ILLINOIS POLLOTION CONTROL BOARD

November 7, 1985

VIt~E~AGEOF HAMPSHIRE,

Petitioner,

v.

)

PCB 85—114

ILLINOIS ENVIRONMENTAL

PROTECTION AGEWCY~

Respondent.

OPINION AND ORDER

OF THE BOARD

(by R.

C. Flemal):

This matter cor~esbefore the Board on a petition

(“Petition”) to ext.end an existing variance filed by the Village

of Hampshire (“Hampshire”) on August 12, 1985. Hampshire seeks

to extend the varian~sgranted on January 22, 1981, in PCB 80-

165, which provided ~e1ief from the 1.0 mg/i maximum allowable

barium concentration of 35 Ill. Adm. Code 604.202 (formerly Rule

304(B)(4) of Ch. 6: Public Water Supply Rules and Regulations of

the Illinois Pollution Control Board) for five years, subject to

conditions. The instant request seeks to extend the variance to

January 16, 1988, a period of approximately two years.

The Illinois Environmental Protection Agency (“Agency”)

filed its recommendation (“Recommendation”) on September 12,

1985, with an accompanying motion requesting that the Board allow

filing of the recommendation instanter. That motion was granted

by Board Order of September 20, 1985. The Agency recommends that

variance be denied, contending in major part that Petitioner has

not adequately proven that compliance with the barium standard

~iou1dimpose an arbitrary or unreasonable hardship, and that

Petitioner has not made good faith efforts to comply with the

conditions of the variance granted in PCB 80—165.

On October 23, 1985, lampshire submitted to the Board a

response (“Response”) to the Agency Recommendation, requesting

that leave be granted to file said Response instanter. The Board

notes that according to 35 Ill. Adm. Code 104. 181(a) such

response is due within seven days of receipt by Petitioner of

the

Recommendation; receipt is acknowledged by Petitioner to have

occurred on September 10, 1985. While the Board is not pleased

with the lateness of filing, it nonetheless grants Petitioner’s

motion to file, believing that the Response contains information

pertinent to a proper resolution of this matter.

Hearing was waived, and none has been held since no

additional objections have been filed with the Board.

66-307

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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 1600 residents of the Village. Raw water

is supplied to the system from three wells, as follows:

Well No~ 5: Primary source of supply for drinking water for

the Village, constructed in 1968 and deepened

in 1971 to a depth of 819 feet; this well is

open to the Maguoketa Group, Galena and

Platteville Dolomites, and Glenwood—St. Peter

~ormations; the well is fitted with a 60

horsepower pump and generates approximately 275

gallons of water per minute.

Well No. 3: Back—up well completed in 1943; this well

c~xtendsto a depth of 514 feet and is open to

the Maquoketa Group and the Galena and

Platteville Doloniltes.

Well No. 4: Back—up well completed in 1943; this

well

extends to a depth of 355 feet and is open to

shallow sand and gravel units, the Maquoketa

Group, and the Galena and Platteville

Dolomites

Hampshire contends that wells No. 3 and No. 4 are available

for use in emergency situations, but are not capable of providing

tne Village’s needs on a continuous basis; no capacity data for

either of the back—up wells has been provided by Petitioner.

Hampshire additionally contends that no other raw or finished

water supply is currently available, including no adjacent

communities from which water could be purchased on a cost—

effective basis.

Petitioner asserts that water obtained from the primary

source, well No. 5, has a barium concentration between 2.0 mg/i

and 2~2 mg/i; well No. 4 is asserted to have a barium

concentration of 2.0 mg/l; no data have been provided on the

barium concentration of well No. 3. Identical concentrations

were asserted to have existed in the wells at the time of filing

of petition in PCB 80—165 (September, 1980).

Actual measured barium concentrations in the distribution

system, as provided in the Agency Recommendation, for the period

October 6, 1982 to April 18, 1985 have been:

86-308

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—3--

Concentration

Date

(mg/l)

10/06/82

2. 1

01/11/83

2. 1

04/12/83

1. 9

07/06/83

1.7

02/08/84

1.

