ILLINOIS POLLUTION CONTROL BOARD
September 21, 1995
CITY OF LOCKPORT,
)
Petitioner,
v.
)
PCB 95—152
)
(Variance-Water)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
OPINION AND ORDER OF THE BOARD (by ~3.Theodore Meyer):
On May 26, 1995 the Board received a petition for an
extension of variance filed by the City of Lockport (Lockport).
Lockport is seeking an extension of a variance granted by the
Board on July 11, 1991 in PCB 90-122. Lockport was granted
relief from 35 Ill. Adm. Code 602.105(a) and 602.106(a) to the
extent that those rules apply to the maximum concentration limit
(MCL) for radium-226 and radium-228 (as set forth at 35 Ill. Adm.
Code Section 611.330(a)) and the gross alpha particle activity of
35 Ill. Adm. Code 611.330(b). The current variance expired July
11, 1995. Lockport is asking that the Board extend the variance
until July 11, 2000, or until the United Statoc Environmental
Protection Agency (USEPA) takes final action with respect to a
new radium standard, whichever comes first.
On June 29, 1995, the Board received a recommendation from
the Illinois Environmental Protection Agency (Agency) which
advises that the variance be granted as to the MCL for radium,
with certain conditions. However, Lockport’s request for relief
from the gross alpha particle standard was not addressed in the
Agency recommendation.
Lockport submitted a response to the Agency recommendation
on August 2, 1995, noting the Agency’s oversight, and reiterating
its request for a variance from the combined radium standard as
well as the gross alpha particle standard. (Reply at 2.)1 On
August 23, 1995, the Agency submitted a Motion to File Agency
Amended Recommendation and an Amended Recommendation which
corrected the oversight. (Rec. at 1). Locicport waived hearing.
Since the Board received no requests for a hearing, none was
held.
‘The Petition for Variance shah, be reterreci to as ~vet. at .,; the
Agency Amended Recommendation shall be referred to as (Rec. at
_.);
and
petitioner’s Response to the recommendation shall be referred to as (Reply at
2
As a preliminary matter, the Board’s procedural rules do not
give petitioners the right to file a reply. However, since
Lockport’s response to the Agency recommendation addresses a
topic of clarification necessary for an effective outcome in this
case, the Board hereby accepts Lockport’s reply as filed. We
also grant the Agency’s motion to file its Amended
Recommendation, and hereby accept the recommendation.
BACKGROUND
Lockport is a municipality located in Will County which
provides potable water to a population of 3,973, including
residential, commercial, governmental and industrial customers.
Lockport’s water distribution system consists of two deep wells,
two shallow wells, pumps and distribution facilities. (Pet. at
3.) Lockport is currently installing a third shallow well to
serve a new development area.
(I~.)
The average daily water use
for Lockport in 1994 was about 1.05 million gallons per day.
(Id. at 4.)
The most recent analysis of petitioner’s water supply was
conducted in January, 1995. (Pet. at Exhibit A.) The results
showed a combined radium content of 18.6 pCi/L, a level which
exceeds the 5 pCi/L combined standard for radium-226 and radium-
228 as set forth in 35 Ill. Adm. Code 611.330(a). (Rec. at 4.)
Although Lockport’s current reading for gross alpha particle
activity does not exceed the standard as set forth in 35 Ill.
Adm. Code 611.330(b), during 1994’s sampling period, the water
supply showed a gross alpha particle activity of 17.5 pCi/L.
(fl.)
This reading exceeds the 15 pCi/L standard.
Lockport is seeking an extension
of the
variance
for its
water distribution system until July 11, 2000 or until the USEPA
adopts new radium and gross alpha particle activity standards.
If the USEPA enacts the proposed 20 pCi/L standard for radium-226
and radium-228, and institutes a less stringent analytical method
for gross alpha particle activity, then Lockport will be in
compliance without incurring additional cost. (Pet. at 6.)
