ILLINOIS POLLUTION CONTROL BOARD

August 9, 1990

TOWN OF CORTLT~ND,        

)

Petitioner,

v.

)

PCB 90—43

(Variance)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

OPINION AND ORDER OF THE BOARD (by R.C. Flemal):

This matter comes before the Board upon the filing by the

Town of Cortland (“Cortland”) of a Petition for Variance (“Pet”)

on March 29, 1990. Cortland seeks variance 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 Cortlarid’s public water supply of the 5 picocuries per liter

(“pCi/i”) combined radium—226 and radium—228 standard of 35 Ill.

Adm. Code 604.301(a). The variance is requested for a period of

five years from the date variance is granted.

On June 14, 1990 the Illinois Environmental Protection

Agency (“Agency”) filed a Variance Recommendation (“Rec.”) ~.n

support of grant of variance subject to conditions. The Agency’s

recommended conditions are similar to those proposed by Cortlanc3

(Pet, at par. 31).

Based on the record before it, the Board finds that Cortland

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.

Cortland has neither sought nor received any prior variance

relating to public water supplies prior to the instant action.

BACKGROUND

Cortlarid is a community located in east—central DeKalb

County. Among other services, Cortland provides a potable public

water supply derived from two wells. Cortland provides water to

a population of 133 residential, industrial, and commercial

utility customers representing some 400 (Pet. at 

par

10).

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Cortland was first advised of the high radium content in its

water supply by letter from the Agency dated January 9, 1990, and

was notified of placement on restricted status by letter from the

Agency 

dated January 11, 1990 (Pet, 

oar. 15). The AOency

based its determination on samolino results which showed a

combined radium content o~8.1 oCi/l (Pec. at oar. 10). ‘lore

recent results from samples collected in January 1990 showed

(Pet, at par. 18):

(DC1/l)

Ra—226  Pa—228 Combined

Well No. 1         

4.0

3.2

7.2

Well No. 2          

5.1

2.4

7.5

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/i of

combined radium—226 and radium—228. Illinois subsequently

adopted this same limit as the maximum allowable concentrations

under Illinois law. Pursuant to Section 17.6 of the Illinois

Environmental Protection Act (Ill. Rev. Stat. 1989, ch. 1111/2,

par. 1017.6), any revision of the 5 pCi/l standard by the USEPA

will automatically become the standard in Illinois.

The action that Cortland requests here is not variance from

the maximum allowable concentration for radium. Peuer-9~e~sof

the action taken by the

Hoard in the instant matter, thi~

standard will remain amolicable to Cortlanc~. Rather, ~

acf:ion

Cortland requests is the temporary lifting of orohihitions

imoosed pursuant to 35 Iii.

Adm. Code 602,105 and 602.106.

pertinent part these Sections read:

Section 602.105

Standards for Issuance

a) The Agency shall not grant any construction

operating permit recuired by this Part 

unless the

applicant submits adequate proof that the public

water sunoly will be constructed, modified or

operated so as not to cause a violation of the

Environmental Protection Act (Ill. Fey. Stat.

1991, cb. lll~ pars. 1001 et seq.) (Act), or of

this Chapter.

Section 602.106  

Restricted Status

b) The Agency shall oubi ish 

and make available to

the public, 

at intervals of

not more than six

months, a comorehensive and up—to—date list of

11 !~~n

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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 recuisite 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 Cortland requests be

lifted. Moreover, grant of the requested variance would not

absolve Cortland from compliance with the combined radium

standard, nor insulate Cortland 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.

iii~-h~oar. 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.Aop.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 (Id.).

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.

COMPLIANCE PROGRAM

Cortland has retained the services of an outside consultant

to assist it in reviewing and evaluating compliance alternatives

(Pet, at par. 22). Among alternatives under consideration are

(Pet. at par. 21):

a. Construction of a new well into a low radium content

groundwater source to be used

1.  for blending purposes with existing wells, or

as primary water supply

114—51

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b. Construction of treatment facilities in order to

oroperly treat all water suomlied by the existinn deep

wells.

Due

to the recentness of discovery

of elevated rad jim 

Cortland’s water supoly, Cortland has not yet been able to qather

all the information necessary to completely assess these

alternatives. Nevertheless, Cortland presently anticipates

implementation of alternative a., above (Pet. at oar. 23).

Additional uncertainty arises due to current review of the

combined radium standard by the USEPA (Rec. at oar. 14). Among

alternatives which the USEPA is apparently considering is a 5.0

pCi/i standard for each of the two radium isotooes 

(Pet. 

at par.

36). Should this alternative be implemented, Cortland’s most

effective compliance program miqht differ substantially from a

compliance program needed to comply with the current standard.

Uncertainties notwithstanding, Cortland commits to a

schedule of compliance with the following benchmarks (Pet. at

par. 31):

1) Within three months following grant of variance:

Initiate program of qroundwater resource investigation.

2) Within eighteen months following grant of variance:

Preparation of Compliance Report showing how compliance

will be achieved in the shortest practicable time.

3) Application for necessary permits and advertisement for

bids within standard timeframes following 2).

4) Within 3

1/2 years following 

grant of variance:

Initiation of all necessary construction.

