99-161F.PDF

ILLINOIS POLLUTION CONTROL BOARD

July 8, 1999

VILLAGE OF DORCHESTER,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB 99-161

(Variance - Public Water Supply)

OPINION AND ORDER OF THE BOARD (by E.Z. Kezelis):

This matter is before the Board on the May 12, 1999 variance petition filed by the

Village of Dorchester (Dorchester), in Macoupin County. Dorchester seeks relief for twenty-

four months from 35 Ill. Adm. Code 602.106(a) “Restricted Status” for total trihalomethanes

(TTHM). 35 Ill. Adm. Code 602.106(a). The maximum contaminant level (MCL) for

TTHM is 0.10 milligrams per liter (mg/L). 35 Ill. Adm. Code 611.310(c).

Dorchester

waived hearing and none was held.

The Board's responsibility in this matter arises from the Environmental Protection Act

(Act). 415 ILCS 5/1

et seq

. (1998). The Board is responsible for granting variances from

Board regulations whenever it is found that compliance with the regulations would impose an

arbitrary or unreasonable hardship upon a petitioner. 415 ILCS 5/35(a) (1998). The Illinois

Environmental Protection Agency (Agency) is required to appear at hearings on variance

petitions. 415 ILCS 5/4(f) (1998). The Agency is also charged with the responsibility of

investigating each variance petition and making a recommendation to the Board for the

disposition of the petition. 415 ILCS 5/37(a) (1998).

The Agency filed its variance recommendation on June 14, 1999.

The Agency

recommends that a variance from 35 Ill. Adm. Code 602.105(a) “Standards for Issuance” and

35 Ill. Adm. Code 602.106(a) "Restricted Status" be granted to Dorchester, but only as they

relate to the requirements for TTHM under 35 Ill. Adm. Code 611.310(c). Furthermore, the

Agency recommends that the variance be granted for only twelve months, subject to certain

In December 2003, there will be a reduction of the MCL for TTHM to 0.08 mg/L. See

proposed amendment Primary Drinking Water Standards: 35 Ill. Adm. Code 611.312(a) (May 6,

1999), R99-12.

Dorchester’s petition for variance will hereinafter be referred to as “Pet. at

.”; the Illinois

Environmental Protection Agency’s recommendation will be referred to as “

Ag. Rec. at .”;

Dorchester’s reply to the Agency’s response to the Village of

Dorchester’s petition for variance

and request for expedited decision will be referred to as Pet. Reply at .”

conditions discussed more fully below. Ag. Rec. at 6. On June 23, 1999, Dorchester filed a

reply to the Agency’s recommendation in which it fully concurred in the recommendations of

the Agency. Dorchester also requested an expedited decision from the Board. The statutory

decision deadline is September 9, 1999.

Dorchester’s motion for expedited decision is granted. For the following reasons, the

Board finds that Dorchester has presented adequate proof that to require 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 the conditions set forth below.

BACKGROUND

Dorchester is located in Macoupin County, Illinois. Dorchester provides potable water

to all residential and commercial users within the corporate boundaries of Dorchester. Pet. at

3. Dorchester owns and operates its own water distribution system, but purchases treated

water from the City of Gillespie (Gillespie).

Id.

Water is provided to all residential,

agricultural, commercial and industrial users, as needed. Charges, as established by

ordinance, are made to all users.

Id.

Dorchester supplies water to approximately 200 users.

Id.

Residential customers account for 50% of the total water flow and commercial customers,

primarily agricultural users, account for 50%. Pet. at 4.

The Agency first advised Dorchester that it exceeded the MCL for TTHM on

September 23, 1996. Ag. Rec. at 4. Dorchester's water supply showed a level of 0.11 mg/L

for TTHM, thus exceeding the 0.10 mg/L standard.

Id.

The Agency notified Dorchester on

October 30, 1996, that it was going to be placed on restricted status.

. Moreover, in the

past four quarters, Agency records indicate that in two out of four samples, Dorchester

exceeded the 0.10 mg/L MCL for TTHM. Ag. Rec. at 5. As a result, Dorchester’s current

annual average of TTHM is 0.117 mg/L, which exceeds the 0.10 mg/L MCL.

Because Dorchester purchases water from Gillespie, its ability to obtain compliance

levels of TTHM in its water is, in the first instance, dependent upon receiving water with

compliance levels of TTHM from Gillespie, which has not heretofore been able to reliably

supply it. Pet. at 3-5; Ag. Rec. at 3-4. Gillespie was removed from restricted status for

TTHM in April 1998, after installing additional treatment modifications. Gillespie’s latest

testing results from February 22, 1999, showed a level of 0.057 mg/L for TTHM, which

meets the MCL of 0.10 mg/L. Ag. Rec. at 5. Dorchester asserts that Gillespie’s

improvements will improve the quality of water supplied by Gillespie so that Dorchester will

be in compliance with the MCL for TTHM. Pet. at 5.

