ILLINOIS POLLUTION CONTROL BOARD
February 27,
1992
CITY OF JOLIET,
)
Petitioner,
•v.
)
PCB 91—246
)
(Variance)
)
ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
OPINION
AND
ORDER OF THE BOARD
(by J.C. Marlin):
This matter is before the Board on the December 16,
1991
filing by petitioner City of Joliet
(City)
of a petition for
variance.
The City 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
City’s public water supply of the standards for combined radium—
226 and radiuin-228 and for gross alpha particle activity.1
The
City requests a five—year variance.
On January 29,
1992, the Illinois Environmental Protection
Agency
(Agency)
filed its variance recommendation, with a motion
to file instanter.
On February 3,
1992 the City filed
a motion
for expedited review.
Both motions were granted by Board order
on February
6,
1992.
The Agency recommends that the variance be
granted subject to certain conditions.
The City waived hearing
and none has been held.
For the following reasons, the Board finds that the City has
presented adequate proof that immediate compliance with the
Board’s regulations for “Standards Issuance” and “Restricted
Status” would result in the imposition of an arbitrary or
unreasonable hardship.
Accordingly, the variance is granted,
subject to the conditions set forth in the attached order.
BACKGROUND
The City is a municipality located in Will County.
The City
provides potable water supply and distribution for 20,935
residential and 2,088
industrial and commercial utility
1
The standard for combined radium was formerly found at
35
Ill. Adm. Code 604.301(a);
effective September 20,
1990 it
was recodified at 35
Ill. Adm. Code 611.330
(a).
130—299
2
customers,
representing some 76,000 residents and some 2,000
industries and businesses employing approximately 18,000 people,
as of 1991.
(Pet.
par.
10;
Rec.
par.
6)
The water system
includes eleven deep wells,
six shallow wells, pumps and
distribution facilities.
(Pet. par.12;
Rec. par.
6)
The City was first advised that its water supply exceeded
the maximum allowable concentration for combined radium in a
December 9,
1985 letter from the Agency.
The Agency report
showed a,combined radium—226 and radiuin—228 concentration of 6.5
pCi/l.
(Pet. par.
15)
On November
6,
1986 a variance was
granted by the Board relating to the combined radium
concentrations, which terminated on November 6,
1991.
(Pet. par.
20;
Rec. par.
7)
On September 13,
1991 the City was first
advised that the maximum allowable concentration for gross alpha
particle activity exceeded the maximum allowable concentration ir
a letter from the Agency.
(Pet. par.
17)
The most recent
analyses of Petitioner’s water taken in July of 1991 revealed
continuing non—compliance with the combined radium and gross
alpha particle standards.
(Pet. par.
18)
This is Petitioner’s
second request for a variance involving the combined radium
limitations and its first request for avariance involving the
combined gross alpha particle activity limitations.
(Rec. par.
7)
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 this
Chapter.
Section 602.106
Restricted Status
b)
TheAgency 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
130—300
3
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 City requests that it be
allowed to extend its water service while it pursues compliance
with the radium standards, 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 had
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 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,
135 Ill.
App;
3d.
343, 481 N.E. 2d 1032
(1977)).
Only with such showing can the
claimed hardship rise to the level of arbitrary or unreasonable
hardship.
Where, as here, the petitioner seeks to extend the
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,
67
Ill. 2d 276, 367 N.E.
2d
684
(1977)), 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 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
(NIPDWR5) by
the USEPA in 1976.
The standards adopted were
S pCi/i 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
ITinterim~~
limits, these
standards nevertheless are the maximum allowable concentrations
under both federal and Illinois law, and will remain so unless
130—30 1
4
modified by the USEPA.2
Over much of the fifteen years since their original
promulgation, the current radium 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).
Most
recently,
on June 19,
1991, USEPA announced a proposal to modify
the radi~imstandards.3
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.
Under the USEPA’s calendar, these
standards are scheduled for promulgation by April 1993 with an
effective date of October 1994.
COMPLIANCE
PLAN
The City has proceeded with many of the required actions set
out in the variance granted to them by the Board on November 6,
1986, to attain compliance with the combined radium-226 and
radium-228 standard.
The City states in attachment No.
4 of its
petition (Pet.
Att.)
that it is also continuing with the
development of plans and specifications for the construction of
the necessary facilities to implement the Kankakee River as a
water source.
(Pet.
par. 21)
In order to comply with the Board
Order of November 6,
1986, the City is continuing its water
sampling program through the IEPA.
(Pet. Att.
p.
1)
The City
also hired a professional consulting company to investigate its
compliance options as required by the Board Order of November
6,
1986.
