ILLINOIS POLLUTION CONTROL BOARD
November 4, 1993
VILLAGES OF GRANVILLE & MARK,
)
Petitioner,
)
v.
)
PCB 93—163
)
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
OPINION
AND
ORDER OF THE BOARD (by N. Nardulli):
This matter is before the Board on the September 1, 1993,
filing by petitioners Villages of Granville & Mark (Villages or
petitioners) of a petition for variance. The Villages seek
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 Villages’ public water
supply of the 5 pCi/i standard for combined radium-226 and
radium-228. That standard is set forth at 35 Iii. Adm. Code
611.330(a). The Villages request a variance for five years or
until analysis pursuant to 35 Ill. Adm. Code 605.104(a) shows
compliance with the standard regulating the contaminant,
whichever comes first.
On October 4, 1993, the Illinois Environmental Protection
Agency (Agency) filed its variance recommendation. The Agency
recommends that the variance be granted, subject to certain
conditions. The Villages waived hearing and none was held.
For the following reasons, the Board finds that the Villages
have 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,
subject to conditions set forth in the attached order.
BACKGROUND
The Villages are municipalities located in Putman County,
Illinois. (Pet. at 1.) The Villages provide potable water for
residential, commercial, and industrial customers. The total
population served by the Villages is approximately 2,080 persons.
(Pet. at 4.) The variance would affect the entire populations
of both Villages. Petitioners are not part of a regional public
water supply.
The petitioners own and operate the distribution systems in
question. The Village of Granville owns and operates the wells
and the Granvilie Distribution System. The Village of Mark owns
2
the and operates the Mark Distribution System. The petitioners
maintain the public water distribution system which includes 2
deep wells, pumps and distribution facilities. (Pet. at 4—5.)
If the requested variance is granted, petitioners currently
foresee extending their water mains to serve: Migliorini’s First
Addition to the Village of Mark, containing 2 commercial lots;
extension of the water main to remaining 21 lots not served by
Village water in Timberline Subdivision to the Village of Mark;
water looping in both communities to eliminate priods of low
pressure during heavy demand; replacement of water mains in areas
experiencing excessive breaks or in areas of. small diameter
mains; and extension of water main east of Granville along east
Silver Spoon Street. (Pet. at 5.)
The Villages were first advised by the Agency that their
water supply exceed the permissible level of combined radium on
December 19, 1985. Petitioners were subsequently placed on
restricted status. The most recent analysis of Granville’s
waters supply was made on April 29, 1993. This analysis showed a
combined radium content of 6.5 pCi/l in well #1, tap 1, an amount
that exceeds the 5 pCi/l standards. That analysis was of an
annual composite of four consecutive quarterly samples or the
average of the analyses of four samples obtained at quarterly
intervals. Well #2, tap 2, of Granville’s water supply showed a
combined radium content of 6.1 pCi/l. Because the Village of
Mark purchases its water from the Village of Granville, these
combined radium levels apply to the drinking water that the
Village of Mark supplies to its customers as well. Petitioners
are not on restricted status for exceeding any other contaminant.
(Ag. Rec. at
4—5.)
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. iii ½, pars.
1001 et seq.) (Act), or of this Chapter.
Section 602.106
Restricted Status
b) The Agency shall publish and make available to the
3
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 finished water supplies. The Villages’ request that they be
allowed to extend their water service while they pursue
compliance with the combined radium standard, 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
regulations at issue would impose an arbitrary or unreasonable
hardship. (415 ILCS 5/35(a) (1992).) 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 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
(a.).
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.
A grant of variance from “Standards for Issuance” and
“Restricted Status” does ii~~absolve a petitioner from compliance
with the drinking water standards at issue, nor does it 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.
Standards for radium and gross alpha particle activity in
drinking water were first adopted as national Interim Primary
Drinking Water Regulations (NIPDWRs) by the USEPA in 1976. The
standards adopted were 5 pCi/l for the sum of the two isotopes of
radium, radium-226 and radium-228 (“combined radium”), and 15
pCi/l for gross alpha (“article activity”). Shortly thereafter
Illinois adopted the same limits. Although characterized as
“interim” limits, these standards nevertheless are the maximum
4
allowable concentrations (MCL5) under both federal and Illinois
law, and will remain so unless modified by the USEPA.’
Over much of the fifteen years since their original
promulgation, the current radium and gross alpha particle
activity standards have been under review at the federal level.
