ILLINOIS POLLUTION CONTROL BOARD
kugust
7,
1975
PAIGE HALL, ET AL.;
)
Complainants,
v.
)
PCB 74-33
CITY OF DECATUR, ET AL.,
)
Respondent.
Mr. Robert W. Dodd appeared on behalf of Complainants,
Mr. Burner C. Lariholt appeared on behalf of Respondents.
OPINION AND ORDER OF THE BOARD (by Mr. Dumelle):
On January 22. 1974, Paige Hall, et al., filed a citizen
complaint alleging that the City of Decatur, et al., had
violated Rules 203(a)
,
(b)
,
(c)
,
(ci)
,
(f)
,
and (g) and 204 (b) of
Chapter 3, Water Pcllution Regulations and Section 18 of the
Environmental Pro~ectionAct (Act) by the use of Lake
Decatur
as a Public Water Supply. Hearings were held on September
25 and October 31, 1974 in Decatur. Complainants and Respondents
filed briefs, and Complainants filed a Re~~lyBrief.
Complainants base the allegation of the violations of
Rule 203 and 204 upon the interpretation that a violation of
Rule 204 can occur both by those who discharge contaminants
and those who withdraw the degraded water resulting from the
discharge of contaminants. Respondents respond that their
operation of Lake Decatur as a Public Water Supply adds
nothing to the water and therefore they cannot be found in
violation of Rule 204. The question of the interpretation
of Rule 204 is of first instance.
The Board had before it the question of the intent of
Rule 204 when it adopted the Public Water Supply Regulations,
R73--13. The opinion accompanying B73—13 states:
Clarification of the intent of the rule: The adopted
change in the preamble language to Rule 204 makes it
clear that it would be a violation to add anything to
18
— 290
~2)
water which would cause it to exceed the applicable
standards. Th~previous language is not quite so
clear, and would raise the question of whether it would
also be a violation to use such water. The question of
intent of an existing rule was not before us, and could
be better answered in a separate proceeding
*
either a
regulatory change or as a result of potential enforcement
action. The intent of the existing rule was not a
subject for consideration in these hearings. Our job
was to promulgate regulations which will insure a safe
and adequate supply of water for the general public.
(In the Matter of Public Water Supplies, R. 73-13, page
45 (January 3, 1975)).
It is helpful to review the statutory authority governing
the adoption of Rule 204. Rule 101 Authority of the Water
Pollution Regulations states in pertinent part:
Pursuant to the authority contained in
Section 13 of the Environmental Protection
Act which authorizes the Board to issue
regulations... to assure that no contaiminants
are discharged into the waters without being
given the degree of treatment or control
necessary to prevent pollution...., the
Board adopts the following rules and regu-
lations.
Section B of the Act provides that the Board “may adopt
regulations to promote the purposes and provision of this
Title.” Section 13 is within Title 3: Water Pollution of
the Act. We read Title 3 to allow the Board to regulate
water pollution.
Title 4: Public Water Supplies sets forth the legislation
grant of authority to the Board to regulate Public Water
Supplies (Section 17 of the Act). Subsequent to the filing
of this complaint, the Board adopted Chapter 6, Public Water
Supply Regulations on November 22, 1974.
Based upon the review of the statutory authority of Chapter
Three, we find that Rule 204 applies only to those who discharge
contaiminants intn the waters of the State. Consequently, the
requirement that ~u1e 203 be met as imposed by Rule 204, only
applies to those who discharge contaminants into the water of the
State.
Remaining is an allegation that Respondents violate
Section 18 of the Act which provides:
Owners and official custodians of public
water supplies shall direct and maintain
18— 291
(3)
the continuous operation and maintenance
of water—supply facilities so that water
shall be assuredly safe in quality, clean,
adequate in quantity, and of satisfactory
mineral character for ordinary domestic
consumption.
Respondents do not deny that they are the owners and official
custodians of the Public Water Supply for the City of Decatur.