Based upon the results of the study,
the City has made a
decision to continue developing the Kankakee River as a water
source.
(Pet. Att.
p.
1 and
4)
The City has encountered delays in obtaining necessary
permits because of objections to Joliet using the Kankakee River
as a water source and the implementation of a protected flow
standard.
A protected flow standard would prohibit the City from
withdrawing water from the river during drought periods.
(Pet.
par. 21 and Att.
p.
1)
The City has also had difficulties in
obtaining right-of-way(s) necessary to place pipe along the
Kankakee River.
The right of way for the withdrawal point has
2
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.
Publication occurred at 56 Fed. Reg.
33050,
July 18,
1991.
130—302
5
been purchased and the routing has been identified, however,
other right-of-way(s) will not be purchased nor will additional
expenditures be made by the City until the withdrawal permit is
obtained.
(Pet. Att. p.
1)
Additionally, because the City has not yet obtained the
withdrawal permit,
it has not begun coflstruction or advertised
for construction bids.
(Pet. Att. p.
2-3)
In an attempt to obtain a withdrawal permit, the City has
conducted environmental studies on mussels and various varieties
of fish in the river,
including an analysis of the 1988 drought
and its impact on fishing in subsequent years.
The City has also
held discussions with the Division of Water Resources and the
Illinois Department of Conservation in an attempt to find a
solution which will result in the issuance of a withdrawal
permit.
The City feels that the following solution will result
in the issuance of a permit.
(Pet. Att.
p.
2-3)
Petitioner expects to apply for a withdrawal permit allowing
withdrawal of water when the flow at the withdrawal site is
greater than the seven-day 10-year low flow.
When the flow is
greater than the seven-day 10-year low flow,
the City will be
allowed
to
withdraw
fifty percent of the difference between the
.actual flow and the seven-day 10—year low flow.
Additionally,
the City plans to use its deep wells and shallow wells during
periods when there is not an adequate water amount to meet the
City’s needs.
(Pet. Att.
p.
2—3)
The City is also considering
constructing a reservoir/lake to provide storage for use in
drought
periods.
(Pet.
Att.
p.
2-3)
Developing the Kankakee River as a water source will allow
the City to attain compliance with the combined radium standards.
This will be achieved through blending with the existing shallow
wells and some of the existing deep wells, resulting in water
which complies with the USEPA proposed maximum contaminant levels
for gross alpha particle activity as well as for radium-226 and
radium-228.
(Pet. par.
23)
Petitioner estimates the total cost
for the development of the Kankakee River as a water source at
$40 million and expects the time for implementation to be
60
months.
(Pet. par.
24)
HARDSHIP
The City contends that the hardship resulting from the
denial of the requested variance outweighs any injury to the
public from granting the variance.
(Pet.
par.
38)
Failure of
the Board to grant a variance would mean that all construction
within the City’s service area requiring an extension of the
water supply system would stop.
The City states that nine major
projects within the service area, which will require public water
for domestic and fire needs are currently in the active
130—303
6
development stage.
These projects would have to be discontinued
if a variance is not granted.
(Pet. par.
36 and Attachment
6)
The City maintains that a restriction on extension of water
supply in Joliet would harm land developers, potential home
purchasers, and the general public, as construction is an
important part of the community’s economy.
(Pet. par.
36)
Further,
imposition of restrictions on extensions of water supply
would harm the increased industrial plant development which is
taking place in Joliet, by excluding the area from consideration
for industrial plant relocations.
(Pet. par.
36)
Additionally,
the City is limited in its financial ability to pay for
improvements immediately.
Cash reserves were established for the
project through the sale of revenue bonds for construction and
only around $19,000,000 is currently on hand
(Pet. par.
34)
In
sum, the City maintains that restricted status would result in
economic decline in the community but would do little to protect
public health.
(Pet. par.
38)
The Agency agrees that denial of the variance would impose
an arbitrary or unreasonable hardship on the City.
(Rec. par.
21)
ENVIRONMENTAL IMPACT
Although, the City 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.
par. 29)
The Agency agrees with
the City’s assertion.
(Rec. par.
21)
Both the City and the
Agency cite the testimony presented by Richard E. Toohey, Ph.D.,
of Argonne National Laboratory,
on July 30 and August
2,
1985
in
R85-14 hearings for the Proposed Amendments to Public Water
Supply Regulations 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.
(Pet. par.
29;
Rec. par.
16)
The
Agency also refers to 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.
(Rec.
par.
16)
While the Agency believes that radiation at any level
creates some risk,
it contends that the risk associated with the
City’s water supply is very low.
(Rec. par.