The USEPA first proposed revision of the standards 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, 1991, USEPA announced a
proposal to modify both standards.2 USEPA proposes to replace
the 5 pCi/i combined radium standard by separate standards of 20
pCi/l each for radium-226 and radium-228. The gross alpha
particle activity standard is proposed to be replaced by an
adiusted gross alpha particle activity standard; the latter would
still have a 15 pCi/l value, but would no longer include alpha
particle activity associated with radium or uranium decay. Under
the tJSEPA’s calendar, these standards are scheduled for an
effective date of October 1994.
COMPLIANCE PLAN
Petitioners have considered two approaches for bringing the
water supply into compliance. The first option is to use wells
not yet drilled for blending purposes. Estimated construction
costs, including water mains and controls, are $100,000.00. The
second option is to construct treatment facilities in order to
properly treat all water supplIed by these wells. Water
treatment may consist of ozone treatment or reverse osmosis
treatment. Petitioners report a pilot study for ozone treatment
has been conducted but the report is not yet complete.
Petitioners also report that a pilot study of reverse osmosis
treatment could take 24 months to complete. Accurate costs and
time figures are not yet available. (Pet. at 7.)
Petitioners report that the first primary method of
treatment is lime or lime—soda softening. Gross alpha and radium
removal by lime softening can be related to hardness removal and
pH of treatment. Lime softening can remove 80—90 percent of the
contaminant, therefore, lime softening could be suitable for
rawwaters containing up to 25 pCi/l for radium. However, this
method produces large quantities of sludge and concentrates 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.
2
Publication occurred at 56 Fed. Reg. 33050, July 18,
1991.
5
contaminant. This causes additional problems and expenses in
proper waste disposal. (Pet. at 7.)
Petitioners report that the second treatment method is ion
exchange water softening. Petitioners state that this method is
cheaper than lime softening, is effective and will remove 90 of
the contaminant. However, if an ion exchange softener which is
regenerated with slat is used, the sodium content of the water
will be increased significantly. Petitioners state this may
create a significant risk to persons who are hypertensive or have
heart problems, even though the treatment would reduce the risk
from radium for the general population. In addition, the waste
from routine softening is high in total dissolved solids and may
be very difficult to dispose of legally. Also, some of the
radioactivity remains in the ion exchange material, so that it
may be a hazard to anyone subsequently working on the softener,
and disposal of the radioactive ion material may be a problem.
Hence the Agency has informed petitioners that it is actively
discouraging the use of the ion exchange process for
radionnuclide removal, unless that is the best treatment method
available for a particular supply. (Pet. at 8.)
The Agency reports that if petitioners fail to achieve
compliance through one or both of the alterna~tiveplans,
petitioners would have to identify and install necessary
treatment technology to bring the facility into compliance. (Ag.
Rec. at 7.) Also, the Agency states that its records indicate
that the Villages have not previously sought a variance from
regulations pertaining to the combined radium limitations. (Ag.
Rec. at 4.)
HARDSHIP
The Villages contend that the hardship resulting from denial
of the requested variance outweighs any injury to the public from
granting the variance. (Pet. at 14.) The Villages note that the
promulgation of a new radium standard by the United States
Environmental Protection Agency (USEPA) may significantly alter
the Villages’ compliance status and may even obviate the need for
a continued variance from Restricted Status. The Agency agrees
with this statement noting that USEPA has indicated that the
proposed standard will be less stringent than the current
standard. (Ag. Rec. at 7.) According to the Villages, “the
substantial expenditure of public funds for treatment facilities
which may become obsolescent in the near future is not in the
public interest and does not grant a corresponding benefit to the
public.” (Pet. at 13.) The Villages further argue that denial
of the requested variance results in an arbitrary and
unreasonable hardship because it halts construction and hurts
prospective home buyers as well as business developers and the
Villages’ tax base. (Pet. at 14.)
6
The Agency agrees that denial of the variance would impose
an arbitrary or unreasonable hardship on the Villages. (Ag. Rec.
at 8.)
ENVIRONMENTAL IMPACT
Although the Villages have not undertaken a formal
assessment of the environmental effects of the requested
variance, it contends that there will be minimal or no adverse
impact caused by the granting of the variance. (Pet. at 8.) The
Agency agrees with the Villages’ assertion. (Ag. Rec. at 7—8.)
Both the Agency and the Villages cite 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 (R85-l4), 35 Ill. Adm. Code
602.105 and 602.106 and the updated testimony presented by Dr.
Toohey in the Board’s hearing on a variance requested by the City
of Braidwood in PCB 89-212, in support of the assertion that the
variance will not result in any adverse environmental impact.