7

04/11/84

2. 0

07/18/84

2. 1

10/16/84

1. 79

02/20/85

1. 64

03/20/85

3. 02

04/08/85

3. 07

07/08/85

1. 7

The record does not address the issue as to why the

concentrations in the distribution system depart from the

concentrations asserted to exist in the raw water sources.

Noteworthy is that two of the twelve distribution system

concentrations exceed the maximum concentration (2.2 mg/i)

alleged for the primary raw water source. This same 2. 2 mg/l was

asserted to be the maximum concentration at the time of granting

of the existing variance, and that variance was in fact

conditioned such that Petitioner was not to allow the barium

concentration in the water supply to exceed 2.2 mg/i (PCB 80—165,

January 22, 2981, p. 3).

Hampshire does not dispute the data provided by the Agency

concerning concentrations of barium in its distribution system

(Response, p. 1). In apparent defense, Hampshire contends that

these data show “that the concentration has been consistently

below 2.1 mg/i, despite the 3.02 reading of March 20, 1985 and

3.07 reading of April 8, 1985”. The Board can not give weight to

this defense, in as much as any plain reading of the phrase

“consistently below” would not allow that two of twelve values

exceed the specified limit and three additional values are at the

limit.

A number of matters are at issue in this case. Among these

are the health risk associated with levels of barium such as

those encountered in the Hampshire system, whether Petitioner has

adequately carried its burden of showing that compliance would

involve arbitrary or unreasonable hardship, and whether

Petitioner has made good faith efforts to comply with the

conditions imposed in its existing variance.

HEALTH RISK

The Agency, in its review of the environmental impact,

concluded that “an incremental increase in the allowable

concentration for barium even up to a maximum of 3,07 mg/i,

should cause no significant health or environmental risk for the

66-309

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—4—

~

(Recommendation p. 5,

emphasis as in original). The Board agrees with this general

assessment, but notes the particular implication of the

underscored qualification. That is, while a rational conclusion

would allow that short—term exposure would produce

no significant

health risk, the same conclusion can not be reached under

conditions

of

long—term exposure. It is in part because

situations such as this exist that the Safe Drinking Water Act

(“SDWA”), and the Board in its enforcement of the SOWA, entertain

the possibility of short—term relief via variances. But implicit

in the variance process is that compliance will be achieved in

some timely fashion1, and that long—term exposures and attendant

health risk will thereby not be allowed to occur.

Hampshire notes that the United States Environmental

Protection Agency (~USEPA”) currently has its 1.0 mg/i barium

standard under review~ The Board takes note that the first step

in this review process has been completed. Namely, the TJSEP~has

proposed that the Recommended Maximum Contaminant Level (RMCL)

for barium in drinking water be 1. 5 mg/I (U. S. Environmental

Protection Agency, Office of Drinking Water, Barium Health

Advisory, Draft, September 30, 1985). Several aspects of this

action warrant notice~ First, RMCL’s are proposed at levels

at

which no known or anticipated adverse effects on the health

of

persons occur; they are nonenforceable and considered as

health—

related goals rather than as standards. Second, the tJSEPA

action

to date has been only

to

22~2~

an RMCL for barium; the

proposal

may be altered subject to information received during a mandated

comment period of 120

days following publication.

Third, when

and if the USEPA sets a final RMCL, it must then proceed to set a

Maximum Contaminant Level (MCL) which, in addition

to health

effects, also considers matters such as the availability and

performance of analytical methods and treatment technologies and

assessment of the costs of the applicable technologIes. In the

ideal an MCL will be set equal to its RMCL; in no case may the

MCL be less than the RMCL. Fourth, the MCL is a federally

enforceable maximum concentration. However, a state

which holds

primacy under the SDWA, as does Illinois, may elect to

support a

standard more stringent than the federal standard.

