ILLINOIS POLLUTION CONTROL BOARD
December
4,
1980
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY,
Complainant,
v.
)
PCB 78—37
CITY OF OREGON,
)
Respondent.
M5~JIJDITH
S.
GOODIE APPEARED ON BEHALF OF THE COMPLAINANT.
MR. DAVID SMITH APPEARED ON BEHALF
OF THE RESPONDENT.
OPII’IION AND ORDER OF THE BOARD
(by J.D. Dumelle)~
On February
7,
1978,
the Environmental Protection ~gency
(Agency)
filed a Complaint against the City of Oregon (Oregon).
The
Complaint alleged that, since December
9,
1977,
Oregon
had
operated its public water supply system without chlorination
treatment of the water before
it
enters the distribution system,
in violation of Rule 305 of Chapter
6
Public Water Supply
Regulations.
A hearing was held
in this matter on May
9,
1978.
Several citizen witnesses
testified,
Rule 305 of Chapter
6 became effective on December 21,
1974.
On December 22, 1975W
Oregon filed a petition requesting a
two-year variance from Rule 305
(75 PCB 497).
The Board,
on
I’larch 11,
1976,
granted Oregon a variance for a period of 150
days,
expiring on August 10,
1976.
Oregon appealed the Board’s
decision, and the appellate
court, based upon a motion by the
Board, dismissed the appeal for the purpose of allowing the Board
to conduct a hearing on the merits
of
Oregon’s variance petition.
A hearing on the variance petition was held on April 15,
1977.
Part IV of the Procedural Rules requires
the
Petitioner
to
furnish the Board with
a transcript 15 days following completion
of
the
hearing.
On October 13,
1977,
the Board ordered Oregon to
submit by November
7,
1977,
a transcript of the hearing held on
April
15, 1977.
Having received no transcript,
the Board, on
December
8,
1977,
dismissed the proceeding.
The Complaint
in
this matter was
filed on February
7,
1978.
On March
7,
1978,
the
Agency
served on Oregon
a Request for
Admission of Facts and Genuineness of Documents.
Oregon failed
to respond to this
request within 20 days after service thereof.
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Each of the matters of fact and the genuineness of each document
of which admission was requested is, therefore,
admitted,
pursuant
to
Procedural
Rule
314.
Furthermore,
the
Board,
on•
April
27,
1978,
granted
a
Motion
for
Sanctions
filed
by
the
Agency based
upon
the
City’s failure to respond to
tnterrogatories
and
a
Request
for
Production
of
Documents
served
upon
it
by
the
Agency.
The
Board’s
April
27,
1978, Order debarred
Oregon from filing any pleading or introducing any testimony or
evidence on various natters, including operation of the system,
costs of chlorination
and
the presence or absence of
contaminants.
Since the date of the hearing in this matter, the Board has
delayed decision pending resolution of a regulatory proposal
exempting ground water systems which have demonstrated the
ability to provide safe drinking water.
On October 30,
1980, the
Board dismissed that proceeding CR78-i) and Rule 305 remains in
effect.
The City of Oregon owns and operates a public water supply
system which serves approximately 3800 people.
The system
includes three drilled wells, an equalizing reservoir, and a
distribution system.
The evidence, including the Request for
Admission as well as testimony at the hearing, indicates that
Oregon
has not, since the effective date of Rule 305, chlorinated
its water or purchased treated water containing chlorine for its
public water supply system
CR.15).
The only witness testifying on behalf of Oregon testifted
about the reasonableness of the chlorination requirement
CR.51).
He indicated that health hazards
may
be associated with the
chlorination requirement and suggested other methods which may,
in his opinion, be preferable to chlorination as a method of
purifying drinking water CR.62).
In addition, several citizen
witnesses,
four of whom were from cities other than Oregon,
criticized the chlorination requirement.
The issue before
the
Board
in
an
enforcement
case
in
which
a
violation of a specific regulation is alleged is not the
reasonableness of that regulations but simply whether or not the
Respondent has complied.
The Board
finds
that
the
City
of
Oregon
did
not comply with the chlorination requirement and, therefore,
violated Rule 305 of Chapter 6.
The proper forum for questioning
the reasonableness of a regulation is in a regulatory proceeding
or, if the source considers immediate compliance with the
regulation to impose an unreasonable hardship, in a variance
proceeding.
In fashioning a remedy in an enforcement case,
the
Board
must consider the factors detailed in Section 33Cc) of the Act.
The City was debarred from introducing evidence on certain
aspects of these factors, including information on the costs of
modifying its system or installing chlorination equipment, the
presence
or
absence
of
contaminants
in
the
system,
and the
40—2
availability of the funds
to install chlorination equipment.
Nevertheless, the record
does
contain some information on the
Section 33(c) factors.
The Rockford Regional T~anagerof the
Agency’s public water supply division testified that since 1975,
when he was appointed to his present position, there has been no
evidence of contamination of Oregon’s water supply.
However~the
Agency did submit contrary evidence indicating some contamination
from 1965 to 1970
(R.126—128).
The Board does not question the
value of
a source of public water supply;
however, that value
is
diminished when reasonable measures required for protection of
the public health are not followed.
Finally, although Oregon was
debarred from introducing evidence of the economic reasonableness
of compliance, the parties did stipulate (though for purposes of
setting a performance bond only) that chlorination would cost the
City $24,000
(R.50).
The Board notes that this figure appears
quite high.
See discussion of chlorination costs
in R78-8
(Opinion and Order of October 30,
1980).
However, no economic
hardship was alleged and no issue relating to the technical
feasibility of chlorination was raised.
The Board will not assess a penalty in this case.
The Board
will order that Oregon cease and desist from its violation of the
Act and install and operate chlorination equipment within
6
months.
This Opinion constitutes the findings of fact and
conclusions of
law of the Board in this matter.
ORDER
It
is the Order of the Pollution Control Board that.~
1)
The City of Oregon is found to have violated Rule 305
of the Public ~‘7aterSupply Regulations,
Chapter
6 of
the Board’s Rules and Regulations;
2)
Within six months of
the date of this Order, the City
of Oregon shall provide chlorination treatment of its
water before
it enters the distribution system.
3)
No penalty shall be assessed.
IT IS SO ORDERED.
I,
Christan L.
Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify that
t,be above Opinion and Order
was
açlopted on the ‘~/~
day of L~-~-~-~
,
1980 by a vote
of
LI~O___
Christan L. Mdf~é~t,Clerk
Illinois Polluti~nControl Board
40—3