Dorchester requests this variance to extend its water distribution system to serve new

users in the Heyen Subdivision, located within the corporate boundaries of Dorchester. Pet. at

4. The Heyen Subdivision has thirteen lots designated for single-family residences. Two lots

in the Heyen Subdivision have been built upon by third parties; the first residence was built

and occupied without notice or knowledge by the subdivision owner that Dorchester was on

the Agency’s restricted status list. Pet. at 6. Ten of the thirteen lots have been sold to third

parties and seven of the sold lots will have homes under construction by June 1999.

Id.

If the requested variance is granted, Dorchester asserts that it will be able to continue to

operate, expand, improve, and extend its water distribution system in the Heyen Subdivision.

Pet. at 8.

REGULATORY FRAMEWORK

Dorchester’s variance request involves two of the Board's public water supply

regulations: “Standards for Issuance” and “Restricted Status,” which are found at 35 Ill. Adm.

Code 602.105 and 602.106. In pertinent part they 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 [415 ILCS 5].

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 public water

supply facility may no longer be issued a construction permit without

causing a violation of the Act or this Chapter.

The cumulative effect of these regulations is that community water supply systems are

prohibited from extending water service unless and until their water meets all of the standards

for finished water supplies. Dorchester requests this variance in order to extend its water

service while it continues to pursue compliance with the TTHM standard, as opposed to

extending service only after attaining compliance.

In determining whether a 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) (1998). Furthermore, the burden is on 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, 135 Ill. App. 3d 343, 481 N.E.2d

1032 (1st Dist. 1985). Only with such a showing can the claimed hardship rise to the level of

arbitrary or unreasonable hardship.

A variance is only a temporary reprieve from compliance with the Board's regulations.

Compliance is to be sought regardless of the hardship which the task of eventual compliance

presents to an individual polluter. Monsanto Co. v. Pollution Control Board, 67 Ill. 2d 276,

367 N.E.2d 684 (1977). Accordingly, except under certain special circumstances not present

here, a petitioner requesting a variance is required 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” neither

absolves a petitioner from compliance with the drinking water standards at issue, nor insulates

a petitioner from a 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. City of Altamont v. IEPA (December 7, 1995), PCB 96-65.

COMPLIANCE PLAN

Dorchester is awaiting the results of the water quality tests performed after Gillespie

installed improvements before Dorchester itself undertakes expensive remedial action.

Dorchester believes that the modifications to Gillespie’s water treatment system will eliminate

its own violation of the MCL for TTHM. Pet. at 8. Gillespie was removed from restricted

status for TTHM in April 1998 after installing additional treatment modifications. Gillespie’s

latest testing results from February 22, 1999, showed a level of 0.057 mg/L for TTHM, which

meets the MCL of 0.10 mg/L. Ag. Rec. at 5. Dorchester intends to monitor its own water

quality each month for the next six months and to obtain, at its own expense, monthly samples

of water for TTHM analysis at the Dorchester master meter connection to Gillespie’s water

supply. Pet. at 8. After the results of the six month study, Dorchester will address any water

quality issues that remain.

Id.

The Agency states that Dorchester has not previously sought a variance from

regulations pertaining to TTHM. Ag. Rec. at 4. Additionally, Dorchester is not presently on

restricted status for exceeding any other contaminant. Ag. Rec. at 6.

HARDSHIP

Dorchester contends that failure to obtain a variance would cause unreasonable hardship

on Dorchester’s growth and on all persons affected by its denial. Currently, third parties

constructing homes in the Heyen Subdivision must drill water wells or haul potable water due

to the inability of Dorchester to provide water service as long as it is on the Agency’s

restricted status list. Pet. at 6. Dorchester also asserts that failure to obtain a variance would

not allow new water main extensions and halt construction of new subdivision homes. Pet. at

6-8.

Finally, Dorchester alleges that failure to obtain a variance would cause unreasonable

hardship in that Gillespie, after years of non-compliance, has implemented a comprehensive

plan, the effect of which will be to reduce TTHM levels for Gillespie and for all of its bulk

water customers, including Dorchester. Pet. at 7.

The Agency agrees that denial of a variance would result in an arbitrary or

unreasonable hardship because denial of that variance would require the Agency to continue to

deny construction and operating permits for new water main extensions until compliance is

achieved. Ag. Rec. at 9. Imposition of restricted status means that no new water main

extensions could be issued permits by the Agency, and economic growth dependent on those

water main extensions could not occur. Ag. Rec. at 10.

