ILLINOIS POLLUTION CONTROL BOARD
July 11, 1991
CITY OF LOCKPORT,
)
Petitioner,
v.
)
PCB 90—122
)
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
OPINION AND ORDER OF THE BOARD (by J.C. Marlin):
This matter comes before the Board upon a petition for
variance extension filed by the City of Lockport (“Lockport”) on
June 29, 1990. Lockport seeks a variance from the Board’s public
water supply regulations, namely from 35 Ill. Adm. Code 602.105(a)
(Standards for Issuance) and 35 Ill. Adm. Code 602.106(b)
(Restricted Status) but only to the extent that those rules involve
35 Ill. Adm. Code 604.301(a) (combined Radium
-
226 and Radium
-
228) and 604.301(b) (gross alpha particle activity).1 Lockport
requests this variance extension until December 31, 1995. Pursuant
to policy, the Board treated Lockport’s request for variance
extension as a request for new variance.
On September 17, 1990, the Illinois Environmental Protection
Agency (Agency) filed its Recommendation that the variance be
granted. On December 31, 1990, Lockport filed a Motion to Extend
Time to File an Amended Petition and a waiver of decision deadline.
Then, on February 28, 1991, Lockport filed its Amended Petition for
Extension of Variance (“Am. Pet.”). On Nay 6, 1991, the Agency
filed its Amended Variance Recommendation (“Am. Rec.”) accompanied
by a motion to file instanter, which the Board granted. Lockport
filed its Response to Amended Variance Petition on May 21, 1991.
Hearing was waived and none has been held. Based on the record
before it, the Board grants Lockport’s variance request, subject
to conditions.
PROCEDURAL HISTORY
The Board granted Lockport variance from the combined radium
and gross alpha particle standards on June 10, 1987, subject to
conditions. The variance expired on December 31, 1990, (PCB 87-
1
These standards were recodified at 611.330(a) and 611.330(b)
respectively, effective September 20, 1990.
(See Illinois
Register, Volume 14, Issue 40; October 5, 1990).
124—37
2
proceeding found that denial of variance would impose an arbitrary
or unreasonable hardship upon Petitioner but voiced several
caveats. Specifically, the Board stated:
The Board is concerned about Lockport’s apparent
lack of progress in bringing about compliance, and
therefore questions whether the assumption that
compliance will be timely is warranted. Lockport has
known of its gross alpha problem since October 1980, a
period of over six years, and of its combined radium
problem since October, 1985, a period of a year—and-a—
half. This notwithstanding, all Lockport offers is four
general compliance possibilities, three of which it does
nothing more than list, and the fourth of which it
discusses only to the extent of apparently dismissing two
options. The Board would have liked to have seen a
greater manifestation of Lockport’s sincerity about
achieving compliance than this meager action to date
implies.
The Board then discussed the Agency’s “Enhanced Enforcement
Program”, concluding that adherence to its guidelines should
produce the desired result: ultimate compliance.
According to the terms of the Board’s Order in PCB 87-16,
Lockport was to investigate compliance methods and submit a
detailed compliance plan report to the Agency’s Division of Public
Water Supplies within 18 months. Construction of installations,
changes or additions to Lockport’s public water supply (PWS) were
to begin at a time which would ensure Lockport’s compliance with
the standard by December 31, 1990. Detailed tirnelines for
component steps for these two actions were included in the Board
Order. Progress reports to the Agency were an additional
requirement. According to its amended petition, Lockport believes
a variance extension is now warranted based upon its continuing
efforts toward compliance, major new circumstances affecting
Lockport’s choice of a compliance method, and the change in the
policy of the Agency and the USEPA regarding compliance with the
current radium standards (Am. Pet., p.16—17).
BACKGROUND
Lockport, located in Will County, provides a chlorinated
potable water supply and distribution to residential, industrial
governmental and commercial customers. The present total
population supplied water by Lockport is approximately 10,150
persons. In addition, Lockport supplied water to 245 industrial,
governmental and commercial customers.
Lockport’s water
distribution system consists of three deep wells, a shallow well,
pumps and distribution facilities. The four wells are described
below:
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3
Placed in Gallons
Well No. Depth
Operation Per Minute Location
2
1550 feet 1927
750
Commerce St.
3
1571 feet 1940 (not in use) E. 14th St.
4
1572 feet 1954
950
S. Madison St.
5
330 feet 1973
400
Farrell Rd.
The only material used is the raw water which is treated with
chlorine prior to distribution. The average daily water use for
Lockport in 1989 was approximately one million gallons per day
resulting in an annual use of approximately 370 million gallons.