REGULATORY
FRAMEWORK
The instant
variance request concerns three features of the
Board’s public water supply regulations:
“Standards
for
Issuance”
~35 Ill. Adm. Code 602.105); “Restricted Status” (35
Ill. Adm. Code 602.1064~ and, the MCL5 for radium-226, radium-228
and gross alpha particle radioactivity (35 Ill. Adm. Code
611.330). In pertinent part, these 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
. . .
Act (Ill.
Rev. Stat. 1981, cli. 111 1/2, par. 1001 et
seq.),
. . .
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.
Section 611.330
The following are the MCL’S for radium-226, radium-228 and
gross alpha
particle radioactivity:
a)
Combined radium-226 and radium-228
-
5
pCi/L.
b)
Gross alpha particle activity (including radium-226 but
excluding radon and
uranium)
-
15 pCi/L.
Illinois regulations thus prohibit communities from
extending water service
if their water fails to meet any of the
several standards for finished water supplies. This provision is
a unique feature of the Illinois regulations and is not found in
federal law. It is from this prohibition which Lockport requests
a variance. However, we emphasize that the duration of
restricted status is linked
to the length of time it takes the
water supply to comply with
the underlying standards. As such,
the time frames in the proposed compliance plan itself are an
essential consideration
in a restricted status variance
determination,
whether or not variance is being requested from
those standards. Granting a variance from restricted status,
then, will be conditioned upon a schedule of compliance with the
standards.
In consideration of any variance,
the Board determines
whether a
petitioner has presented adequate proof that immediate
compliance with the Board
regulations at issue would impose an
arbitrary or unreasonable
hardship.
(415 ILCS
5/35
(a) (1994).)
The burden is upon the petitioner to show that its claimed
hardship outweighs the public interest in attaining compliance
with regulations designed to protect human health and the
enviL-QIlmeut.
(Willowbrook Motel v. Illinois Pollution Control
Bard, 135 Ill.App.3d 343, 481 N.E.2d 1032 (1st Dist. 1985).)
Only with such a showing can the claimed hardship rise to the
level of arbitrary or unreasonable hardship.
4
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 task of eventual
compliance presents an individual polluter.
(Monsanto Co. V.
IPCB, 67 Ill.2d 267, 367 N.E.2d 684 (1977).)
Accordingly, a
petitioner is required, except in certain circumstances, to
commit to a plan which is reasonably calculated to achieve
compliance with the term of the variance.
Is it important to recognize that grant of variance from
“Standards for Issuance”
and “Restricted Status” neither absolves
a petitioner
from compliance with the drinking water standards at
issue, nor insulates a petitioner
from possible enforcement
action brought for violation of those standards.
The underlying
standards remain applicable to the petitioner regardless of a
variance grant or denial.
Standards for radium
in drinking water were first adopted as
National Interim Primary Drinking Water Regulations 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. Shortly
thereafter, Illinois adopted the same limits which are now found
at 35 Ill.
AcIm.
Code Section 611.330. Although characterized as
“interim” limits, the standards nevertheless are the maximum
allowable concentrations under both federal and Illinois law, and
will remain so unless modified by the USEPA.
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
Pu1~making (4~ F~d.. W~g. 4~5Oi). Tt iat~rr~puh1i~hedthis
advance notice in September 1986 (51 Fed. Reg. 34836). On June
19, 1991, USEPA announced a proposal to modify both radium
standards
(56
Fed. Reg. 33050, July 18, 1991). USEPA proposed to
replace the 5 pCi/L combined radium standard by separate
standards of 20 pCi/L each for radiuin-226 and radium-228. (56
Fed.Reg. 33050, 33100 (July 18, 1991). Under the USEPA’s
calendar, these standards were scheduled to be published by April
1995. Due to lack of funding, however, the publishing deadline
was extended to September 15, 1995.
PAST COMPLIANCE EFFORTS
After receiving a variance in PCB 87-16, Lockport retained a
consultant to investigate compliance alternatives. (Pet. at 6.)
