ILLINOIS POLLUTION CONTROL BOARD
January
11,
1990
VILLAGE OF CHENOA
Petitioner,
v.
)
PCB 89—139
(Variance)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
OPINION AND ORDER OF THE BOARD
(by R.
C. Flemal):
This matter
comes before the Board on an Amended Petition
for Variance (“Amended Pet.”)
filed September
28,
1989 by the
Village of Chenoa
(“Chenoa”).
Chenoa seeks extension of variance
from 35 Iii.
Adm.
Code 602.105(a)
“Standards For
Issuance” and
602.106(b)
“Restricted Status”
to the extent those rules
relate
to violation by Chenoa’s public water supply of the 5 picocuries
per liter
(“pCi/i”) combined
radiurn—226 and radium—228 standard
of 35
Iii.
Adm.
Code 604.301(a) and the
15 pCi/l gross alpha
particle activity standard of
35
Ill.
Adm. Code 604.302(b).
The
variance is requested
for a period of four years from the date
variance
is granted.
Based on the record before
it, the Board finds
that Chenoa
would
incur an arbitrary or unreasonable hardship
if variance was
denied.
Accordingly,
the variance will be granted, subject
to
conditions.
PROCEDURAL HISTORY
On September
8,
1989 Chenoa filed a Petition
for Variance.
On September
28, 1989 Chenoa filed an Amended Petition.
Hearing
was waived and no hearing has been held.
On November
13,
1989
the Illinois Environmental Protection Agency
(“Agency”)
filed a
Variance Recommendation
(“Recommendation”)
in support of grant
of
variance subject
to conditions as proposed by Chenoa.
Chenoa has sought
no variances from regulations governing
public water supplies prior
to the instant request
(Recommendation at par.
3).
1117—7!
—2—
BACKGROUND
Chenoa
is
a municipality located
in McLean County.
Among
other services,
Chenoa provides
a potable public water supply
derived from two deep wells and two shallow wells and supplied
through
a system which includes aeration,
settling, chlorination,
filtering,
pump, elevated tank,
and distribution facilities
(Amended
Pet.
at
par.
12).
The system provides water
to
2,000
residents and
to
20
industries and businesses employing
approximately 300 people
(Id.
at par.
10).
An analysis of
a quarterly sample of the radium isotopes was
reported
to Chenoa on August
5,
1986;
this analysis showed
a
radium—226 content of 7.8 pCi/i and a radium—228
content of
5.4
pci/i,
for a combined value of
13.2 pCi/i
(Recommendation at par.
10).
A subsequent analysis of a composite of
four consecutive
quarterly samples received on November 30, 1987 showed
a
radium—
226 content of 7.0 pCi/i
and a radium-228 content
of
7.2 pCi/l,
for
a combined content
of
14.2 pCi/i
(Id.).
Based upon these
analyses, Chenoa was notified of placement on restricted status
by letter from the Agency dated March
14,
1989
(Id.
at par.
11).
The restricted status pertains only
to exceedance
of the
combined radium standard.
A single sample collected on July
12,
1989 showed a gross
alpha activity of
22.0 pCi/l.
Chenoa has not been placed on
restricted status based on
this single sample.
However,
the
Agency opines that
if
a single sample can be considered
a
violation sufficient
to enable Chenoa
to seek variance,
then
variance from restricted status as
it relates
to gross alpha
activity would also be appropriate (Recommendation at par.
12).
REGULATORY FRAMEWORK
In recognition of a variety of possible health effects
occasioned
by exposure to radioactivity,
the U.S. Environmental
Protection Agency has promulgated maximum concentration limits
for drinking water of
5 pCi/i
of combined radium—226 and radium—
228 and
15 pCi/l
for gross alpha particle activity.
Illinois
subsequently adopted these same limits as the maximum allowable
concentrations under
Illinois
law.
The action that Chenoa requests here is not variance from
these two maximum allowable concentrations.
Regardless
of
the
action taken
by the Board in the instant matter,
these standards
will remain applicable
to Chenoa.
Rather,
the action Chenoa
requests
is the temporary lifting of prohibitions
imposed
pursuant
to
35
111.
Adm. Code 602.105 and 602.106.
