ILLINOIS POLLUTION CONTROL
BOARD
July 7,
1995
VILLAGE OF
LAKE
IN THE HILLS,
)
Petitioner,
v.
)
PCB 95—108
)
(Variance—Water)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
STUART D. GORDON, MAUREEN T. MURPHY OF ZUKOWSKI, ROGERS, FLOOD &
MCARDLE, APPEARED ON BEHALF OF THE PETITIONER.
STEPHEN C. EWART APPEARED ON BEHALF OF THE RESPONDENT.
OPINION AND ORDER OF THE BOARD
(J. Theodore Meyer):
This matter is before the Board on
a March 23,
1995 Petition
for Variance filed by Village of Lake in the Hills
(Village).
Village seeks a variance from 35 Ill. Adm. Code 602.105(a),
“Standards for Issuance”, and 602.106(b), “Restricted Status”, to
the extent that they relate to barium requirements under 35 Ill.
Adm. Code 611.301(b).
Village seeks a two-year variance to allow
the well from which the contaminant is located to be operated on
a standby basis until completion of its water treatment facility.
The Illinois Environmental Protection Agency (Agency)
filed its
recommendation on April
28,
1995, advising that the variance be
granted, subject to certain conditions.
Village waived hearing
and none was held.
On June 22,
1995, Village filed a Motion for
an Expedited Decision which the Board was granted by Board order
dated June 29,
1995.
BACKGROUND
The Village of Lake in the Hills
is a municipality located
in McHenry County,
Illinois.
(Pet. at 1.)1
It owns and operates
a water supply and distribution system, providing potable water
to 9,500 residents, and 25 businesses which employ about 130
people.
(Pet.
at 5.)
Village is not part of a regional public
water supply.
(Pet.
at
6.)
Petitioner’s water system is comprised or one deep well
1Petitioner’s Petition for Variance will be cited as
(Pet.
at
_.).
Respondent’s recommendation will be cited as
(Agency
Rec.
at
_.).
£
(well #11),
five shallow wells, pumps, and distribution
facilities.
(Pet.
at 1,6.)
Well #11 was constructed in answer
to an expected increase in population and fire protection needs.
(Pet. at 6.)
As such, well #11 is used on a standby basis for
unforeseen mechanical difficulties or during peak water
consumption periods.
(Pet.
at 2.)
The Board notes that Village
is currently experiencing a peak water consumption period.
(See
Exhibits at Petitioner’s Motion for an Expedited Decision.)
Village first learned that its new deep well #11 exceeded
the maximum allowable concentration limit
(MCL)
for barium by
letters dated November 3,
1994 and December 7,
1994 from the
Illinois State Water Survey and from National Environmental
Testing, Inc., respectively.
(Pet. at Group Exh.
2.)
Since
notification of the violation, Village has developed a program to
reduce the contaminant to levels at or below the MCL, which is
explained below.
Petitioner is not on restricted status for
exceeding any other contaminant.
(Agency Rec.
at
6.)
REGULATORY
FRAMEWORK
The United States Environmental Protection Agency
(U.S.
EPA)
has promulgated a maximum concentration limit for drinking water
of 2 mg/i of barium.
(Agency Rec. at
7.)
Illinois subsequently
adopted the same limit.
(Agency Rec. at
6.)
Pursuant to Section
17.6 of the Illinois Environmental Protection Act
(Act), any
revisions to the 2 mg/i standard by the U.S.
EPA will
automatically become the standard in Illinois.
Village is not seeking a variance from the MCL for barium,
which remains applicable to its potable water supply.
Rather,
Village is requesting a variance from the prohibitions imposed at
35 Iii. Adm.
Code 602.105(a)
and 602.106(b)2 until
it
can achieve
compliance.
In pertinent part,
these sections read:
Section 602.105
Standards ror issuance
a)
The Agency shall not grant any cor~structionor
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
.
.
.
Act
(Ill.
Rev.
Stat.
1981, ch. 111 1/2,
par.
1001 et seq.),
.
.
.
or
of this Chapter.
Section 602.106
Restricted Status
2Although both parties cited to 602.106(a)
when referring to
publication of the Restricted Status List in their briefs, the
requirement occurs at 35 111.
Adm. Code 602.106(b).
-s
b)
The Agency shall publish and make available to the
public,
at intervals of not more than six months, a
comprehensive and up-to—date list of supplies subject
to restrictive status and the reasons why.
Illinois regulations thus provide that conununities are
prohibited from extending water service, by virtue of not being
able to obtain the requisite permits,
if their water fails to
meet any of the several standards for finished
water
supplies.
