ILLINOIS POLLUTION CONTROL BOARD
April
26,
1990
CITY OF MINONK,
Petitioner,
v.
)
PCB 89—140
(Variance)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
OPINION AND ORDER OF THE BOARD
(by M.
Nardulli):
This matter
comes before the Board upon
a petition for
variance filed by the City of Minonk
(Minonk)
on September
12,
1989,
as amended January
9,
1990.
Minonk seeks
a variance from
the Board’s public water supply regulations,
namely from 35
Ill.
Adm. Code
602.105(e)
(Standards for
Issuance)
and
35
Ill.
Adm.
Code 602.106(b)
(Restricted Status)
but only
to the extent those
rules
involve
35
Ill. Adm.
Code 604.301(a)
(combined Radium—226
and Radium—228)
and
(b)
(gross alpha particle activity).
The
term requested for the variance
is
five years from date of
issuance or when analysis, pursuant
35
Ill.
Adm.
Code
605.105,
shows compliance with the standards.
On March
5,
1990,
the Illinois Environmental Protection
Agency
(Agency) filed
its Recommendation that the variance
be
denied.
Hearing was waived and none has been held.
Based on the
record before
it,
the Board denies Minonk’s variance request.
PROCEDURAL HISTORY
Minonk was granted a variance from the gross alpha particle
standard on May 28,
1981
(PCB 81—32)
until October,
1985.
The
Board’s order
in that
proceedLng required Minonk
to search out
alternative water
supplies and
to investigate
a lime softening
process.
(PCB Op.
41—490 and 491.)
Further, Minonk was ordered
to:
As expeditiously after identification
of
a
~easib1e
compliance method as
is practicable,
but
no later
than January
1,
1984,
Petitioner
shall submit
to the Agency
a program
(with
increments
of progress)
for bringing
its
system into compliance with radiological
quality standards.
(:d.)
110—347
—2—
Minonk was notified on October
4,
1985
that its water supply
exceeded
the maximum allowable concentrations
for radium—226 and
228.
The Agency’s
report indicated a
concentration
of 6.4 pCi/l
for radium—226 and 2.0 pCi/l
for radium—228.
(Pet.
par.
11.)
Minonk was placed on
restricted status on January
12,
1986 and
is
on the 1990 Restricted Status List.
(Rec.
par.
11.)
On July
Il,
1989, Minonk collected a sample from its distribution system and
sent
it
to
a private laboratory
for analysis.
The result was 7.1
pCi/l
for radium—226 and 3.3 pCi/l
for radium-228.
(Pet.
par.
12.)
Minonk split
the sample and sent
it
to two laboratories for
analysis
for gross alpha.
The analyses
indicated a gross alpha
particle activity level
of
9.7 pCi,’l and
15.8 pCi/I.
(Pet.
attachment
2.)
BAC
1 GROUND
Minonk,
in
Woodford
County,
owns
and
operates
potable
water
supply and distribution
for approximately
828
residential
and
60
business customers,
as well
as
6 churches and
2 schools.
The
water supply system consists
of
three deep wells,
drawing
from
the same aquifer, ground storage resvoir, pumps and
distribution
facilities with elevated tank.
Minonk listed several
reasons
for
its failure
to achieve
compliance with the Board’s public water
supply rules.
First,
Minonk states that
it unsuccessfully attempted
to find an
alternative water supply from 1981
to
1984,
as required by PCB
81—32.
Second,
Minonk
indicated
it
was
not
notified
unti.
October
4,
1985
that
its
water
supply
exceeded
the
radium
standards.
Subsequent
to
1985,
Minonk
believed
that
the
limitation
on
radium
might
be
raised
to
a
level
where
its
water
supply
would
be
in
compliance.
In
support
of
its
belief,
Minonk
noted
the
Agency
proposal
in
R85—l4
that
the
radium
limit
be
raised
from
5
pCi/l
to
20
until
January
1,
1989.
Minonk
aso
noted
that
the
United
States
Environmental
Protection
Agency
(USEPA)
in
January,
1989
stated
that
the
radium
limit
nay
be
revised
to
5
pCi/I
for
radium—226
nd
5
pCi/l
for
radiun—228.
