ILLINOIS POLLUTION CONTROL BOARD
September 13, 1989
UNITED CITY OF THE
)
VILLAGE OF YORKVILLE,
)
Petitioner,
v.
)
PCB 89—84
(Variance)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
DANIEL J. KRAMER APPEARED ON BEHALF OF THE PETITIONER.
BOBELLA GLATZ, APPEARED ON BEHALF OF THE RESPONDENT.
OPINION AND ORDER OF THE BOARD (by J. Marlin):
This matter comes before the Board on a petition filed by
the United City of the Village of Yorkville (Yorkville) on May
15, 1989 and amended on June 7, 1989. Yorkville is seeking an
extension of a prior variance from 35 Iii. Adm. Code 602.105(b),
Standards of Issuance and from 35 Ill. Adm. Code 602.106(b)
Restricted Status, but only to the extent those rules involve 35
Ill. Adm. Code 604.301(a), which concerns the maximum allowable
concentration (MAC) of radium in a public water system. The
extension is requested until May 9, 1992.
The petitioner waived its right to a hearing on this matter
and the Board received no objection from the public.
Consequently no hearing has been held. On June 14, 1989 the
Illinois Environmental Protection Agency (Agency) filed a
variance recommendation recommending that the requested variance
extension be granted subject to conditions.
Yorkville, which is located in Kendall County, owns and
operates a deep well water supply system. The system includes
two deep wells, one shallow well, pumps and distribution
facilities which serve a population of approximately 3,500 people
as well as commercial and industrial consumers.
The Agency in its Recommendation stated that the radium
water quality sampling results were as follows:
An analysis was reported to Petitioner on
January 25, 1984 of an annual composite of
four consecutive quarterly samples or the
average of the analyses of four samples
obtained at quarterly intervals.
The
analyses showed a radium—226 content of 5.6
103—4 3
2
pCi/l and the radium-228 content was
2.2
pCi/i. The combined radium—226 and radium—
228 content was therefore 7.8 pCi/i,
exceeding the 5 pCi/i standard. A second
analysis was reported to Petitioner on
December 8, 1986. The combined radium—226
and radium—228 content was 11.7 pCi/i, also
exceeding the 5pCi/i standard.
(Ag. Rec., p.3).
Additionally, the Board received a letter from Yorkville’s
city engineer/administrator, on June 7, 1989, outlining current
sampling frequencies. This letter stated that the city has been
taking monthly samples from the two deep wells since the first of
the year. The purpose of these samples is to establish a data
base from which to calculate the proper amount of shallow well
water to blend with the deep well water to achieve compliance
with the MAC for radium. The letter states:
The average Ra—226 and Ra—228 at Well #3 is
6.6 pCi/L and 3.2 pCi/L respectively, while
the Ra—226 at Well #4 is 5.4 pCi/L and 3.0
pCi/L respectively.
(June 7, 1989, Am. Pet.,
p.1).
The Board construes this letter an amendment to the
petition.
HISTORY
On May 9, 1986 the Board granted Yorkville a variance from
35 Ill. Adm. Code 602.105(a) and 602.106(b) as those Sections
relate to the combined radium standard ot Section 604.301(a)
subject to conditions. The variance expired May 9, 1989.
Yorkville was to investigate compliance methods and submit a
Compliance Report to the Agency’s Division of Public Water
Supplies nine months after the grant of the variance.
Construction of installations, changes or additions of
Yorkville’s public waterway were to begin at a time which would
bring Yorkville into compliance by May 9, 1989.
On April 16, 1987 the Board granted a request by Yorkville
to modify the May 9, 1989 variance. Yorkville requested an
additional 6 months in which to present a detailed plan for
compliance and subsequently apply for necessary permits needed to
implement a compliance alternative. This variance allowed
Yorkville to submit its Compliance Report 15 months after the May
9, 1986 grant of variance. Three months after submission of the
report Yorkville was to apply for necessary permits for
construction of installations needed for achieving compliance.
