ILLINOIS POLLUTION CONTROL BOARD
October 11, 1990
VILLAGE OF MAPLE PARK,
)
Petitioner,
v.
)
PCB 90—134
)
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
OPINION AND ORDER OF THE BOARD (by J. Anderson):
This matter comes before the Board on a Petition for
Variance (“Petition”) filed by the Village of Maple Park (“Maple
Park”) on July 19, 1990. Maple Park seeks variance from 35 Ill.
Adm. Code 602.105(a), “Standards For Issuance”, and 602.106(b),
“Restricted Status”, to the extent that the rules relate to the
1.0 milligrams per liter (“mg/i”) barium standard of 35 Iii. Adm.
Code 604.202. Maple Park seeks a three year variance to allow,
for the continued operation of its water supply and distribution
system, the issuance of permits for the expansion or extension of
the distribution system as necessary during the period of its
non-compliance with the barium standard rather than a variance
from the barium standard itself, and the removal of its water
supply from the Agency’s Restricted Status List for barium. The
Environmental protection Agency (“Agency”) filed its Variance
Recommendation on September 17, 1990. The Agency recommends that
variance be granted, but that it be subject to conditions. Maple
Park waived hearing and none was held.
Based on the record before it, the Board finds that Maple
Park has presented adequate proof that immediate compliance with
the Board regulations would impose an arbitrary or unreasonable
hardship. Accordingly, the variance will be granted subject to
the conditions set forth in this Opinion and Order.
BACKGROUND
The Village of Maple Park is located in Kane County,
Illinois. It owns and operates a potable water supply and
distribution system that serves 233 customers which, in turn,
represents some 650 residents. (Pet., par. 12). The system is
comprised of one deep well (Well No. 4), two shallow wells (Well
NOS. 2 and 3), pumps, and distribution facilities. (Pet., par.
10). Maple Park describes the wells as follows:
115—309
—2—
Well No. 2
—
This well is a back—up or stand—by
source of supply for drinking water for Maple Park
and is marginally capable of providing water on a
continuous basis. Water obtained from this wall
has a maximum barium content of 0.1 mg/l. The well
extends to a depth of 134 feet and is open to a
sand and gravel aquifer. The well is equipped with
a ten horsepower submersible pump and produces
approximately 70 gallons of water per minute.
During construction of Well No. 4, this well was
used and there was evidence that the well screen
opposite the aquifer had a hole in it as sand and
gravel were pumped into the distribution system.
Well No. 3
—
This well was the primary source of
drinking water for Maple Pard between 1971 and
1983. It extends to a depth of 182 feet and is
open to a sand and gravel aquifer. Due to
declining capacity, this well was removed from
service in 1983 and is currently out of service.
Well No. 4
—
This well is the primary source of
drinking water for Maple Park and is adequately
capable of providing water on a continuous basis.
Water obtained from this well has a maximum barium
content of 1.53 mg/i. The well extends to a depth
of 960 feet and is open to the Galena—Platteville
Dolemite (limestone) and Glenwood—St. Peter
(sandstone) aquifer. The well is equipped with
thirty horsepower submersible pump and produces
approximately 190 gallons of water per minute.
(Pet., par. 13)
The Agency first advised Maple Park that it exceeded the
maximum allowable concentration for barium by letter dated March
19, 1990. (Pet., par. 17, Attachment 1; Rec., par. 12). On
March 22, 1990, the Agency notified Maple Park that it was going
to be placed on Restricted Status. (Pet., par. 17, Attachment 2;
Rec. par. 12). Maple Park is on the July, 1990 Restricted Status
List for barium, but is not on restricted status for exceeding
any other contaminant. (Rec., par. 12).
REGULATORY FRAMEWORK
The United States Environmental Protection Agency (“USEPA”)
has promulgated a maximum concentration limit for drinking water
of 1.0 mg/l of barium. Illinois subsequently adopted the same
limit as the maximum allowable concentration limit under Illinois
law. Moreover, pursuant to Section 17.6 of the Illinois
Environmental Protection Act (“Act”) (Ill. Rev. Stat. 1989, ch.
111 1/2, par. 1017.6 (1989)), any revisions to the 1.0 mg/l
standard by the USEPA will automatically become the standard in
Illinois.
