ILLINOIS POLLUTION CONTROL BOARD

October

5,

1995

VILLAGE OF ELBURN,

)

Petitioner,

V.

)

PCB 95—179

(Variance-Water)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

OPINION

AND

ORDER OF THE BOARD

(J. Theodore Meyer):

This matter is before the Board on

a June 21,

1995 Petition

for Variance filed by the Village of Elburn (Elburn).

Elburn

seekc a varianoc from

35

Ill. Adm. Code 602.105(a), “Standards

for Issuance”, and 602.106(a), “Restricted

Status”,

to the extent

that they relate to radium requirements under 35

Ill.

Adni. Code

611.301(b).

Elburn was granted a variance from ~

requirements on April

6,

1989 in PCB 88—204.

(Pet. at 1.)

Elburn was subsequently granted a five-year extension of that

variance on July

3,

1990 in PCB 90-41.

(~~)

Elburn seeks

another five—year variance to allow the continued operation of

its water supply and distribution system, and any expansion

deemed necessary.

The Illinois Environmental Protection Agency

(Agency) filed its recommendation on July 20,

1995, advising that

the variance be granted, subject to certain conditions.

Elburn

waived hearing and none was held.

BACKGROUND

The Village of Elburn is a rural conununity located in Kane

county, Illinois which has experienced significant growth, and is

anticipating continued growth,

in population.

(Pet. at

3_4~)1

It owns and operates a water supply and distribution system,

providing potable water to 1,700 customers.

(Pet.

at

4.)

Petitioner’s water system is comprised of two deep wells, one

shallow well,

one 300,000-gallon water tower, pumps, and

distribution facilities.

(Pet.

at

4.)

Elburn first learned that its water supply exceeded the

maximum allowable concentration limit

(MCL)

for radium in January

1985.

(Rec.

at

4.)

Since notification of the violation,

Elburn

petitioned the Board for a variance, which was granted in PCB 88-

204 on April

6,

1989, and extended in PCB 90-41 on July 3, 1990

‘Petitioner’s Petition for Variance will be cited as (Pet.

at

.).

Respondent’s recommendation will be cited as (Rec.

at

.).

---

2

(~j~)This extension expired on July 3,

1995.

(~~)

Elburn is

not on restricted status for exceeding any other contaminant.

(Rec.

at

5.)

REGULATORY FRAMEWORK

The United States Environmental Protection Agency

(USEPA)

has promulgated a valuie of

5 cPi/L of combined radium for

drinking water.

(Rec. at 5.)

Pursuant to Section 17.6 of the

Illinois Environmental Protection Act (Act),

any revisions to the

5 cPi/L standard by the USEPA will automatically b~com~th~

standard in Illinois.

Elburn is not seeking

a variance from the MCL for radium,

which remains applicable to its potable water supply.

Rather,

Elburn is requesting

a variance from the prohibitions imposed at

35 Ill.

Adin.

Code 602.105(a)

and 602.106(a)

until it can achieve

compliance.

In

pertinent part,

these

sections

read;

Section 602.105

Standards for Issuance

a)

The Agency shall not grant any construction or

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

a)

Restricted status shall be defined as the Agency

determination pursuant to Section 39(a)

of the Act and

Section 602.105, that a public water supply facility may no

longer be issued a construction permit without causing a

violation of the Act or this Chapter.

Illinois regulations thus provide that communities 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

Elburn 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 for compliance with the underlying

standards in the proposed compliance plan are an essential

consideration in determining whether

a restricted status variance

will be granted.

Thus, grant of variance from restricted status

will be conditioned upon

a schedule of compliance with the

---

3

underlying 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.

(Caterpillar Tractor Co. v.

Pollution Control Board,

48 Ill.App.3d 655,

363 N.E.2d 419

(3rd

Dist.

1977).)

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.

(Willowbróok 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 Ill.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 within

the term of the variance.

COMPLIANCE PROGRAM

Alternate Methods

In 1988 Elburn hired Rempe-Sharpe and Associates to

investigate compliance options.

(Pet.

at

12.)

Rempe-Sharpe and

Associates submitted a report which offered 10 compliance

options.