Construction was to begin at a time which would bring the city
103—44
3
into compliance by May 9, 1989. Effectively, this variance
extension required that the Compliance Report be submitted to the
Agency by August 9, 1987.
On October 13, 1987 Yorkville filed a Petition for Extension
of Radium Variance to obtain permits. Yorkville requested that
the time allowed between filing of the Compliance Report and the
application for construction permits be extended to 6 months.
This request if granted would have allowed the deadline for
filing for permits to be extended to February 9, 1988.
On October 15, 1987 the Board issued an Order stating that
the October 13th petition was deficient under Section 104.121 of
the Board’ s Procedural Rules. Also, the Board stated that the
petition failed to explain why Yorkville required a six month
extension of the prior variance. The Board required that the
deficiences be corrected within 45 days. The October 13, 1987
petition is set forth as Exhibit G to Yorkville’s instant
variance petition. It is significant to note that the 1987
petition asserts that Yorkville has committed to a compliance
plan of blending with shallow, low radium water and that the
compliance report had been timely filed with the Agency.
On January 21, 1988 the Board entered an order dismissing
the October 13, 1987 petition due to Yorkville’s failure to
correct the petition’s deficiencies.
On January 18, 1989 Yorkville filed another petition for
extension of prior variance.
On January 19, 1989 the Board issued an order finding the
January 18th petition deficient for failure to submit the
appropriate filing fee. Also, the Board stated that the
petitioner failed to submit a compliance plan to the extent
required by 35 Ill. Adm. Code 104.121(f). The Board granted a
21—day period for payment of the filing fee and a 45—day period
to include a compliance plan.
On March 27, 1989 the Board entered an order dismissing the
January 18th petition for failure to pay the required filing
fee.
On May 9, 1989 Yorkville’s variance, which was granted on
May 9, 1986, expired. On May 15, 1989 Yorkville filed the
Instant Petition for Extension of Prior Variance.
Yorkville’s petition explains the need for the instant
variance request as follows:
That due to the failure of treatment methods
namely the Iso—clear System (see Pet. p.2)
discussed by the United City of the Village
of Yorkville, and the inability to find an
adequate shallow water supply for blending
103—45
4
purposes, has prohibited the City from
complying with the deadline of May
9, 1989.
(Pet., p.6).
The May 15, 1989 petition states that Yorkville has explored
a substantial number of alternatives to bring the water system in
comliance with
the MAC for radium. Yorkville states that after a
costly exploratory drilling program a shallow well was recently
discovered which could provide an adequate water supply.
This
well woidd
provide water of sufficient quality and quantity to
mix with the deep well water and thus bring water quality into
compliance with the radium MAC. However, petitioner states that
the cost of the well and transmission pipeline is currently
beyond the City’s financial resources.
Additionally, Yorkville has begun negotiating with the City
of Piano for purposes of construction of a pipeline between the
two cities to obtain shallow water from Piano for purposes of
blending. However, the cost of this project is also beyond the
current financial capabilities of Yorkville.
Therefore Yorkville requests a 3 year 9tension to
simultaneously pursue two alternative plans.
One plan consists of the purchase of water from the city of
Plano and the construction of a transmission pipeline from Plano
to Yorkville. The second plan consists of the purchase of the
newly discovered well site and construction of pipeline and
treatment facilities.
On July 17, 1989 Yorkville filed a motion for expedited
decision in this matter. In that motion, Yorkville states that a
large subdivision is currently ready to install extensions of
city water mains and to provide service for model homes within 30
days.
The Agency in its Recommendation, filed June 14, 1989,
recommends that the Board grant a three year variance.
The Agency states that the risk associated with this
contaminant at levels found in Yorkville’s water is very low.
1 At one point in the petition, Yorkville requested an
extension of the completion deadline from May 9, 1989 to May 9,
1991 for purposes of compliance with radium
MAC.
Later in the
petition, Yorkville requested a variance extension for an
additional 2 year period of time. Finally, in summary, Yorkville
prays the Board grant a variance for a period of 3 years from May
9, 1989.
