ILLINOIS POLLUTION CONTROL BOARD
April 6, 1989
VILLAGE OF ELBURN,
)
Petitioner,
v.
)
PCB 88—204
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
OPINION AND ORDER OF THE BOARD (by J. Marlin):
This matter comes before the Board upon a December 27, 1988
petition for extension of variance, filed by the Village of
Elburn (“Elburn”). Elburn is requesting an extension of the
variance granted by the Board on April 20, 1988 in PCB 88—4, as
revised in part in a June 16, 1988 Board Order. Elburn’s request
for extension, as well as the earlier variance, seeks relief from
35 Ill. Mm. Code 602.105(a) “Standards for Issuance” and from 35
Ill. Mm. Code 602.106(b) “Restricted Status”, but only as those
rules relate to the combined radium—226 and radium—228 standard
of 35 Ill. Mm. Code 604.301(a). Elburn requests a four year
extension.
On January 24, 1989, the Illinois Environmental Protection
Agency (“Agency”) filed a Recommendation to grant the variance,
subject to conditions. Elburn waived its right to a hearing in
this matter and consequently no hearing was held.
BACKGROUND
Elburn, located in Kane County, provides a community water
supply for approximately 1,423 residents and 192 industries and
businesses. Elburnts distribution system includes two deep
wells, one shallow well, one elevated tank, three pumps and one
distribution facility. Elburn’s deep well #1 extends to a depth
of 1,350 feet and was placed in operation in 1905. According to
Elburn, deep well #1 is still in service as a standby but has not
been used for the last five years. Deep well #3, which extends
to 1,395 feet, was placed into operation in December, 1975.
Elburn’s shallow well extends to a depth of 152 feet and was
placed in operation in March, 1937. (P. at 5).
In January 1985, the Agency notified Elburn that it had been
placed on Restricted Status because a composite sample showed
98—75
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that the Elburn water supply was in violation of the 5.0 pCi/i
combined radium standard. Representative test results have
indicated the following:
Date
Value
September 1984
12.1 pCi/l
December 1986
7.2 pCi/l
October 1988
9.7 pCi/i
(P. at 2).
In PCB 88—4, Elburn sought a five—year variance from the
combined radium standard. The Board granted Elburri a 13—month
variance to “allow Elburn to formally secure professional
assistance, investigate compliance options and submit a
compliance plan to which it is firmly committed.” (PCB 88—4,
April 21, 1988 and upon reconsideration, June 16, 1988). Elburn
maintains that it has complied with the Board’s Order in PCB 88—4
and that it is now able to proceed with a definite compliance
plan. Elburn’s current variance petition seeks a four—year
extension allowing Elburn sufficient time, plus a ten month
leeway to allow for unavoidable construction delays or scheduling
error, to implement the thirty—eight month compliance plan
approved by Elburn on December 5, 1988.
COMPLIANCE PLAN
Elburn’s chosen compliance method involves the phased
construction of three deep wells (of which one will be on stand-
by) and an ion—exchange treatment facility with an anticipated
total cost of $2,018,300. (P. at 5 and Attach. “A”). Elburn
states that this plan allows for phased construction of well and
treatment facilities to reduce the initial construction cost.
Under Elbur n’s plan, two wells and one ion— exchange treatment
unit will be utilized
to meet demands until 1998 when an
additional
well and ion—exchange unit will become necessary.
In
phase I of
the plan, Elburn’s current deep well no.
#3 pump will
be replaced with a new pump and a new well will be constructed
approximately
1,500 feet from the existing well.
In phase II, an
additional
well will be constructed
approximately
1,500 feet from
the other two wells. (P. at Attach. “A”, sec. 5, p. 31).
Regarding alternative
compliance plans, Elburn stated that it
“opted for the ion—exchange process in lieu of the shallow well
construction primarily because of the high cost attributed to
locating a shallow well and transmitting the water.” (P. at. 5).
In the Agency’s, Recommendation, it states that if properly
designed, Elburn’s Phased Ion Exchange Treated Deep Well
Water
Constcuction would be an acceptable means of mc~Lin:j Li~ara~1~na
standard.
The Agency also makes several observations
regarding
Elburn’s compliance schedule: the preliminary design and design
phase
is one month too long; the owner and regulatory review
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phase should be increased by one month; and one month should be
decreased from the construction period and added to the bidding
and analysis phase. (Agency Rec. at par. 28). These suggestions
by the Agency have been incorporated into the Board’s Order
following this Opinion.
HARDSHIP AND ENVIRONMENTAL IMPACT
The Agency states that denial of this variance would result
in an arbitrary and unreasonable hardship because the Agency
would be required to continue to deny construction and operating
permits until compliance is achieved. Further, the Agency states
that “continuation of Restricted Status means that no new water
main extensions could be issued by the Agency and economic
growth, etc., dependent on those water main extensions would not
be allowed.” (Agency Rec. at. par. 20).
Elburn states the following in regard to the hardship that
would be imposed if this variance were denied:
Imposition of restricted status has had a
negative impact on Elburn.
Elburn has
recently carried out a number of public
projects which it has been struggling to pay
for. In December 1980, Elburn expanded its
sewage treatment plant to service its existing
residential and commercial customers as well
as its expected growth. This required a
$430,000 General Obligation Bond issue in
1978. In addition Elburn, in October 1986,
completed the necessary construction of a new
water tower to provide a safe and adequate
storage capacity for its water supply
system. Again, this project was sized to
serve the existing residents and commercial
customers, as well as anticipated growth. The
Agency’s Division of Public Water Supply had
informed Elburn that it needed to provide
additional storage and system pressure. The
construction of the new water tower cost
approximately $750,000. Elburn used $50,000
from existing operating funds, a $200,000
Community Development Assistance Program grant
and $500,000 General Obligation Bonds issued
in 1986 to raise the necessary funds.
