ILLINOIS POLLUTION CONTROL BOARD
February 25, 1993
CITY OF CHESTER,
)
)
Petitioner,
)
v.
)
PCB 93—23
)
(Variance)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION
AGENCY,
)
)
Respondent.
OPINION
AND
ORDER
OF THE BOARD
(by J. Anderson):
This matter is before the Board on the February 3,
1993
petition for variance filed by the City of Chester (Chester).
Chester seeks relief from 35 Ill. Adm. Code 602.105(a),
“Standards for Issuance”, and 602.106(a),
“Restricted Status”, to
the extent those regulations relate to the violation by Chester’s
public water supply of the maximum contaminant level
(MCL)
of
0.10 mg/L for total trihalomethanes
(TTHM)
as set forth in 35
Ill. Adm. Code 611.310(c) and
(d).
Chester seeks a 24 month
variance
until
February 25, 1995.
On February 11,
1993, the Illinois Environmental Protection
Agency
(Agency) filed its variance recommendation.
The Agency
recommends that the Board grant a 24—month variance subject to
certain conditions to give Chester time to perform four quarterly
tests, to see if it is in compliance, and to submit the test
results.
(Agency Rec. par. 36(A).)
The Agency states that this
will also allow Chester time to prepare a plan for immediate
improvements or replacement of existing treatment facilities
necessary to permanently address the TTHM problem.
(Agency Rec.
par. 36(A).)
Chester waived hearing in this matter, and none was
held.
For the reasons discussed below, the Board finds that the
record contains adequate proof that to require immediate
compliance with 35 Ill. Adm. Code 602.105(a)
and 602.106(a) would
result in the imposition of an arbitrary or unreasonable
hardship.
Accordingly, the Board will grant the variance subject
to the conditions specified in the accompanying order.
BACKGROUND
Chester is a municipality in Randolph County,
Illinois,
which provides potable water for the residential,
commercial,
and
industrial customers in the City of Chester, the Village of Ellis
Grove, the Randolph County Conservation Area, and the Chester
Mental Health Center.
(Pet. par.
9.)
Chester serves a total
0139-0619
2
population of 6890.
(Pet. par. 9.)
Water is distributed as
follows:
Residential
75
Commercial
15
Industrial
5
Institutional
5
(Pet. par.
9.)
Chester owns and operates the water supply, treatment
facility, and distribution system for the City of Chester.
(Pet.
par.
11.)
Chester, however, does not own or operate the
distribution system of the Village of Ellis Grove or the Chester
Mental Health Center.
(Pet. par.
11.)
Chester is not part of a
regional water supply.
(Pet. par. 10.)
Water is provided to all
residential, commercial, and industrial users as needed, and
charges are made according to ordinance.
(Pet. par.
11.)
If
variance is granted, Chester foresees extending its water mains
to serve 24 low—income,
elderly, and handicap housing units
within Chester.
(Pet.
par.
12.)
Agency records indicate the Chester has not sought a
variance from regulations concerning TTHM prior to this petition.
(Agency Rec. par. 7.)
The Agency also states that Chester is not
presently on restricted status for exceeding any other
contaminant.
(Agency Rec. par.
14.)
REGULATORY FRAMEWORK
The instant variance request concerns 35 Ill. Adm. Code
602.105(a),
“Standards for Issuance”, and 602.106(a),
“Restricted
Status.
Those regulations provide,
in pert.inent part, as
follows:
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.
111
1/2, pars.
1001 et seq.)
(Act), or of this
Chapter.
Section 602.106
Restricted Status
a)
Restricted status shall be defined as the
Agency determination, pursuant to Section
39(a)
of the Act and Section 602.105, that a
0 139-0620
3
public water supply facility may no longer be
issued a construction permit without causing
a violation of the Act or this Chapter.
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 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)
.1)
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 (1977),
133 Ill.App.3d 343, 481 N.E.2d
1032).
Only with such showing can the claimed hardship rise to
the level of arbitrary or unreasonable hardship.
Where the
petitioner seeks to extend a variance, the petitioner must show
satisfactory progress.