5) Within five years following grant of variance:

~chievement of conoliance

HARDS~-1IP

Cortland believes that a requirement to come into immediate

compliance would impose an arbitrary or unreasonable hardship.

Cortland and the Agency both note that because of Cortland’s

inability to receive permits for water 

main extensions, any

economic growth dependent on those water

main extensions would

not be allowed.

Lastly, Cortland contends that the hardshio resultinu

from

denial of the requested variance would outwe igh

the injury 

of the

public (see below). Cortland thus believes that the hardship

rises

to

the level of arbitrary or unreasonable hardship (Pet..

at par. 32). The Agency agrees that

denial 

of var

iance would

11

~

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constitute an arbitrary or unreasonable hardship (Rec. at par.

21)

PUBLIC INJURY

Although Cortland 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 for the limited time period of the requested

variance (Pet, at par. 28). The Agency contends likewise (Rec.

at par. 16). In support of these contentions, Cortland 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 P85—14,

Proposed ~mendments 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 Cortland’s water is

low (Rec. at par. 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

the MAC standard due to blending or new shallow

wells, etc., 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 comoliance with

the standards.

(Rec. at par. 28 and 29).

114— 53

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CONSISTENCY WITH FEDERL LAW

The Agency believes that Cortland may be granted variance

consistent with the renuirenents 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 orimary drinking

water regulation (Fec. at par. 24).

CONC LUS ION

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

he incurred by uersons who are served by any new water main

extensions, assuming that compliance is timely forthcoming.

The Hoard accepts Cortland’s general benchmark dates (Pet.

at par. 31), with only minor modification as recommended by the

Agency (Rec. at par. 30).

This Opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

1. Petitioner, the Town of 

Cortland,

is hereby granted vuri:ince

from 35 Ill. Adm. Code 602.lO5(a),

Standards of Issuance, an~

602.106(h), Restricted Status, hut 

only as

they rele~e La

5 pCi/l combined radium—226 and radium—228 standard of 35

Ill. Adm. Code 604.301(a), suhiect to the following

conditions:

A)  This variance expires five years from grant of this

variance, or when analysis pursuant to 35 Ill. Adm. Code

605.104(a), or any compliance demonstration method then

in effect, shows compliance with whatever standards are

then in effect for radium, whichever occurs first.

(B) Compliance shall be achieved with any standards for

radium then in effect no later than five years from the

grant of this var iance.

(C) In consultation with the Illinois Environmental

Protection Agency (“Agency”), Petitioner shall continue

its samplinu procram 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

—7—

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 radiurn—226 and of radium—228. 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 after this grant of this variance,

Petitioner shall initiate a program of groundwater

resources investigation, including both shallow and deep

groundwater resources, to identify additional sources of

groundwater having an acceptable level of radium.

(E) Within eighteen months after this grant of variance,

Petitioner shall complete investigating compliance

methods, including those treatment techniques described

in the Manual of Treatment Technicues for Meeting the

Interim Primary Drinking Water Regulations, USEPA, May

1977, EPA—600/8—77—005, and submit to the address in (C)

a detailed Compliance Report showing how compliance will

be achieved within the shortest practicable time, but no

later than five years from the date of variance.

(F) Within two years after 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 supoly needed for achieving compliance with

the maximum allowable concentration for combined radium,

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.

(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

114—55

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—

to do the necessary work described in the construction

cermit. Petitioner shall accept aoprooriate bids within

a reasonable time. Petitioner shall notify the Agency

at the address in condition (F). 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 tà achieve compliance

with the maximum allowable concentration of combined

radium, or with any standards for radium in drinking

water then in effect, shall begin no later than three

years after grant of this variance and shall be

completed no later than four years after grant of this

variance.

(I) Pursuant to 35 Ill. Adm. Code 606.201, in its first set

of water hills 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 suoply a written notice to the effect

that Petitioner has been granted by the Pollution

Control Hoard a variance from 35 Ill. Adn. Code

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

602.106(b) Restricted Status, as they relate to the

combined radium standard.

(J) Pursuant to 35 Ill. Adm. Code 606.201, in its first. sat

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 standard for

combined radium. The notice shall state the average

content of combined radium 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 combined radium, radium—226, and

raclium—220 in its finished drinking water.

(L) Petitioner shall provide written progress reports to the

Aoency at the address below every six months concerning

steps taken to comply with paragraphs C—K. Progress

remorts shall quote each of said paragraphs and

immediately below each paragraph state what steps have

been taken to comply with each caragreph.

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Illinois Environmental Protection Agency

Division of Public Water Supply

Field Operations Section

2200 Churchill Road

Springfield, Illinois 62794—9276.

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:

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 90—43, August 9,

1990.

Petitioner

Authorized Agent

Title

Date

Section 41 of the Environmental Protection Act, Ill. Rev.

Stat. 1989 ch. 111 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 Member Jacob D. Dumelle dissented.

114—57

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I, Dorothy M. Gunn, Clerk

Board, hereby certify that the

adopted on the

day of

vote of

of the Illinois

Pollution Control

above Opinion and Order was

______________________,

1990, by a

Dorothy M. Gunn, Clerk

Illinois

Pollution Control Board

II

!r-~S