In pertinent
part these Sections read:
1O7-~72
—3—
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. lllL pars.
1001 et
seq.)
(Act), or
of
this Chapter.
Section 602.106
Restricted Status
a)
Restricted status shall be defined by the Agency
determination pursuant
to Section 39(a)
of the
Act and Section 602.105,
that
a public water
supply facility may no longer
be issued a
construction permit without causing
a violation
of the Act or
this Chapter.
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.
c)
The Agency shall notify
the owners or official
custodians of supplies when the supply
is
initially placed on restricted status by the
Agency.
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 Chenoa requests be
lifted.
Moreover,
as Chenoa properly notes
(Amended Pet. at par.
46), grant of the requested variance would not absolve Chenoa
from compliance with the combined radium and gross alpha particle
activity standards,
nor insulate Chenoa from possible enforcement
action brought
for violation of those standards.
In consideration of any variance,
the Board is
required
to
determine whether
the petitioner
would suffer an arbitrary or
unreasonable hardship
if required
to comply with the Board’s
regulations at issue
(Ill.Rev.Stat.l987,
ch. 1ii~, par.
1035(a)).
It
is normally not difficult to make
a showing that
compliance
with regulations involves some hardship,
since
compliance with regulations usually
requires some effort and
expenditure.
However, demonstration of such simple hardship
alone
is insufficient
to allow the Board
to find for
a
1117—73
—4—
petitioner.
A petitioner must go further by demonstrating that
the hardship resulting from denial of variance would outweigh the
injury of the public from a grant of
the petition
(Caterpillar
Tractor
Co.
v.
IPCB
(1977),
48 Iii.
App.
3d
655, 363 N.E.
2d
419).
Only with such showing can hardship rise to the level of
arbitrary or unreasonable hardship.
Moreover, 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
(Id.).
Accordingly,
a variance petitioner
is required,
as
a condition
to
grant of variance,
to commit to
a plan which
is reasonably
calculated
to achieved compliance within the term of
the
variance.
HARDSHIP
Chenoa believes that
a requirement
to come into
immediate
compliance would impose an arbitrary or unreasonable
hardship.
Chenoa and the Agency both note that by virtue of Chenoa’s
inability
to receive permits
for water main extensions, any
economic growth dependent on those water main extensions would
not be allowed.
Chenoa contends:
Failure to obtain
a variance would mean that all
construction within 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.
(Amended Pet.
at par.
40).
Among facilities which Chenoa views as currently requiring water
main extensions are a McDonald’s Restaurant and a truck stop
located at the junction of
1—55 and Rte.
24
(Id.
at
par.
13).
Chenoa also asserts that there
is great need for expansion
of
its water distribution system to serve the domestic and fire
protection requirements of
the local population
(Amended Pet.
at
par.
41).
Lastly,
Chenoa contends that
the hardship resulting
from denial of
the requested variance would outweigh the injury
of the public
(see below), and thus
rises
to the level of
arbitrary or unreasonable hardship
(Id.
at par.
42).
The Agency
agrees
that denial of variance would constitute an arbitrary or
unreasonable hardship (Recommendation at
par.. 21).
107—74
—5—
PUBLIC INJURY
Although Chenoa has not undertaken a formal assessment of
the environmental effect of
its requested variance,
it contends
that extension of
its watermains will not cause any significant
harm to the environment
or
to the people served by the potential
watermain extensions
(Amended Pet. at par.
29).
The Agency
contends
likewise (Recomendation at par.
20).
In support of
these contentions, Chenoa and the Agency reference testimony
presented by Richard
E.
Toohey,
Ph.D.
and James Stebbins, Ph.D.,
both of Argonne National Laboratory,
at the hearing held on July
30 and August
2,
1985
in R85-l4, Proposed Amendments
to Public
Water Supply Regulations,
35
Ill.
Adm. Code at 602.105 and
602.106.
The Agency believes that while radiation at any level
creates some risk,
the
risk associated with Chenoa’s water
is low
(Recommendation at par.
15).
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
the
MAC
standard,
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.
(Recommendation
at par.
28 and
29).