15)
The Agency
states as follows:
The Agency believes an increase in the allowable
concentration for the contaminants in questiOn should
cause no significant health risk for a limited
population served by new water main extensions for the
time period of this recommended variance.
(Rec. par.
20)
130—304
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))
and corresponding regulations
(40 CFR Part 141) because the
variance does not grant, relief from compliance with the federal
primary drinking regulations.
(Rec. par. 24)
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 Joliet.
The City is proceeding with its
plan to develop the Kankakee River as a water source, which.has a
low radium content.
As the City points out,
the time required
to obtain the necessary permits,
financing, and to construct the
facilities prevents immediate compliance.
However,
in the
interim period a need exists to expand the water distribution
system so as not to jeopardize current and future economic growth
through land development.
(Pet.
par.
37)
The Board notes that the City has requested a five-year
variance which the City maintains will give it enough time to
complete the facilities and come into compliance with the
proposed USEPA standards.
The Agency also recommends that a five
year variance be granted.
Accordingly, the Board grants the
variance as recommended
Today’s action is solely a grant of variance from standards
of issuance and restricted status.
The City is not granted
variance from compliance with the combined radium or gross alpha
particle activity standards,
nor does today’s action insulate the
City 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 Joliet is hereby granted a variance from 35 Iii.
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 and for gross alpha particle activity
in drinking water set forth in 35 Ill. Adm. Code 611.330,
subject
to the following conditions:
(A)
For purposes of this variance, the date of
USEPA action shall consist of the earlier
130—3 05
8
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
5pCi/l combined radium standard or
the
method
for
demonstrating
compliance with the 5pCi/1 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)
February 27,
1997;
or
(3)
When analysis pursuant
to
35
Iii.
Adm.
Code
611.720(d),
or
any
compliance demonstration method then
in effect, shows compliance with any
standards
from
radium
in
drinking
water.
(C)
Compliance shall be achieved with any standards for
radium then
in
effect no later than February 27,
1997.
(D)
In consultation with the 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
expires,
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 radium—
226,
radiuiu-228,
and
gross
alpha
particle
activity.
At
the
option
of the
City,
the
quarterly
samples
may
be
analyzed
when
collected.
The results of the analyses shall
be reported within 30 days of the receipt of
the most recent results to:
130—306
9
City,
the quarterly samples may be analyzed
when collected.
Theresults of the analyses
shall be reported within 30 days of the
receipt of the most recent results to:
Illinois Environmental Protection Agency
Compliance Assurance Section
Division of Public Water Supplies:
220 Churchill Road
Springfield, IL 62794—9276
(E)
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 the Petitioner’s public water
supply needed for achieving compliance with
the Maximum Contaminant Level for combined
radium, and gross alpha particle activity or
with any other standard for radium in
drinking water then in effect:
Illinois Environmental Protection Agency
Public Water Supply Program
Division of Public Water Supplies:
220 Churchill Road
Springfield,
IL 62794—9276
(F)
Within six months of USEPA action after each
construction permit is issued by IEPA,
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 IEPA,
DPWS,
within 30 days,
of each of the following
actions:
(1)
advertisements for bids,
(2)
names of successful bidders, and
(3)
whether Petitioner accepted
the bids.
(G)
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 Contaminant
Level
in question shall be completed no later than
130—307
10
two years following USEPA action.
(H)
Pursuant to 35 Ill.
Adin.
Code 611.852
(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, written notice to the
effect that the 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.
(I)
Pursuant to 35 Ill.
Adin. 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 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 it relates to the MCL standard in
question.
(J)
Until full compliance is reached, Petitioner
shall take all reasonable measures with its
existing equipment to minimize the level of
contaminants in question in its finished
drinking water.
(K)
The Petitioner shall provide written progress
reports to IEPA,
DPWS,
and FOS every six
months concerning steps taken to comply with
paragraphs
D,
E,
F,
G, H, and I.
Progress
reports shall quote each of said paragraphs
and immediately below each paragraph state
what steps have been taken to comply with
each paragraph.
(L)
That within forty-five days of the grant of
the variance, Petitioner shall execute and
forward to
:
Stephen C. Ewart
Division of Legal Counsel
Illinois Environmental Protection Agency
P.O. Box 19276
2200 Churchill Road
130—308
11
Springfield, IL 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
91—246,
February
27,
1992.
Petitioner
Authorized
Agent
Title
Date
IT IS SO ORDERED.
B. Forcade dissented.
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.
130—309
12
I, Dorothy N. Gunn,
Clerk of the Illinois Pollution Contro
Board, hereby certify that the ab~,veOpinion and Order was
adopted
on
the
~
day of
,
1992, by a
voteof
‘~—/
*
.
Control Board
13 0—3 10
