ILLINOIS POLLUTION CONTROL BOARD

December 7,

1995

CITY OF OTTAWA,

Petitioner,

v.

)

 PCB 96—72

)

 (Variance

 Public Water Supply)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

Respondent.

OPINION

AND

ORDER OF THE BOARD

 (by R.C.

 Fleinal):

This matter is before the Board upon the filing on September

29,

 1995 by the City of Ottawa

 (City)

 of a petition for extension

of variance.

 The City requests extension of the variance granted

by the Board in PCB 90-10&.

 The City seeks relief from 35

 Iii.

Adm. Code 602.105(a),

 “Standards for Issuance”,

 and 602.106(b),

“Restricted Status”, but only to the extent those rules involve

35 Iii. Adm. Code 604.301

 (radium—226 and radium—228).

 The City

requests an extension of the variance for five years from

November 8, 1995,

 until November 8,

 2000,

 or until the United

States Environmental Protection Agency

 (USEPA) adopts revised

radium standards.

The Board’s responsibility in this matter arises from the

Environmental Protection Act

 (Act)

 (415 ILCS 5/1 et

 seq.

 (1994).)

The Board is charged there with responsibility of granting

 variance from Board regulations whenever it is found that

compliance with the regulations would impose an arbitrary or

unreasonable hardship upon the petitioner.

 (415 ILCS 5/35(a).)

The Illinois Environmental Protection Agency

 (Agency)

 is required

to appear in hearings on variance petitions.

 (415 ILCS 5/4(f).)

The Agency is also charged, among other matters, with the

responsibility of investigating each variance petition and making

a recommendation to the Board as to the disposition of the

petition.

 (415 ILCS 5/37(a).)

On November 6,

 1995 the Illinois Environmental Protection

Agency (Agency)

 filed its variance recommendation (Rec.)

instanter.

 The Agency recommends that the variance extension be

granted for relief from 35 Ill. Adm. Code 602.105(a),

 “Standards

 City

of Ottawa v. Illinois Environmental Protection

Acrency, PCB 90-100, November 8,

 1990,

116

PCB

29.

2

for Issuance”, and 602.106(a)2, “Restricted Status”, subject to

certain conditions.

 The City waived hearing and none was held.

For the following reasons, the Board finds that the City has

presented adequate proof that immediate compliance with the

Board’s regulations for “Standards for Issuance” and “Restricted

Status” would result in the imposition of an arbitrary or

 unreasonable hardship.

 Accordingly, the variance extension will

be granted, subject to conditions set forth in the attached

order.

BACKGROUND

The City of Ottawa is located in LaSalle County, Illinois.

The City provides potable water supply and distribution for

approximately 18, 000 residential,

 industrial, governmental, and

commercial utility customers.

 (Rec.

 at 3.)

 The City’s water

supply consists of four deep wells, storage tanks, pumps, and

distribution facilities.

 (Id.)

 The City is not part of

a

regional public water supply.

On March 5,

 1987 in docket PCB 86—179 the Board first

granted the City a two-year variance from 35 Ill.

 Adm. Code

602.105(a), Standards of Issuance, and from 35 Ill. Adm. Code

602

•

106(b), Restricted Status,

 for combined radium-226 and

radium-228.

 In docket PCB 88-180 the Board extended that

variance an additional two years until March

5,

 1991.

 In docket

PCB 90—100, the Board granted the City a third extension of

variance, which expired on November 8,

 1995.

 According to the

Agency, the City is not presently on restricted status for

exceeding any other contaminant.

 (Rec.

 at 5.)

The City claims to have complied with the conditions set

forth in the City’s most recent variance, PCB 90-100.

 (Pet. at

1-2.)

 For example, the City has collected and tested composite

quarterly samples, published public notices concerning its radium

variance, took all reasonable measures to minimize the radium

levels in its finished water,

 and submitted bi—annual progress

reports to the Agency.

 (Pet. at 1.)

REGULATORY

 FRAMEWORK

The instant variance request concerns two features of the

Board’s public water supply regulations:

 “Standards for Issuance”

and “Restricted Status”.

 These features are found at 35 Ill.

Adm. Code 602.105 and 602.106, which in pertinent part read:

 The Agency recommends variance from 35 Ill. Adm. Code

602.106(a), rather than 602.106(b)

 as requested by the City.

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.

 1991,

ch.

111

½,

pars.

1001 et seq.)

 (Act),

 or of this Chapter.

Section 602.106

 Restricted Status

a)

 Restricted status shall be defined as 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.

The principal effect of these regulations is to provide that

public water supply systems are prohibited from extending water

service, by virtue of not being able to obtain the requisite

permits, unless and until their water meets all of the standards

for public water supplies.

