ILLINOIS POLLUTION CONTROL BOARD
April
21,
1988
VILLAGE OF Et4BURN,
)
Petitioner,
v.
)
PCB 88—4
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
OPINION AND ORDER OF THE BOARD
(by J. Theodore Meyer):
This matter
is before
the Board
on
a January
5,
1988
petition
for variance filed by the Village of Elburn
(Elburn).
Elburn seeks
a five—year variance from
35 Ill.
Adm.
Code
602.105(a)
“Standards
for Issuance” and from
35
Iii.
Adm.
Code
602.106(b)
“Restricted Status”,
to the extent these
rules relate
to the 5.0 pCi/I standard for combined
radiurn—226 and radium—228
(combined radium) contained
in 35
Ill.
Adm.
Code 604.301(a).
The
Illinois Environmental Protection Agency (Agency)
filed
its
recommendation
in support of grant of variance,
subject
to
conditions,
on March
21, 1988.
Hearing was waived, and none has
been held.
Elburn is
a small community of
1,435 residents located
in
west central Kane County.
The community water system serves 403
residential,
3 industrial,
and
38 commercial customers.
Elburri
owns and operates
its distribution system,
which includes two
deep and one shallow well,
one elevated tank,
three
pumps and one
distribution facility.
Well
1,
which was built in
1905 and
is
1,350 feet deep,
is still
in service
as
a standby but has not
been used
in the past five years.
Well
2,
the shallow well,
is
152 feet deep and was put into operation
in
1937.
Well
3
is
1,395
feet deep and was built
in
1975.
Elburn does not presently
treat its well water.
Although no figures are given,
Elburn
states that the existing shallow well
is insufficient
to meet the
needs
of its customers.
In January 1985,
the Agency notified Elburn that
it had been
placed on restricted status because
a composite sample showed
that the Elburn water supply was
in violation of
the 5.0 pCi/l
combined radium standard.
Results
of
a September
1984 test
showed a combined radium level
of 12.7 pCi/l.
An additional
test,
done in December 1986,
showed
a combined radium
concentration of 7.2 pCi/l.
The Agency states that Elburn has
never previously sought any variance
from public water supply
regulations.
88—309
—2—
Compliance Plan
Elburn states that
it has solicited for professional
engineering services
to help
it achieve compliance,
and has
received
a proposal from Rempe—Sharpe and Associates,
Inc.
Elburn submits
that
it
“anticipates” entering into
a contract
with Rempe—Sharpe, and
that Rempe—Sharpe will evaluate
a number
of compliance alternatives,
including:
(1)
removing radium from
the existing deep well water;
(2) blending
of potentially radium—
free shallow water with existing deep well water;
and
(3)
utilization of shallow well water
as
a sole source.
Attached
to
the petition
is
a compliance schedule prepared by Rempe—Sharpe.
The
65 month schedule assumes
that Elburn will utilize shallow
well water
from a new well
or wells,
either
in
a blending program
or
as
a sole source of water
supply.
If the blending option
is
chosen,
the preliminary cost estimate
is one million dollars.
Elburn contends that under
this
schedule,
it would comply with
the combined radium standard at the sixtieth month of
the
schedule.
Although Elburn maintains that it
is necessary
to
carry out this compliance schedule,
that statement
is qualified
in
two ways:
that the schedule
is predicated on Elburn’s ability
to raise the necessary capital,
and that
if
Rempe—Sharpe
recommends an alternative
other than use
of additional shallow
well water,
the compliance schedule and the cost estimates would
require revisions.
The Agency states that although
it has no objection
to
Elburn’s investigation of
the use
of additional
shallow well
water
as
a compliance alternative,
it
(the Agency) wishes
to
stress
the position that
if this alternative proves infeasible,
compliance
by use of treatment methods must be
achieved by the
end of
the variance period.
The Agency also expresses concern
over several statements made by Elburn when describing
its
compliance plan.
First,
the Agency points out that although
the
tentative compliance plan
is based on
a
65 month schedule,
no
variance may exceed five years,
or
60 months.
Ill. Rev.
Stat.
1965,
ch.
1111/2,
par.
1036(b).
Second,
the Agency submits
that
Elburn’s qualified endorsement of the compliance schedule could
indicate that Elburn does not intend
to comply within
60 months
if water treatment methods must
be used,
as opposed
to use of new
shallow well water.
The Agency insists
that
it cannot recommend
grant
of
the requested variance
if certain compliance cannot be
attained within the period of
the variance.
Finally,
the Agency
expresses concern about Elburn’s statement
that
the compliance
schedule
is predicated upon Elburn’s ability
to raise
the capital
necessary
to carry out the project.
The Agency maintains that
no
compliance plan
is presented by Elburn
if compliance
is based
upon ability
to raise capital.
If
no compliance plan
is
presented,
the Agency insists that
the Board must deny the
requested variance.
The Agency contends that the schedule must
be met by Elburn,
without regard
to the ability to raise capital.
