ILLINOIS POLLUTION CONTROL BOARD
September 12,
1991
VILLAGE OF FOX RIVER GROVE,
)
Petitioner,
V.
)
PCB 91—104
(Variance)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
OPINION AND ORDER OF THE BOARD
(by J. Anderson):
This matter comes before the Board on the June 21,
1991
petition and,
in response to a July 11,
1991 Board Order, the
July 19,
1991 amended petition for variance filed by the Village
of Fox River Grove
(Village).
The Village seeks relief from 35
Ill. Adm. Code 602.105(a),
“Standards for Issuance”, and from 35
Ill. Adm. Code 602.106(a),
“Restricted Status”, but only as these
rules relate to the trichloroethylene
(TCE)
standard in 35 Ill.
Adm. Code 611.311(a).
The Village requests a variance until
October
1,
1992, or until one year after the improvements needed
to achieve compliance are in full operation, whichever is later.
(Amend.
Pet.
par.
1).
On July 31,
1991,
the Illinois Environmental Protection
Agency
(Agency) recommended that variance be granted, with
conditions,
until October 1,
1992,
or when analysis pursuant to
35
Ill.
Adin.
Code 611.720(d)
shows compliance with the then
current standard for trichloroethylene, whichever occurs first.
(Agency Rec. par.
27(B)).
The Village waived hearing and none
has been held.1
For the following reasons, the Board finds that the Village
has presented adequate proof that immediate compliance with 35
Ill.
Adm.. Code 602.105(a)
and 602.106(a) would result in the
imposition of an arbitrary or unreasonable hardship.
Accordingly,
the variance is granted,
subject to the conditions
in the attached Order.
BACKGROUND
10n August 8,
1991, the Board granted the Village’s motion for
expedited hearing and set this matter for hearing based
upon an
objection filed on August
5,
1991.
On August 22,
1991,
the Board
vacated its August
8,
1991 Order because of the withdrawal of the
August 5,
1991 objection.
On August 26,
1991, the Board determined
not
to
reverse
its
prior
cancellation
of
hearing
although
it
received two additional objections.
126—59
2
The Village,
located in the southeast corner of NcHenry
County, provides potable water for a population of about 3450
persons, and serves residential, commercial and industrial users.
(Amended Pet. par.
7).
Its system consists of two shallow wells,
manganese greensand filters for iron removal,
and distribution
facilities.
(u.).
The two wells,
Well #1 and Well
#2,
are 143
feet and 120 feet in depth,
respectively, are in a dolomite
aquifer, and operate alternately to produce 400 gpm.
(~.
pars.
7,
8).
The water
is treated with:
chlorine, fluoride,
and
potassium permanganate which,
along with the greensand filters,
removes
‘iron and manganese.
(~.
par.
10).
The maximum contaminant level
(MCL)
for trichloroethylene of
0.005 milligrams per liter
(mg/L)
in Section 611.311(a),
became
effective on September 20,
1990.
(Agency Rec. par.
6).
It was
one of a number of volatile organic chemicals
(VOCs)
adopted by
the Board in its rulemakings that are “identical
in substance” to
federal rules.
The Village has not sought a variance prior to
this petition and the trichioroethylene standard
is the only one
exceeded.
(Id.).
The Village was first advised by the Agency on November 17,
1986 that Well #2 had low levels of VOCs, based on an average of
four quarterly samples and that it would continue to monitor the
well for VOCs.
(Amend.
Pet.
par.
14;
Agency Rec. par.
12).
The
Agency was conducting the sampling as part of a program to
monitor all suppliers’ wells for volatile organic and aromatic
chemicals.
(Amend.
Pet.
par.
14).
About 30 samples collected by
the Village and the Agency from Well
#1 between October 1986 and
April 1991,
show an average concentration of TCE of 0.015 mg/L
and about
19 samples collected from Wells
#2 during the same time
period show an average concentration of TCE of 0.014 mg/L.
~
pars.
17,
21).
On March 19,
1991,
the Agency notified the
Village that it was being placed on restricted status because the
average of four samples collected quarterly between July 1990
through April
1991, which showed an average TCE of 0.0185 mg/L.
(Agency Rec. par.
12).
REGULATORY
FRAMEWORK
The
instant variance request concerns two features of the
Board’s public water supply regulations: “Standards
for. Issuance”
and “Restricted Status”.
These features are found at 35
Ill.