The raw water from the deep wells contains levels of combined
radium—226 and radium-228 which exceed the current standard of 5
picocuries per liter (pCi/L) set forth at 35 Ill. Adm. Code Section
604.301(a). Additionally, the raw water contains levels of gross
alpha particle activity which exceed the current standard of 15
pCi/L set forth at 35 Ill. Adm. Code 604.301(b). An October 1985
analysis of Lockport’s quarterly sampling showed a combined radium-
226 and radium-228 content of 11.7 pCi/L and a gross alpha particle
activity concentration of 19.0 pCi/L. The most recent analysis,
dated February 13, 1991 showed a combined radium content of 15.6
pCi/L and a gross alpha particle activity concentration of 18.4
pCi/L. (Am. Rec., p.4).
Lockport currently has no equipment in place to control the
radium levels or gross alpha particle levels in the water supplied
to its customers. In addition, Lockport has insufficient blending
capabilities using radium free water from its existing shallow
well. Lockport, in accordance with the conditions of the variance
granted in PCB 87-16, has investigated several compliance
alternatives.
REGULATORY FRAMEWORK
As
stated previously, in recognition of a variety of possible
health effects occasioned by exposure to radioactivity, the U.S.
Environmental Protection Agency (USEPA) has promulgated maximum
concentration limits for drinking water of 5 pCi/L of combined
radiuin-226 and radium-228. Illinois subsequently adopted the same
limit as the maximum allowable concentration under Illinois law.
Ill. Rev. Stat. 1989, ch. ill 1/2, par. 1017.6. The maximum
concentration limit for gross alpha particle activity is 15.0
pCi/L.
The action that Lockport requests here is ~ variance from
these maximum allowable concentrations. Regardless of the action
taken by the Board in the instant matter, these standards will
remain applicable to Lockport. Rather, the action Lockport
requests is the temporary lifting of prohibitions imposed pursuant
to 35 Ill. Adin. Code 602.105 and 602.106. In pertinent part these
124—39
4
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 1/2, 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
comprehensive and up-to-date list of supplies subject to
restrictive status and the reasons why.
Board 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 Board regulations not found in federal law. It. is
this prohibition which Lockport requests be lifted. Moreover,
grant of the requested variance would not absolve Lockport from
compliance with the combined radium or gross alpha particle
activity standards, nor insulate Lockport from possible enforcement
action brought for violation of those standards.
In considering a variance request, 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
1/2, par. .1035(a). Furthermore, the burden is upon petitioner to
show that its claimed arbitrary or unreasonable hardship outweighs
the public interest in attaining compliance with regulations
designed to protect human health and the environment. Willowbrook
Motel v. Illinois Pollution Control Board, 135 Ill.App.3d 343, 481
N.E.2d 1032, (1st Dist. 1985).
Moreover, a variance by its nature is a temporarY reprieve
from compliance with the Board’s regulations and compliance is to
be sought regardless of the hardship which the talk of eventual
compliance presents an individual polluter. Monsanto Co. v. IPCB
67 Ill.2d 276, 367 N.E.2d 684 (1977). Accordingly, a variance
petitioner is required, as a condition to a grant of variance, to
commit to a plan which is reasonably calculated to achieve
compliance within the term of the variance.
HARDSHIP
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5
Lockport believes that a requirement to come into immediate
compliance would impose an arbitrary or unreasonable hardship.
Lockport and the Agency both note that because of Lockport’s
inability to receive permits for water main extensions, any
economic growth dependent on those water main extensions would not
be allowed. Lockport anticipates tremendous growth and development
in the near future, including nearly tripling its current
population. (Am. Pet. p.9) In addition, requested annexation by
various property owners will effectively double the size of
Lockport.
(~)
This growth will create a water demand its
present deep well system will be unable to meet.
(~~)
PUBLIC INJURY
Although Lockport has not undertaken a formal assessment of
the environmental effect of its requested variance, it contends
that extension of its water mains will not cause any significant
harm to the environment or to the people served by the potential
water main extensions for the limited period of time of the
requested variance. (Am. Pet. pp.4-5) The Agency contends
likewise. (Ain.Agency Rec., par. 16) In support of these
contentions, Lockport and the Agency reference testimony presented
Richard E. Tooney, Ph.D. and James Stebbins, Ph.D., both of Argonne
national Laboratory, at the hearing held on July 30 and August 2,
1985, (R85-14, 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 Lockport’s water is low. (Am.
Agency Rec., 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 to
the public from the 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 the continuation of the present level of
the contaminant in question in the petitioner’s water for
the limited time of the variance, and the possibility of
compliance with a new MAC standard by a less expensive
means if the standard is revised upward, the Agency
concludes that denial of the 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 in so far as the variance by its
124—4 1
6
conditions may hasten compliance. In so saying, the
Agency emphasizes that it continues to place a high
priority on compliance with the standards.