(Pet.

at Exhibit M, section 2-3.)

The most cost

~ff~c~tivealternative proveci to also be the riskiest,

so Elburn

chose the second most cost effective alternative, ion—exchange.

(~)

Past Compliance Efforts

Elburn has been sampling its public water supply for

combined radium levels since an exceedence of the combined radium

standards was first discovered.

(Pet.

at 5.)

In addition,

Elburn has spent $1,095,240

in taking the following steps to

achieve compliance:

(1)

Hired an engineering firm to investigate compliance

options.

(Pet.

at

7.)

(2)

Approved the ion-exchange radium removal technology

option.

(j~)

(3)

Hired Rempe-Sharpe and Associates to provide

preliminary engineering services for the construction

of a treatment facility and sanitary sewer interceptor

---

4

to channel softener backwash from the facility to

Elburn’s wastewater treatment plant.

(j~)

(4)

Identified and began purchase negotiations on a 2.35-

acre site for the treatment facility.

(~~)

(5)

Purchased a 2.41-acre parcel to serve as the location

for well #4.

(Pet. at

8.)

(6)

opened bids and ultimately awarded a contract to

Dempsey Ing,

Inc. to construct the North Street

Sanitary Sewer Interceptor.

(Id~)

(7)

Approved an ordinance authorizing the sale of $975,00

in General Obligation Bonds to finance Elburn’s radium

compliance plan.

(u..!.)

(8)

In 1990, the interceptor and well #4 was completed.

Future Compliance

Elburn states that is has not taken final steps to construct

the proposed water treatment facility because the USEPA may

promulgate a new standard for combined radium which will be

higher than Elburn’s current readings.

(Pet. at

6.)

If the

USEPA does not promulgate a new standard for combined radium,

Elburn plans to:

(1)

Replace the pump at well

#3 to increase

its capacity to

500 gpm.

(Pet. at

10

(2)

Transmit water from

well #3

to an ion-exchange

raciium

removal treatment plant.

(j~)

(3)

Construct a third deep well

(Well #5),

an additional

ion—exchange unit and an additional high service pump.

(Id.

at 11.)

HARDSHI P

Both parties agree that denial of

a variance from 35 Ill.

Adin.

Code 602.105(a),

Standards for Issuance, and 35

Ill.

Adin.

Code 602.106(a), Restricted

Status, would result in an arbitrary

or 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 that current construction on an annexed 120—

acre parcel would have to cease.

(Pet. at

14.)

Elburn’s current

negotiations regarding commercial

and

residential

developuteiit

uf

a 625-acre parcel would also be put on hold.

(Pet.

at

15.

In

addition,

an Agency denial would require Elburn to add a

treatment facility and new deep well to the water system,

---

5

construction of which would severely deplete Elburn’s resources,

and possibly force it to issue bonds at its bonding capacity.

(Pet.

at 13—14.)

Elburn has already spent $1,095,240 towards

achieving compliance, but asserts that proceeding to final design

without first knowing the final USEPA standards is an

unreasonable hardship.

(Pet. at

11,

13.)

Secondly,

if a variance is granted as to Section 602.105(a),

then a variance from Section 602.106(a)

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 mi~1eaddevelopers and other persons about

the compliance status of petitioner’s water supply, and could

stifle the area’s economic growth.

ENVIRONMENTAL

IMPACT

Although Elburn made no formal assessment of the

enviromuental effect of the requested variance,

it contends that

a continuance of the variance for 29 months will not result in

any environmental impact.

(Pet. at

9.)

Elburn’s has been

testing for combined radium for the past seven years, and the

levels have ranged from 6.1 pCi/L to 24.0 pCi/L, which exceed the

standard of 5 pCi/L.

(Pet.

at 12.)

The Agency states that,

while radiation at any level creates

some risk, the risk associated with the levels found in Elburn’s

water supply are very low.

(Rec. at 8.)

As support for its

assertion, the Agency incorporated by reference the testimony of

and exhibits presented by Richard

E.

Toohey,

Ph.D.

and Dr. James

Stebbings at the 1985 hearings in R85-14,

In the Matter of:

Proposed Amendments

t.o Public.Water Supply Regulations,

35

Ill.Adm.Code 602.105 and 602.106.