(Pet. at 8; Ag. Rec. at 7.)
While the Agency believes that radiation at any level
creates some risk, the risk associated with the Villages’ water
supply is very low. (Ag. Rec. at 6.) The Agency states that “an
increase in the allowable concentration for the contaminants 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. at 7—8.) 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 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.3 In so saying, the Agency emphasizes
~ The Board notes that this assertion is incorrect. The
requested variance will effect the entire population of the
Villages of Granville and Mark. However, the Board believes that
7
that it continues to place a high priority on compliance
with the standards.
(Ag. Rec. at 10.)
CONSISTENCY WITH FEDERAL LAW
The Agency states that the requested 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 variance does not grant
relief from compliance with the federal primary drinking
regulations. (Ag. Rec. at 9.) 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. 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. 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. The Agency believes that petitioners will
remain subject to the possibility of enforcement for violations
of the MCL for the contaminants in question under state and
federal law. The Agency concludes that because continuing
progress is being made towards compliance while awaiting final
promulgation of the standard, it is unlikely that USEPA will
object to the issuance of the recommended variance.
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 Villages of Granville and Mark. 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 Villages 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 radiuin-228. This
proposed standard was published on July 18, 1991 (56 Fed. Reg.
33,050 (1991)), and the public hearings on the standard began on
September 6, 1991. It is anticipated that the new standard as
amended will adopted this year. New radionuclide standards from
this misstatement is not so significant so as to compel a denial of
the variance.
8
USEPA could significantly alter the Villages’ 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.
Today’s action is solely a grant of variance from standards
of issuance and restricted status. The Villages are not granted
variance from compliance with the combined radium standard, nor
does today’s action insulate the Villages 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
The Villages of Granville and Mark are 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 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 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 maximum concentration level for
combined radium, either of the isotopes, of radium,
or the method by which compliance with 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/i standard 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) November 4, 1998; or
(3) When analysis pursuant to 35 Ill. Adm. Code
611.720(d), or any compliance with standards then
in effect, shows compliance with standards for
radium in drinking water then in effect.
9
(C) In consultation with the Illinois Environmental
Protection Agency (“Agency”), petitioners shall
continue their sampling level of radioactivity in their
wells and finished water. Until this variance
terminates, petitioners shall collect quarterly samples
of their water from their distribution system at
locations approved by the Agency. Petitioners shall
composite the quarterly samples from each location
separately and shall analyze them annually by a
laboratory certified by the State of Illinois
radiological analysis so as to determine the
concentration of radium-226 and radium-228. At the
option of petitioners, 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
(D) Within three months of USEPA action, petitioners shall
apply to the Agency at the address below for all
permits necessary for the construction, installation,
changes or additions to petitioners’ 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:
Illinois Environmental protection Agency
Public Water Supply System
Permit Section
P.O. Box 19276
2200 Churchill Road
Springfield, IL 62794—9276
(E) Within six months of USEPA action after each
construction permit is issued by IEPA, petitioners
shall advertise for bids, to be submitted within 60
days, from contractors to do the necessary work
described in the construction permit. The petitioners
shall accept appropriate bids within a reasonable time.
Petitioners shall notify the Agency, Division of Public
Water Supplies, within 30 days, of each of the
following actions: 1) advertisements for bids, 2)
names of the successful bidders, and 3) whenever
petitioners accepted the bids.
(F) Construction allowed on said construction permits shall
10
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 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 the first set of water
bills or within three months after the date of this
Order, whichever occurs first, and every three months
thereafter, petitioners will send to each user of their
public water supply a written notice to the effect that
petitioners have 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 radium
standard.
(H) Pursuant to 35 Ill. Adm. 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, petitioners will send to each user of their
public water supply a written notice to the effect that
petitioners are 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.
(I) Until full compliance is achieved, petitioners shall
take all reasonable measures with their existing
equipment to minimize the level combined radium-266 and
radium’-228, in their finished drinking water.
(J) Petitioners 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 forty—five days of the date of this Order,
petitioners shall execute and forward to:
11
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 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 o~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 93-163,
November 4, 1993.
Petitioner
Authorized Agent
Title
Date
Section 41 of the Environmental Protection Act, 415 ILCS
5/41, 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.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution
Control Board, hereby cer,tify that the abov inion and Order
was adopted on the
_____________
day of
.
1993, by a vote of
__________
Dorothy N. G34(n, Clerk
Illinois Po~jutionControl Board
