ILLINOIS POLLUTION CONTROL BOARD

July

27,

1989

VILLAGE OF HAMPSHIRE,

Petitioner,

v

)

PCB 89—57

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

MARK SCHUSTER,

ESQ.,

OF STROM, SCHUSTER,

MEYERS AND MEYERS

APPEARED ON BEHALF OF THE PETITIONER.

BOBELLA GLATZ, ESQ.,

OF ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

APPEARED ON BEHALF OF RESPONDENT.

OPINION AND ORDER OF THE BOARD

(by M. Nardulli):

This matter comes before the Board on a petition for

variance filed on behalf of

the Village of Hampshire

(“Hampshire”)

on March

24, 1989 and as amended on May 22, 1989.

Hampshire

is seeking a variance from 35

Ill. Adm.

Code

602.105(a),

Standards of Issuance, and from 602.106(b),

Restricted Status,

to the extent those

rules involve

35

Ill. Adm.

Code 604.202, which concerns the maximum allowable concentration

of barium in public water.

The variance

is requested for

a

minimum of eighteen months,

or

in the alternative until June of

1992.

The petitioner waived its right

to hearing

in this matter

and consequently no hearing has been held.

On June

29,

1989,

the

Illinois Environmental Protection Agency

(hereinafter

“Agency”)

filed

a variance recommendation

recommending

that the requested

variance be granted subject

to conditions.

Based on the record,

the Board finds

that the request

~or variance should be granted

subject to

the conditions

recommended by the Agency.

Compliance

with

the

rule would impose an arbitrary or unreasonable hardship

on the petitioner.

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BACKGROUND

The Village of Hampshire, which

is located in Kane County,

owns and operates a water supply system which provides potable

water

to approximately 586 residential and 75 institutional,

commercial and industrial utility customers in the village.

Raw

water

is supplied to the system from three wells:

Wells No.

3 and No.

4 are back-up or stand-by

wells completed in

1943.

Well No.

3 extends

to a depth of 514 feet and is open to

Maquoketa (shale) group and Platteville

Dolemite

(limestone) aquifers.

Well No.

4

is

open to sand and gravel, Maquoketa (shale)

group and Galena——Platteville Dolemite

(limestone) aquifers.

Well No.

5—— is the primary source of drinking

water

for Hampshire.

It was constructed

in

1968 to a depth of 690 feet, and deepened in

1971 to a depth of 818 feet.

This well

is

open

to Maquoketa

(shale) group, Galena——

Platteville Dolernite (limestone) and Glenwood

——

St. Peter

(sandstone) aquifers.

The well

is equipped with a sixty

(60) horsepower

submersible pump and produces approximately

275 gallons per minute of water.

The water obtained from Well

No.

4 has a reported maximum

barium content of 0.14 mg/l.

Well No.

4

is available for use in

emergency situations and is not capable of providing the needs of

the village on a continuous basis.

The water obtained from Well

No.

5 has a reported maximum barium content

of 2.2 mg/l.

Well

No.

5

is available

for use as the primary supply of Hampshire on

a continuous basis.

No information has been provided on the

barium concentration of well No.

3.

An analysis of the barium concentration

in the distribution

system was reported

to the petitioner on June

5,

1978.

The

barium content

in the water was reported as ranging between 2.0

mg/l and 2.6 mg/l

——

a level

in excess of the standard for barium

of

1.0 mg/l prescribed by Board Regulations

and the U.S.

Environmental Protection Agency.

No explanation

is given for the

discrepancy between

the measured barium concentration in the

distribution system and the barium concentration in the source

wells.

Petitioner has previously filed a petition for variance for

noncompliance with the barium standard in PCB 80—165.

This

variance was granted by the Board.

A Petition for Extension of

Variance was granted by the Board

in PCB 85—114.

This extension

continued until January

22, 1987.

However,

this variance was

revoked by action of the U.S. Environmental Protection Agency

in

101—294

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—3—

1986.

Subsequent to the revocation of variance by the U.S.

Environmental Protection Agency,

the village was notified on June

10,

1988 that

it would be placed on the Restricted Status List

published

in the Illinois Pollution Control Board’s Environmental

Register

in October

of

1988.

Petitioner has remained on

restricted status

for noncompliance with the maximum allowable

concentration for barium to the date of

this Opinion and Order.

Petitioner

is not on Restricted Status for exceeding any other

contaminant.

PETITIONERtS COMPLIANCE PLAN

The compliance program developed by the Village of Hampshire

involves construction of an additional shallow well

to provide

water to blend with its existing supply of water and as

a

result,

reduce the concentration of barium in the water distributed.

Hampshire anticipates that carrying out this compliance schedule

will cost approximately $232,500.00.

