ILLINOIS POLLUTION CONTROL BOARD

August 13, 1992

CITY OF ALEDO,           

)

Petitioner,

)

v.

)

PCB 92-91

(Variance)

ILLINOIS ENVIRONMENTAL      

)

PROTECTION AGENCY,         

)

Respondent.

OPINION AND ORDER OF THE BOARD (by J. C. Marlin):

This matter is before the Board on the June 16, 1992, filing

by petitioner, the City of Aledo, of a petition for variance.

The petitioner seeks relief from 35 Ill. Adm. Code 602.105(a),

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

the extent those rules relate to violation by the petitioner’s

public water system (PWS) of the 5 picocuries per liter (pCi/L)

combined radjum-226 and radium—228 maximum contaminant level

(MCL) and the 15 pCi/L gross alpha particle activity MCL.1 The

petitioner requests variance for a period of five years.

On July 13, 1992, the Illinois Environmental Protection

Agency (Agency) filed its variance recommendation. The Agency

recommends that the variance be granted, with respect to combined

radium, subject to certain conditions. (Rec. 1, 10) The

petitioner waived hearing and none has been held.

For the following reasons, the Board finds that the

petitioner 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 is

granted with respect to combined radium, subject to conditions

set forth in the attached Order.

BACKGROUND

The petitioner is a City in Mercer County. The petitioner

owns and operates a PWS serving a population of 3681, with 1669

1The standard for combined radium was formerly found •at 35

Ill. Adm. Code 604.301(a) and the standard for gross alpha

particle activity at 35 Ill. Adm. Code 604.301(b); effective

September 20, 1990 they were recodified at 35 Ill. Adm. Code

611.330(a) and (b), respectively.

U I 35-0339

2

service connections. (Pet. 4) The PWS includes two currently

operational deep wells, pumps, and distribution facilities.

(Pet. 5)

The most recent analysis for radium content in the PWS was

made on June 7, 1991, and showed a level of 5.6 pCi/L for

combined radium. (Rec. 4)

The Agency advises that on August 2, 1991, it notified

petitioner by letter that its PWS exceeded the combined radium

content MCL. (Pet. 9, Rec. 4)

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:

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. 111

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.

The principal effect of these regulations is to provide that

PWS5 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 MCLs. The petitioner requests that

it be allowed to extend its water service while it pursues

compliance with the radium MCLs, as opposed to extending service

only after attaining compliance.

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

UI

35-fl~lin

3

regulations at issue would impose an arbitrary or unreasonable

hardship. (Ill. Rev. Stat. 1991, ch. 111 1/2, par. 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), 133

Ill.App.3d 343, 481 N.E.2d 1032). Only with such showing can the

claimed hardship rise to the level of arbitrary or unreasonable

hardship. Where the petitioner seeks to extend a variance, the

petitioner must show satisfactory progress.

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. 

(u.)

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.

It is to be noted that grant of variance from “Standards for

Issuance” and “Restricted Status” does not absolve a petitioner

from compliance with the MCLs at issue, nor does it insulate a

petitioner from possible enforcement action brought for violation

of those NCLs. The underlying MCL5 remain applicable to the

petitioner regardless of whether variance is granted or denied.

MCL5 for radium were first adopted as National Interim

Primary Drinking Water Regulations (NIPDWRs) by USEPA in 1976.

The MCL5 adopted were 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 “interim” limits, these MCLs nevertheless are

the maximum allowable concentrations under both federal and

IllinoisOverlaw,muchandof willthe

fifteenremain

soyearsunlesssincemodifiedtheir

originalby

the USEPA.2

promulgation, the current radium MCLs have been under review at

the federal level. USEPA first proposed revision of the MCLs 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). Most recently, on June 19,

2jfl

anticipation of USEPA revision of the radium MCL, 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.

OI35-O3~I

USEPA1991, proposestJSEPA

announcedto

replacea

proposalthe

5 pCi/Lto

modifycombinedth~radiumradium MCLs.MCL

by3

separate MCLs of 20 pCi/L each for radium—226 and radium-228.

Under the USEPA’s calendar, these MCLs are scheduled for

promulgation by April, 1993 with an effective date of October,

1994.

NECESSITY FOR GROSS ALPHA VARIANCE

Petitioner has requested a variance with respect to both the

combined radium and the gross alpha particle activity MCLs.

(Pet. 1) However, there is no indication that water in the PWS

has exceeded the gross alpha particle activity MCL. (Rec. 2)

The Agency has recommended that the variance not be granted with

respect to that MCL. (Rec. 1, 10) See Marathon Oil v. IEPA

PCB 91—173, January 1, 1992. The Board will limit the variance to

the combined radium MCL.