In determining whether any variance is to be granted, the

Act requires the Board to determine whether a petitioner has

presented adequate proof that immediate compliance with the Board

regulations at issue would impose an arbitrary or unreasonable

hardship.

 (415 ILCS 5/35 (a)

 (1994).)

 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

 (1st Dist.

 1977),

 135 Ill. App.

 3d 343,

 481 N.E.2d

1032.)

 Only with such a showing can the claimed hardship rise to

the level of arbitrary or unreasonable hardship.

A further feature of a variance is that it is, by its

 nature,

 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, except in certain

special circumstances, a variance petitioner is required, as a

condition to grant of variance, to commit to a plan that is

reasonably calculated to achieve compliance within the term of

the variance.

4

A grant of variance from “Standards for Issuance” and

“Restricted Status” does not absolve a petitioner from compliance

with the drinking water standards at issue,

 and does not insulate

a petitioner from possible enforcement action brought for

violation of those standards.

 The underlying standards remain

applicable to the petitioner regardless of whether variance is

granted or denied.

A standard for combined radium in drinking water was first

adopted as a National Interim Primary Drinking Water Regulation

(NIPDWR) by the USEPA in 1976.

 The standard adopted was 5 pCi/l

for the

sum

of the two isotopes of radium, radium-226 and radium-

228 (“combined radium”).

 Shortly thereafter Illinois adopted the

same limits.

 Although characterized as an “interim” limit, this

 standard nevertheless is the maximum contaminant levels under

both federal and Illinois law, and will remain so unless modified

by the USEPA3.

Since its original promulgation, the current radium standard

has been under review at the federal level.

 The USEPA first

proposed revision of the standard in October 1983 in an Advance

Notice of Proposed Rulemaking

 (48 Fed. Reg. 45502).

 It later

republished this advance notice in September 1986

 (51 Fed. Reg.

34836)

On June 19, 199l~USEPA announced a proposal to replace the

5 pCi/l combined radium standard by separate standards of 20

pci/i each for radium-226 and radium-228.

 This change was to be

promulgated by April

 1995, but this deadline was extended to

September 1995.

 However, Congress has prohibited funds to

promulgate final radiological standards for fiscal years 1994 and

1995.

 Mr. Joseph Harrison, Chief of the Safe Drinking Water

Division, USEPA Region V, announced that in light of the

projected proposal for the relaxed radium standard, the USEPA

would not force any municipality to spend funds to comply with

the federal combined standard.

COMPLIANCE

 PLAN

As directed in Board order PCB 90—100, the City has

completed work at Well 12 and remains on hold with regards to

Wells

 8 and 10.

 (Pet. at

2.)

 The City wishes to continue to

stay action with respect to Wells

 8 and 10 until after the

~ In anticipation of USEPA revision of the radium standard,

the legislature amended the Illinois Environmental Protection Act

at Section 17.6 in 1988 to provide that any new federal radium

standard immediately supersedes the current Illinois standard.

~ Publication occurred at 56 Fed. Reg.

 33050, July 18,

 1991.

5

proposed USEPA Standard is published to “allow additional time to

analyze the effects of the proposed Standard on the Petitioner’s

compliance plan”.

 (Id.)

According to the petitioner,

 if the USEPA increases the

combined radium standard to only

 9 pCi/i, the City’s current

blending efforts would be sufficient to achieve compliance.

(Id.)

HARDSHIP

The City contends that a 1990 estimation determined it would

cost approximately $140,000 to complete the rehabilitation of

Well

 8 and $155,000 to rehabilitate Well 10.

 (Pet.

 at 2.)

However,

 if the radium standards are increased slightly the

petitioner would be in compliance and there would be no reasons

for or benefits to completing those rehabilitations.

 (Id.)

The Agency believes that grant of the requested extension

would impose no significant injury to the public or to the

environment for the time period requested and that denial would

be an arbitrary or unreasonable hardship upon petitioners.

 (Rec.

at 10.)

 Denial of the requested extension of variance would

require the Agency to deny construction and operating permits

until compliance is achieved.

 (Id.)

 According to the Agency,

the result of placing the City of Ottawa on restricted status

would mean no new water main extension permits could be issued

and further development within the City would be prevented.

(Id.)

ENVIRONMENTAL IMPACT

The Agency cites the testimony presented by Richard E.

Toohey, Ph.D.,

 at the June 25,

 1985 hearing in PCB 85-54 and R85-

14, the Proposed Amendments to Public Water Supply Regulations,

35 Ill. Adm. Code 602.105 and 602.106, as well as the updated

testimony presented by Dr. Toohey in the Board’s hearing for a

variance requested by the City of Braidwood in

City

of Braidwood

v. IEPA,

 (June 21,

 1990), PCB 89-212,

 in support of the assertion

that the variance “should cause no significant health risk for a

limited population served by new water main extensions for the

time period of this recommended variance”.