88—310
—3—
Environmental
Impact
Elburn does not believe
that the granting
of the requested
variance will
have
a significant
adverse effect on
the
environment.
This belief
is based upon the Agency’s position or
adverse effects
in
a number of
restricted
status variance
petitions
filed before
the Board.
Elburn also states that
it
is
aware of the Agency’s position
in R85—l4,
Proposed Amendments
to
Public Water Supply Regulations.
Finally, Elburn points
to
“numerous” Board orders granting variances
from restricted status
to other communities.
The Agency states that while radiation
at any level creates
some risk,
the
risk associated
with this level
is very
low.
The
Agency notes
that the maximum allowable concentration for
combined radium
is currently under review at the federal level,
but states that
it does not expect any proposal
to change the
standard
in
1988.
In
sum,
the Agency believes that an
incremental
increase
in combined radium should cause
no
significant health risk
for
the limited population
served by new
water main extensions
for
the time period of
the recommended
variance.
Hardship
Elburn maintains
that
the imposition
of
restricted status
has resulted
in an arbitrary and unreasonable hardship because
development has been adversely impacted, with
a resulting
loss of
revenue for
Elburn.
Elburn has recently carried out two public
projects which
it
is having trouble paying
for.
The sewage
treatment plant was expanded
in December 1980,
and
a new water
tower was completed
in October
1986.
Elburri states
that both of
these projects were sized to serve existing commercial and
residential customers,
as well
as anticipated growth.
Elburn’s
principal wastewater generator
and employer,
Kneip Company,
recently closed
its meat packing company.
(The petition sets out
two different dates when
the plant closed
—
April
1985 and April
1986
—
so the actual date
is not clear.)
The plant closing
resulted
in the loss of
85 jobs and $135,904
in wastewater
treatment
revenue, which represents approximately 25
of
Elburn’s
total revenue.
Thus,
Elburn maintains that additional growth
is
necessary
to provide needed tax revenue and service
fee income
for both the wastewater
treatment plant and
the water supply
system
to compensate
for the
loss of Kneip.
Elburn states that
there are presently several
developers
in various stages
of
developing property
in and around Elburn who want
to obtain
services,
including public water supply,
from Elburn.
However,
the petition does not include
the names of
the pending
developments
or the population which would
be served by these
developments.
If Elburn
is precluded from extending
water
service
to new customers,
Elburn submits
that
these potential
88—311
—4—
customers
may
elect
to
provide
their
own
water
service
by
drilling
private
wells.
Elburn
believes
that
a
proliferation of
small wells should
be avoided
for public health purposes.
The Agency believes
that the hardship resulting
from denial
of
the requested variance would outweigh the injury to the public
from the grant
of the variance.
The Agency states that in light
of the immediate cost
of treatment of
the current water
supply,
the likelihood
of no significant
injury
to the public from
continuation
of
the present
level of combined radium for the
period of the variance,
and the “possibility” of compliance with
the combined radium standard through blending
or new shallow
wells,
it concludes that denial of the variance would impose an
arbitrary or unreasonable hardship on Elburn.
Conclusions
The Board finds that Elburn would
incur an
arbitrary or
unreasonable hardship
if immediate compliance with 35
Ill. Adm.
Code
602.105(a)
and 602.106(b) was required, and that the
hardship outweighs
the risk of environmental harm.
Elburn was
dealt a severe blow by the closing
of the Kneip meat packing
plant.
Not only did Elburn lose
85 jobs and 25
of
its revenue,
but
it
is left with a sewage treatment plant sized
to accommodate
the plant.
Without
the waste
from Kneip,
the sewage treatment
plant
is operating
at approximately 25
of capacity with
a
resulting
loss
in anticipated revenue.
The new customers who may
be gained by the suspension
of restricted status could help
provide some of
the revenue needed
to pay off the general
obligation bonds
issued
to pay for
the new water
tower
and
the
expanded sewage treatment plant.
However, the Board shares the Agency’s concerns about
the
compliance plan proposed
by Elburn.
Elburn has been on
restricted status since January 1985,
but had not even formally
contracted
for professional engineering services
as of
the
January
5,
1988 filing
of this petition for variance.
Therefore,
the 65 month compliance schedule submitted
is tentative,
depending upon the the future recommendation
of Rempe—Sharpe.
Elburn’s “commitment”
to the compliance schedule
is
further
qualified
by
its statement
that the schedule
is predicated upon
its ability
to raise
the capital necessary to carry out the
project.
Given
the lack of
a firm commitment
to
a compliance
option,
the Board believes that only a nine month variance
is
justified.
This will
allow Elburn
to formally secure
professional assistance,
investigate compliance options, and
submit
a compliance plan to which
it
is firmly committed.
Additionally,
the variance will terminate automatically
if the
interim deadlines
are not met.
This Opinion constitutes the Board’s findings of
fact and
conclusions
of law
in this matter.
88—312
—5—
ORDER
The Village
of
Elburn
(Elburn)
is hereby granted
a variance
from
35
Ill.