Adm. Code 602.105 and 602.106, which in pertinent part read:
Section 602.105
Standards for Issuance
a)
The Agency shall not grant any construction or operatin
g 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 Environmental Protection Act
126—60
3
(Ill.
Rev.
Stat.
1989,
ch.
111
½,
pars.
1001 et seq.)
(Act),
or of this Chapter.
Section 602.106
Restricted Status
a)
Restricted status hail 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.
The principal effect of these regulations
is to provide that
community water supply systems are prohibited from extending
water service, by virtue of not being able to obtain the
requisite permits, unless and until their water meets all of the
standards for finished water supplies.
It is the Village’s
request that it be allowed to extend its water service while
it
pursues compliance with the trichloroethylene standard,
as
opposed to extending service only after attaining compliance.
In determining whether any variance is to be granted, the
Act requires the Board to determine whether a petitioner has
presented adequate proof that immediate compliance with the Board
regulations at issue would impose an arbitrary or unreasonable
hardship.
(Ill. Rev. Stat.
1989,
ch.
ill
½,
par. 1035(a)).
Furthermore, the burden is upon the petitioner to show that its
claimed hardship outweighs the public interest in attaining
compliance with regulations designed to protect the public.
Willowbrook Motel
v.
Pollution Control Board,
135 Ill. App.
3d
343,
481 N.E.2d 1032
(1st Dist.
1985).
Only with such showing
can the claimed hardship rise to the level of arbitrary or
unreasonable hardship.
A further feature of a variance is that it
is, by its
nature,
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 276,
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 which is reasonably
calculated to achieve compliance within the term of the variance.
It
is to be noted that grant of variance from “Standards for
issuance” and “Restricted Status” does not absolve a petitioner
from compliance with the drinking water standards at issue,
nor
does it insulate a petitioner from possible enforcement action
brought for violation of those standards.
The underlying
standards remain applicable to the petitioner regardless of
whether variance is granted or denied.
COMPLIANCE
PLAN
126—6
1
4
The Village considered two compliance alternatives:
1)
the
use of Granular Activated Carbon
(GAC), and
2) the use of an
packed bed aeration tower to strip the TCE from the water flowing
through the system.
(Amend. Pet. par.
39).
The Village chose
the latter option and
is currently in the process of constructing
the tower.
(~.
par. 40).
Specifically, construction on the
tower began on May 3,
1991, and the equipment is projected to be
operational by October 1991.
(~.
pars.
18,
20,
41).
Final
financing has been arranged to cover the total cost of design and
construction of the facilities
(approximately $360,000).
(Id.
pars.
18,
23,
38,
Ex.
C).
The Village asserts that this method
will effectively reduce the TCE to less than 0.001 rng/L.
(~.
par.
22).
HARDSHIP
The Village asserts that it has diligently pursued
compliance by taking
a number of steps since the Agency first
notified it in late 1986,
of the VOCs in its water supply.
(~.
par.
29).
In May 1987,
after confirming the Agency’s results
with independently collected samples,
it hired an engineering
firm to examine the TCE problem and advise the Village as to how
to achieve compliance.
(~çi. par.
31).
In June 1987,
selected
private wells were tested to seek to identify the origin of the
TCE.
(~.
par.
32).
From June through September 1987,
the
Village’s consultant investigated the hydrogeology of the area,
inspected,
and prepared plans and received bids for monitoring
well construction,
at a cost of $22,000.
(~.
par.
33).
From
October 1987 to February 1988, the Village drilled a total of
eleven, two-inch diameter monitoring wells to determine the
extent of the contamination and whether, with a reasonable level
of treatment, continued use of the supply wells was possible.
(~.
par.
34).
The costs associated with the drilling totaled
$51,700.
(u.).
In August 1989,
the Village isolated the
probable source of the contamination with an additional
monitoring well,
at a cost of $4,450.
(~.
par.
35).
In the
latter part of 1989,
the Village drilled two test wells at
locations chosen to replace the existing supply wells.
(ç~. par.
36).
Although the Village spent $42,800 on drilling,
one well
failed to produce enough water and the site on which the other
well was located was unobtainable.
(a.).
Beginning in April
1990,
the Village has been attempting to reach a settlement with
the owner of the property from which the contamination was
believed to have originated,
at a cost to date of $3,100.
(~.
par.
37).
The Village asserts it has incurred costs in excess of
$484,000 for all its activities towards achieving compliance.