A further feature of a variance is that~’itis, by its
nature, a tem~orarvreprieve from compliance with the Board’s
regulations
(Monsanto Co.
v. IPCB
(1977),
67 ‘I11.2d 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
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 35 Ill. Adm. Code 602.105(a) and
602.106(a)
does fl~Q~
absolve a petitioner from compliance with the
MCL at issue,
nor does it insulate a petitioner from possible
enforcement action brought for violation of that MCL.
The
underlying MCL remains applicable to the petitioner regardless of
whether variance is granted or denied.
CHESTER’S RESPONSE
AND
PROPOSED COMPLIANCE
PLAN
Prior to notification of noncompliance, Chester’s existing
treatment plant operated as follows.
Raw water was pumped from
the Mississippi River to a rapid mix chamber.
(Pet. par.
20.)
Chlorine was fed just prior to the rapid mix chamber and lime,
ferric sulfate, and powdered activated carbon were added at the
‘This section of the Act was previously codified at Ill.Rev.
Stat.
1991,
ch.
111k, par.
1035(a).
O~139-O62t
4
rapid mix chamber.
(Pet. par. 20.)
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).
(Pet. par.
20.)
Water then flowed through four rapid chamber
sand filters which have a 27 inch layer of anthracite on top of
the sand.
(Pet. par.
20.)
After filtration, the water flowed
into a clearwell where it was pumped into the distribution
system.
(Pet. par.
20.)
Polyphosphate was added prior to
filtration and fluoride was added after filtration.
(Pet. par.
20.)
On March 20,
1992, Chester received an Agency letter stating
that the level of TTHM in its water distribution system exceeded
the regulatory MCL for TTh14.
(Pet. par.
15.)
The letter stated
that the TTHM average for the past four consecutive quarters was
0.135 mg/L, which exceeded the 0.10 mg/L MCL standard.
(Pet.
pars.
15,
16, Ex. B.)
On March 25,
1992, the Agency notified
Chester that it would be placed on restricted status.. (Pet. par.
15, Ex. C.~)
Compliance with 35 Ill.
Adin. Code 611.310(c) and
(d)
was not achieved because there was no aqua aamonia feed equipment
on line in time to affect the changes necessary.
(Pet.
pars.
18,
19.)
After Chester realized that the MCL for TTHM would not be
met, Chester modified its treatment process to reduce the TTHM
concentration in the treated water.
(Pet. par.
21.)
The
modifications included the installation of an aqua ammonia feed
system.
(Pet. par. 21.)
It was anticipated that this
modification would reduce the concentration of TTHM throughout
the distribution system.
(Pet. par. 22.)
On February 2,
1992, Chester submitted a plan to the Agency
for additional ammonia as a means of lowering the PTHM level.
(Pet. par.
17.)
Upon receipt of a March 31,
1992 Agency permit,
Chester authorized the purchase of equipment and construction of
facilities to inject ammonia and produce chloramines as a primary
means of disinfection.
(Pet.
par. 17)
The equipment was placed
into service in mid—October,
1992.
(Pet.
par.
18.)
Reduction of
TTHM levels was immediate.
(Pet. pars.
18, 27.)
The period of
time requested for the variance will allow Chester to adjust and
monitor the treatment processes.
(Pet. par. 23.)
ALTERNATIVE COMPLIANCE
PLANS
There
are two primary methods for achieving compliance.
(Pet. par.
28.)
The first method is to optimize the treatment
process to remove TTHM precursors, thereby reducing TTHM
formation.
(Pet. par.
29.)
The second method is to use an
alternative disinfection method.
(Pet. par.
30.)
The most
common alternative disinfection method is an ammonia feed
process, which Chester has implemented as discussed above.
(Pet.
0 139-0622
5
pars.
30,’ 31.)
Ozone is another commonly used disinfection
method.
(Pet. par.
30.)
HARDSHIP
Denial of the variance would prevent the Agency from issuing
construction and operating permits to Chester until compliance is
achieved.