After conducting a population growth forecast, Lockport’s
consultant evaluated four compliance alternatives: obtaining
La~e Michigan water; utilizing Kankakee River water; blending
shallow and deep well water; and treating deep well water with an
ion exchange system. Pet. at 6-7.) Initially, the ion exchange
system was recommended as the most cost—effective due to expected
state funding of the program; however, when state funding was
denied, Lockport decided to obtain Lake Michigan water to achieve
compliance.
(Pet. at 7.)
In May 1990, Lockport submitted an application for an
allocation or LaJe Michigan water to the Illinois Department of
Transportation
(IDOT), and began negotiating with the city of
Orland Park for the use of its transmission line from Oak Lawn.
(Pet.
at
8-9).
Lockport had determined that obtianing Lake
Michigan water would be economically feasible if it could avoid
constructing its own transmission line.
(~~)
IDOT approved
Lockport’s application in August 1990; however, Orland Park
announced that it would provide water to Lockport on an interim
basis only.
(Pet. at 9.)
Since Lockport would eventually have
to construct its own transmission line, obtaining Lake Michigan
water became cost prohibitive;
therefore, Lockport again hired
consultants to investigate other compliance alternatives.
NEW
COMPLIANCE ALTERNATIVES
While seeking cost-effective
alternatives,
Lockport has
instituted a two-facility water distribution
system: one low-
pressure system that distributes deep well water to residents of
central and west Lockport, and one high—pressure system that
delivers shallow well water to the new developments in east
Lockport.
(Pet. at 10.)
Although the high-pressure system is in
compliance with radium and alpha particle standards, the low—
pressure system is not.
(~~)
Lockport is currently considering a Lake Michigan pipeline
project proposed by Citizens Utilities.
(Pet. at 10.) This
pipeline would serve Lockport and other cities in the
southwestern Chicago suburbs.
(~J
While Citizens Utilities
continues its negotiations,
Lockport is working on the
installment of several necessary systems in order to receive Lake
Michigan water.
(Pet. at 10-11).
However, the cost of
implementing this project is estimated at $8.3 million;
therefore, Lockport may hold a non—binding referendum to obtain
feedback from its citizens.
(Pet. at 11.)
To date, Lockport has expended nearly $3 million in pursuing
compliance.
(Pet. at 11.) The installation
of additional
shallow wells is planned, as is continued testing and submission
of results to the IEPA, and notification
to customers of the
variance and radiological levels in its water.
(Pet. at 11-12.)
ENVIRONMENTAL IMPACT
The Agency states that, while radiation at any level creates
some risk, the risk associated with this level is very low.
(Rec. at 7.)
Further, information regarding effects of combined
radium levels was presented in testimony before the Board at the
6
Aurora variance hearing (PCB 85-54) on June 25, 1985, by Richard
E. Toohey, Ph.D., and at the hearings on the Agency rule change
proposal in R85—14.
(~~)
The Agency concludes that an increase
in the allowable concentration for the contaminants in question
should cause no significant health risk for a limited population
served by new shallow water wells and water main extensions for
the time period of this recommended variance.
(Rec. at 9.)
Lockport incorporated by reference the testimony or and
exhibits presented by Richard E. Toohey, Ph.D. and Dr. James
Stebbings, and based on that testimony, stated that there will be
littip,
if
any,
adverse environmental or health impact caused by
a grant of the requested variance.
(Pet. at 5.)
HARDSHIP
Lockport asserts that denial of the variance would
constitute an arbitrary or unreasonable hardship because the
grant of the variance would cause little ir any adverse
environmental impact.
(Pet. at 12.)
In contrast, Lockport
argues, a denial of the variance extension would delay or
terminate the significant development which it currently is
experiencing, and which has necessitated the expansion of the
water supply system.
(~~)
Denial of Lockport’s variance request would also require the
city to expend hundreds of thousands of dollars to come into
compliance with a standard which may be changed soon to a point
where said expenditures would be unnecessary.