The petitioner anticipates

that the completion of

the compliance plan will take eighteen

months and upon completion the level of barium in

the water

distributed will be below the 1.0 mg/l standard.

The petitioner has received a Community Development Program

Grant from the Illinois Department of Commerce and Community

Affairs for construction of

a new well and pump house

modifications.

The engineering for the project has been

completed and the contract for completion of the work has been

let.

The anticipated contract completion date

is September 16,

1989.

After the well drilling

is completed,

the pump and pump

house will need to be modified and the public water will need to

be analyzed.

The petitioner also proposed to take a number

of actions

during the variance period to minimize the

impact of the

barium.

Some of these actions are involved in completing

construction while others involve conditions from Hampshire’s

previous variance.

In the Agency’s Recommendation, most of these

actions were suggested as conditions

to the new variance, and

have been adopted as conditions

in the Order.

HARDSHIP AND ENVIRONMENTAL IMPACT

In its petition for variance, Hampshire maintains that

compliance with Section 604.202 during the requested variance

period would result

in an arbitrary or unreasonable hardship on

Hampshire and its taxpayers.

Without

a variance, Hampshire would

be on restricted status which would prevent any construction

within the petitioner’s service area requiring the extension of

the water supply system.

This restriction would halt development

and the growth of the petitioner’s tax base.

The petitioner

states that the village

is under pressure

to grow as exemplified

by inquiries made in 1988 for development of some sixty acres,

101—295

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—4—

annexation of

200

acres and various industrial projects.

Contrasting with the issue of hardship is the issue of

environmental impact.

In its recommendation, the Agency states

that while barium at any level creates some risk,

the risk

associated with this level is very low.

The maximum allowable

concentrations

(“MAC”)

for barium is currently under review at

the federal level.

However, the Agency does not know when, or

if,

the standard will be changed.

The Agency believes that the

level of barium contained in the Village of Hampshire’s drinking

water should cause no significant health risk for the

limited

population served by new water main extensions

for the time

period of this recommended variance.

The Agency further believes

that grant of the requested variance would impose no significant

injury on the public or on the environment and that denial of the

recommended variance would be an arbitrary or unreasonable

hardship to petitioner.

AGENCY RECOMMENDATION

In

it recommendation of June

29,

1989,

the Agency

recommended that Hampshire be granted a variance from 35

Ill.

Adm. Code 602.105(a)

and 602.106(b) as they relate to the

contaminants

in question, subject to the conditions adopted

in

the Order.

The Agency believes that the hardship resulting from

denial of the recommended variance from the effect of being on

Restricted Status would outweigh the injury

to the public from

grant of that variance.

In light of

the cost to the petitioner

for treatment of

its current water

supply, the likelihood

of no

significant

injury to the public from continuation of the present

level

of the contaminant

in question

in the petitioner’s water

for the limited time period of the variance,

and the possibility

of compliance with the

MAC

standard due

to blending and new

wells,

the Agency concludes that denial

of a variance from the

effects

of Restricted Status would impose an arbitrary or

unreasonable hardship upon Petitioner.

The Agency observes

that this grant of variance from

restricted status should affect only those users who consume

water from any newly extended water

lines.

This variance should

not affect the status of the rest of petitioner’s population

drawing water

from existing water

lines,

except insofar as the

variance,

by

its conditions, may hasten compliance.

Grant of

variance may also,

in the interim,

lessen exposure for that

portion of the population which will

be consuming more

effectively blended water.

The Agency emphasized

that it

continues to place

a high priority on compliance with

the

standards.

CONCLUSION

The Board finds that Hampshire has presented adequate proof

that compliance with the regulation would impose an arbitrary or

101—296

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—5—

unreasonable hardship.

Further,

the environmental impact of

granting the variance is considered to be minimal.

Accordingly,

the variance will be granted with conditions consistent with this

Opinion.

The Board does not understand why the petitioner requested a

variance for eighteen months or until June of 1992.

Under

the

compliance plan submitted by the petitioner,

the majority of the

work to come into compliance will be completed by September

of

1989 with only adjustments

to the pumps and pump houses

required

after

that date.

After

construction is completed,

the petitioner

will be

required to analyze the water pursuant

to

35

Ill. Adm.

Code 605.103

to show compliance with the standard for barium.

Neither of the requested time periods appear to be closely

related to the completion of the required activities.

The Board

will therefore grant the variance until June

1,

1992

or until

the

analysis shows compliance with the standard

for barium, whichever

occurs first.

This Opinion constitutes the Board’s findings of fact and

conclusion of

law in this matter.

ORDER

The Village of Hampshire is hereby granted a variance from

35

Ill.