ENVIRONMENTAL IMPACT

The Agency believes that any incremental increase in the concentration for TTHM

allowed by the grant of the requested variance should cause no significant health risk for the

limited population served by new water main extensions for the time period of the

recommended variance. Ag. Rec. at 8-9. The Agency further agrees that granting the

requested variance would not impose any significant injury to the public or to the environment

for the limited time period of the recommended variance. Ag. Rec. at 9.

CONSISTENCY WITH FEDERAL LAW

The Agency states that Dorchester may be granted a variance consistent with the

requirements of the Safe Drinking Water Act (42 U.S.C. § 300(f)), and the United States

Environmental Protection Agency (USEPA) Drinking Water Regulations (40 C.F.R. Part 141

(1998)) because the requested relief would not represent a variance from national primary

drinking water regulations. Ag. Rec. at 10. Specifically, granting a variance from the effects

of restricted status means that only the State’s criteria for variances are relevant.

Id.

The Agency states that Dorchester remains subject to the possibility of federal

enforcement for violations of the MCL for TTHM. Ag. Rec. at 11. The Agency notes that

because of continuing progress being made toward compliance, the Agency does not believe

“that USEPA will object to the issuance of [a] variance, should the Board so decide.”

Id.

TERMS OF VARIANCE

Dorchester initially requested that the term of variance be for a period of twenty-four

months, or until July 8, 2001. Pet. at 7. The Agency, however, recommends that the

variance be granted for twelve months from the date the variance is granted. Ag. Rec. at 12.

The Agency states that twelve months would give Dorchester time to monitor its water and

make any needed adjustments or take any further action as required by the Agency. The

additional time will give Dorchester four quarters in which to test its samples to determine

whether it is in compliance.

Id.

Dorchester fully concurs in the recommendations of the

Agency, including the twelve month limit on the variance. Pet. Reply at 2.

CONCLUSION

Based on the record, the Board finds that immediate compliance with 35 Ill. Adm.

Code 602.105(a) “Standards for Issuance” and 35 Ill. Adm. Code 602.106(a) “Restricted

Status” regulations would impose an arbitrary or unreasonable hardship on Dorchester. The

Board also finds that granting this variance does not pose a significant health risk to those

persons served by any new water main extension.

Consistent with the Agency's recommendation, and with Dorchester’s concurrence, we

will grant Dorchester a variance which will expire July 8, 2000. This amount of time should

allow Dorchester to monitor its water and make adjustments as needed.

The Board's action is solely a grant of variance from “Standards of Issuance” and

“Restricted Status”. Dorchester is not granted variance from compliance with the TTHM

standard and Dorchester is not insulated from enforcement for violation of this standard.

This opinion constitutes the Board's findings of fact and conclusions of law in this

matter.

ORDER

The Village of Dorchester (Dorchester) 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) in drinking water as

set forth in 35 Ill. Adm. Code 611.310(c), subject to the following conditions:

The variance terminates on July 8, 2000.

In consultation with the Illinois Environmental Protection Agency (Agency),

Dorchester shall continue its sampling program to determine as accurately as

possible the level of TTHM in its public water supply. Until this variance

expires, Dorchester 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 611.680. Analysis shall be done 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

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

The running average of the most recent four quarterly sample results shall be

reported to the above address within thirty (30) days of receipt of the most

recent quarterly sample.

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, Dorchester will send to each user of its public

water supply a written notice to the effect that Dorchester has been granted by

the Pollution Control Board a 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 the MCL for TTHM.

If results or 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).

Until full compliance is reached, Dorchester shall take all reasonable measures

with its existing equipment to minimize the level of TTHM in its finished

drinking water.

Dorchester shall provide written progress reports to the Agency at the address

below every six months concerning steps taken to comply with this order.

Progress reports shall quote each paragraph and immediately below each

paragraph state what steps have been taken to comply with that paragraph:

Illinois Environmental Protection Agency

Division of Public Water Supply

Field Operations Section

1021 North Grand Avenue East

P. 0. Box 19276

Springfield, Illinois 62794-9276

Within 45 days of the grant of the variance, Dorchester shall execute and

forward to:

Joey Logan-Wilkey

Division of Legal Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue East

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. 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 99-161, dated July 8, 1999.

_________________________________

Petitioner

_________________________________

Authorized Agent

_________________________________

Title

_________________________________

Date

IT IS SO ORDERED.

Section 41 of the Environmental Protection Act, (415 ILCS 5/41 (1998)), provides for

the appeal of final Board orders to the Illinois Appellate Court within 35 days of the date of

service of this order. Illinois Supreme Court Rule 35 establishes such filing requirements.

See 172 Ill. 2d R 335; see also 35 Ill. Adm. Code 101.246, Motions for Reconsideration.

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

that the above opinion and order was adopted on the 8th day of July 1999 by a vote of 5-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board