(Pet. at 12.)
Thus, Lockport believes the adverse economic impact would far
outweigh any health effects associated with the consumption of
Lockport’s water.
(~4~)
Petitioner acknowledges that Section 35(a) of the Act states
that “the Board is not required to find that an arbitrary or
unreasonable hardship exists exclusively because the regulatory
standard is under review and the costs of compliance are
substantial and certain”.
However, that provision does not
preclude such a finding in this case in that USEPA has proposed a
revised standard of 20 pCi/L and is under a court order to
promulgate a new standard.
(Pet. at 12.)
Lockport asserts that
both the Agency and USEPA have established a policy of not
requiring final design and construction compliance prior to
federal promulgation of a revised radium standard.
(I~ See
also
City of Ottawa v. IEPA, PCB 90-100 (date).)
The Agency believes that the grant of the variance would
impose “no significant injury to the public or to the
environment”.
(Rec. at 5.) Denial of the requested variance,
the Agency believes, would result in an arbitrary or unreasonable
hardship due to resulting denials of construction and operating
permits, and the imposition of restricted status upon Lockport’s
water supply
(~~)
Imposition of restricted status means that no
new water main extensions could be issued, which in turn means
that Lockport would be unable to provide a
water supply to new
housing developments currently under construction.
(~~)
Thus,
the Agency supports a grant of the variance.
CONSISTENCY WITH
FEDERAL LAW
Both Lockport and the Agency agree that the Board may grant
the requested variance consistent with federal law. (Pet. at 12;
Rec. at 10.) The requested variance would
allow for water main
extensions, but is not a variance from the national primary
drinking water regulations.
(Pet. at 12.) Further, according to
the Agency, granting variance from the effects of restricted
status affects state, not federal, laws and regulations.
(Rec.
at 10.)
CONCLUSION
Lockport is requesting an extension of an existing variance
granted by the Board in 1990. Despite substantial conformance to
the conditions of the prior variance, Lockport is not currently
in compliance with the drinking water standard for radium. At a
cost of nearly $3 million, petitioner completed preliminary work
for the construction of shallow wells in anticipation of
combining it with deep well water which would achieve compliance
with the current radium standard of 5 pCifL.
Lockport has shown that the Illinois drinking water
standards for radium are based on the federal standards which are
presently under review by USEPA. In June 1991, USEPA proposed
raising the radium drinking water standards to a higher level,
and if the standards are adopted as proposed, Lockport would be
in compliance. USEPA is under court order to promulgate the new
radium drinking water standards by September 15, 1995. The
Agency agrees with Lockport that no significant injury to the
public is likely from contamination at the present radium levels.
Lockport has shown that a hardship would result if a
variance from Section 602.105(a) and Section 602.106(b) was not
granted by the Board. If the federal standard for radium in
drinking water is not raised, Lockport has submitted a compliance
plan that would be implemented. Lockport has demonstrated that a
variance is warranted. Therefore, the Board will grant a
variance from the Board’s rules at 35 Iii. Adm. Code Sections
602.105(a) and 602.106(b) to the extent that those rules apply to
the maximum concentration of radium—226 and radium—228, as
regulated at the date of USEPA action on the radium standards, or
July 11, 2000, whichever
is
earlier.
This opinion constitutes the Board findings of fact and
conclusions of law in this matter.
13
ORDER
The Board hereby grants the petitioner,
City of Lockport, a
variance from 35 Ill. Adm. Code 602.105(a), Standards of
Issuance, and 602.106(b), Restricted Status, but only as the
rules relate to radium-226, radium-228 and gross alpha particle
activity, subject to the following conditions:
(A) For purposes of
this recommendation, the date of USEPA
action shall consist of the earlier date of the:
(1) date the regulation is promulgated by the U.s.
Environmental Protection Agency (USEPA) which
amends the maximum contaminant level (MCL) 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/L combined radium standard
or the method for demonstrating compliance with
the 5 pCi/L standard will be promulgated.