(Am. Agency Rec., pars. 27 and 28)
COMPLIANCE PROGRAM
Lockport states that it retained RJN Environmental, Inc.
(“RJN”) to investigate compliance alternatives. RJN evaluated the
cost-effectiveness of four compliance alternatives: Lake Michigan
water; Kankakee River water; blending shallow and deep well water;
and ion exchange treatment of deep well water. RJN’s first effort
(1988) concluded that ion exchange treatment of Lockport’s deep
well water would be the most cost—effective. Lockport issued
municipal bonds to finance the project, obtained the necessary
Agency permits and in July of 1989 solicited bids for the design
and construction of the facility. (Am. Pet. pp.5-6)
Lockport’s bid process did not result in a satisfactory bid.
A second process ended in a bid one million dollars over estimates.
Finally, an effort to obtain state funding to cover the difference
failed.
A re-evaluation of the project led to an update of the RJN
study. The new study concluded that Lake Michigan water was now
the most cost-effective alternative. In addition, neighbor Orland
Park’s expansion toward Lockport reduced the costs of the
alternative. Expected annexations and growth also produced a much
larger resident base and a resultant need for water, more than the
current deep and shallow wells presently provided. (Am. Pet. p.8)
The Illinois Department of Transportation approved Lockport’s
request for an allocation of Lake Michigan water on August 16,
1990. (Am. Pet. p.9) Then, however, Lockport states that things
began to go awry again. Although negotiations with Orland Park
produced initially favorable results, Lockport states that Orland
Park’s staff has notified Lockport that it would not provide
Lockport with Lake Michigan water on a long term basis. (Am. Pet.
p.10) It was at this time that Lockport’s original petition for
variance was withdrawn.
Lockport informs the Board in its Amended Petition that three
compliance alternatives are now under investigation: 1) obtaining
Kankakee River water supplied by the City of Joliet; 2) formation
of a regional water commission to obtain and distribute Lake
Michigan water for communities located in northeastern Will County;
and 3) obtaining Lake Michigan water directly from Oak Lawn (Am.
Pet. pp.12-13) Lockport also points to USEPA’s announcement of
plans to propose revised radium standards at 20 pCi/L for each
isotope as reason to re—evaluate each of its long—term compliance
124—42
7
alternatives. Lockport states that a rolling average of its deep
wells would meet the proposed standard. (Am. Pet. pp.13-14)
Lockport proposes to proceed with improvements to its water
distribution system as a necessary prelude to its long
term
compliance. Consultants will design distribution facilities that
will separate Lockport’s existing single public water system into
two separate pressure systems serving separate areas of Lockport.
A low pressure system will service existing users while a high
pressure system will service the growth areas. Lockport’s petition
states that $65,000 will be spent on design while the system
improvements are expected to cost $900,000 by completion December
31, 1991. Lockport states that the high pressure system
demonstrates compliance with the present standards. (Am. Pet. p. 15)
Lockport admits that there have been delays in implementing
a compliance plan but argues that this was due to matters beyond
its control. Lockport states that
it
will have a
firm
compliance
plan that it can submit once its consultants have completed their
evaluations of the new alternatives. Lockport expects these to be
completed by December 1991. (Am. Pet. p.15)
CONSISTENCY WITH FEDERAL LAW
The Agency believes that Lockport 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 a variance from a national primary drinking
water regulation. (Am. Rec., par. 22)
PROPOSED FEDERAL STANDARD REVISION
The federal standard for radium has been under review for some
time. In anticipation of the federal 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. On April 22, 1991 USEPA published its “Unified Agenda”
concerning its proposed maximum contaminant levels goals and
primary drinking water standards for radionuclides in drinking
water. (56 Fed. Reg. 18014) Then, on June 19, 1991 USEPA formally
announced2 a drinking water standard for radium-226 and radium—
228 set at 20 pCi/l respectively. Final action is due April 1993
according to the announcement and would become effective October
2 The Board notes that, although formally announced, this
proposed standards revision has not been published in official form
in the Federal R~qister.
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8
1994.~ The Board notes that the proposed federal rule sets the
standard for gross alpha particle activity at 15 pCi/l, the current
standard under Illinois law.
TERM OF VARIANCE
The Board believes that Lockport, in the past, has been less
than enthusiastic in its attempts to comply with variance orders.
The Board, however, acknowledges compliance with several terms of
its final Order in PCB 87-16 while several others have not been
met. Lockport, in accordance with the variance terms: tested
quarterly water samples, hired a professional consulting firm,
completed the required compliance report on time, advertised for
bids, notified the public and maintained progress reports.
However, after unexpectedly being denied State funds, rejecting
the ion exchange methOd, determining that an allocation of Lake
Michigan water was the most cost effective method, being rebuffed
in its advances to Orland Park and now, re—evaluating its
alternatives, Lockport is left without a firm compliance plan.
