ILLINOIS POLLUTION CONTROL BOARD
OctOber 6, 1994
CITY OF SPRING VALLEY,
)
)
Petitioner,
v.
)
PCB 94—211
(Variance)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
OPINION AND ORDER OF THE BOARD (by 3. Theodore Meyer):
This matter is before the Board on the August 5, 1994 filing
by petitioner City of Spring Valley (Spring Valley) of a petition
for variance. Spring Valley 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
Spring Valley’s public water supply of the 5 picocuries per liter
(“pci/I”) combined radium-226 and radium—228 standard. Spring
Valley requests a five—year variance.
On August 22, 1994, the Illinois Environmental Protection
Agency (Agency) filed its variance recommendation. The Agency
recommends that the variance be granted subject to certain
conditions. Spring Valley waived hearing and none has been held.
For the following reasons, the Board finds that Spring
Valley 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, subject to conditions set forth in the attached order.
BACKGROUND
Spring Valley is a municipality located in Bureau County.
(Pet. at 1.) Spring Valley provides public services including
potable water supply and distribution for 2,000 residential and
100 industrial and commercial utility customers representing
approximately 5,500 residents and 100 industrial and commercial
customers employing approximately 2,000 persons as of 1994.
(Pet. at 5.)
Spring Valley’s water system includes two deep wells, pumps
and distribution facilities. (Pet. at 5.) If the requested
variance is granted, the Spring Valley anticipates extending
service to the commercial development at the intersection of
Illinois Route 89 and U.S. Route 6 for the planned location of a
McDonald’s Restaurant, and to the potential expansion of a new
commercial development at the same location. (Pet. at 5.)
2
Spring Valley was first advised that its water supply
exceeded the maximum allowable contaminant level for combined
radium in a letter dated December 8, 1986. (Pet. at 6; Rec. at
5.) The Agency’s analysis showed combined radium—226 and radium—
228 content of 9.4 pCi/l (Pet. at 6.) The most recent analyses
of February 16, 1994 showed a combined radium-226 and radium-228
content of 6.7 pCi/i in well no. 10, tap 2, and a combined
radium—226 and radiuin-228 content of 5.6 pCI/i in well no. 11,
tap 3. (Rec. at 4.)
This is Spring Valley’s second request for a variance
involving the combined radium limitations of 35 Ill. Adm Code
611.330. Spring Valley was granted a variance from restricted
status by the Board on January 5, 1989.
(Pet.
at 6, 8; Rec. at 4,
5.) That variance expired on June 15, 1992. (Pet. at 6; Rec. at
4.)
REGULATORY FRAMEWORK
The instant variance request concerns two features of the
Board’s public water supply regulations:
“Standard 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 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
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. Spring Valley requests that it be
allowed to extend its water service while it pursues compliance
with the 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
3
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. (Wiliowbrook Motel v. Pollution
Control Board (1977), 135 Ill.App.3d 343, 481 N.E2d, 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 tem~orarv reprieve from compliance with the Board’s
regulations (Monsanto Co. v. IPCB (1977), 67 Ill.2d 276, 367
N.E2d 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 ~ 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 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 particle
activity. Shortly thereafter Illinois adopted the same limits.
Although characterized as “interim” limits, these standards
nevertheless are the maximum allowable concentrations under both
federal and Illinois law, and will remain so unless modified by
the USEPA.Over 1much
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
In anticipation of USEPA revision of the radium
standard, the legislature amended the Environmental Protection
Act at Section 17.6 in 1988 to provide that any new federal
radium standard immediately supersedes the current Illinois
standard.
4
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, 1991,
USEPA announced a proposal to modify both standards.2 USEPA
proposes to replace the 5 pCi/l combined radium standard by
separate standards of 20 pCi/i each for radium-226 and radium-
228. Under USEPA’s calendar, these standards were scheduled
to be published by April 30, 1995. However, the U.S. Congress
passed and President Clinton signed Public Law 103-124
(October 28, 1993) which included a prohibition for use of any
funds by USEPA in promulgating a new standard for radon in
drinking water. This congressional action has suspended any
USEPA regulatory activity for radionuclides until 1995.
COMPLIANCE PLAN
Spring Valley proposes no method for achieving compliance,
stating that USEPA is expected to finalize its proposed
regulations raising the standards for radium isotopes 226 and 228
within the next year to 20 pCi/i. (Pet. at 8; Ex. 2.) This new
standard would bring Spring Valley into full compliance with all
the provisions of the Federal Safe Drinking Water Act, P.L. 93-
523. (Pet. at 8.)
HARDSHIP
Spring Valley correctly points out that a grant of the
requested variance only prohibits the Agency from legally denying
construction or operating permits based on Spring Valley’s
violation of the standards, and does not make less strict the
standards that petitioner must meet. (Pet. at 4, 10.) Spring
Valley asserts that a substantial expenditure of public funds for
treatment facilities, which may become obsolete in the near
future as a result of USEPA’s proposed relaxation of the current
standards, is not in the public interest and does not grant a
corresponding benefit to the public. (Pet. at 9.) Spring Valley
also asserts that a failure to obtain a variance will negatively
impact prospective home purchasers as well as business developers
and Spring Valley’s tax base, because all construction within
Spring Valley’s service area requiring the extension of the water
supply system would be prohibited. (Pet. at 9.) Spring Valley
contends that the potential hardship from the denial of the
variance outweighs the injury to the public from the grant of the
petition, causing arbitrary and unreasonable hardship to Spring
Valley. (Pet. at 9.)
