ILLINOIS POLLUTION CONTROL BOARD
May 23,
1991
VILLAGE
OF
GARDNER,
)
Petitioner,
)
V.
)
PCB 91—21
(Variance)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
OPINION
AND
ORDER OF THE BOARD
(by J.
C. Marlin):
This matter comes before the Board on the February
1,
1991
filing by the Village of Gardner
(“Gardner”)
of a Petition for
Variance (“Pet.”).
Gardner seeks relief from 35 Ill.
Adm. Code
602.105(a),
“Standards for Issuance”,
and 602.106(b),
“Restricted
Status”, to the extent those rules relate to violation by
Gardner’s public water supply of the
5 picocuries per liter
(“pCi/i”) combined radjum-226 and radium-228 standard and the 15
pCi/i gross alpha particle activity standard of 35
Iii.
Adm. Code
Subtitle F.1
Variance is requested for three years.
The Illinois Environmental Protection Agency (“Agency”)
filed its Variance Recommendation (“Rec.”)
on March 8,
1991.2
The Agency recommends that variance be granted, subject to
conditions.
Hearing was waived and none has been held.
Based on the record before it, the Board finds that Gardner
has presented adequate proof that immediate compliance with the
Board regulations at issue would impose an arbitrary or
unreasonable hardship.
Accordingly, the variance will be
granted,
subject to conditions consistent with this Opinion and
as set forth in the attached Order.
1
The standard for combined radium was formerly found at 35
Ill.
Adm. Code 604.301(a); effective September 20,
1990 it was
recodified to 35
Ill. Adm. Code 611.330(a).
The standard for
gross alpha particle activity was formerly found at 35 Ill. Adm.
Code 604.301(b); effective September 20,
1990
it was recodified
to 35 Ill. Adm. Code 611.330(b).
(See,
Illinois Register, Volume
14,
Issue 40, October 5,
1990).
2
The Agency’s filings were accompanied by motions to file
instanter.
The motions were granted on March 14,
1991.
122—255
—2—
BACKGROUND
Gardner is a municipality located in Grundy County.
Among
other services, Gardner provides potable water supply and
distribution to a population of approximately 1322 residents and
33 industries and businesses
(Pet. ¶6).
Gardner’ water supply
system is a well system drawn from four wells,
two deep and two
shallow, plus pumps and distribution facilities (~. ¶8).
The
deepest well is the main source of the elevated combined radium
and gross alpha concentrations (~. ¶12).
The most recent analyses of Gardner’s water supply reported
a combined radium concentration of 15.5 pCi/i
(Rec.
¶11)
and a
gross alpha particle concentration of 21.1 pCi/i
(a.).
That
analyses was dated July 17,
1990.
REGULATORY FRAMEWORK
In recognition of a variety of possible health effects
occasioned by exposure to radioactivity, the United States
Environmental Protection Agency
(“USEPA”) has promulgated
a
maximum concentration limit for drinking water of
5 pCi/l
of
combined radium-226 and radium-228 and 15 pCi/l of gross alpha
particle activity.
Illinois subsequently adopted these same
limits as the maximum allowable concentrations under Illinois
law.
Pursuant to. Section 17.6 of the Illinois Environmental
Protection Act
(Ill. Rev.
Stat.
1989,
ch.
111
½,
par. 1017.6),
any revision of the
5 pCi/i standard by the USEPA will
automatically become the standard in Illinois.
The action that Gardner requests here is ~
variance from
the maximum allowable concentrations for either radium or gross
alpha particle activity.
Regardless of the action taken by the
Board
in the instant matter,
these standards will remain
applicable to Gardner.
Rather, the action Gardner requests
is
the temporary lifting of prohibitions imposed pursuant to 35 Ill.
Adm. Code 602.105 and 602.106.
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.
1989,
ch.
ill
¼, 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
122—256
—3—
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 any of the several standards for finished water supplies.
This provision is a feature of Illinois regulations not found in
federal law.
It is this prohibition which Gardner requests be
lifted.
Moreover, grant of the requested variance would not
absolve Gardner from compliance with the combined radium or gross
alpha particle activity standards,
nor insulate Gardner from
possible enforcement action brought for violation of those
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
¼,
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
(1977),
135
Ill.App.3d,
481 N.E.2d, 1032).
Only with such showing can the
claimed hardship rise to the level
of arbitrary or unreasonable
hardship.
Lastly,
a variance by its nature is a temporary reprieve
from compliance with the Board’s regulations
(Monsanto Co.
v.
IPCB
(1977),
67 Ill.2d 276,
367 N.E.2d 684), and compliance is to
be sought regardless of the hardship which the task of eventual
compliance presents an individual polluter
(u.).
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.
PREVIOUS VARIANCE AND COMPLIANCE PROGRAM
Gardner originally filed for a variance on April 2,
1985
(PCB 85-42) but this petition was withdrawn on June 27,
1985.
Following withdrawal of the petition, on September 30,
1987,
Gardner entered into a Letter of Commitment with the Agency.