Instead, it suggests interim measures designed to accommodate the
expected growth and selection of a alternative by December 31, 1991
as its compliance plan with ultimate compliance to be achieved
after a variance term of five years.
While recognizing Lockport’s initial reluctance and subsequent
difficulties, the Board also acknowledges an understandable
confusion by municipalities attempting to comply with standards
that have been under review for almost a decade and which are
subject to shifting enforcement policies. The USEPA has proposed
yet another change. The date of this change, as published by
USEPA, is October 1994, a date within the timeframe of the proposed
variance. The USEPA’s proposal does not, however, guarantee that
such a change will in fact become law yet it must be taken into
account in considering Lockport’s request for a five year variance
term.
CONCLUSION
The Board finds that, in light of all the facts and
circumstances of this case, denial of the 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 and forthcoming.
The Board will accordingly grant variance consistent with this
Opinion.
3Public hearings are scheduled for September 6, 1991 in
Washington, D.C. and September 12, 1991 in Chicago, Illinois. A
ninety day comment period began with publication.
12 4—44
9
As agreed to by Lockport, Lockport shall evaluate compliance
alternatives and select an alternative to achieve compliance by
December 31, 1991. New radionuclide standards from USEPA could
significantly alter Lockport’s need for a variance or Lockport’s
alternatives for achieving compliance, however. In recognition of
this situation, the Board’s variance will contain suitable
timeframes to account for the effect of any USEPA alteration (or
notice of refusal to alter) of the radium or gross alpha particle
activity standards. Given that the scheduled effective date of
the proposed change in standards, as published, is nearly 18 months
later than expected date of promulgation, these timeframes will be
keyed to the date of promulgation, not the effective date.
Lockport requests a five year extension of its variance.
The Board finds, however, a four year term of variance gives
sufficient time for bidding, construction and demonstration of
compliance following selection of compliance alternatives.
Therefore, variance until July 11, 1995 is granted. The Board
believes that, under these timeframes and with these conditions,
the proposed change in the federal standard need not lead to
additional requests for relief by the City of Lockport.
Lockport is to bear in mind that today’s action is solely a
grant of variance from Standards of Issuance and Restricted Status.
Lockport is not being granted a variance from compliance with
either the radium or gross alpha particle activity standards, nor
does today’s action insulate Lockport in any manner against
enforcement for violation of these standards.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Petitioner, City of Lockport, 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
standard 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) Date of promulgation by the U.S. Environmental
Protection Agency (“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 a radium maximum
concentration level is demonstrated; or
(2) Date of publication of notice by the USEPA that no
124—4 5
10
amendments to the existing 5 pCi/i combined radium
standard 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) July 11, 1995; or
(2) When analysis pursuant to 35 Ill. Adm. Code
611.Subpart Q, or any compliance demonstration
method then in effect, shows compliance with any
standards for radium and gross alpha particle
activity in drinking water then in effect; 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 and 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
2200 Churchill Road
Springfield, Illinois 62794—9276
(E) By December 31, 1991 Petitioner shall submit to the
Agency a report outlining which alternative has been
selected to bring its water supply into compliance, and
a compliance schedule consistent with this Order.
(F) Within three months of USEPA action or two years after
the grant of this variance, whichever is sooner,
Petitioner shall apply to the Agency at the address below
124—46
11
for any additional 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 combined radium
and gross alpha particle activity.
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 pursuant to paragraph 5 above,
Petitioner shall advertise for bids, to be submitted
within 60 days, from contractors to do the necessary work
described in the construction permits. Petitioner shall
accept appropriate bids within a reasonable time.
Petitioner shall notify the Agency at the address in
condition (5) 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 combined radiuni~,
or with any standards for radium in drinking water then
in effect, shall be completed no later than two years
following the date of USEPA action or July 11, 1994,
whichever is earlier.
(I) 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 has been granted by the Pollution Control
Board a variance from 35 Ill. Adm. Code 602.105(a)
Standards of Issuance and 35 111. Adm. Code 602.106(b)
Restricted Status, as they relate to the radium standard.
(3)
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 the standard
for radium. The notice shall state the average content
of radium in samples taken since the last notice period
during which samples were taken.
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12
(K) Until full compliance is achieved, Petitioner shall take
all reasonable measures with its existing equipment to
minimize the level of combined radium, radiuin—226, and
radiuiu—228, and gross alpha particle activity in its
finished drinking water.
(L) 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, 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 90-122, July 11,
1991.
Petitioner
Authorized Agent
Title
124—48
13
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.
J.D. Dunielle and B. Forcade dissented.
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certif that the above Op:
Order was adopted
on the
_____________
day of
1991
by a vote of
Control Board
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