COMPLIANCE PLAN

Petitioner envisions two alternatives ~r lowering the

radium levels. The first would involve drilling new shallow

wells in an area 11 miles west of the City, at an estimated

investment of some $3.17 million. The second would involve

installation of a reverse osmosis unit, at an investment of $1.69

million. (Pet. 7, Attachment 3)

The Agency has not recommended either plan. Rather, the

petitioner would be required to file construction permit

applications reflecting its choice of compliance alternatives,

within a time schedule keyed to USEPA action. (Rec. 12)

The conditions of this variance are somewhat different than

those recommended in other recent radium variances, including

Village of Glasford v. IEPA, PCB 92—18, May 21, 1992, in that the

Agency has not recommended that the petitioner be required to

attain compliance within the term of the variance. Rather,

construction is required only in the event that USEPA takes

action to confirm the existing MCL, or replace it with another

MCL or measurement method such that petitioner would still be in

violation. (Rec. 10 

12) This may be justified in that, unlike

most other radium variance petitioners, the petitioner has first

violated the MCL recently, is barely over the MCL and has never

before received a variance.

3Publication occurred at 56 Fed. Reg. 33050, July 18, 1991.

01 35-031i2

HARDSHIP

The petitioner contends that the hardship resulting from

denial of the requested variance outweighs any injury to the

public from granting the variance. (Pet. 12) The petitioner

argues that denial of the requested variance would result in an

arbitrary or unreasonable hardship because petitioner would not

be able to extend water mains to include residents of the City

who are not presently served. (Pet. 12, 14)

The Agency agrees that denial of the variance would impose

an arbitrary or unreasonable hardship on the petitioner. (Rec.

10)

ENVIRONMENTAL AND PUBLIC HEALTH IMPACT

Although the petitioner has not undertaken a formal

assessment of the environmental and public health effects of its

requested variance, it contends that there will be minimal or no

adverse impact caused by the granting of the variance. (Pet. 12)

The Agency agrees with the petitioner’s assertion. (Rec. 7) The

Agency cites the testimony presented by Richard E. Toohey, Ph.D.,

of Argonne National Laboratory, at the July 30 and August 2, 1985

hearings for the Proposed Amendments to Public Water Supply

Regulations 35 Ill. Adm. Code 602.105 and 602.106 (R85—14) in

support of the assertion that the variance will not result in any

adverse environmental impact. (Rec. 6) The Agency also refers

to updated testimony presented by Dr. Toohey in the Board’s

hearing on a variance requested by the City of Braidwood in PCB

89—212. (Rec. 6)

While the Agency believes that radiation at any level

creates some risk, the risk associated with the petitioner’s

water supply is very low. (Rec. 6) In summary, the Agency

states as follows:

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 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, 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

0 I 35-03143

lines. This variance should not affect the status of

the rest of Petitioner’s population drawing water from

existing water lines, except insofar as the variance by

its conditions may hasten compliance. In so saying,

the Agency emphasizes that it continues to place a high

priority on compliance with the standards.

(Rec. 9)

CONSISTENCY WITH FEDERAL LAW

The Agency states that the requested variance may be granted

consistent with the Safe Drinking Water Act (42 U.S.C. 300(f))

and corresponding regulations (40 CFR 141) because the variance

does not--g~j1t relief from compliance with the federal primary

drinkingreqülations. (Rec. 8)

CONCLUS ION

Based upon the record, the Board finds that, although there

is no need for a variance with respect to the gross alpha

particle activity MCL, immediate compliance with the “Standards

for Issuance” and “Restricted Status” regulations with respect to

the combined radium MCL would impose an arbitrary Or unreasonable

hardship on the petitioner. The petitioner has committed to a

schedule which will result in compliance if USEPA confirms the

combined radium standard. The Board will grant this variance for

a maximum period of five years.

Today’s action is solely a grant of variance from Standards

of Issuance and Restricted Status. The petitioner is not granted

variance from compliance with the combined radium and gross alpha

particle~activity~  

nor•,~does today’s action insulate the

petitioner in any manner against enforcement for violation of

these MCLs.

This Opinion constitutes the Board’s findings of fact and

conclusio~is of  

in this matter.

ORDER

The requested variance with respect to the gross alpha

particle activity MCL in 35 Ill. Adm. Code 611.330(b) is denied.

The City of Aledo (petitioner) is hereby granted a variance from

35 Ill. Adm Code 602.105(a), “Standards for Issuance”, and

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

contaminant level (MCL) for combined radium-226 and radium-228,

as set forth in 35 Ill. Adm. Code 611.330(a), for a period of

five years, subject to the following conditions:

0135-031414

7

(A) For purposes of this Order, the date of USEPA action

shall consist of the earlier date of the:

(1) Date of promulgation by the U.S. Environmental

Protection Agency (USEPA) of any regulation which

amends the MCL for combined radium, either of the

isotopes of radium, or the method by which

compliance with a radium MCL is demonstrated; or

(2) Date of publication of notice by the USEPA that no

amendments to the 5 pCi/L combined radium MCL or

the method for demonstrating compliance with the

MCL will be promulgated.