 (Rec.

 at 8—9.)

CONSISTENCY WITH FEDERAL

LAW

The Agency states that the requested extension of variance

may be granted consistent with the Safe Drinking Water Act

(SDWA), PL 93—523, as amended by PL 96—502,

 42 U.S.C.

 300(f)

and

corresponding regulations

 (40 CFR Part 141) because the extension

6

of variance does not grant relief from compliance with the

national primary drinking regulations.

 (Rec. at 10-11.)

The

Agency states that granting a variance from the effects of

restricted status affects State and not federal law and

regulations;

 a variance from the effect of restricted status

would allow water main extensions,

 under the Act and Board

regulations.

 (Rec.

 at 11.)

 The Agency further states that the

recommended variance is not a variance from USEPA’s national

primary drinking water regulations and does suspend the effect of

the SDWA.

 (Id.)

 The Agency asserts that a federal variance is

not at issue and there should be no risk to the State of Illinois

of loss of primacy.

 (Id.)

 The Agency states that petitioner

will remain subject to the possibility of enforcement for

violations of the MCL for the contaminants in question under

state and federal law.

 (Id.)

 The Agency concludes that because

continuing progress is being made towards compliance while

awaiting final promulgation of the standard, it is unlikely that

the USEPA will object to the issuance of the requested variance.

(Id.)

CONCLUSION

Based upon the record, the Board finds that immediate

compliance with the “Standards for Issuance” and “Restricted

Status” regulations would impose an arbitrary or unreasonable

 hardship on the City of Ottawa.

 The Board also agrees with the

parties that granting this variance does not pose a significant

health risk to those persons served who will be affected by the

variance, assuming that compliance is timely forthcoming.

The Board notes that timely compliance by the City may be

affected by pending USEPA action to promulgate new standards for

radionuclides in drinking water.

 USEPA has recommended a

standard of 20 pCi/l for both radium-226 and radium-228.

Although final promulgation of these standards continues to be

delayed, there remains reasonable prospect that they will become

effective in the near future.

New radionuclide standards from USEPA could significantly

alter the City’s need for a variance or alternatives for

achieving compliance.

 In recognition of this situation, as

recommended by the Agency, the variance will contain suitable

time frames to account for the effects of any USEPA alteration

(or notice of refusal to alter) of the radium standards.

The Board further notes that Ottawa requests that the

instant variance commence as of November 8,

 1995, the date that

the prior variance terminated.

 (Pet.

 at 1.)

 Although the Board

does not ordinarily backdate the start of a variance (see e.g.,

DM1.

 Inc. v.

 IEPA, PCB 90—277, December 19,

 1991,

 128 PCB 245—9),

the Board has done so under unusual or extraordinary

circumstances.

 The Board believes that such circumstances exist

here.

 USEPA was required pursuant to consent decree5 to

promulgate the new radium standards no later than September 1995;

Ottawa could have reasonably expected that USEPA would meet this

deadline, and hence that the instant action would not have been

necessary.

 Furthermore, granting the variance retroactively for

the short time of

 29 days allows the original variance and

today’s extension to run consecutively.

 In turn, this alleviates

the requirement, pursuant to Section 602

106 (b), that the Agency

retroactively include Ottawa on its six-month list of restricted

water supplies for so short a period of time.

 Such listing could

lead to confusion among those consulting the list.

 For these

reasons the Board finds that a short retroactive grant of the

requested variance is warranted.

Finally, the Board emphasizes that today’s action is solely

a grant of variance extension from standards of issuance and

restricted status.

 The City is not granted a variance from

compliance with the combined radium standard, and today’s action

does not insulate the City in any manner against enforcement for

violation of these standards.

 As the Agency has observed,

granting this extension of variance should affect only those

users who consume water drawn from any newly extended water lines

(Rec. at 12), and therefore the variance should not affect the

status of the rest of the City’s population drawing water from

existing water lines

(Id.).

This

opinion

constitutes

the

Board’s

findings

fact

and

conclusions of law in this matter.

ORDER

The

City

Ottawa

hereby

granted,

effective

November

1995,

variance

from

Ill.

Adm.

Code

602.105(a),

“Standards

for Issuance”, and 602

106(b), “Restricted Status”, as they

relate to the standards for combined radium-226 and radium—228 in

drinking

water as set forth in 35 Ill. Adm. Code 611.330(a),

subject to the following conditions:

(A)

 For purposes of this order, the date of U.S.

Environmental Protection Agency

 (USEPA) action consists

of the earlier date of the following:

(1)

 Date of promulgation by the USEPA of any

regulation which amends the maximum concentration

level for combined radium, either of the isotopes

of radium, or the method by which compliance with

~Rec. at 8—9; see also Miller v. Browner, No. 89-6328—Ho (D.C.