Without the construction and operating permits, all
construction requiring water extensions within Chester’s service
area would be halted.
(Pet.
par. 35.)
Chester argues that
denial of the variance will have a negative impact on prospective
home purchasers and developers, as well as on its tax base.
(Pet.
par. 35.)
Specifically, Chester plans to extend its water mains
to serve the new 24 unit housing complex within the city.
(Pet.
par. 12.)
Chester further argues that,
because there is no significant
risk of harm to the environment or to the public health for the
variance period, continuation of the effect of being placed on
restricted status would work an arbitrary or unreasonable
hardship on the city,
its taxpayers, and on prospective
developers, as well as those persons and industries served by
those developers..
(Pet.
par. 36.)
Chester concludes that the
hardship resulting from a denial of the variance outweighs the
harm to the public resulting from a grant of the variance.
(Pet.
par. 36.)
The Agency agrees that, under ‘the circumstances in this
case,
a denial of the requested variance would result in an
arbitrary or unreasonable hardship.
(Agency Rec. pars. .25, 26.)
The Agency further agrees that denial of the variance would
impose an arbitrary or unreasonable hardship in that the Agency
could not issue a water main extension permit to allow for the
occupancy of the new 24 unit housing complex within Chester.
(Agency Rec.
par.
27.)
ENVIRONMENTAL IMPACT
Chester has made no formal assessment of the effect of this
variance on the environment.
(Pet. par. 25.)
Chester, however,
asserts that “the granting of this variance for the limited time
period of the requested variance 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.
Chester
does not consider the TThM concentration of
this community water supply to be a significant health risk for
the limited time period of the requested variance.”
(Pet.
pars.
25,
34,
36.)
Although Chester does not state the basis for this
belief, Chester’s petition together with the Agency’s
recommendation sufficiently addresses this matter.
The Agency believes an incremental increase in the allowable
0139-0623
6
concentration for TTHM will impose no significant injury to the
environment or to the limited population served by the new water
main extensions for the time period recommended. (Agency Rec.
pars.
24,
25,
26.)
TTHM are organic chemicals consisting of one
carbon atom and three halogen atoms.
(Agency Rec. par.
19.)
TTHM are formed when free chlorine reacts with naturally
occurring compounds which are generally produced by decaying
vegetation.
(Agency Rec. par.
19.)
Research by the National
Cancer Institute and the National Academy of Sciences indicates
that TTHM may be carcinogenic and can lead to liver and kidney
disorc’ers, birth defects, and central nervous system damage.
(Agency Rec. par.
19.)
The United States Environmental Protection Agency (USEPA)
promulgated federal regulation 44 Fed. Reg.
68624, R81-11, Ex.
4,
R81-11,
23-24 in response to the potential adverse health effects
of TTHM.
(Agency Rec. par. 20.)
The regulations establish an MCL
for TTHM of 0.10 mg/L and provide monitoring schedules.
(Agency
Rec. par. 20.)
The federal regulations are part of the Primary Drinking
Water Regulations
(40 CFR 141) under the Safe Drinking Water Act
(SDWA)
(42 U.S.C 300f (1989)).
The SDWA requires states to adopt
rules at least as stringent as the USEPA rules to retain primary
enforcement responsibilities.
(Agency Rec. par. 20)
In
Illinois, the TTHM standard of 0.lOmg/L is applicable to public
water supplies serving over 10,000 people and, after January 1,
1992, to public water supplies serving less than 10,000 people.
(35 Ill. Adm. Code 611.310(c) and
(d).)
(Agency Rec. par. 21.)
This standard is estimated to allow for one excess cancer death
for every 10,000 to 100,000 people with a lifetime exposure to
TTHM at the MCL in their drinking water.
(Agency Rec. par. .21.)
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
national primary drinking water regulations.
(Agency Rec. par.
29.)
The Agency also does not believe that USEPA will object to
the issuance of variance because continuing progress is being
made towards compliance.
(Agency Rec. par. 33.)
CONCLUSION
Under the circumstances in this case,
the Board finds that
immediate compliance with 35 Ill. Adm. Code 602.105(a),
“Standards for Issuance”, and 602
.