115—310
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The action that Maple Park requests here is not variance
from the maximum allowable concentration for barium. Regardless
of the action taken by the Board in the instant matter, this
standard will remain applicable to Maple Park. Rather, Maple
Park requests variance from the prohibitions imposed pursuant to
35 Iii. Adm. Code 602.105(a) and 602.106(b) 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 Environmental Protection Act (Ill.
Rev. Stat. 1981, ch. 111 1/2, pars. 1001 et seq.) (Act),
or of this Chapter.
Section 602.106 Restricted Status
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 communities are
prohibited from extending water service, by virtue of not being
able to obtain the requisite permits, if their water fails to
meet an~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
Maple Park request a variance. However, we emphasize that,
because the duration of restricted status is linked to the length
of time it takes the water supply to come into compliance with
the underlying standards, 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 on 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. Ill. Rev. Stat. 1989, ch.
111 1/2, par. 1035(a). Further, the burden is not upon the Board
to show that the harm to the public outweighs petitioner’s
hardships; the burden is upon 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. Willowbrook Motel v. Illinois
Pollution Control Board, 135 Il1.App.3d 343, 481 N.E.2d 1032 (1st
Dist. 1985).
115—311
—4—
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 with the term of the
variance.
ALTERNATIVE COMPLIANCE OPTIONS
Maple Park envisions the following three alternatives in
order to achieve compliance:
a. Construction of a new well into a low barium
content
groundwater source to be used for blending purposes
with existing wells;
b. Construction of a new well into a low barium
content
groundwater source to serve as primary
water supply,
or
c. Construction of treatment facilities in order to
properly treat all water supplied by the existing deep
well.
(Pet., par. 20)
With regard to the treatment option, Maple Park states that
the following are the three treatment methods that are Best
Available Technologies (“BAT”) for barium removal: ion exchange,
lime softening, and reverse osmosis. (Pet. par. 24). Maple Park
notes that ion exchange water softening is the cheapest option
and that it will remove over 75 percent of the barium. (Pet.,
par. 25). It contends, however, that the sodium content of the
water will be increased if a softener that is regenerated with
salt is used and that this, in turn, may create a risk to those
persons who are hypertensive or who have heart problems. (Pet.,
par. 25). It also contends that it may be difficult to legally
dispose of the waste from routine softening, particularly because
Maple Park is an unsewered community. (Pet., par. 25).
COMPLIANCE PROGRAM
Maple Park anticipates that the implementation of
alternative a) or b) above will meet all applicable standards,
but notes that accurate costs and time figures for each option
are not currently available. (Pet., par. 21). It has retained
Engineering Enterprises, Inc. in Elburn, Illinois, to review and
evaluate the three options and to recommend a course of action to
resolve the problem. (Pet., par. 21). Maple Park anticipates a
three month period to accomplish this task, although no accurate
time table has been developed. (Pet., par. 21).
115—312
—5—
Maple Park states that it will take the following steps
during the variance term to minimize the impact of the excess
barium:
a. 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. Testing for
barium shall be continued.
b. Within three months after the grant of the variance,
initiate a program of groundwater resources
investigation, including both shallow and deep
groundwater resources, to identify additional sources of
groundwater having an acceptable level of barium.
c. Within three months of the completion of the groundwater
resources investigation and within twelve months of the
grant of the variance, complete investigating compliance
methods, and prepare a detailed Compliance Report
showing how compliance shall be achieved within the
shortest practicable time, but no later than five years
from the date of the variance.
d. Within twelve months of the grant of the variance,
submit the Compliance Report to the Agency, Division of
Public Water Supply (“DPWS”), for its approval.
e. If the compliance Report is not disapproved by the
Agency within three months of its submission, or within
any written extension of approval time made by the
agency, then within six months after said approval time,
apply to the Agency, DPWS, Permit Section for all
permits necessary for construction of installations,
changes, or additions to the public water supply needed
for achieving compliance with the maximum allowable
concentration for barium.
f. Within three months after each construction permit is
issued by the Agency, DPWS, advertise for bids from
contractors to do the necessary work described in the
construction permit and shall accept appropriate bids
within a reasonable time.
g. Construction allowed on said construction permits shall
begin within a reasonable time of bids being accepted,
but in any case, construction of all installation,
changes, or additions necessary to achieve compliance
with the maximum allowable concentration for barium
shall begin no later than two and one half years form
the grant of the variance and shall be completed no
later than three years from the grant of the variance.