In the Letter of Commitment Gardner obligated itself to achieve
full compliance on or before July 10,
1991
(Pet.
¶13).
Gardner
will be unable to achieve compliance on that date for the reasons
specified below.
Gardner has complied with the Letter of Commitment to the
extent that it has hired a professional engineer, filed an
Interim Compliance Report and a Detailed Compliance Report,
enacted an ordinance and sealed off certain drains
(Pet.
¶24).
Gardner has not complied with the deadlines contained in the
122—257
—4—
Letter of Commitment because the analyses of the prospective
methods of compliance has taken longer than expected
(Rec.
¶18).
Gardner has considered several alternatives, and the costs of
those alternatives,
for achieving compliance.
Those alternatives
include cooperative water systems (at least $1.1 million), deep
well blending
(at least $150,000 per well),
ion exchange
treatment (at least $1.2 million), reverse osmosis treatment
(at
least $1.8 million), and shallow well blending (at least $1.8
million)
(Pet. ¶15 and ¶24).
At this time, Gardner has not
determined which alternative will be implemented but prefers the
deep well blending option as the most cost efficient solution.
Gardner has hired outside consultants for review and evaluation
of the alternatives and for preparation of recommendations
(Pet.
¶17).
During the term of the proposed variance, Gardner proposes
to continue the quarterly sampling program and to, when feasible,
blend water using the new deep well(s).
In addition, Gardner
plans on a schedule which will begin construction no later than
one year from the grant of the variance and complete construction
no later than two years from grant of the variance (Pet.
¶26).
Before construction begins Gardner proposes to 1)
immediately
hire professional assistance to complete investigation of
compliance options,
2) complete the investigation within three
months of the grant of the variance,
3)
apply for all necessary
construction permits within six month from the grant of the
variance,
and
4)
advertise for bids within three months after the
issuance of each construction permit
(Pet.
¶26).
HARDSHIP
Gardner contends that denial of variance would constitute an
arbitrary or unreasonable hardship.
It notes, among other
matters, that:
Failure to obtain a variance means that all
construction within the petitioner’s service area
requiring the extension of the water supply system,
could not resume.
This hurts prospective home
purchasers as well as business developers and
Petitioner’s tax base.
(Pet.
¶28).
The Petitioner could be forced to proceed with the
design and construction of treatment facilities at its
well site which will probably be duplicitous or
unnecessary when blended water from its new well or
wells becomes available.
(Pet.
¶29).
The Agency also contends that denial of variance would
constitute an arbitrary or unreasonable hardship
(Rec.
¶20).
12 2—258
—5—
PUBLIC INTEREST
Although Gardner has not undertaken a formal assessment of
the environmental effect of its requested variance, it contends
that there will be
little., or no adverse impact caused by the
granting of variance
(Pet.
¶ 23).
The Agency contends likewise
(Rec.
¶16).
In support of its contention,
the Agency references
testimony presented by Richard E.
Toohey,
Ph.D. of Argonne
National Laboratory at the hearings held on July 30 and August 2,
1985 in R85-14, Proposed Amendments to Public Water Supply
Regulations,
35 Ill. Adm. Code at 602.105 and 602.106 and to
updated testimony presented by Dr. Toohey in the Board’s hearing
on the Braidwood variance, PCB 89-212.
(Rec.
¶15).
The Agency believes that while radiation at any level
creates some risk,
the risk associated with Gardner’s water
is
very low
(Rec.
¶14).
In summary, the Agency states:
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
of the public from grant of that variance.
In light of
the cost to the Petitioner of treatment of its current
water supply, the likelihood of no significant injury
to the public from continuation of the present level of
the contaminants in question in the Petitioner’s water
for the limited time period of the variance, and the
possibility of compliance with a new MCL standard by
less expensive means if the standard is revised upward,
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 drawn 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.
In so saying,
the Agency emphasizes that it continues to place
a high
priority on compliance with the standards.
(Rec.
¶29 and ¶30)
CONCLUSION
The Board finds that,
in light of all the facts and
circumstances in this case, denial of variance would impose an
arbitrary or unreasonable hardship upon Gardner.
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.
122—259
—6—
The Board notes that timely compliance by Gardner may be
affected by pending USEPA action to promulgate new standards for
radionuclides in drinking water.
USEPA recently proposed to
publish its Notice of Proposed Rulemaking
(“NPRN”)
in June 1991,
and expects to issue final action on new radionuclide standards
in April,
1993
(56 Fed. Reg. 18014, April 22,
1991).
New
radionuclide standards from USEPA could significantly alter
Gardner’s need for a variance or Gardner’s alternatives for
achieving compliance.
In recognition of this situation, the
Board’s variance will contain suitable tiinefraines to account for
the effects of.any USEPA alteration
(or notice of refusal to
alter)
of the radium or gross alpha standards.
Aside from these
changes in the schedule, the dates and conditions of this
variance follow the proposal of the Agency contained in its
Recommendation (Rec.
¶31).