In view of the conditions laid out in the preceding

paragraph, the Board notes that a change in the USEPA posture

regarding barium in drinking water, be such change viewed as

either favorable or unfavorable to Petitioner, cannot be expected

with any immediacy. The Board can not therefore lay great

credulence on Hampshire~s implied position that its requested

variance is supported by actions at the federal level, at least

as these actions have proceeded to date, In fact, such weight as

may be given to the recent federal action would seem to imply

that Petitioner’s drinking water does impose a long—term health

risk: all of the samples taken from the distribution system since

1982 contain concentrations in excess of the 1JSEPA~s Recommended

~4aximumContaminant Level,

66-310

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e5...

An additional facet of the health risk issue is that the

State of Illinois currently supports a

1.0

mg/i standard.

Federal action will occasion a change in the State standard only

if a more stringent federal standard supersedes the State

standard, or if the federal review process produces a less

stringent standard

and

the State finds the federal position

sufficiently compelling to warrant a change in the State rule.

That any such change might occur is too speculative to be given

weight in the instant matter. Accordingly, the Board must

consider that the appropriate standard,

and

attendant health risk

level, is

1.0

mg/i.

HARDSHIP

With reept to the matter of the showing of arbitrary or

unreasonable hardship, the Board notes that 535(a) of the

Illinois Environmental Protection Act mandates that a variance

may be granted only if Petitioner demonstrates that immediate

compliance would impose an arbitrary or unreasonable hardship.

Petitioner contends that such hardship does exist because an

alternative source of

low barium

water is not available and

because development of an alternative source or treatment of the

existing water supply would be economically unreasonable.

Hampshire has considered the possibility of water blending

as a method of attaining compliance. This effort has apparently

focused on developing a shallow well, which Hampshire contends

would involve approximately $496,500 in construction costs and an

additional $7,000 in annual operation and maintenance coets.

Hampshire further contends that any shallow source would likely

have a high iron content,

and

hence introduce a new problem.

Petitioner allows that it has not actually undertaken a

program to explore for a shallow water alternative source due to

insufficient funds. However, it asserts that in 1985 it!

requested the assistance of the Illinois State Geological Survey

(UI5GSV) in this endeavor. The Agency counters that it can not

determine if Petitioner’s claim of insufficient funds is valid,

since no estimates of costs or financial resources have been

provided. The Agency moreover notes that, while the reqãest to

the ISGS is considered positive, Hampshire was told of this

option by its

own

consultant by letter dated July 21, 1980

(Baxter S Woodman, Inc., attachment to Petition, page 3). The

Agency adds that upetitioner does not explain why it delayed five

years in investigating this option, which apparently will be done

free.

W

The Agency further questions Petitioner’s efforts towards

• attaining compliance via blending by noting a condition to the

existing variance, namely:

08411

---

A. By June 1, 1981, the Petitioner shall submit to the

Agency a report on the economic feasibility of developing

Well *3 and/or Well #4 to serve as

either primary wells or

as blending

wells so that finished water with a barium

content of

1.0

mg/i or less may be delivered.

(PCB 80—165,

January 22, 1981, p. 3)

The Agency asserts that Petitioner has failed, and continues to

fail, to submit this report, a fact to which Petitioner admits

(Response, p.2)..

As a basis ~r contending that. blending among the existing

wells might off:c: the prospect of attaining compliance, the

Agency recalls, cc paqe 3 of its Recommendation, a portion of its

earlier recommenthtion in the matter of PCB 80—165, specifically:

the Agency bc1i5~TCS that the alternative of a more extensive

use of Well ~(4has not been adequately investigated or

considered, In the only Agency test available which

analyzes the ~acer of Well #4 the level of barium was shown

to be 0. 1 mg/L (Attachment A). If Petitioner has evidence

which contradicts this analysis

it

should be brought

forwar& While the water from the shallower well may have a

higher iron content than Well *5 and may not be of

sufficient size to meet the petitioner’s needs, the Agency

believes the possibility of blending is worth

investigating, Assuming the barium content is as low as

this last test indicates water from that well could be

blended with water from Well #5 to provide a water quality

that complies with the barium guidelines.

Hampshire asserts in its current petition that the barium

concentration of well No, 4 is 2. 0 mg/i, but it is not clear from

the record whether this assertion is meant by Petitioner to be

the contradictory evidence sought by the Agency in 1980 and again

in the instant case.