Ac3rn.
Code 602.105a)
“Standards
for Issuance”
and
602.106(b)
“Restricted Status”,
but only as they relate
to the
combined radium—226
and radium—228 standard
of
35
111.
Adm.
Code
604.301(a).
The variance
is
subject to the following conditions:
1.
This variance expires on January
21,
1989,
or when
analysis pursuant
to
35
Ill.
Adm.
Code 605.105(a)
shows
compliance with
the standard
for combined radium,
which
ever occurs first.
2.
In consultation with
the Agency,
Elburn shall
continue
its sampling program
to determine
as accurately as
possible the level
of radioactivity
in its wells and
finished water.
Until
this variance expires, Elburn
shall collect quarterly samples of
its water from its
distribution
system,
at locations approved by the
Agency.
Elburn shall composite
the quarterly samples
from each location separately and shall analyze them
annually by
a laboratory certified
by the State
of
Illinois
for radiological analysis so
as
to determine
the concentration of combined
radium.
The results of
the analyses shall be
reported
to the Compliance
Assurance Section, Division of Public Water Supplies,
2200 Churchill Road,
IEPA, Springfield,
Illinois 62794—
9276, within
30 days
of
receipt
of each analysis.
At
the option of Petitioner,
the quarterly samples may be
analyzed when collected.
The running average
of
the
most
recent four quarterly sample results
shall
be
reported
to
the above address within
30 days of receipt
of the most recent quarterly sample.
3.
Within one month
of the grant
of
the variance, Elburn
shall secure professional assistance
(either from
present staff or an outside consultant)
in
investigating
compliance options, including the possibility and
feasibility of achieving compliance by blending water
from shallow well(s) with
that of its deep well.
4.
Within two months of the grant
of
the variance,
evidence
that such professional assistance has been secured shall
be submitted
to the Agency’s Division of Public Water
Supplies,
FOS, at
2200 Churchill
Road, Springfield,
Illinois 62794—9276.
5.
Failure to meet the deadlines
in paragraphs
3 and
4 will
result
in the automatic termination of
the variance.
88—313
—6—
6.
Within nine months
of the grant of the variance,
Elburn
shall complete investigating compliance methods,
including those treatment techniques described
in the
Manual of Treatment Techniques
for Meeting
the Interim
Primary Drinking Water Regulations,
USEPA, May 1977,
EPA—600/8—77—005,
and submit to
IEPA,
DPWS,
a detailed
Compliance Report showing how compliance
shall be
achieved within
the shortest practicable time.
7.
Pursuant
to
35 Ill.
Adm.
Code 606.201,
in its first set
of water bills or within three months after
the date
of
this variance Order, whichever occurs first,
and every
three months thereafter,
Elburn shall send
to each user
of
its public water
supply
a written notice
to the
effect that Elburn 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(b)
Restricted Status,
as
it relates
to
the
standard
for
the combined radium.
8.
Pursuant
to
35
Ill.
Adm.
Code 606.201,
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,
Elburn shall send
to each user
of
its
public water supply
a written notice
to the effect that
Elburri is not
in compliance with
the standard
for
combined radium.
The notice shall state
the average
content
of combined radium in samples taken since
the
last notice period during which samples were taken.
9.
Until full compliance is reached, Elburn shall
take all
reasonable measures with
its existing equipment
to
minimize
the level
of contaminant
in question
in its
finished drinking water.
10.
Within
45 days after
the date
of this Opinion and Order
Elburn shall execute and send
to:
Illinois Environmental Protection Agency
Attention:
Bobella Glatz
Enforcement Programs
2200 Churchill
Road
Springfield, Illinois 62794—9276
a certificate of acceptance of this variance by which
it
agrees
to be bound
by the terms and conditions contained
herein.
This variance will
be void
if Elburn fails
to
execute and forward
the certificate within the
45 day
period.
The
45 day period shall
be
in abeyance
for any
period during which
the matter
is appealed.
The form of
the certification shall
be as follows:
88—3 14
—7—
CERTIFICATION
I,
(We), _____________________________,
having read the
Order of the Illinois Pollution Control Board in PCB 88—4, dated
April
21,
1988, understand and accept the said Opinion and Order,
realizing that such acceptance renders all terms
and conditions
thereto binding and enforceable.
Petitioner
By:
Authorized Agent
Title
Date
11.
Section 41 of the Environmental Protection Act
(Ill.
Rev.
Stat.
1985,
ch.
llll/2, par.
1041)
provides for
appeal
of final Orders of the Board within
35 days.
The
Rules
of the Supreme Court of
Illinois establish filing
requirements.
IT
IS SO ORDERED.
Board Member
s J.D.
Durneile and
B. Forcade dissented.
I,
Dorothy
M.
Gunn, Clerk of the Illinois Pollution Control
Board,
hereby certify
that the above O~inionand Order was
adopted on the
~,4-*
day of
~
,
1988, by
a
vote of
3~—~
.
/7.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
88—315