Or.,

 1990), amendment entered February 22,

 1994.

8

a radium maximum contaminant level is

demonstrated; or

(2)

 Date of publication of notice by the USEPA that no

amendments to the

 5 pCi/i combined radium standard

or the method for demonstrating compliance with

the

 5 pCi/l standard will be promulgated.

(B)

Variance

terminates

the

earliest

the

following

dates:

(1)

Two

years following the date of USEPA action;

or

(2)

 November 8, 2000; or

(3)

 When analysis pursuant to 35 Iii. Adm. Code

611.720, or any compliance with standards then in

effect, shows compliance with standards for radium

in drinking water then in effect.

(C)

 In consultation with the Illinois Environmental

Protection Agency (Agency), petitioner shall continue a

sampling program to determine as accurately as possible

the level of radioactivity in its wells and finished

water.

 Until this variance expires, petitioner shall

collect quarterly samples of water from the

distribution system at locations approved by the

Agency.

 Petitioner 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 radium-226 and radiuxn-228.

 At the

option

petitioner,

the

quarterly

samples

may

analyzed when collected.

 The results of the analyses

shall be reported within 30 days of receipt of each

analysis to:

Illinois

Environmental

Protection

Agency

Compliance Assurance Section

Drinking

Water

Quality

Unit

Bureau of Water

P.O. Box 19276

Springfield,

Illinois

62794—9276

(D)

 Within three months of USEPA action, petitioner shall

apply to the Agency at the address below for all

permits necessary for the construction, installation,

changes or additions to petitioner’s public water

supply needed for achieving compliance with the MCL for

combined radium or with any other standard for radium

in drinking water then in effect:

9

Illinois Environmental Protection Agency

Public Water Supply System

Permit Section

2200 Churchill Road

Springfield, IL 62794—9276

(E)

 Within three months of USEPA action and 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,

Division

Public

Water

Supplies,

within

 days, of each of the

following actions:

 1) advertisements for bids,

2)

names of the successful bidders, and

 3) whether

petitioner accepted the bids.

(F)

 Construction allowed on said construction permits shall

begin

within

reasonable

time

 bids being accepted,

but in any case, construction of all installations,

changes or additions necessary to achieve compliance

with the MCL in question shall be completed no later

than two years following USEPA action.

 One year will

be necessary to prove compliance.

(G)

 Pursuant to 35 Ill. Adm. Code 611.851(b)

 (formerly 35

Ill. Adm. Code 606.201), in its first set of water

bills

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 contaminants in question in samples taken since

the last notice period during which samples were taken.

(H)

 Pursuant to 35 Ill. Adm. Code 611.851(b)

 (formerly 35

Ill. Adm. Code 606.201),

 in the 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

written

notice

 to the effect that

petitioner has been granted by the Illinois 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 MCL

standard in question.

(I)

 Until full compliance is achieved, petitioner shall

take all reasonable measures with its existing

10

equipment to minimize the level of contaminants in its

finished drinking water.

(J)

 Petitioner shall provide written progress reports

to the Agency at the address below every six

months concerning steps taken to comply with the

paragraphs C,

D,

E,

 F, G and H 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

IT IS SO ORDERED.

If the City of Ottawa chooses to accept this extension of

variance subject to the above order, within forty—five days of

the date of this order, the City of Ottawa shall execute and

forward to:

Stephen

 Ewart

Division of Legal Counsel

Illinois

Environmental

Protection

Agency

2200 Churchill Road, P.O. Box 19276

Springfield,

Illinois

62794—9276

a Certificate of Acceptance and agreement to be bound to all

terms and conditions of the granted variance.

 The 45—day period

shall be held in abeyance during any period that this matter is

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 this variance is

granted.

 The form of the certificate is as follows.

(We),

hereby

accept and agree to be bound by all terms and conditions of the

order of the Illinois Pollution Control Board in PCB 96—72,

December 7,

 1995.

Petitioner

Authorized Agent

Title

11

Date

Section

the

Environmental

Protection

Act,

(415

ILCS

5/41

(1994)),

provides

for

appeal

final

orders

the

Board

within

days

the

date

service

this

order.

The

Rules

of the Supreme Court of Illinois establish filing requirements.

(See also 35 Ill.

 Adin.

 Code 101.246, Motion for Reconsideration.)

Dorothy

Gunn,

Clerk

the

Illinois

Pollution

Control

Board,

hereby

certi

that

the

above

op-nion

and

order

was

adopted

the

__________day

_______________________,

 1995,

by a vote of

?~

—o

Dorothy

G)~fmn, Clerk

Illinois

Po~ution

Control

Board