As a treatment alternative Hampshire has considered sodium

zeolit.e softening. In order to reduce the barium concentration

from 2,2 mg/I to LU mg/i or less, it would be necessary to treat

approximately 70 percent of the output of well No. 5; the

remaining 30 percent of water pumped from well No~ 5 would by-

pass the softening unit and be blended with the treated

portion. Petitioner~s estimated capital expenditure for such a

treatment system is approximately $519,200, with additional

annual maintenance costs of approximately $16,000. Petitioner

also notes that a brackish water disposal problem would be

created and the sodium content of the water would be increased.

While the Agency does not disagree with Petitioner’s

estimates of the cost of compliance, it does believe that

economic hardship has not been proven.. In addition to the matter

of whether blending possibilities have been fully explored, the

Agency notes that letitioner has failed to provide financial

86-312

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—7—

data*, including bonding authority, upon which economic hardship

could be evaluated, as well as various information specified in

the conditions of the existing variance. With respect to the

latter, the Agency notes that Hampshire has failed, and continues

to fail to comply with the conditions of paragraphs B and C of

the existing variance, specifically:

B.

Beginning on or about June 1, 1981, and at six

month intervals thereafter, the Petitioner shall communicate

with the Agency in order to ascertain whether barium removal

techniques specifically applicable to small systems have

been developed and identified.

C. As expeditiously after identification of a feasible

compliance methcd as is

practicable,

but

no. later than

January 1, 19~34~Petitioner

shall

submit to the

Agency a

program (wit~i:~Increments of progress) for

bringing its

system into noncliance with barium standards.

(PCB 80—165,

January

22, 193I~,

p. 3).

In its Response. Petitioner allows that it did not, at six

month intervals, cow~municate with the Agency in order to

ascertain whether barium removal techniques specifically

applicable to small systems have been developed. However,

Hampshire notes that on May 9, 1985, it did undertake one such

communication, and that it received a reply (attachment to

Response) dated May 21, 1985, from the Agency indicating that to

the best knowledge of the Agency no such syster~shave been

developed.

GOOD FAITH EFFORTS

On the matter of good faith effort to comply with the

existing variance, it has been noted above that the Agency

asserts that Petitioner has failed to comply with those three

conditions which entail subrnittals to or communication with the

Agency, namely conditions A, B, and C as

reproduced above. The

Agency also contends that Petitioner has failed to fully comply

with the remaining two conditions, specifically:

*petjtioner does note

that in 1979 the Village completed

construction of a new sanitary

sewer plant, and created an

eighteen year bonded indebtedness in an amount equal to $350,000,

requiring annual payments of $18,887. 50 in 1985, escalating to

$35,997.50 in 1996 (Petition, p.5). In the Response (p.2—3)

Petitioner indicates that the bonding occurred in 1978, that the

present annual expense is $28,850.00, and that the 1996 cost will

be $36,995. DO. In its Response Petitioner further notes that

Hampshire currently taxes at the maximum statutory rate of 25

for general corporate purposes and imposes no tax specifically

for water pur~oses,and that the overall tax rate for the village

for FY86 is

..

74..

---

—8—

D. Petitioner shall take all reasonable measures with

its existing equipment to minimize the level of barium in

its water supply

and

shall not allow the barium

concentration to exceed 2. 2 mg/l.

H. On or before March 30, 1981 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 Pollutign Co~trolBoard a variance

from the

1.0

mg/l maximum barium standard. The notice shall

state the average content of barium in samples taken since

the last notice

period

during which samples were taken.

(PCB 80—165, January 22, 1981, p. 3).

The Agency cit4 the two distribution system analyses of March

and April, 1985 (3.02 mg/l and 3.07 mg/l) as failure to comply

with condition 0. The Agency also questions compliance with

condition B on the basis that no copy of such notice has been

sent to the Agency since January, 1979. The Agency thereby

concludes that either Petitioner gave notice

and

violated 35 Ill.