103—46
5
The Agency believes an incremental increase
in the allowable concentration for the
contaminant in question even up to a maximum
of four times the MAC for the contaminant in
question, should cause no significant health
risk for the limited population served by new
water main extensions for the time period of
this recommended variance.
(Ag. Rec., p.5).
The Agency believes that grant of the requested variance,
for the limited time period requested, would impose no
significant injury on the public or on the environment. The
Agency states that denial of the variance would be an arbitrary
and unreasonable hardship to the petitioners. The Agency states
that “failure of the Iso-Clear treatment) method was beyond
the control of the petitioner”. Denial of a variance from 35
Ill. Adm. Code 602.105 Standards for Issuance would require the
Agency to continue to deny construction and operating permits
until compliance is achieved.
FINDINGS
Considering all the facts, it is apparent that the failure
of the Iso—Clear system is not relevant to the issue of arbitrary
or unreasonable hardship in the instant variance request. While
the Board granted an extension of certain variance conditions (by
its April 16, 1987 Order) based in part on Yorkville’s desire to
explore the Iso—Clear system as a possible compliance option, it
is clear that Yorkville never committed to using the Iso—Clear
system as its chosen compliance plan.
As Exhibit D to the instant Petition, Yorkville attaches a
report by Baxter and Woodman, Environmental Engineers, dated
September 1, 1987. Yorkville refers to this report as its
Compliance Report. The report discusses various compliance
alternatives. In its discussion of the Iso—Clear process, it
states:
The Isoclear process very likely will not be
approved for use by the Illinois
Environmental Protection Agency and be
commercially available in sufficient time to
allow the City to comply with the required
deadline. It had been hoped that the testing
and documentation of this process would be
complete by this time.
Unfortunately,
however, the required testing has not yet
been started.
(Pet., Exh. D, p.22).
The report concludes:
103—47
6
It is our recommendation, based on the above
considerations, that the City of Yorkville
~proceed with Alternate 5:
blending of
shallow well water with the deep well water
to achieve a radium concentration of less
than 5 pCi/i in the finished water. It is
our opinion that the use of the shallow wells
will provide the City with a reliable source
of quality water, utilize a treatment process
which has low operational costs and requires
minimal operator attention, and eliminate the
disposal problems and safety hazards
associated with concentrated radium wastes.
To complete the shallow well blending
alternative by the May 9, 1989 deadline, we
recommend the City consider the following
schedule for inclusion in the Compliance
Report required by Illinois Pollution Control
Board....
(~I~~•
at 24).
Also attached to the instant petition, as Exhibit G, is the
October 13, 1987 petition of Yorkville. In that petition, which
was subsequently dismissed due to Yorkville’s failure to remedy
informational deficiencies of the petition, Yorkville states that
it has “timely filed its written Compliance Report to the Board
with a copy to the Agency) electing as its method of solving its
ex~.sting radium difficulty by drilling additional shallow wells”.
Therefore, as of the Fall of 1987, Yorkville had committed
to a plan to utilize shallow water wells and not the Iso—Clear
system as a method of achieving compliance. Failure of the Iso-
Clear system has no real bearing on Yorkville’s inability to
comply with the radium standards in accordance with the previous
variance.
The September 1, 1987 engineering report sets forth a
schedule to implement a blending plan and achieve compliance by
May 9, 1989. With respect to the proposed schedule of
implementation, the report cautions:
This schedule is very tight and provides
little buffer in the event the City
encounters delays in project financing or in
aquisition of well sites and easements. It
will be important that the financing and
legal aspects of this project proceed
simultaneously with the engineering to avoid
delays that may prevent project completion by
the deadline date.
103—48
7
(Pet., Exh. D, p.25).
It appears that exploratory drilling for a shallow water
source was not completed until sometime before June 24, 1988.