(Id. at 7.)

In addition,

the Agency indicated that the MCL for combined

radium is currently under review by the USEPA, which has

recommended a standard of 20 pCi/L for each isotope.

(~

at

8.)

It had been anticipated that a new standard would be adopted in

September 1995.

(Id.)

Mr. Joseph F. Harrison, chief of the Safe

Drinking Water Division,

USEPA, announced that as a result of the

proposed relaxed standard, no municipalities would be required to

spend funds preparing for final design and construction of a

treatment system to achieve compliance with the current standard.

The Agency concludes that an increase in the allowable

concentration for the contaminants in question should cause no

significant health risk for a limited population served by new

water main extensions tor the time period ot this recommended

variance.

(~4~

at 9.)

The Agency observes that this grant of

the extension of the variance from restricted status should

affect only those users who consume water drawn from any newly

---

6

extended water lines.

(Rec.

at 12.)

According to the Agency,

also states that the variance should not affect the status of the

rest of Elburn’s population drawing water from existing water

lines, except if the variance, by its conditions, hastens

compliance.

(~~)

Finally, the Agency recommends that the

variance terminate on July 3,

2000,

or two years following the

date of USEPA action, whichever comes first.

~

at 7.)

CONSISTENCY WITH

EtDERAL LAW

Both Elburn and the Agency state that Elburn may be granted

a variance

consistent with

the requirements of the

Safe Drinking

Water Act

(42 U.S.C.

300(f)

et.

seq.),

as amended. by the Safe

Drinking Water Act Amendments

of 1986

(Pub.

99-339, 100 Stat.

642

(1986)), and the USEPA 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

15,

Rec.

at

11.)

Rather, granting a

variance

from the

effects of restricted status

means that only the State’s criteria for variances are relevant.

(I~~:j

Both Elburn and the Agency recognize that Elburn remains

subject to the possible enforcement actions for violating

standards for the contaminant in question.

(Pet.

at

16, Rec.

at

12.)

CONCLUSION

After considering all the facts and circumstances of this

case, the Board finds that Elburn has presented adequate proof

that immediate compliance with

35 Iii. Adm.

Code 602.105(a),

Standards of Issuance, and 602.106(a), Restricted Status, would

impose an arbitrary or unreasonable hardship upon Elburn.

We

particularly note Elburn’s firm commitment, both financially and

otherwise,

towards achieving compliance.

However, we agree with

the Agency that compliance could be achieved within 24 months.

The Board therefore will allow Elburn until July 3,

2000 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 Elburn’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.

Although it is well

established that the term of variance begins on the date the

Board renders its decision,

exceptions

will. be allowed upon

showing of unusual or extraordinary

circumstances.

(See,

e.g.

DM1,

Inc.

v.

IEPA (December 19,

1991), PCB 90-277,

128 PCB 245-

249.)

In this case, Elburn timely filed its petition 12 days

---

7

before the last extension expired; therefore,

the Board finds

that the instant circumstances warrant the short retroactive

start of the variance.

This opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

Petitioner, the Village of Elburn

(Elburn),

is hereby

granted variance from 35 Iii. Adm.

Code 602.105(a), Standards of

Issuance, and 602.106(a), Restricted Status, but only as they

relate to the 5 pCi/L radium standard of 35 Ill. Adm. Code

611.301(b), subject to the following conditions:

(1)

For purposes of this variance, the date of the United

States Environmental Protection Agency

(USEPA)

action

shall consist of the earlier date of the:

(a)

date the regulation is promulgated by the USEPA

which amends the maximum contaminant level

(MCL)

for combined radium, either of the isotopes of

radium,

or the method by which compliance with a

radium MCL is demonstrated; or

(b)

date of publication of notice by the USEPA that no

amendments to the 5 pCi/L combined radium standard

or the method for demonstrating compliance with

the 5 pCi/L standard will be promulgated.

(2)

This variance shall terminate on the earliest of the

following dates:

(a)

July 3,

2000; or

(b)

two years following the date of USEPA action.