This provision is a feature of the Illinois regulations and is
not found in federal law.
It is from this prohibition which
Village requests a variance.
However, we emphasize that the
duration of restricted status is linked to the length of time it
takes the water supply to comply with the underlying standards.
As such,
the time frames in the proposed compliance plan itself
are a concomitant, indeed an essential consideration in a
restricted status variance determination, whether or not variance
is being requested from those standards.
Thus,
grant of variance
from restricted
status will be conditioned
upon a schedule
of
compliance with the standards.
In consideration of any variance, the Board determines
whether a petitioner has presented adequate proof that immediate
compliance with the board regulations at issue would impose an
arbitrary or unreasonable hardship.
(CITE)
Further, the burden
is on the petitioner to show that its claimed arbitrary or
unreasonable hardship outweighs the public interest in attaining
compliance with regulations designed to protect human health and
the environment.
(Wiliowbrook Motel
v.
Illinois Pollution
Control Board,
135 Ill.App.3d
343, 481 N.E.2d 1032
(1st Dist.
1985).)
Lastly,
a variance by its nature
is a temporary reprieve
from compliance with the Board’s regulations and compliance is to
be sought regardless of the hardship which the task of eventual
compliance presents an individual polluter.
(Monsanto Co.
V.
IPCB,
67 I1l.2d 267,
367 N.E.2d 684
(1977).)
Accordingly, except
in certain special circumstances,
a variance petitioner is
required,
as
a condition to grant of variance, to commit to a
plan that is reasonably calculated to achieve compliance with the
term of the variance.
ALTERNATIVE COMPLIANCE OPTIONS
Village envisions the following alternatives in order to
achieve compliance:
(a)
Blending from the shallow sand and gravel aquifer
wells by providing automation to operate wells
9
&
10 that are in reasonable proximity to well #11
any time #11 is utilized on a standby basis.
The
cost for this automation of the controls is
4
estimated to be $20,000 and can be provided within
30 days of the issuance of this variance request.
(b)
Constructing a treatment facility to properly
treat the contaminant to reduce it below the 2mg.
per liter specified as the maximum contaminant
level.
The cost for this is estimated to be
$450,000.
The estimated time for implementation
is 21 months.
(Pet.
at 9.)
COMPLIANCE PROGRAM
Petitioner has retained Wight Consulting Engineers,
Inc.
to
review and evaluate Village’s potable water supply situation,
and
prepare recommendations.
(Pet. at
10.)
Village expects
implementation of alternatives
(a)
and
(b)
above will meet all
applicable standards with a one-time cost of $47.00 per person
for alternative
(b).
(Pet. at 9.)
Village states that it will undertake the following measures
during the variance period to minimize the impact of the
discharge in the affected area:
(1)
In consultation with the Agency, continue its sampling
program to determine as accurately as possible the
level of barium in its wells and finished water.
Until
this variance expires, testing shall continue.
(2)
Within three months of the grant of the variance,
provide proof that construction of the water treatment
facility shall begin no later than November,
1995,
and
be completed no later than two years from the granting
of the variance.
(3)
Achieve compliance with the maximum contaminant level
in question no later than two years from the grant of
this variance.
(4)
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, send to each user of its
public water supply a written notice to the effect that
Village has been granted by the Pollution Control Board
a variance from 35 Ill. Adm. Code 602.105(a), standard
of Issuance, and 35 Ill. Adm. Code 602.106(b),
Restricted Status,
as they relate to the barium
standard.
(5)
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, send to each user of its
public water supply a written notice to the effect that
Village is not in compliance with the barium standard.
The notice shall state the average content of barium in
samples taken since the last notice period during
which
samples were taken.
(6)
Until full compliance is reached,
take all reasonable
measures with its existing equipment to minimize the
level of barium in its finished drinking water.
(7)
Provide written progress reports to the Agency’s
Department of Public Water Supplies every six
months
concerning steps taken to comply with paragraphs
1
through 6 above.
Progress reports shall quote each of
said paragraphs and immediately below each paragraph
state what steps have been taken to comply with each
paragraph.
(Pet.
at 12—14.)
HARDSHIP
Both parties agree that denial of
a variance from 35
Ill.
Adm. Code 602.105(a), Standards for Issuance, and 35
Ill. Adm.
Code 602.106(b), Restricted Status, would result in an arbitrary
and unreasonable hardship for petitioner.
(Pet. at 14-16, Agency
Rec. at 8-9.)
First, a denial would require the Agency to refuse
construction and operating permits until compliance is achieved.