Adm. Code 602.105(a),

Standards of

Issuance, and

from

602.106(b),

Restricted Status,

to the extent those rules involve

35 Ill.

Adm. Code 604.202, which concerns

the maximum allowable

concentration of barium in public water, subject

to the following

conditions:

(a)

Compliance shall be achieved with

the maximum allowable concentration

in question no later than June,

1992.

(b)

This variance expires no later

than

June,

1992,

or when analysis

pursuant

to

35

Ill. Adm. Code

605.103 shows compliance with the

standard

ifor barium, whichever

occurs

first.

(c)

In consultation with the Agency,

Petitioner

shall continue its

sampling program to determine as

accurately as possible the level of

barium

in

its wells and finished

water.

Until

this variance expires,

Petitioner

shall collect semi—annual

samples of

its water from its

distribution system at locations

101—29 7

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—6—

approved by the Agency,

and shall

collect semi—annual samples of its

raw water from its wells.

Petitioner

shall analyze them at

six—month intervals,

using a

laboratory certified by the State of

Illinois for barium analysis.

The

results of the analyses shall be

reported to the Compliance Assurance

Section, Division of Public Water

Supplies,

2200 Churchill Road,

IEPA,

Springfield, Illinois 62794—9276,

within 30 days of each analysis.

(d)

Within ten months after

the grant of

variance herein, petitioner shall

submit

to IEPA, DPWS,

a detailed

Compliance Report showing how

compliance

shall be achieved within

the shortest practicable time, but

no later than June of 1992.

(e)

Petitioner

shall apply

to IEPA,

DPWS, Permit Section by January

1,

1991,

for all permits necessary for

construction of

installations,

changes or additions to the

petitioner’s public water supply

needed for achieving compliance with

the maximum allowable concentration

for barium.

(f)

Within two months after each

construction permit

is

issued by

IEPA,

DPWS,

the petitioner

shall

advertise for bids,

to be submitted

within 45 days from contractors

to

do the necessary work described

in

the construction permit.

The

petitioner

shall accept appropriate

bids within a reasonable

time.

Petitioner

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

petitioner accepted the bids.

(g)

Construction allowed

on

said

construction permits shall begin

within a reasonable time

for bids

being accepted, but,

in any case,

construction of all installations,

changes

or additions necessary to

101—2 98

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—7—

achieve compliance with the maximum

allowable concentration for barium

shall begin no later than August

1,

1991.

Construction shall

be

completed no later than May

1,

1992.

(h)

Pursuant

to

35 Ill. Adm.

Code

606.201,

in its first set of water

bills or within three months after

the date

of this Variance 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 of

35

Ill. Adm.

Code 602.105(a) Standards of

Issuance and

35

Ill. Adm. Code

602.106(b) Restricted Status,

as

it

relates

to the

MAC

standard

in

question.

(i)

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, 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 standard

in question.

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.

(j)

Until

full compliance

is

reached,

petitioner

shall

take all reasonable

measures with its existing equipment

to minimize the level

of contaminant

in question

in its finished drinking

water.

(k)

The petitioner

shall provide written

progress

reports

to

IEPA,

DPWS,

FOS

every six months concerning

steps

taken

to comply with paragraph (d),

(e),

(f),

(g),

(h),

(i)

and

(j).

Progress

reports shall quote each of

said paragraphs and immediately

below each paragraph sate what steps

101—299

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—8—

have been taken to comply with each

paragraph.

(1)

It

is possible that a final maximum

contaminant level for barium may be

promulgated by the U.S.

Environmental Protection Agency

which will bring petitioner into

compliance without any changes or

additions to its public water

supply.

Petitioner

shall comply

with paragraphs a,

b,

c,

d, and e.

Petition for modification due to

change

in standards may be made

subsequent to completion of the

requirements of

these paragraphs

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 date of

compliance

in

accordance with paragraph

(b)

herein.

(m)

That within forty—five days

of the

grant of the variance, petitioner

shall execute and forward

to Bobella

Glatz, Enforcement Programs,

Illinois Environmental Protection

Agency,

2200 Churchill Road,

Springfield,

Illinois 62794—9276,

a

Certification of Acceptance and

Agreement to be bound to all terms

and conditions of the granted

variance.

101—300

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—9—

CERTIFICATION

I,

(We),

,

89—57, dated July

27,

1989, understand and accept the

Petitioner

By:

Authorized Agent

Title

IT

IS SO ORDERED

B. Forcade dissented

I, Dorothy M Gunn, Clerk of the

Board,

hereby certify that the above

adopted on the

~‘

7~2T

day of

1988,

by a vote of

~~—/

Illinois Pollution Control

Op1i-n4on

and Order was

Illino

on Control Board

101—301