(3)

In consultation with the Illinois Environmental

Protection Agency (Agency), Elburn shall continue its

sampling program to determine as accurately as possible

the level of radium in its wells and finished water.

Until this variance terminates, Elburn shall collect

and analyze quarterly samples of its water from its

entry point into the 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 the contaminants

in question.

Results of the analyses shall be reported

within 30 days of receipt of each analysis to:

---

8

Illinois Environmental Protection Agency

Division of Public Water Safety

Compliance Assurance Section

2200 Churchill Road

Springfield, Illinois

62794—9276

If Elburn elects,

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.

(4)

Within 3

(three) months of USEPA action,

Elburn shall

apply to the Agency at the address below for all

permits necessary for the construction,

installation,

changes, or additions to Elburn’s public water supply

needed for achieving compliance with the MCL for

combined radium or with any other standard for radium

in drinkiiiy

waLer then

in

effect:

Illinois Environmental Protection Agency

Public Water Supply Program

Permit Section

2200 Churchill Road

Springfield, Illinois

62794—9276

(5)

Within

3

(three) months of the issuance of each

construction permit by the Agency,

Elburn shall

advertise for bids, to be submitted within 60 days,

from contractors to do the necessary work described in

the construction permit.

Elburn shall accept

appropriate

bids

within

a reasonable time,

and shall

notify the Agency,

Division of Public Water Supplies

(DPWS)

within 30 days,

of each of the following

actions:

(a)

advertisements for bids;

(b)

names of successful bidders; and,

(c)

whether Elburn accepted the bids.

(6)

Construction allowed on said construction permits shall

commence within a reasonable time of bids being

accepted,

but in any event, construction of all

installations, changes or additions necessary to

achieve compliance with the MCL in question shall be

completed no later than two years following USEPA

action.

One year will be necessary to prove

compliance.

(7)

Pursuant to 35 Ill.

Adin.

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

---

9

three months thereafter,

Elburn shall send to each user

of its public water supply a written notice to the

effect that Elburn is not in compliance with the

standard in question.

The notice shall state the

average content of the contaminants in samples taken

since the last notice period during which samples were

taken.

(8)

Pursuant to 35 Ill. Adm.

Code 611.051(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,

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), Standard of Issuance, and 35 Ill. Adm. Code

602.106(a), Restricted Status,

as it relates to the MCL

standard in question.

(9)

Until full compliance is reached,

Elburn shall take all

reasonable measures with existing equipment to minimize

the level, of contaminants

in

its finished drinking

water.

(10) Elburn shall provide written progress reports to the

Agency’s DPWS,

FOS every six months concerning steps

taken to comply with paragraphs

3,

4,

5,

6,

7,

8 and 9.

Progress reports shall quote each of said paragraphs

and immediately below each paragraph state what steps

have been taken to comply with each paragraph.

IT IS

SO ORDEP1~WL

If Elburn chooses,

to accept this variance subject to the

above order, within 45 days of the date of this order,

an officer

of Elburn properly authorized to bind Elburn to all the terms and

conditions of the variance,

shall execute and forward the

attached Certificate of Acceptance and Agreement to:

Stephen C.

Ewart

Division of Legal Counsel

Illinois Environmental Protection Agency

2200 Churchill Road

P.O. Box 19276

Springfield, Illinois 62794—9276

Once executed and received, the Certification of Acceptance

and Agreement shall bind petitioner 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.

The form of said Certification shall be as

---

‘U

follows:

CERTIFICATION

I,

(We),

___________________________,

hereby accept

and agree to be bound by all terms and conditions

or the

Order of the Illinois Pollution Control Board,

in PCB 95-

179, October

5,

1995.

Petitioner:

___________________________

By:

Authorized Agent

Title:

______________________________

Date:

______________________________

Section 41

of the Environmental

Protection Act

(415 ILCG

5/41

(1994)) 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, Notions for Reconsideration.)

I, Dorothy Gunn,

Clerk of the Illinois Pollution Control

Board, hereby cert~ythat the abov~opinion and order was

adopted on the

5~’-~-~

day of

~

,

1995,

by a vote of

Ill

Control Board