(Pet., Exh. E). Evidently, the drilling done prior to June 24,
1988 did not discover any suitable water supply, because the
instant petition states that Yorkville has “recently discovered”
a test well which has an adequate supply of water for the
purposes of blending. Apparently, this well is being considered
the basis of one of the currently proposed compliance
alternatives. The Board notes that when Iorkville encountered
timing problems with respect to carrying out the conditions of
the previously granted variance, it should have (and could have)
pursuedOnea
mightvarianceinfermodificationfrom one passageor
extensionin
the
muchPetitionearlier.that2
Yorkville was not all too anxious to implement a compliance plan:
That it is the belief of the United City of
the Village of Yorkville that said 1991
variance deadline would enable either
legislation to be adopted by the United
States Congress permitting an adequate
financial resource for the construction of
the necessary shallow water or pipeline
improvements, whichever alternative is
ultimately adopted by the City, or in the
alternative that legislation to raise the
current radium levels as set forth in the
attached Exhibit “H” shall have passed by
said time, greatly reducing the cost of
compliance herein.
(Pet., p.6).
The Board points out that Section 35(a) of the Act states:
The Board may grant individual variances
beyond the limitations prescribed in this
Act, whenever it is found, upon presentation
of adequate proof, that compliance with any
rule or regulation, requirement or order of
the Board would impose an arbitrary or
unreasonable hardship. However, the Board is
not required to find that an arbitrary or
unreasonable hardship exists exclusively
because the regulatory standard is under
2 The Board notes that Yorkville filed petitions on October
13, 1987 and January 18, 1989 which were both dismissed because
of Yorkville’s failure to comply with Board Orders.
103—49
8
review and the costs of compliance are
substantial and certain. (emphasis added).
A variance temporarily relieves a person from complying with
regulations or Orders of the Board while that person takes
actions to ultimately achieve compliance. Variances are not to
be utilized in succession indefinitely as a means of attaining
defacto permanent relief. Department of Army v. Illinois
Environmental Protection Agency, PCB 87—38, 81 PCB 257, 266
(September 17, 1987). Container Corporation v. Illinois
Environmental Protection Agency, PCB 87—183, slip op. at 3 (June
2, 1988). Compliance with Board regulations is an ultimate goal
of the Act. Monsanto Co. v. Illinois Pollution Control Board, 67
Ill. 2d 276, 367 N.E. 2d 684, 688 (1977).
Yorkville was first notified that its water exceeded radium
standards in January of 1984. Now, more than 5~years later,
Yorkville is still out of compliance. While it seems to have
selected a method to achieve compliance
—
blending with low
radium water
—
it still has not committed to a particular plan by
which the blending will be accomplished.
Given the circumstances of this case, the Board does not
find that Yorkville’s failure to comply with the terms of the
previous variance is completely justified. Yorkville has still
not even taken the minimal step of selecting a firm compliance
plan, which it committed to do by summer of 1987. The dilatory
actions of Yorkville should not be rewarded with an extension of
the variance as requested by Yorkville. To grant such a variance
under these circumstances would be an affront to the
municipalities which have diligently pursued compliance, often at
great expense. The Board has denied variances based upon the
reasoning that any hardship resulting from a denial would be
self—imposed due to the petitioner’s own delay in developing and
implementing an adequate compliance plan. e~
Vill~~of
Lemont
v. Illinois Environmental Protection Agepgy, PCB 86—54, 71 PCB
396, 399 (July 31, 1986). As a result, Yorkville’s request for a
three—year variance is denied.
However, it is also apparent that Yorkville has, at some
expense, attempted to locate a shallow water supply through
exploratory drilling. Those attempts were not successful, and as
a result, Yorkville appears to have encountered some timing
problems with implementing the conditions of the previous
variance.
Additionally, Yorkville states that “a large subdivision is
currently ready to install extension of City water mains, and to
provide service for model homes within the next ‘30’ days”.
The Agency asserts that a grant of a variance, even to the
extent requested by Yorkville, “should cause no significant
health risk for the limited population served by the new water
main extensions”. (Ag. Rec., p.5).