107—75
—6—
COMPLIANCE PROGRAM
Chenoa
intends to achieve compliance with the combined
radium and gross alpha particle activity standards through use of
a reverse osmosis treatment unit (Amended Pet. at par.
22).
An
outside consultant has been
retained to prepare plans and
specifications for the unit
(Id.
at par.
23).
Chenoa estimates
that a total of
30
to 36 months will
be necessary to fully
implement this compliance program, including 18 months
involved
in the construction phase
(Id. at
par.
22,
27).
Chenoa has also considered various other compliance options,
including lime or lime—soda softening and ion exchange softening
(Amended Pet.
at par.
32—33).
However, Chenoa rejects these
alternatives as being unnecessarily costly and presenting
potential health and disposal problems
(Id.).
CONSISTENCY WITH FEDERAL LAW
The Agency believes that Chenoa may be granted variance
consistent with the requirements of
the Safe Drinking Water Act
(42 U.S.C.
§300(f)) and corresponding regulations because the
requested relief
is
not variance from a national primary drinking
water regulation (Recommendation
at
par.
23).
The Agency further
notes
that
“until very recently,
the
Agency believed that USEPA might well object to any variance
extending beyond September
30,
1993”
(Recommendation at par.
27).
However, USEPA policy,
in part occasione~by a proposed
change
in the federal combined radium standard
,
apparently
is
now
such that the USEPA does not propose to object to longer
variances if a community can demonstrate that
it
is making good
faith,
expedient efforts towards compliance and that
the
community’s construction schedule
is the most appropriate
considering expected promulgation of
the new standards.
~ There
is currently a proposal before
the USEPA
to revise the
radium standard to
5 pCi/i
for each of
the
two
radium
radionuclides,
rather than
for their
sum.
Final action on these
proposed new standards is currently expected in December 1991.
These standards would also simultaneously become Illinois
standards pursuant
to Section 17.6 of the Illinois Environmenal
Protection Act.
The Board
notes
that,
based on
the currently
available analyses of both radium—226 and radium-228,
Chenoa
would still be out of compliance with the proposed revised
standards.
107—76
—7—
CONCLUSION
The Board
finds
that,
in light of all the facts and
circumstances of this case, denial of variance would impose an
arbitrary or unreasonable hardship upon Petitioner.
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.
On the matter of variance related
to gross alpha particle
activity,
the Board notes
that it normally does not grant
variance where
there
is no showing
of violation.
The single
available analysis of gross
alpha particle activity
is
insufficient
to show violation,
since, pursuant
to
35
Iii. Adm.
Code 605.105(a),
compliance
with this standard
is
to be
determined based on the analysis of an annual composite of four
consecutive quarterly samples or the average of the analyses of
four samples obtained at quarterly intervals.
Nevertheless,
the
Board believes that the instant matter presents a special
circumstance wherein variance
is warranted.
Gross alpha particle
activity
is strongly correlated with radium concentration,
and,
given the high radium concentration,
there
is thus good
reason to
believe that
further analyses
of gross alpha particle activity
would confirm the elevated level shown
in the single sample.,
Moreover,
both the hardship demonstration and
the compliance
program herein directed toward radium would be the same should
the gross alpha particle activity non—compliance
be confirmed.
For Chenoa to have to thereby essentially
repeat
the
instant
pleading after confirmation thorough additional analysis would
constitute
a duplicative and useless exercise.
On the matter of the term of variance,
the Board
notes that
Chenoa commits
to having compliance facilities operable within a
period of
36 months,
but asks for
a 48-month variance.
The Board
believes that the requested term of variance
is appropriate given
the requirement that four quarterly samples are necessary to
demonstrate compliance;
these samples can only reasonably be
collected after
the compliance facilities are operable.
This Opinion constitutes
the Board’s findings of
fact and
conclusions of law in this matter.
ORDER
1.
Petitioner,
the Village of Chenoa,
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
5 pCi/l combined radium—226 and radium—
228 standard of
35
Ill.
Adm. Code 604.301(a) and the
is
pCi/i gross alpha particle activity standard of
35
Ill. Adm.
Code 604.301(b)
(hereinafter
the “contaminants in
107—7 7
—8—
question”),
subject to the following conditions:
(A) Compliance shall be achieved with the maximum allowable
concentrations of
the contaminants
in question no later
than four years from the date of this Order.