Complainants presented much evidence concerning the
marginal condition of Lake Decatur as a source of drinking
water supply. Dr. Warren V. Brigham testified that his
sampling for twelve water quality parameters of water taken
from Lake Decatur had shown that the following parameters
exceed the limits set forth in Rules 204 and 203 of the
Water Pollution Regulations: total dissolved solids, total
iron, nitrates, dissolved oxygen, and turbidity (R.ll,l5).
He further testified that his analysis of Illinois Environmental
Protection Agency (Agency) data confirmed his findings as to
total iron, dissoived oxygen, and turbidity (R.l6).
Dr. Fred Grosz, Professor at Millikin University,
testified that he had investigated and found that nitrate
levels in Lake Decatur and in tap water supplied from Lake
Decatur were in the range of 40 parts per million (ppm) and
that phosphate concentrations ranged from 0.2 to 1.0 ppm
(R.58)
.
Based upon his work as a Consultant to the Macon
County Health Department, Dr. Grosz stated that phosphate
levels were consistantly high and nitrate levels were high
twice per year when anhydrous ammonia is applied to farm
land as fertilizer and in December when decomposition of
organic matter occurs within the watershed of Lake Decatur
(R.59 and 75).
Mr. Franklin Lewis, Regional Supervisor, Region III,
Division of Public Water Supplies, Agency, testified that
the Agency data only show one violation of nitrate concentrations
since 1967 (R.238), and that the Decatur Water System is in
general compliance (R.236).
A review of the Exhibits submitted by Complainant
further supports the testimony of the above witnesses that
Lake Decatur is of marginal quality. Naturally occurring
events and conditions lead to excess total iron, turbidity,
oxygen demanding organic wastes, phosphates, and nitrate
levels. Septic tanks and agricultural activity upstream
from Lake Decatur contribute to excessive nitrate levels
18
*
292
(4)
and elevated osphate and coliform levels. Fourteen known
point sources are upstream from Lake Decatur (R.282 and
283).
Respondent produced evidence that its Water Supply
System was approved by and had a permit for expansion from
the Agency (Respondents Exhibit 2)(R.234,235). Respondents’
Exhibits 7 and 8 indicate that the finished water quality
complies with the ‘finished water parameters set forth in
Rule 304 B(4) of the Public Water Supply Regulations.
Upon consideration of the evidence produced we cannot
reach a determination that Respondents violate Section 18 of
the Act. The following definition of “safe” is found in
Rule 104 of the Public Water Supply Regulations:
Safe means that the water contains no
substances or organisms which are or
may be injurious to a person in normal
health who ingests the water.
The record clearly demonstrates that the finished water
supplied by Respoiclents is safe.
While not presently before the Board, Rule 307
Raw
Water Quality of the Public Water Supply Regulations requires
that:
Each public water supply must take its raw
water from the best available source
which is economically reasonable and
technically possible.
Much evidence was introduced regarding the relative benefits
of continuing to itilize Lake Decatur as a surface supply or
a conversion to the Mahomet Valley aquifer. The provisions
of Rule 307 are the same as the requirements of Section
33(c) (4) to consider technical practicability and economic
reasonableness. While it would be technically practicable
to convert, we find that the cost of approximately $57,500,000
(R.l6) makes it economically unreasonable to require Respondent
to convert to a ground—water public water supply from the Mahomet
Aquifer at this time. However, we are concerned about the
indication that nitrate levels are increasing in Lake Decatur
(R.42)
.
Lake Decatur is not now an ideal source of public water
supply, and therefore Respondents should take all steps necessary
to insure that th’y continue to supply water that meets the
requirements of the Act and of Chapter 6.
This Opinion constitutes the Board’s findings of fact and
conclusions of law.
18—293
(5)
ORDER
The above captioned complaint is dismissed with prejudice.
IT IS SO ORDERED.
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify the abov Opinion and Order were
ado~edon the ~~t” day of
_____________,
1975 by a vote of
Christan L. Moffet~,/~,t~rk
Illinois Pollution ~i4~rol Board
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294