Ada. Code 653.404(c) by failing to provide the Agency with

copies, or failed to give notice and violated 35 Ill. Ada. Code

606.201. For its part, Petitioner asserts that notices have been

regularly sent to its users (Petition, p.2; Response, p.1), but

admits that copies of such were first sent to the Agency as of

SUMMARY FINDINGS

Upon review of all the facts of record in this matter, the

Board finds that variance of limited extension, particularly with

conditions, is somewhat preferable to outright denial. By the

Agency’s own admission a limited extension variance should not

expose the consumers of Petitioner’s water to a significant

health risk. However, to assure that the health risk be at the

minimum possible, the Board conditions the extension such that

barium concentrations in the delivered water not exceed a maximum

of

2.2 mg/l.

The Board also finds that the costs associated with the

compliance alternatives presented by Petitioner are such that

immediate compliance would constitute an arbitrary or

unreasonable hardship. In so doing, the Board is giving

Hampshire the benefit of the doubt as to whether its hardship is

self—imposed. However, the Board shares the Agency’s concern

about long—term health risks

and

notes that Petitioner must

achieve compliance in a timely fashion. Accordingly, the Board

conditions the variance upon a complete review of compliance

alternatives and the submittal of a specific timetable for

attaining compliance.

The Board further finds that Petitioner has been derelict in

60-314

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—9—

existing variance. Accordingly, the Board will set the period of

variance extension to a single year, during which time Petitioner

may address questions raised about its good faith by fulfilling

the conditions of both the existing variance and its extension.

This Opinion constitutes the Board’s findings of fact and

ORDER

The Village of Hampshire is hereby granted a variance from

the barium limitation of 35 Ill. Ada. Code 604. 202 for its public

water supply, subject to the following conditions:

1. This variance begins upon the termination of the

variance granted in PCB 80—165 and expires on January 22,

1987.

2. As soon as feasible, but not later than July 1, 1986,

Petitioner shall submit to the Agency a report specifying

alternative methods by which compliance with the 1.0 mg/l

barium standard might be achieved. Such report shall

B. Blending of existing raw water with water grom a

new

C. Blending of raw waters from existing wells No. 5,

No.

4,

B. Lime water softening.

3. Based on its study of compliance alternatives,

Petitioner shall identify the most feasible compliance

method or methods. As expeditiously thereafter as is

practicable, but not later than October 1, 1986, Petitioner

shall submit to the Agency a report identifying this most

feasible method, or methods, and a complete program (with

increments of progress) for bringing its system into

compliance based upon the method(s).

4. Petitioner shall take all reasonable measures with its

existing equipment to minimize the level of barium in its

water supply and shall not allow the barium concentration at

any point of delivery to exceed 2.2 mg/I..

5. Every three months Petitioner shall send to each user of

its public water supply a written notice to the effect that

Petitioner has been granted a variance by the Pollution

Control Board from the

1.0

mg/l maximum barium standard.

06-315

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—10—

The notice shall state the average content of barium in

samples taken since the last notice period during which

samples were taken. Copies of all such notices shall be

filed with the Illinois Environmental Protection Agency,

pursuant to the Rules and Regulations of that Agency.

6.. Within forty—five days of the date of this Order,

Petitioner shall execute and forward to Mr. Wayne

~iemerslage, Enforcement Programs, Illinois Environmental

Protection Agency, 2200 Churchill Road, Springfield,

Illinois 62706, a Certificate of Acceptance arid Agreement to

be bound to all tercss and conditions of this variance. This

forty—five day period shall be held in abeyance for any

period this matter is being appealed. The form of this

certificate shall be as follows:

CERTIFICATION

I, (We),

—

having read the

Order of the Illinois Pollution Control Board, in PCB 85—114,

dated November 7, 1985, understand and accept the said Order,

realizing that such acceptance renders all terms and conditions

thereto binding and enforceable.

Petitioner

By: Authorized Agent

Title

Date

IT IS SO ORDERED.

Board Members John Marlin and Ted Meyer concurring, and

~3acob0. Dumelle and Bill Forcade dissenting.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above Opinion and Order as adopted

on the

___________

____

day of

~

1985, by a

voteof~~~~

(

Dorothy £4. urn, Clerk

Illinois Pollution Control Board