103—50
9
Although the Board believes that Yorkville has not justified
a variance extension to the extent requested, the Board finds the
circumstances to be such that a complete denial of a variance
would impose an arbitrary or unreasonable hardship. In reaching
this conclusion, the Board has essentially given Yorkville the
“benefit of the doubt” that the timing of its actions under the
previous variance were taken in good faith and not solely for the
purposes of delay in the hope that the radium standards would be
changed. Therefore, the Board will grant Yorkville a variance
which will enable the iasuance of permits to allow the extension
of water mains to the development which is referenced in
Yorkville’s July 17, 1989 Motion For Expedited Decision. The
Board reached a similar outcome in City of Geneva v. Illinois
Environmental Protection Agency, PCB 86—225, 79 PCB 45 (July 16,
1987).
Obviously, if Yorkville desires a variance which would
enable other extensions of its water mains or extensions beyond
the limited time frame of the variance granted herein, Yorkville
must pursue another variance request.
The variance granted today will expire December 31, 1989.
This should give sufficient time to obtain the necessary permits
to extend the water mains to the development referenced in
Yorkville’s motion for expedited decision.
A condition of the variance requires Yorkville to send
notices of the the variance to users of the water supply along
with the first set of water bills issued during the variance
period. A similar provision was recommended by the Agency and
was also a condition of the 1986 variance.
This Opinion constitutes the Board’s finding of fact and
conclusions of law in this matter.
ORDER
The United City of the Village of Yorkville (Yorkville) is
hereby granted variance from 35 Ill. Adm. Code 602.105(a),
Standards of Issuance, and 602.102(b), Restricted Status, as
those Sections relate to the combined radium standard set forth
by Section 604.301(a) only to the extent and for the purpose of
the issuance of permits to extend water main service to the
development referenced in Yorkville’s July 17, 1989 Motion for
Expedited Decision. The variance is subject to the following
conditions.
1) This variance shall expire December 31, 1989.
2) Along with the first set of water bills issued during
the period of this variance, Yorkville shall send to
each user of its public water supply a written notice of
the variance. The notice shall inform the public that
103—5 1
10
Yorkville has been granted a variance from Illinois
regulations (35 Ill. Adm. Code 602.105(a), Standards of
Issuance and 602.106(b), Restricted Status) to allow
limited extension of water main service despite the fact
that Yorkville’s water supply is not in compliance with
the 5 picocuries per liter standard for combined radium—
226 and radium—228 (35 Ill. Adm. Code 604.301(a)). The
notice shall also state the average content of combined
radium—226 and radiurn—228 of the most recent samples
taken from the water supply.
3) Within 45 days after the date of this Order, the United
City of the Village of Yorkville shall execute and send
to the Agency a Certificate of Acceptance of this
variance by which it agrees to be bound by the terms and
conditions contained herein. The executed Certificate
shall be sent to:
Illinois Environmental Protection Agency
Attention: Bobella Glatz
Enforcement Programs
P.O. Box 19276
2200 Churchill Road
Springfield, IL 62794—9276
The 45—day period shall be held in abeyance for any
period during which this matter is appealed. Failure to
execute and forward the Certificate within 45 days
renders this Variance void and of no force and effect.
The form of the certification shall be as follows:
CERTIFICATION
I, (We)
,
having read
the Order of the Illinois Pollution Control Board in PCB 89—84,
dated September 13, 1989, understand and accept the Order,
realizing that such acceptance renders all terms and conditions
thereto binding and enforceable.
Petitioner
Authorized Agent
Title
Date
Section 41 of the Environmental Protection Act, Ill. Rev.
Stat. 1987 ch. 111 ~ 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.
103—52
11
IT IS SO ORDERED.
Board members J.D. Dumelle, J.Theodore Meyer and B. Forcade
dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby cert~,ythat the abovp 0 nion and Order was
adopted on the /.i-~day of
_______________
1989, by a vote
of
Dorothy M. Gg~n, Clerk
/L~
Illinois Pollution Control Board
103—53