(B)
This
variance expires
four years from the date of this
Order
or
when
analysis
pursuant
to
35
Ill.
Adm.
Code
605.104(a)
shows compliance with the standards
for the
contaminants
in question, whichever occurs first.
(C)
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 its 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 anaiysis
so as
to determine
the concentration of
the contaminants
in question.
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 analysis
to:
Illinois Environmental Protection Agency
Compliance Assurance Section
Division of Public Water Supplies
2200
Churchill
Road
Springfield,
Illinois 62794—9276
(D) Within three months
of the grant
of this
variance,
Petitioner shall submit evidence to the Agency at the
address below that Petitioner has secured professional
assistance from an outside consultant
(as described
in
Paragraph 23 of the Amended Petition).
Illinois Environmental Protection Agency
Division of Public Water Supply
Field Operations
Section
2200 Churchill Road
Springfield,
Illinois 62794—9276.
(B) Within ten months
of this grant
of variance,
Petitioner
shall complete investigation of compliance methods,
including those treatment
techniques described
in the
Manual
of Treatment Techniques
for Meeting
the interim
Primary
Drinking
Water
Regulations,
USEP—A,
May
1977,
EPA—600/8-77—005, and submit
to the Agency at
the
107— 78
—9—
address
in
(D)
a detailed Compliance Report showing how
compliance shall
be achieved within the shortest
practicable time,
but
no later than four years from the
date of grant
of this variance.
(F) Within twelve months of
this grant of variance, unless
there has been a written extension by the Agency,
Petitioner
shall apply to the Agency at
the address
below for all permits necessary for construction of
installations,
changes, or additions
to Petitioner’s
public water supply needed
for achieving compliance with
the maximum allowable concentrations for the
contaminants
in question.
Illinois Environmental Protection Agency
Division of Public Water Supply
Permit Section
2200 Churchill Road
Springfield,
lilinois 62794—9276.
(G) Within three 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.
Petitioner
shall accept appropriate bids within
a reasonable time.
Petitioner shall notify
the Agency
at
the address
in condition
(D)
of each of the following
actions:
1)
advertisement for bids,
2)
names of
successful bidders,
and
3)
whether Petitioner accepted
the bids.
(H) 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
the
contaminants in question shall begin
no later
than
eighteen months from this grant
of variance and shall
be
completed no later
than three years from this grant of
variance.
(I) Pursuant
to
35
Ill. Adm. Code 606.20i,
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.
Admn.
Code
602.105(a) Standards of Issuance and 35
Ill.
Adm.
Code
602.106(b)
Restricted Status,
as they relate
to the
contaminants
in question.
107—79
—10—
(J) 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,
Petitioner shall send to each user of
its public water supply a written notice to the effect
that Petitioner
is not in compliance with standards
for
contaminants
in question.
The notice
shall state the
average content of the contaminants in question
in
samples taken since
the last notice period during which
samples were taken.
(K) Until full
compliance
is achieved, Petitioner shall take
all reasonable measures with its existing equipment
to
minimize the level of
the contaminants
in question
in
its finished drinking water.
(L) Petitioner shall provide written progress reports to the
Agency at the address
in condition
(D)
every six months
concerning steps
taken
to comply with this Order.
Progress reports shall quote each of the above
paragraphs and immediately below each paragraph state
what steps have been taken to comply with each
paragraph.
2)
Within
45 days of the date of this Order,
Petitioner shall
execute and forward to Bobella Glatz,
Enforcement Programs,
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:
107—8
1)
—11—
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 89—139, January 11,
1990.
Petitioner
Authorized Agent
Title
Date
Section
41 of the Environmental Protection Act,
Ill. Rev.
Stat. 1987
ch. lii
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 Members Jacob
D.
Dumelle and Bill Forcade dissented.
I,
Dorothy M. Gunn, Clerk of
the Illinois Pollution Control
Board, hereby certify that the abov
Opinion and Order was
adopted on the
/t~
day of
__________________,
1990, by a
vote of ó-~
.
6’
Illino
on Control Board
107—8 1