The Agency believes that a denial of the variance would be
2
Publication occurred at 56 Fed. Reg. 33050, July 18,
1991.
5
an arbitrary and unreasonable hardship to the petitioner. (Rec.
at 8, 10.) Denial of a variance from the two rules imposing
restricted status on Spring Valley would result in an arbitrary
or unreasonable hardship because denial would require that the
Agency: (1) include Spring Valley on the restricted status list,
and (2) deny construction and operating permits until compliance
is achieved. The second action would prevent further development
from taking place in Spring Valley, while the first might mislead
developers and other persons who check this list. (Rec. at 9.)
The Agency believes that the hardship resulting from denial
of the variance from the effect of being on restricted status
would outweigh the injury to the public from grant of the
variance. The Agency observes that this grant of the variance
from restricted status should affect only those users who consume
water drawn from any newly extended water lines and states that
an increase in the allowable concentration for these contaminants
should cause no significant health risk for this limited
population. (Rec. at 7.) 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. (Rec. at 10.)
ENVIRONMENTAL IMPACT
Although Spring Valley has not undertaken a formal
assessment of the environmental effects of its requested
variance, it contends that there will be minimal or no adverse
impact caused by the granting of the variance. (Pet. at 9.) The
Agency agrees with Spring Valley’s assertion. (Rec. at 6.) 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 (R85—14), 35 Ill. Adm. Code 602.105 and 602.106 in
support of the assertion that the variance will not result in any
adverse environmental impact. (Rec. at 7.) 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. at 7.)
While the Agency believes that radiation at any level
creates some risk, the risk associated with the Village’s water
supply is very low. (Rec. at 6, 7.) The Agency states that an
increase in the allowable concentration should cause no
significant health risk for the limited population served by new
water main extensions for the time period of this recommended
variance.” (Rec. at 7.)
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))
6
and corresponding regulations (40 CFR Part 141) because the
variance does not grant relief from compliance with the federal
primary drinking regulations. (Rec. at 9.)
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 City of Spring Valley pursuant to Section 35(a)
of the Act. The Board will grant this variance for a period of
five years subject to conditions similar to those recommended by
the Agency. If, during the course of the following five years,
the standard for combined radium activity as set forth in 35 Ill.
Adm. Code 611.330(a) and (b), are changed due to the long awaited
and now uncertain action by the USEPA, this variance may no
longer be applicable. 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”. Spring Valley is not
granted variance from compliance with the combined radium
standard, nor does today’s action insulate Spring Valley 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 City of Spring Valley 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 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:
(1) For purposes of this order, the date of USEPA action
shall consist of the earlier date of the:
a) 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
b) Date of publication of notice by USEPA that no
amendments to the 5 pCi/i combined radium standard
or the method for demonstrating compliance with
7
the 5pCi/l standard will be promulgated.
(2) Variance shall terminate on the earliest of the
following dates:
a) Two years following the date of USEPA action; or
b) October 6, 1999; or
c) When analysis pursuant to 35 Ill. Mm. Code
611.720(d) and 611.731(a), or any compliance with
standards then in effect, shows compliance with
standards for radium in drinking water then in
effect.
(3) Compliance shall be achieved with any standards for
radium then in effect no later than the date on which
this variance terminates.
(4) In consultation with the Illinois Environmental
Protection Agency (Agency), petitioner shall continue
its sampling 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 radiological analysis so as to determine the
concentration of radium-226 and 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 result to:
Illinois Environmental Protection Agency
Compliance Assurance Section
Division of Public Water Supplies
2200 Churchill Road
Springfield, Illinois 62794—9276
(5) 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, Petitioner will 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 Ill. Adm. Code 602.106(a)
Restricted Status, as they relate to the radium
8
standard.
(6) 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, petitioner will send to each user of its
public water supply a written notice to the effect that
petitioner is 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.
(7) Until full compliance is achieved, petitioner shall
take all reasonable measures with its existing
equipment to minimize the level combined radium-266 and
radium-228, in its finished drinking water.
(8) 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 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 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. 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 94-211,
9
October 6, 1994.
Petitioner
Authorized Agent
Title
Date
Section 41 of the Environmental Protection Act (415 ILCS
5/41 (1992)) provides for appeal of final Board orders within 35
days of the date of service of this order. The Rules of the
Supreme Court of Illinois establish filing requirements. (See
also 35 Ill.Adin.Code 101.246 “Motions for Reconsideration”.)
IT IS SO ORDERED.
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby cer~ifythat the above op~Ti~pandorder was
adopted on the,
(~/-~
day of
__________________,
1994, by
avoteof
________
Dorothy H. Gu1)~, Clerk
Illinois Pol((’tion Control Board