Elburn has suffered a severe financial blow as
its
princ’ipal
wastewater
generator
and
employer closed
its facility
on 7~pri.l 12,
1985. Kneip Company announced the closing of
its meat packing operations in February 1985
and closed its facility on April 12, 1985.
98—77
-4-
This resulted in a loss of 85 jobs and
$133,904 in wastewater treatment revenue to
the Village of Elburn which represents
approximately 25
of Elburn’s total revenue.
In addition, Elburri was left with a wastewater
treatment
system
designed
and
sized
to
accommodate waste from the meat packing
company and upon which its rates were based.
Without the waste from the meat packing plant,
the existing sewage treatment plant is
operating at approximately 25 of capacity
with a resulting loss in anticipated and
needed revenue. As a result, Elburn is
struggling to pay off the approximately
$930,000 for General Obligation Bonds for the
cost of the new water tower and sewage
treatment plant expansion. (P. at 6).
Regarding environmental
impact, the Agency states that
“while radiation at any level creates some risk, the risk
associated with this level is very low.” (Agency Rec. at par.
15). Further, the Agency states that it believes that the
variance will “impose no significant injury on the public or on
the environment for the limited time period of the requested
variance.” (Agency Rec. at Par. 19). The Agency concludes that
denial of the recommended variance would be an arbitrary or
unreasonable hardship on Elburn.
CONCLUS ION
Based on the record before
it, including environmental
impact, the Board finds that Elburn 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 Elburn. Accordingly, the Board will grant the requested
relief,
subject to conditions.
This
Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
1. The Village of Elburn (“Elburn”) is hereby granted a variance
from 35 Ill. Mm. Code
602.105(a) “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 Ill.
Mm.
Code
604.301(a), subject to the following conditions:
t~)
This
va~innce
expires April 6, 1993 or ~~en analysis
pursuant to 35
Ill. Mm. Code 605.104(a) shows
compliance with the standard for combined radium,
whichever occurs first.
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(B) 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 the contaminant in question. The
results of the analyses shall be reported to the
Compliance Assurance Section, Division of Public Water
Supplies, 2200 Churchill Road, Illinois Environmental
Protection Agency, Springfield, Illinois 62794—9276,
within 30 days of receipt of each analysis. At the
option of Elburn, 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.
(C) By July 6, 1990, Elburn shall apply to IEPA, DPWS,
Permit Section, for all permits necessary for
construction of installations, changes or additions to
Elburn’s public water supply needed for achieving
compliance with the maximum allowable concentration for
the combined radium standard.
(D) Within nineteen months after each construction permit is
issued by IEPA, DPWS, 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. Elburn shall notify IEPA, DPWS, within
30 days, of each of the following actions:
1)
advertisements
for bids,
2) names of successful
bidders, and 3) whether Elburn accepted the bids.
(E) Construction allowed on said construction permits shall
begin within a reasonable time of bids being accepted,
hut in any case, construction of all installations,
changes or additions necessary to achieve compliance
with the maximum allowable concentration for combined
radium shall begin no later than May 6, 1991 and shall
be completed no later than May 6, 1992.
(F)
Pursuant ta 35 Ill. Mm. Code 606.201, in its first set
of water bills or by July 6, 1989, 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 has been granted a
98—7 9
—6—
variance from 35 Ill. Mm. Code 602.105(a) Standards of
Issuance and 35 Ill. Adm. Code 602.106(b) Restricted
Status, as it relates to the MAC standard for combined
radium.
(G) Pursuant to 35 Ill. Mm. Code 606.201, in its first set
of water bills or by July 6, 1989, 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 is not in compliance
with the combined radium standard. The notice shall
state the average content of combined radium in samples
taken since the last notice period during which samples
were taken.
(H) Until full compliance is reached, Elburn shall take all
reasonable measures with its existing equipment to
minimize the level of combined radium in its finished
drinking water.
(I) Elburn shall provide written progress reports to IEPA,
DPWS, FOS every six months concerning steps taken to
comply with 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.
2. Within forty—five days of the grant of this variance, Elburn
shall execute and forward to Bobella Glatz, Enforcement
Programs, Illinois Environmental Protection Agency, 2200
Churchill Road, Springfield, Illinois 627894—9276, a
Certificate of Acceptance and Agreement to be bound to all
terms and conditions of this variance. This variance shall
he 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:
CERTIF ICATION
I, (We)
, _________________________________,
having read the
Order of the Illinois Pollution Control Board, in PCB 88—204,
dated April 6, 1989, understand and accept the said Order,
realizing that such acceptance renders all terms and conditions
thereto binding and enforceable.
Peti tioner
98—80
—7—
By: Authorized Agent
Title
Date
Section 41 of the Environmental Protection Act, Ill. Rev.
Stat. 1987 ch. ill 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.
J. D. Dumelle and B. Forcade dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was
adopted on the
c~Y1~
day of
______________,
1989, by a vote
of
5~
.
~
/~T
~Dorothy
M. ç~nn, Clerk
Illinois
Po)/~ution Control Board
98—8 1