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h. Compliance shall be achieved with the maximum allowable
concentration for barium no later than three years from
grant of the variance.
i. Pursuant to 35 Ill. Adm. Code 606.302, in its first set
of water bills or within three months after the date of
the variance, whichever occurs first, and every three
months thereafter, send to each user of its public water
supply a written notice to the effect that it has been
granted by the Board a variance from 35 Ill. Adm. Code
602.105(a), Standards for Issuance, and 35 Ill. Ad,m.
Code 602.106(b), Restricted Status, as it relates to the
barium standard.
j.
Pursuant to 35 Ill. Adm. Code 602.201, 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, send to each user of its public water
supply a written notice to the effect that it is not in
compliance with the barium standard of 35 Ill. Adm.
Code. 604.301(a). The notice shall state the average
content of barium in samples taken since the last notice
period during which samples were taken.
k. Take all reasonable measures with its existing equipment
to minimize the level of barium in its finished water.
(Pet., par. 30)
HARDSHIP
Maple Park cites several reasons why it, taxpayers,
prospective developers, and persons and industries serves by
those developers would experience an arbitrary and unreasonable
hardship if the Board denied its variance request. First, Maple
Park states that an expenditure of significant sums of money to
come into compliance would be arbitrary or unreasonable when
delayed compliance with the barium standard does not
significantly benefit the public or the environment. (Pet., par.
31). Second, Maple Park points out that extension of its water
mains will not cause any significant risk or harm to the
environment or to the people served by any extensions for the
limited time of the variance because grant of the variance would
not relax the barium standard but would only mean that the Agency
could not legally deny construction or operating permits based on
Maple Park’s violation of the barium standard (Pet., pars. 26,
32, 41). Third, Maple Park contends that, given the anticipated
change in the barium standard (see following), and the fact that
it may be able to comply with such standard, a substantial
expenditure of public monies for blending or treatment facilities
that may later become obsolete in the near future is not in the
public interest and would not benefit the public. (Pet., par.
38). Fourth, Maple Park asserts that its tax base, home
purchasers, and business developers will be hurt because
115—3 14
—7—
construction within the service area requiring water supply
extensions cannot resume. (Pet., par. 39). Fifth, Maple Park
asserts that there is a need for the expansion of its water
distribution system to serve the domestic and fire protection
requirements of the local population during the time involved
for the planning, financing, engineering, and construction of
water supply, blending, or treatment facilities. (Pet., par.
40)
The Agency supports Maple Park’s variance request and agrees
that denial of the variance would result in an arbitrary and
unreasonably hardship. The Agency specifically points to the
fact that it would be required to deny construction and operating
permits for the new water main extensions until compliance is
achieved (unless a variance from 35 Ill. Adm. Code 604.301 is
granted) and that, as a result, any economic growth resulting
from those water main extensions would be stifled. (Rec., par.
19).
ENVIRONMENTAL IMPACT
Although Maple Park states that it has made no formal
assessment of the environmental effect of the requested variance,
it contends that extension of its water mains will not cause any
significant harm to the environment or to any potential customers
served by any extension for the limited time period of the
requested variance. (Pet., par. 26).
The Agency agrees with Maple Park’s assertion and has no
objection to the use of alternative a) or b) (see above) provided
that either method can be timely implemented and will meet the
requirements of the Act, the Board’s rules, and the Agency’s
Technical Policy Statements. (Rec., par. 16).
CONSISTENCY WITH FEDERAL LAW
Both Maple Park and the Agency state that Maple Park may be
granted variance consistent with the requirements of the Safe
Drinking Water Act (42 U.S.C. 300(f) et.
~.),
as amended by the
Safe Drinking Water Act Amendments of 1986 (Pub. Law 99—339, 100
Stat. 642 (1986)), and the tJSEPA 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., pars.
42, 43; Rec.,, pars. 21, 23). Specifically, granting a variance
from the effects of restricted status means that only the State’s
criteria for variances are relevant. (Pet., par. 44; Rec., par.
22).