106(a), “Restricted Status”
with respect to ¶I~THMwould impose an arbitrary or unreasonable
hardship on Chester.
Although Chester’s petition does not fully
address some issues, the petition read together with the Agency’s
0139- 06214
7
recommendation provides sufficient information on which the Board
may base a decision.
Although Chester has not listed compliance costs, the record
indicates that the costs of modifications were minimal since
Chester already has the capacity of feeding the aqua—ammonia as
described.
(Pet. par.
26.)
Chester also moved very quickly to
achieve compliance as soon as it was informed that the TTHM level
exceeded the MCL.
The TTHM levels in Chester’s finished water
(0.135 mg/L)
is only slightly above the NCL (0.10 mg/L) and
should cause no significant health risk for the limited
population served by the new water main extensions for the time
of this variance.
A variance of 24 months will allow Chester time to perform
quarterly tests to monitor the level of contaminants.
The Board
accordingly will grant this variance for a maximum period of 24
months to allow Chester to adjust and monitor its treatment
processes.
Today’s action is solely a grant of variance from 35
Ill. Adm. Code 602.105(a),
“Standards of Issuance” and 35 Ill.
Adm. Code 602.106(a),
“Restricted Status” as they relate to TTHM.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The City of Chester (petitioner)
is hereby granted a
variance from 35 Ill. Adm. Code 602
•
105(a), “Standards for
Issuance”,
and 602
.
106(a), “Restricted Status”, as they relate to
the maximum contaminant level
(MCL)
for total trihalomethanes
(TTHM), as set forth in 35 Ill. Adm. Code 611.310(c)
and
(d).
This variance will remain in effect until February 25,
1995,
subject to the following conditions:
(A)
Variance shall terminate on the earliest of the
following dates:
(i)
February 25,
1995; or
(ii) when analysis of petitioner’s water supply shows
compliance with the standard for TTHM in drinking
water.
(B)
In consultation with the Illinois Environmental
Protection Agency
(Agency), petitioner shall continue
its sampling to determine the level of
TTHM
in its
public water supply through the water treatment
facility.
Until this variance terminates, petitioner
shall collect quarterly samples of its water from its
distribution system at locations approved by the Agency
0139-0625
8
in accordance with 35 Ill.
Adm. Code 611.680.
Analysis
shall be performed by a laboratory certified by the
State of Illinois for TTHM 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 the most recent four 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. 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, petitioner shall send to each
person served by its public water supply a written
notice to the effect that the Illinois Pollution
Control Board has granted petitioner a variance from 35
Ill. Adm. Code 602.105(a) ‘Standards of Issuance and 35
Ill.
Adxn. 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. Adm. Code 611.685 show a violation of the MCL
for TTHM,
then public notice shall be made pursuant to
35 Ill. Adm. Code 611.851(b).
(E)
Until full compliance is achieved, petitioner shall
take all reasonable measures with its existing
equipment to minimize the level of TTHM in 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:
01390626
9
Illinois Environmental Protection Agency
Division of Public Water Supply
Field Operations Section
2200 Churchill Road
Springfield,
Illinois
62794—9276
2)
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
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 during any
period that this matter is being appealed.
Failure to
execute or forward this certificate within 45 days will
render the variance null and void. The form of the
certificate is as follows:
I
(We),
hereby
accept
and
agree
to
be bound by all terms and
conditions of the order of the Pollution Control Board
in PCB 93-23,
February 25,
1993.
Petitioner
Authorized Agent
Title
Date
IT IS SO ORDERED.
Board Members
J. Theodore Meyer and B.
Forcade dissented.
31390627
10
Section 41 of the Environmental Protection Act, 415 ILCS
5/41
(1992 State Bar Edition), 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 I.l.2d
304, 547 N.E.2d 437.)
I,
Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above opinion
nd order was
adopted on the
______________
day
of
_______________________
1993, by a vote of
_______________.
Dorothy N. ,8~inn, Clerk
Illinois P~ ution Control Board
0
I 39-0628