That in turn means alternative (b),
adding a treatment facility
to the water system, would not begin, and well #11 could be shut
down for non—compliance.
In effect, the denial of a variance
would severely hamper Village’s ability to supply its residents
with suitable water,
and safely provide for the area’s fire
protection needs.
Secondly,
it a variance is granted as to Section 6u~.lU~(a),
then a variance from Section 602.106(b)
is critical to restrain
the Agency from publishing that petitioner is on the restricted
list for violating those standards.
Publication on the
restricted list would mislead developers and other persons about
the compliance status of petitioner’s water supply, and could
stifle the area’s economic growth.
ENVIRONMENTAL IMPACT
Although Village made no formal assessment of the
environmental effect of the requested variance,
it contends that
blending water from well #11 with water from the other wells will
result
in
only
a minimal
amount of barium entering
its potable
water system.
(Pet.
at 11.)
In addition, once the Ion Exchange
Softening treatment facility is in place, enough barium will
be
removed to achieve a level below the federally mandated MCL of
2
6
mg/l.
(Pet.
at 10,11.)
Therefore, granting of the variance will
have no measurable impact on the environment.
The Agency noted that what is known about the health effects
of barium——increased blood pressure and abnormal heart rhythms-
-
comes trom studies of exposure to large amounts of barium.
(Agency Rec.
at 7.)
One study showed that drinking water with as
much as 10 mg/I of barium for 4 weeks did not reveal these
symptoms.
(Id.)
The Agency therefore
agrees
with Village’s
assertion, and believes that granting of the requested variance
would not impose a significant injury to the public or the
environment for the limited time period of the variance.
(Agency
Rec.
at
8,
Pet. at 10-12.)
CONSISTENCY WITH FEDERAL LAW
Both Village and the Agency state that Village nay be
granted variance consistent with the requirements of the Safe
Drinking Water
Act
(42 U.S.C.
300(f)
ct
seq.),
as
amended by the
Safe Drinking Water Act Amendments
of 1986
(Pub.
99-339,
100
Stat.
642
(1986)), and the U.S. EPA National Interim Primary
Drinking Water Regulations
(40 CFR Part 141) because the
requested relief would not be a variance from national primary
drinking water regulations or a federal variance.
(Pet.
at 16-
17, Agency Rec.
at 9—10.)
Specifically, granting a variance from
the effects of restricted status means that only the State’s
criteria for variances are relevant.
(Agency Rec.
at 10.)
Both Village and the Agency recognize that Village remains
subject to the possible enforcement actions for violating
standards for the contaminant in question.
(Pet.
at
17, Agency
Pen.
at
10.)
TERMS OP VARIANCE
Village requests that the term of variance be from the date
of the grant to March,
1997,
or when analysis pursuant to
35
Ill.
Mm.
Code 605.104(a)
reveals compliance with the barium standard,
which ever occurs first.
(Pet.
at
2.)
The Agency recommends
that a variance be granted until March 31, 1997 to allow Village
to complete its treatment facility and make any necessary
adjustments thereafter to achieve and maintain compliance with
the Act.
(Agency Rec.
at 11.)
CONCLUSION
After considering all the facts and circumstances of this
case,
the Board finds that Village has presented adequate proof
that immediate compliance with 35 Ill. Adm.
code 602.105(a),
Standards of Issuance, and 602.106(b), Restricted Status, would
impose an arbitrary or unreasonable hardship upon Village.
We
particularly note not only Village’s urgent need to provide its
residents with sufficient amounts of water
(See Exhibits at
Petitioner’s Motion for an Expedited Decision), but also,
Village’s firm commitment, both financially and otherwise,
towards achieving compliance.
The Board therefore will allow
Village until March
31, 1997 to achieve compliance, subject to
conditions listed in this Opinion and Order.
The Board agrees with the parties that granting this
variance will pose no significant health risk to either the
persons served by Village’s potable water supply, or the
surrounding environment,
assuming that compliance is timely
forthcoming.
The Board will accordingly grant a variance
consistent with this Opinion and Order.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Petitioner, the Village of Lake in the Hills
(Village),
is
hereby granted variance from 35 Ill. Adm. Code 602.105(a),
Standards of Issuance, and 602.106(b), Restricted Status, but
only as they relate to the 2 mg/i barium standard of 35 Ill. Adm.
Code
611.301(b), subject to the following conditions:
(1)
This variance shall terminate on the earliest of the
following dates:
(a)
March 31,
1997; or
(b)
When analyses pursuant to 35 Ill. Adm. Code
605.103,
or any compliance demonstration then in
effect, show compliance with the barium standard
or any standard for barium in drinking water then
in effect.