Maple Park and the Agency state that grant of variance
leaves Maple Park subject to the possibility of federal
enforcement for violations of the barium standard. (Pet., par.
45; Rec., par. 24). The Agency notes, however, that if the state
variance requires compliance by the end of the Agency’s
115—3 5
—8—
recommended variance period, USEPA would probably consider the
variance order to be a “Compliance Order” and defer federal
enforcement. (Rec., par. 24).
ANTICIPATED FEDERAL STANDARD REVISION
In the October 5, 1983 Federal Register (48 Fed. Reg.
45502), USEPA published advance notice of its intention to
propose National Revised Primary Drinking Water Regulations for
organic, inorganic, microbial and radionuclide contaminants in
drinking water. (Pet., par. 33). In the May
22, 1989
Federal
Register (54 Fed. Reg. 22111), USEPA published proposed
regulations for barium in drinking water that increase the
maximum contaminant level (“MCL”) from 1.0 mg/i to 5.0 mg/i.
(Pet., par. 35). In a letter dated March 10, 1989, USEPA
indicated to Maple Park that it will revise the federal barium
standard according to the following schedule:
May, 1989
—
date of filing of proposed MCL at 5.0 mg/i
Jan., 1991
—
expected promulgation date of final MCL
Jul., 1992
-
expected effective date of revised standard
(Pet., pars. 34, 36, Attachment 3)
Maple Park states that it will be in compliance with the barium
standard, if the federal and state standards for barium are
increased to 5.0 mg.l. (Pet., par. 37).
TERMS OF VARIANCE
Maple Park requests that the term of variance be three years
from the date variance is granted. The Agency, however,
recommends that variance end after three years, or when analysis
shows compliance, whichever occurs first. (Rec., par. 27(b)).
CONCLUS ION
The Board finds that, in light of all the facts and
circumstances of this case, Maple Park has presented adequate
proof that immediate compliance with 35 Ill. Mm. Code 602.105(a)
and 602.106(b) would impose an arbitrary or unreasonable hardship
upon Maple Park. We particularly note that Maple Park’s
commitment, both financially and otherwise, towards coming into
compliance is firm and well on its way to fruition. The Board,
however, agrees with the Agency’s reasoning regarding the
termination date of the variance. The Board will therefore allow
Maple Park until May 1, 1995, to achieve compliance.
The Board also agrees with the parties that no significant
health risk will be incurred by persons who are served by any new
water main extensions, assuming that compliance is timely
forthcoming. The Board will accordingly grant variance
consistent with this Opinion.
115—3 16
—9—
As a final note, the Board believes that the conditions as
recommended by the Agency are generally appropriate. The Board,
however, makes one substantive insertion; the placement
appropriate positions of the phrase, “or with any standard for
barium in drinking water then in effect”, or like phrases, at
appropriate places in the Order. The purpose is to assure that
if the barium standard is altered during the term of variance by
USEPA action and corresponding operation of Section 17.6 of the
Act, the compliance target for Maple Park then becomes the
revised barium standard rather than the presently applicable
standard of 1.0 mg/l.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Petitioner, the Village of Maple Park, 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 1.0 mg/i barium standard of 35 Ill. Adm. Code
604.202, subject to the following conditions:
(1) This variance shall terminate on the earliest of the
following dates:
(a) August, 1993; 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 shall be achieved with the maximum allowable
concentration of barium, or with any revised standard
for barium in drinking water then in effect, no later
than August, 1993.