(B) The variance shall terminate on the earliest of the
following dates:
(1) Two years following the date of USEPA action; or
(2) July 11, 2000.
(C) In consultation with the Agency, petitioner shall
continue
a sampling program to determine as accurately
as possible the level of radioactivity in its wells and
finished water. Until this
variance expires,
petitioner shall collect
quarterly samples of 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 the contaminants in question. The
results of the analyses shall be reported to the
Compliance Assurance Section, Drinking Water Quality
Unit, Bureau of Water, P.O. Box 19276, IEPA,
Springfield, IL 62794—9276, within 30 days of receipt
of each analysis. At the option of the petitioner, the
quarterly samples may be analyzed when collected. The
running average of the most recent four quarterly
sample results shall be reported to the above address
within 30 days of receipt of the most recent quarterly
sample.
9
(D) Within three months of USEPA action, petitioner shall
apply to the Agency at the
address
below for all
permits necessary for the construction, installation,
changes or additions to petitioner’s 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 Program
Permit Section
2200 Churchill Road
Springfield, IL 62794—9276
(E) Within three months of the issuance of each
construction permit 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. The petitioner shall accept
appropriate bids within a reasonable time. Petitioner
shall notify the Agency, DPWS, within 30 days, of each
of the following actions: 1) advertisements for
bids;
2) names of successful bidders; and 3) whether
petitioners accepted bids.
(F) 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 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 35 111. Adm. Code 611.851(b), 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 the petitioner is not in compliance with
the standards in question. The notice shall state the
average content of the contaminants in samples taken
since the last notice period during which samples were
taken.
(H) Pursuant to 35 Ill. Adm. Code 611.851(b), in its first
set of water bills or within three months after the
date of this variance 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 Illinois Pollution Control Board a variance from
35 Ill. Adm. Code 602.105(a), Standards of Issuance, 35
-LU
Ill. Adm. Code 602.106(b), Restricted Status, and 35
Ill. Adm. Code 611.330(b), gross alpha particle
activity as it relates to the MCL standards in
question.
(I) until full compliance is reached, petitioner shall take
all reasonable measures with existing equipment to
minimize the level of contaminants in its finished
drinking water.
(3) Petitioner shall provide written progress reports to
the Agency’s DPWS, FOS every six months concerning
steps taken to comply with paragraphs C, D, E, F, G and
H. Progress reports shall quote each of said
paragraphs and immediately below each paragraph state
what steps have been taken to comply with each
paragraph.
IT IS SO ORDERED.
If petitioner chooses to accept this variance subject to the
above order, within forty-five days of the grant of variance,
petitioner must execute and forward the attached certificate of
acceptance and agreement to:
Stephen C. Ewart
Division of Legal Counsel
Illinois Environmental Protection Agency
P.O. Box 19276
2200 Churchill Road
Springfield, IL 62794—9276
Once executed and received, that certificate of acceptance
and agreement shall bind the petitioner 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:
CERTIFICATION
I, (We),
___________________________,
hereby accept
and agree to be bound by all terms and conditions of the
Order of the Illinois Pollution Control Board, in PCB 95-
152, September 21, 1995.
Petitioner: ___________________________
By: Authorized Agent
Title:
11
Date:
___________________
Section 41 of the Environmental Protection Act (415 ILCS
5/41 (1994)) provides for the appeal
of
final Board orders within
35 days of the date of service of this order. The Rule of the
Supreme Court of Illinois establish filing requirements. (See
also
35 Ill. Adm. Code 101.246, Motions for Reconsideration.)
I, Dorothy Gunn, Clerk of the Illinois Pollution Control
Board, hereby cert~ythat the ab e opinion and order was
ad~ptedonthe
~7/
~ day of
_____________,
1995, by a vote or
Dorothy M. rnnn, Clerk
Illinois P,~L1utionControl Board