(2)
Compliance with the maximum allowable concentration
level of barium, or with any revised standard for
barium in drinking water then in effect, shall be
achieved no later than March 31,
1997.
(3)
In consultation with the Illinois Environmental
Protection Agency (Agency), Village shall continue its
sampling program to determine as accurately as possible
the level of barium in its wells and finished water.
Until this variance terminates, Village shall collect
and analyze quarterly samples of its water from its
entry point into the distribution system at locations
approved by the Agency,
in accordance with
35
Ill. Adm.
Code 611.680.
Village shall use the Agency laboratory
or a laboratory certified by the State of Illinois for
barium analysis.
Results of the analyses shall be
8
reported within 30 days of receipt of each analysis to:
Illinois Environmental Protection Agency
Division of Public Water Safety
Compliance Assurance Section
2200 Churchill Road
Springfield, Illinois
62794—9276
If
Village elects to conduct weekly or monthly analyses
for barium,
it shall report those results to the Agency
within 30 days of receipt of said analyses.
(4)
Within 6
(six) months after the grant of variance,
Village shall submit a Compliance Report detailing all
measures that have been necessary to achieve
compliance.
If further measures are necessary, Village
shall include milestones for each compliance method,
including, but not limited to:
(a)
Dates of applications for all permits necessary
for construction of installation changes or
additions to the public water supply needed for
achieving compliance with federal and State
statutes and regulations;
(b)
Date for advertisements of bids for said
construction;
(C)
Dates for initiation of construction allowed by
the construction permits;
(d)
Dates for completion of said constrnc~tion;and
(e)
Dates for achieving compliance with federal and
State statutes and regulations.
With this Compliance Report, Village shall submit a
statement regarding the financial resources that are or
may be available to bring their public water supply
into compliance.
(5)
Every 6
(six) months after the date of the Compliance
Report, Village shall submit an updated Compliance
Report of sufficient detail to demonstrate the progress
made in achieving the milestones and goals outlined in
the first Compliance Report.
The Compliance Report and
all subsequent communications shall be submitted to:
Illinois Environmental Protection Agency
Field Operations Services
2200 Churchill Road
P.O. Box 19276
9
Springfield,
Illinois
62794—9276
(6)
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, Village shall send to each
user of its public water supply a written notice to the
effect that Village has been granted by the Pollution
Control Board a variance from 35 Ill.
Adm.
Code
602.105(a), Standard of Issuance, and 35
Ill. Adm.
Code
602.106(b),
Restricted Status,
as they
relate to the
barium standard.
(7)
If results of analyses performed on samples pursuant to
35 Ill. Adm. Code 611.648 reveal a violation of the
barium MCL, then public notice shall be made pursuant
to 35 Ill. Adm.
Code 611.851(b).
(8)
Until full compliance is achieved, Village shall take
all reasonable measures with its existing equipment to
minimize the level of barium in its finished drinking
water.
(9)
Within 45 days of the date of this Order, Village shall
execute and forward to:
Stephen
C.
Ewart
Division of Legal Counsel
Illinois Environmental Protection Agency
2200 Churchill Road
P.O. Box 19276
Springfield,
Illinois 62794—9276
a Certification of Acceptance and Agreement to be bound
to all terms and conditions of this variance.
The 45—
day period shall be held in abeyance during any period
that this matter is being appealed.
Failure to execute
and forward the certificate within 45 days renders this
variance void of no force and effect as a shield
against enforcement of rules from which variance was
granted.
The form of
said Certification shall be
as
follows:
CERTIFlCATION
I,
(We),
____________________________,
hereby accept
and agree to be bound by all terms and conditions
of the
order of the Illinois Pollution control Board,
in PCB 95-
108, July 7,
1995.
Petitioner:
10
By:
Authorized Agent
Title:
_____________
Date:
_____________
Section 41 of the Environmental Protection Act
(415 ILCS
5/41
(1992))
provides for the appeal of final Board
orders
within
35 days of the date of service of this order.
The Rule of the
Supreme Court of Illinois establish filing requirements.
(See
also
35 Ill. Adm.
Code 101.246, Motions for Reconsideration.)
I,
Dorothy
Gunn,
Clerk
of
the
Illinois
Pollution
Control
Board, hereby certify that the ab
o inion and order was
adoyted on the
7’~
day of
____________,
1995,
by a vote of
7—O.
~
A~.
Dorothy N. ,4Znn, Clérk
Illinois Pié~~,TlutionControl Board