~
par.
38).
All costs have been Village financed because the
Village has been unable to obtain a construction grant from the
State.
(~.
pars.
18,
38).
126—62
5
The Village asserts that,
even though the aeration tower
will become operational in October 1991, and the level of TCE
reduced to a level below the MCL for TCE, denial of variance
would continue to delay or preclude development during the time
it takes for the average of four quarterly samples to show
compliance.
(~.
par.
43).
The Village specifically notes that
two sizeable developments have preliminary or final plats that
have been recommended for approval, or have been approved by the
Village’s Plan Commission.
(~.
par.
44).
The Village asserts
that the’ loss of either of these developments would have a
serious economic impact,
including the impact on its ability to
pay for the water supply plant improvements, and that such
economic impact far outweighs any adverse health effects.
(~.
par.
45).
The Agency agrees that denial of variance would impose
an arbitrary or unreasonable hardship.
(Agency Rec. par.
19).
ENVIRONMENTAL IMPACT
Regarding environmental impact,
including health effects,
the Village asserts that grant of variance will affect no
additional users during the variance period because the aeration
tower will be operational before the new developments are
occupied.2
(Amend.
Pet.
par.
26).
The Agency believes that there is no significant health risk
flowing from the variance.
(Agency Rec. pars.
16,
18).
The
Agency also addressed the risks of short and long term exposure
to TCE in its recommendation.
According to C.A. Stevens,
in
“Poisoning by Accidental Drinking of Trichloroethylene”,
Brit
Med. Jour.
(1945),
short term oral exposure of 21 to 35 grams of
TCE resulted in vomiting and abdominal pain,
followed by
transient unconsciousness.
(~
par.
15).
According to V.
Lachnit,
in “Halogenated Hydrocarbons and the Liver”,
Vein.
Klin.
Wochenschr.
83(41):734
(1971),
long term occupational exposure
resulted in an increase in serum transaminases occurred,
indicating damage to the liver parenchyma.
(u.).
The Agency referenced for its assessment of cancer risk
“Trichloroethylene”, Health Advisory, Office of Drinking Water,
U.S. Environmental Protection Agency, March 31,
1987.
(jç~.Ex.
1).
The estimated risk from lifetime exposure to drinking water
containing TCE at 260 ug/L is about
1 x 10’.
(jc~.
par.
15).
It
is also estimated that an adult who consumes
2
liters of water
containing 0.028 ing/L of TCE daily for 70 years would have an
2Although
its filing was late,
we note that McHenry
County
basically
“went
on
record”
as objecting to any expansion of the
water system until
the air stripper
is on line
and successfully
reducing the TCE to acceptable
levels.
(McHenry County letter
filed August 23,
1991).
126—63
6
excess cancer risk no greater than 0.00001.
Finally, the Agency states:
The Agency observes that this grant of variance from
restricted status should affect only those users who
consume water drawn from any n~w1yextended water
lines.
This variance should not affect the status of
the rest of petitioner’s population drawing water from
exipting water lines,
except insofar as the variance by
its conditions may hasten compliance.
In so saying,
the Agency emphasizes that it continues to place a high
priority on compliance with the standards.
(~.
par.
26).
CONSISTENCY WITH FEDERAL
LAW
The Agency states that the requested variance may be granted
consistent with the Safe Drinking Water Act
(42 U.S.C.
Section
300(f) ~
~q.)
and the corresponding regulations
(40 CFR Part
141) because the variance does not grant relief from compliance
with the federal primary drinking regulations.
(Agency Rec.
pars.
20,
22).
CONCLUSION
Based on the record, the Board finds that immediate
compliance with the
35
Ill. Adm. Code 602.105(a)
and 35 Ill.
Adni.
Code 602.106(a) would impose an arbitrary or unreasonable
hardship on the Village of Fox River Grove.
We also agree that
this grant of variance does not pose a significant health risk to
those persons served by any new water main extensions.
With the
inclusion of the Agency’s recommended conditions, the Board will
grant variance until October
1,
1992, and will require that
construction of the improvements are fully completed no later
than October
1,
1991.
We again note that today’s action is solely a grant of
variance from standards of issuance and restricted status.
The
Village is not granted variance from compliance with the
trichloroethylene standard, nor does today’s action insulate the
Village in any manner against enforcement for violation of these
standards.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Village of Fox River Grove is hereby granted
a variance
from 35
Ill. Adm.