Gardner is to bear in mind that today’s action is solely a
grant of variance from standards of issuance and restricted
status.
Gardner is not being granted variance from compliance
with either the radium or gross alpha particle standard, nor does
today’s action insulate Gardner in any manner against enforcement
for violation of these standards.
The variance is granted, with conditions,
for a period of
four years from the grant of variance or for two years after
USEPA action or until compliance is shown, whichever is earliest.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Petitioner, Village of Gardner,
is hereby granted variance
for its water system from 35 Ill. Adm. Code 602.105(a), Standards
of Issuance, and 602.106(b), Restricted Status,
as they relate to
the standards for radium and gross alpha particle activity in
drinking water of 35
Ill. Adm. Code.Subtitle F,
subject to the
following conditions:
(A)
For the purposes of this Order,
the date of USEPA
action shall consist of the earlier of the:
1)
Effective date on any regulation promulgated by
the U.S. Environmental Protection Agency (“USEPA”)
which amends the maximum concentration level for
combined radium, either of the isotopes of radium,
or the method by which compliance with a radium
maximum concentration level is demonstrated;
or
2)
Date of publication of notice by the USEPA that no
amendments to the
5 pCi/l combined radium standard
122—260
—7—
or the method for demonstrating compliance with
the
5 pCi/i standard will be promulgated.
(B)
Variance shall terminate on the earliest of the
following dates:
(1)
When analysis pursuant to 35 Ill. Adm. Code
611.720(d), or any compliance demonstration method
then in effect,
shows compliance with standards
for radium and gross alpha particle activity in
drinking water then in effect; or
(2)
May 23,
1995, or
(3)
Two
years following the date of USEPA action.
(C)
Compliance shall be achieved with any standards for
radium and gross alpha particle activity then in effect
no later than the date on which this variance
terminates.
(D)
In consultation with the Illinois Environmental
Protection Agency (“Agency”), Petitioner shall continue
its sampling program to determine as accurately as
possible the level of radioactivity in its wells and
finished water.
Until this variance terminates,
Petitioner shall collect quarterly samples of water
from its distribution system at locations approved by
the Agency.
Petitioner shall composite the quarterly
samples for each location separately and shall have
them analyzed annually by a laboratory certified by the
State of Illinois for radiological analysis so as to
determine the concentration of radium-226, radium-228,
and gross alpha particle activity.
At the option of
Petitioner the quarterly samples may be analyzed when
collected.
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
P.O. Box 19276
2200 Churchill Road
Springfield, Illinois 62794—9276
(E)
Within three months of USEPA action or 24 months after
this grant of variance, whichever is sooner, Petitioner
shall apply to the Agency at the address below for all
permits necessary for construction of installations,
changes or additions to the Petitioners’s public water
supply needed for achieving compliance with the maximum
allowable concentration for combined radium and gross
122—261
—8—
alpha particle activity,
or with any standards for
radium in drinking water then in effect:
Illinois Environmental Protection Agency
Division of Public Water Supply
Permit Section
2200 Churchill Road
Springfield,
Illinois 62794—9276.
(F)
Within
3 months after each ‘construction permit is
issued by the Agency, Petitioner shall advertise for
bids,
to be submitted within 60 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 the
Agency, at the address in condition (E), within 30 days
of each of the following actions:
1)
advertisement 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 of bids being accepted.
In any case, construction of all installations, changes
or additions necessary to achieve compliance with the
maximum allowable concentration of combined radium and
gross alpha particle activity, or with any standards
for radium and gross alpha particle activity in
drinking water then in effect,
shall begin no later
than
6 months after USEPA action.
Petitioner shall
complete construction no later than three years from
the grant of variance.
(H)
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 shall 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(b)
Restricted Status,
as they relate to
the radium and gross alpha particle activity standards.
(I)
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 shall send to each
user of its public water supply a written notice to the
effect that Petitioner is not in compliance with the
standards for radium and gross alpha particle activity.
The notice shall state the average content of radium
and gross alpha particle activity in samples taken
122—262
—9--
since the last notice period during which samples were
taken.
(J)
Until full compliance is achieved, Petitioner shall
take all reasonable measures with its existing
equipment to minimize the level of combined radium-226
and radium-228, ‘and gross alpha particle activity in
its finished drinking water.
(K)
Petitioner shall provide written progress reports to
the Agency at the address below every six months
concerning steps taken to comply with the paragraphs 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 45 days of the date of this Order, Petitioner shall
execute and forward to Stephen C.
Ewart,
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 be bound by all terms and conditions
of the Order of the Pollution Control Board in PCB 91-21 May
—,
1991.
Petitioner
Authorized Agent
Title
122—263
—10—
Date
Section 41 of the Environmental Protection Act,
Ill.
Rev.
Stat. 1989 ch.
111
½
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.
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was
adopted on the
~-~“
day of
___________________,
1991, by
a vote of
_____________
Dorothy N. 9~nn,Clerk
Illinois Po~/LutionControl Board
122—264
