ILLINOIS POLLUTION CONTROL BOARD
May 6,
1976
THE POW-WOW CLUB,
INC.,
a
not—for-profit Illinois
)
domestic corporation,
)
Petitioner,
v.
)
PCB 74—306
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
Richard B. Haldeman, Williams, McCarthy,
Kinley, Rudy
& Picha,
Attorney for Petitioner
Stephen H. Gunning, Environmental Protection Agency, Attorney
for Respondent
OPINION AND ORDER OF THE BOARD
(by Mr. Young):
This matter comes before the Board
on the petition of the
Pow—Wow Club,
Inc. seeking variance from Rules
3.12,
3.30, and
5.28 of the Public Water Supply Systems Rules and Regulations,
Sections 15,
18,
and
19 of the Environmental Protection Act,
and Section
1 of the Act to Regulate the Operating of a Public
Water Supply
(Certification Statute).
The Pow—Wow Club owns and operates a public water supply
system furnishing drinking water to the Tullock Wood Trails
Subdivision near Rockford,
Illinois.
The petition was filed
on August
19,
1974 after the Board entered an Order on July
18,
1974 in an enforcement action brought by the Agency against
Petitioner which charged many violations in the operation of
its public water supply.
The aforesaid Order found that Peti-
tioner had operated in violation of the listed statutes and
regulations and further ordered that Petitioner cease and desist
from further violation within 240 days of the date of the Order.
Petitioner was given
150 days to file a compliance plan with
the Agency,
and upon such submission was given
90 days to con-
struct the needed improvements.
Since Petitioner now states
that a two year period is necessary to complete the needed
improvements, the petition will additionally be considered as
a request for relief from the compliance schedule as detailed
in the prior Board Order.
21 —283
—2—
Petitioner estimates that
the costs of compliance range
from $150,000
to $275,000 and in view of this capital expense
is considering restructuring the facilities
so that the
system will no longer come within the definition of a public
water supply as set forth in Section
3(j)
of the Act,
and
thereafter not subject to the statutes and rules from which
it presently
is seeking variance.
The restructuring would
be accomplished by drilling additional wells and severing
some existing connections in present distribution systems
so that no well will serve more than nine separate resi-
dential properties.
At hearing held on December
20,
1974,
the parties entered
into an agreement postponing
further proceedings in this matter
pending adoption of regulations by the Federal Environmental
Protection Agency under the Safe Drinking Water Act.
Peti-
tioner requested the postponement anticipating that the Federal
Act might supercede or preempt State regulation.
In view of
this possibility, Petitioner alleges that they were hesitant
to begin any program fearing that any plan selected might not
be sufficient
to comply with the Federal requirements.
As a
condition of this postponement, Petitioner agreed to furnish
water sample analyses
to the Agency on a regular basis and to
employ
a properly certified operator to supervise the operation
of the system.
On January 29,
1976,
a second hearing was held in this
matter at which time Petitioner called two witnesses
in support
of their variance petition.
Mr. David Conklin testified he
received no complaints regarding the system for a period of
three and a half years that he was President of the Club
(R.
plO).
He also testified that it was the intent of the Club
to become
a private water supply
(B. p11) but that the Federal
requirement limiting a private supply
to one serving
24 indi-
viduals
or less was presenting a difficult problem to the Club
(B.
p13).
Mr. Robert Brambert,
President of the Club since December
of 1975, also testified that it was the intent of the Club
to
become a private water supply but that the Club needs more time
to consider the available alternatives
(B. p18).
Agency testimony at the second hearing centered around
various alternative plans available to Petitioner to come
into
compliance.
It was also revealed that Petitioner had totally
failed to honor the agreement entered into with the Agency in
December of 1974.
The Agency did not receive any water sample
analyses from Petitioner for the entire calendar year of 1975
(Ag.
Ex.
#1),
and Petitioner
also failed to employ a properly
certified water supply operator
(Ag. Ex.
#2).
This
is not
surprising in view of the fact that the Club President,
Mr.
21 —284
—3—
Brambert, admitted on cross examination that he was unaware of
the agreement requiring that these
steps be taken by the Club
CR. p21—23)
After considering the evidence in this matter the Board
is left with the general impression that Petitioner intends
someday to restructure its system to take it outside the
definition of a public water supply.
What seems
to be lacking
is any definite plan or program to accomplish this result.
Little action has been taken, and all that seems
to have occurred
is a great deal of speculation regarding the possible differences
in the State and Federal regulations.
It is remarkable,
to say
the least, that Petitioner so casually disregarded the postpone-
ment agreement entered into with the Agency for interim operation
of the system.
The inescapable fact is that the system as now
operated
is
a public water supply subject to the provisions of
the Act
arid our Regulations and is currently in violation.
In view of the foregoing the Board
is unable to grant the
variance as requested.
Petitioner has not established to the
satisfaction of the Board that it will suffer an arbitrary or
unreasonable hardship
if the variance is denied or that the
hardship is
in fact not self imposed.
Petitioner’s past conduct
has not been such that the Board feels compelled to grant this
variance,
and the construction plan is simply not firm enough
to merit consideration.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Pow—Wow Club’s,
Inc. petition for variance is denied.
IT
IS SO ORDERED.
I, Christan L. Moffett,
Clerk of the Illinois Pollution
Control Board, he;e~ycertify the above Opinion and Order were
adopted on the
(p
~
day of
1976 by
a vote of
__________
Illinois Pollution
1 Board
21—285