Code 602.105(a),
“Standards for Issuance”, and
602.106(a),
“Restricted Status”,
as they relate to the standard
126—64
7
for trichloroethylene as set forth in 35
Ill. Adm. Code
611.311(a),
subject to the following conditions:
(1)
This variance shall terminate on the earliest of the
following dates:
(a)
October 1,
1992; or
(b)
When analysis pursuant to 35 Ill.
Adm. Code
611.720(d),
or any compliance demonstration then
in effect, shows compliance with the current
standard for trichloroethylene or any standard for
trichloroethylene then in effect.
(2)
Compliance shall be achieved with the maximum
contaminant level for trichloroethylene, or with any
revised standard for trichloroethylene then in effect,
by October
1,
1992 or one year after the improvements
need to achieve compliance are in full operation,
whichever is sooner.
(3)
In consultation with the Illinois Environmental
Protection Agency
(“Agency”), Petitioner shall continue
its sampling program to determine as accurately as
possible the level of trichloroethylene in its wells
and finished water.
Until this variance terminates,
Petitioner shall collect quarterly samples of its water
from entry points of its distribution system at
locations approved by the Agency.
Petitioner shall
analyze them quarterly by a laboratory certified by the
State of Illinois for VOC analysis so as to determine
the maximum contaminant level of trichloroethylene.
The results of the analyses shall be reported within 30
days of receipt of the most recent result to:
Illinois Environmental Protection Agency
Compliance Assurance Section
Division of Public Water Supplies
2200 Churchill Road
Springfield,
Illinois 62794—9276
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)
Construction of all installations, changes,
or
additions necessary to achieve compliance with the
maximum contaminant level
in question shall be
completed no later than October
1,
1991.
(5)
Pursuant to 325 Ill.
Adm. Code 611.851(b),
in its first
126—65
8
set of water bills or within three months after the
date of this Order, whichever occurs first, and every
three months thereafter, Petitioner will send to each
user of its public water supply a written notice to the
effect that Petitioner 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(a) Restricted Status,
as they relate to
the maximum contaminant level for trichloroethylene.
(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,
Petitioner will send to each
user of its public water supply a written notice to the
effect that Petitioner is not in compliance with the
maximum contaminant level for trichloroethylene.
The
notice shall state the average content of the
contaminants in question in samples taken since the
last notice period during which samples were taken and
shall include the mandatory health effects language as
specified in 35
Ill.
Adm. Code 6l1.Appendix Al.
(7)
Until full compliance
is achieved, Petitioner shall
take all reasonable measures with its existing
equipment to minimize the maximum contaminant level of
trichloroethylene in its finished drinking water.
(8)
Petitioner shall provide written progress reports to
the Agency at the address below every six months
concerning steps taken to comply with conditions
1
through
7 of this Order.
Progress reports shall quote
each of said paragraphs and immediately below each
paragraph state what steps have been taken to comply
with each paragraph:
Illinois Environmental Protection Agency
Division of Public Water Supply
Field Operations Section
2200 Churchill Road
Springfield, Illinois 62794—9276
Within forty—five days of the date of this Order,
Petitioner
shall execute and forward to Stephen
C. Ewart, Division of Legal
Counsel,
Illinois Environmental Protection Agency,
P.O.
Box
19276,
2200 Churchill Road, Springfield, Illinois 62794—9276,
a
Certificate of Acceptance and agreement to be bound to all terms
and conditions of the granted variance.
The 45—day period shall
be held in abeyance during any period that this matter is
appealed.
Failure to execute and forward the Certificate within
45—days renders this variance void and of no force and effect as
a shield against enforcement of rules from which this variance is
126—66
9
granted.
The form of Certificate is as follows:
CERTIFICATION
I
(We),
hereby
accept
and
agree
to
be
bound
by
all
terms
and
conditions
of
the
Order
of
the
Pollution
Control
Board
in
PCB
91-104,
September 12,
1991.
Petitioner
By:
Authorized Agent
Title
Date
Section 41 of the Environmental Protection Act,
Ill. Rev.
Stat.
1989,
ch.
111½ 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 Members J. Dumelle and B. Forcade concurred.
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board,
hereby certify~atthe above Opi~ionand Order was
adopted on the
/~‘~
~
day of
__________________,
1991, by
a vote of
___________.
Dorothy M. G~n, Clerk
Illinois Pc4lution Control Board
126—67