(B) Variance shall terminate on the earliest of the

following dates:

(1) Two years following the date of USEPA action; or

(2) July 30, 1997; or

(3) When analysis pursuant to 35 Ill. Adm. Code

611.720(d), or any method of analysis then in

effect, shows compliance with MCLs for radium then

in effect.

(C) In consultation with the Illinois Environmental

Protection Agency (Agency), petitioner shall continue

its sampling to determine the level of radioactivity in

its wells and finished water. Until this variance

terminates, petitioner shall collect quarterly samples

of its water from its distribution system at locations

approved by the Agency. Petitioner shall composite the

quarterly samples 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 combined radium-

226 and radium-228. The results of the analyses shall

be reported within 30 days of receipt of the most

recent result to:

0135-03145

8

Illinois Environmental Protection Agency

Compliance Assurance Section

Division of Public Water Supplies

Box 19276

2200 Churchill Road

Springfield,

Illinois

62794—9276

(D) At the option of petitioner, the quarterly samples may

be analyzed when collected. The running average of th

most recent four quarterly sample results shall be

reported to the above address within 30 days after

receipt of the most recent quarterly sample.

(E) Within three months after USEPA action, petitioner

shall apply to the Agency at the address below for all

permits necessary for the construction, installation,

changes or additions to the PWS needed for achieving

compliance with

the combined radium MCL, or with any

other MCL for radium then in effect:

Illinois Environmental Protection Agency

Division of Public Water Supplies

Box 19276

2200 Churchill Road

Springfield, Illinois 62794—9276

(F) Within •three months after each construction permit is

issued by the Agency, petitioner shall advertise for

bids, to be submitted within 60 days, from contractors

to do the necessary work described in the construction

permit. Petitioner shall accept appropriate bids

within a reasonable time. Petitioner shall notify the

Agency at the address in paragraph (C) within 30 days

after each of the following:

(1) Advertisement for bids;

(2) Names of successful bidders; and

(3) Whether petitioner accepted said bids.

(G) Construction allowed on said construction permits shall

begin within a reasonable time after bids are 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.

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

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

0135-03146

9

bills or within three months after the date of this

Order, whichever occurs first, and every three months

thereafter, petitioner shall send to each person served

by the PWSa written notice to the effect that

petitioner is not in compliance with the MCL 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.

(I) Pursuant to 35 Ill. Adin. Code 611.851(b) (formerly

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 person served

by the PWS 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 Ill. Adm. Code 602.106(a)

Restricted

Status, as they relate to the combined

radium MCL.

(J) Until full compliance is achieved, petitioner shall

take all reasonable measures with its existing

equipment to minimize the level of combined radium-226

and radium—228 in its finished drinking water.

(K) Petitioner shall provide written progress reports to

the Agency every six months concerning steps taken to

• comply with the paragraphs of this Order. Progress

reports shall quote each of s~.idparagraphs and

immediately below each paragraph state what steps have

been taken to comply with each paragraph. Progress

reports shall be addressed to:

Illinois EnvironmE~ntal Protection Agency

Division of Public Water Supply

Field Operations Section

2200 Churchill Road

Springfield, Illinois 62794—9276

(L) Within forty-five days of the date of this Order,

petitioner shall execute and forward to:

Stephen C. Ewart

Division of Legal Counsel

Illinois Environmental Protection Agency

P.O. Box 19276

2200 Churchill Road

Springfield, Illinois 62794—9276

a Certificate of Acceptance containing an agreement to

be bound to all terms and conditions of the granted

0135-03147

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

Certificate is as follows.

I (We), ________________________________________

hereby accept and agree to be bound by all terms and

conditions of the Order of the Pollution Control Board

in PCB 92—91, August 13, 1992.

Petitioner

Authorized Agent

Title

Date

IT IS SO ORDERED.

B. Forcade dissented.

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

Stat. 1991, 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. (But see also

35 Ill. Adm. Code 101.246, Motions for Reconsideration,

and

Castenada v. Illinois Human Rights Commission (1989), 132 Ill.2d

304, 547 N.E.2d 437.)

0135-03148

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify ~1at~the above opinion ~nd order was

adopted on the   

~

day of 

_______________________

1992 by a vote of   

~

—/

C-’

Dorothy M. G1u~n, Clerk

Illinois PolThtion Control Board

0135-03149