISTI$CY

1225

P1D~L

LAW

The

Agency

states

that

the

requested

variance may be granted

consistent

with the

Safe Drinking Water.Act (42 U.S.C. 300(f))

and corresponding regulations

(40

CPR Part

141)

because

the

variance

does

not

grant

relief

from

national

primary

drinking

water

regulations.

(R.

at

10)

COICLUBIOM

Under the

circumstances

in this case, the Board

finde

that

immediate

compliance

with the “Standards for issuance” and

“Restricted

Status”

regulations

with respect to

TT’dM would impose

an arbitrary or unreasonable hardship on the

petitioner.

Although the

City’s

petition

does

not

fully

address

some

issues,

the petition read together with

the

Agency’s

recommendation

provides sufficient’ information on

which

the

Board

may base a

decision.

Although

petitioner

has

not

listed

complianc.

costs,

the

record

indicates

that

petitioner

moved

very

quickly

to

achieve

compliance

as

soon

as

it

was

informed

that

the

TTIuI

level

exceeded

the

MCL.

‘

The

TTHM

levels

in

petitioner’s

finished

water

(0.11

ag/14

is only, slightly above the

MCI

(0.10

agfL)

and

should

cause

no

significant

health risk

for the

limited

population

served

by

the

new

water

main

extensions

for

the

time

of this

variance..

The petitioner has submitted a construction schedule for a

•new treatment process that should result in

compliance.

The

construction

should

be

complete

in

March of

1993.

A

variance

of

.igbteen

months

will

allow

petitioner

time

to

complete

construction,

perform

four

quarterly

tests

to

monitor

the

level

of contaminants, and employ

the

back-up

mania feed system if

necessary.

The Board will accordingl~’

grant

this

variance

for a maximum

~‘eriod

of eighteen

months

to allow petitioner to adjust and

monitor the treatment

processes

and

install

the

ammonia feed

• system

if the initial modifications do not reduce the T1’HM

concentrations

to

an

acceptable

level.

Today’s

action

is

solely

a

grant

of

variance

from

Standards

of

Issuance

and

Restricted

Status as they relate to VrHM.

0138-027.8

---

7

This

opinion constitutes the

Board’s

findinqs

of

tact and

conclusions of law in this matter.

ORDER

1)

The

City

of Highland (petitioner)

is hereby granted a

variance from

35 Ill. Ada. Code 602.105(a), ‘Standards for

Issuance”,

and

602.106(b),

Restricted

StatusW,

as they relate to

the

maximum

contaminant

level

(MCI)

for

totél

trihalaaethknss

(TTHH), as set

forth

in 35 Ill. Ada.

Code

611.310(c) and (d).

This

variance will remain in effect

until

July

7,

1994,

subject

to

the

following conditions:

(A)

Variance

shall

terminate

on

the

earliest

of

the

following

dates:

(i)

July

7,

1994;

or

(ii)

when

analysis of

petitioner’s water_supply shove

compliance with the

standard

.

tar ~-xwIin drinking

water.

(B)

In consultation with the

Illinois

*avironm.ntal

Protection Agency (Agency), petitioner shall

continue

its

sampling

to

determine

the

level of Tt~in

it.

public

water supply

th~ough

the

watertreataent

facility.

Until

this

variance terminates, petitioner

shall collect

quarterly maaplssOf~At.water

from it.

distribution

system

at

locations~‘.pprOv.d

by the Agency

in accordance with 35111. Ada. Code 611.680.

Analysis

shall be performed by

a

laboratorycertified by the

State of

Illinois for

TIIDI analysis.

The results

of

the

analyses

shall

be

reported

within

30

days

of

receipt of the

most

recent result to:

Illinois Environmental Protection Agency

Compliance

Assurance

Section

Division

of

Public

Water

Supplies

.2200

Churchill Road

Springfield, Illinois

62794—9276

The

running

average of th.

most

recent

tour

quarterly

sample results shall be

reported to

the

above address

within

30 days after receipt of the most recent

quarterly

sample.

(C)

Pursuant to 35 Ill. Ada. 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, petitioner shall

send

to

each

person served by the PWS

a

written notice to ‘the

offect

01 38-O?79

---

8

that

the

Illinois Pollution Control Board has granted

petitioner

a

variance

from 35

Ill.

Ada.

Code

602.105(a)

Standards of Issuance and 35 211. Ada. Code 602.106(a)

Restricted Status,

as

they

relate

to

the

MCL

standard

for TTHM.

(D)

If results of analyses

performed

on

samples pursuant

to

35 Ill. Ada. Code 611.685 show a violation of the MCL

for

T’rdK,

then

public

notice

shall

be

made

pursuant to

35 Ill. Ada. Code 611.851(b).

(E)

Until full

compliance

is athiev.d,

petitioner shall

take

all reasonable measures with

its,_existing

equipment to minimiz,

the

level

of

t~rwIin

its

finished

drinking

water.

(F)

Petitioner

shall

provide

written progress reports

to

the

Agency

beginning

July

1,

1993,

and continuing

every

six

months

thereafter

until

compliance,

concerning

steps

taken

to

comply

with

the

paragraphs

of

this

order.

Progress

reports

shall quote each

of

said

paragraphs and

immediately below each paragraph

state

what

steps

have

been

taken

to

comply

with

each

paragraph.

Progress reports

shall

be addressed to:

Illinois

Environmental

Protection

Agency

Division of

public Water Supply

Field

Operations

Section

2200

Churchill Road

Springfield,:

Illinois

62794—9276

2)

rithin forty—five days of the date of this order,

petitioner shall

execute and forward

to:

Stephen C

•

Evart

Division of Legal Counsel

Illinois

Environmental

Protection Agency

P.O.

Box

19276

2200

churchill Road

Springfield,

Illinois

62794—9276

a Certificate of Acceptance

and

Agreement

to

be

bound

by all

terms

and

conditions

of

the granted Variance.

The

45

day

period

will be held in

abeyance

dur4’g

any

period

~tat

this

matter is being appealed.,.

Faiiur. to

execute

or

forward

this

certificate

within

~

days will

render the variance null and void.

The

form of the

certificate is as follows:

0138-0280

---

9

I

(We),

_______________________________________

hereby accept and agree to be

bound

by all

terms

and

conditions of the Order of

the Pollution Control Board

in PCB 92—144, January 7, 1993.

Petitioner

Authorized Agent

Title

Date

IT IS SO

ORDERED.

Section 41 of the Environmental Protection

Act,

Ill. Rev.

Stat.

1991,

cli. 111

1/2,

par. 1041, providei for’appeal

of

final

orders

of the Board within 35 days.

The

Rules

of

the Supreme

Court of Illinois establish tiling

requirements (but see also

35

Ill.

Ada.

Code

101.246, Motions for

R*consideration~end

Castenada

V.

Illinois

Human

Riahts

Commission

(1989), 132

Ill2d

304

547 N.E.2d 437.)

I, Dorothy M.

Gunn, Clerk of the Illinois Pollution control

Board, hereby certify t~atthe above opinion

nd order was

adopted on the

7C.4~’

day of _________________________

l993byavoteof

~

~

Dorothy H.

,4~tmn,

Clerk

Illinois

Pbllution

Control

Board

0 138-0281