(3) In consultation with the Agency, Maple Park 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, Maple
Park shall collect semi—annual samples of its water from
its distribution system at locations approved by the
Agency, and shall collect semi—annual samples of its raw
water from its wells. Maple Park shall analyze the
samples at six—month intervals, using a laboratory
certified by the State of Illinois for barium
analysis. The results of the analyses shall be reported
within 30 days of receipt of each analysis to:
Illinois Environmental Protection Agency
Division of Public Water Supply
115—3 17
—10—
Compliance Assurance Section
2200 Churchill Road
Springfield, Illinois 62794—9276
(4) Within twelve months after the grant of variance, Maple
Park shall submit a detailed compliance report showing
how compliance shall be achieved within the shortest
practicable time, but no later than August 1993. The
Compliance Report shall be submitted to:
Illinois Environmental Protection Agency
Division of Public Water Supply
2200 Churchill Road
Springfield, Illinois 62794—9276
(5) Within six months of the Agency’s receipt of the
Compliance Report, Maple Park shall apply for all
permits necessary for construction of installations,
changes or additions to Maple Park’s public water supply
needed for achieving compliance with the maximum
allowable concentration for barium or with any standard
for barium in drinking water then in effect. Such
applications shall be made to:
Illinois Environmental Protection Agency
Division of Public Water Supply
Permit Section
2200 Churchill Road
Springfield, Illinois 62794—9276
(6) Within three months after each construction permit is
issued by the Agency, Maple Park shall advertise for
bids, to be submitted within 45 days, from contractors
to do the necessary work described in the construction
permit. Maple Park shall accept appropriate bids within
a reasonable time. Petitioner shall notify the Agency
at the address in condition of (5) of each of the
following actions: 1) advertisement for bids, (2) names
of successful bidders, and 3) whether Maple Park
accepted the bids.
(7) Construction allowed on said construction permits shall
begin within a reasonable time of bids being accepted,
but in any case, construction of all installations,
changes or additions necessary to achieve compliance
with the maximum allowable concentration of barium, or
with any standard for barium in drinking water then in
effect, shall begin no later than two and one—half years
from the grant of this variance, and shall be completed
no later than three years from the grant of this
variance.
(8) Pursuant to 35 Ill. Adm. Code 606.201, in its first set
of water bills or within three months after the date of
115—318
—11—
this Order, whichever occurs first, and every three
months thereafter, Maple Park shall send to each user of
its public water supply a written notice to the effect
that Maple Park has been granted by the Pollution
Control Board a variance from 35 Ill. Adm. Code
602.105(a), Standards of Issuance, and 35 Ill. Mm. Code
602.106(b), Restricted Status, as they relate to the
barium standard.
(9) 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, Maple Park shall send to each user of
its public water supply a written notice to the effect
that Maple Park is not in compliance with the barium
standard. The notice shall state the average content of
the contaminant in question in samples taken since the
last notice period during which samples were taken.
(10) Until full compliance is achieved, Maple Park shall take
all reasonable measures with its existing equipment to
minimize the level of barium in its finished drinking
water. In particular, Maple Park shall continue to
maintain, to the degree reasonably practicable, the
increased proportion of shallow well water in its
distribution system in order to reduce the barium level.
(11) Maple Park shall provide written progress reports to the
Agency every six months concerning steps taken to comply
with conditions 4 through 10 of this Order. Progress
reports shall quote each of said conditions and
immediately below each condition state what steps have
been taken to comply with each condition. Such written
progress reports shall be submitted to:
Illinois Environmental Protection Agency
Division of Public Water Supply
Field Operations Section
2200 Churchill Road
Springfield, Illinois 62794—9276
(12) Because it is possible that the USEPA may promulgate a
final maximum contaminant level for barium that will
bring Maple Park into compliance without any changes or
additions to its public water supply, Maple Park may
make a petition for modification subsequent to
completion of the requirements of conditions (1)
—
(5)
if there is good reason to believe changes in the
standard are imminent. Compliance with a finally
promulgated USEPA maximum contaminant level for barium
will automatically terminate this variance on the date
of compliance in accordance with condition 1(b) above.
115—3 19
—12—
Within 45 days of the date of this Order, Petitioner shall
execute and forward to Bobella Glatz, Division of Legal Counsel,
Illinois Environmental Protection Agency, 2200 Churchill Road,
Post Office 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 and 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:
CERTIFICATION
I, (We), _____________________________, hereby accept and
agree to the bound by all terms and conditions of the Order of
the Illinois Pollution Control Board, in PCB 90—134, October 11,
1990.
Petitioner
By: Authorized Agent
Title
Date
Section 41 of the Environmental Protection Act, Ill. Rev.
Stat. 1987, ch. 111 1/2 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 B. Forcade dissented.
115—320
—13—
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinjon and Order was
adopted on the
//~Z7
day of
/(-~~~‘
,
1990, by a
vote of
/5—/
.
~~
Dorothy M. G).1/ln, Clerk
Illinois Pc4~utionControl Board
115—32 1