This
would
have
an
effect
on
the
proportion
of
the
total
water
supply
to
be
treated
for
radium
removal
by
Minonk.
(Pet.
par.
14(c).)
Lastly,
Minonk
authorized
its
encineer
to
do
a
preliminary
report
on
the
costs
of
treatment
processes.
The
report
titled
Radium
Removal
Alternatives
was
completed
in
June
of
1989.
However,
Minonk
“lacks
the
financial
resources
to
construct
the
treatment
plant.”
(Pet.
at
par.
14(d).)
REGULATORY
FRAMEWORK
In
recognition
of
a
variety
of
possible
health
effects
occasioned
by
exposure
to
radioactivity,
the
USEPA
has
promulgated
maximum
concentration
limits
for
drinking
water
of
5
pCi/l
of
combined
radium—226 and radium—228.
Illinois
I 10—348
—3—
subsequently adopted the same
limit
as the maximum allowable
concentration
under
Illinois
law.
Pursuant
to
Section
17.6
of
the
Illinois
Environmental Protection Act
(Ill.
Rev.
Stat.
1987,
ch. 11l~, par.
1017.6), any revisions
to the
5 pCi/l standard by
the USEPA will automatically become the standard
in Illinois.
The action that Minonk
request here
is not variance from
these maximum allowable concentrations.
Regardless of the action
taken by the Board
in the instant matter,
these standards will
remain applicable
to Minonk.
Rather,
the action Minonk requests
is the temporary lifting
of proh~hitionsimposed pursuant
to
35
Ill.
Adm.
Code 602.105 and 602.106.
Board
regulations provide
that communities are prohibited
from extending water
service,
by virtue of not being able
to
obtain the requisite permits,
if
their water
fails
to meet any of
the several
standards for finished water
supplies.
This
provision
is a
feature of Board regulations
not
found
in federal
law.
It
is the prchibition which Minonk requests
be
lifted.
However,
we emphasize
that,
since the duration
of restricted
status
is linked
to the length
of time
it
takes the water supply
to come into compliance with underlying
standards,
the timeframes
in the proposed compliance plan
itself are a concomitant,
indeed
an essential, consideration
in a restricted status variance
determination,
whether
or not variance is being requested from
those standards.
Thus,
grant
of variance from restricted status
will
be
conditioned on
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.
Ill.
Rev.
Stat.
1987,
ch.
ll1~, par.
1035(a).
Further,
the burden
is not upon the Board
to
show that
the harm to the public outweighs
petitioner’s
hardships;
the burden
is upon ~etitioner
to show that its claimed
arbitrary or unreasonable hardship outweighs
the public
interest
in attaining compliance with regulations designed
to protect
human health and the environment.
r,.~iIlowbrookMotel
v.
Illinois
Pollution Control
Board,
135 ill.App.3d
343,
481 N.E.2d
1032,
(First Dist.
1985).
Moreover,
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 poluter.
Monsanto Co.
v.
IPCE
67
111.
2d
276,
367 N.E.2d 684
(1977).
Accordingly,
except
in
certain special circumstances
a variance petitioner
is
required,
as
a condition
to a grant
of variance,
to commit
to a plan which
is
reasonably calculated
to achieve compliance within the term of
the variance.
110—349
—4—
COMPLIANCE PROGRAM
Minonk proposes
to achieve compliance
by constructing
a
treatment plant which will use the reverse osmosis procedure
to
remove radium from its water supply.
Minonk has taken several
steps toward the possibility of constructing such
a plant.
Those
steps include approval of
$300,000 General Bond Obligation
referendum and authorizing
the sale
of such bonds.
The proceeds
from that sale are now on deposit and available to Minonk.
Minonk also applied
to the Department
of Commerce and Community
Affairs
(DCCA)
for a Community Development Assistance Program
Grant.
However, Minonk was not approved for the grant
in
1989.
Minonk,
in its amended petition,
listed the following
“steps to
be taken during the variance period”:
1.
Continue the quarterly sampling program and
testing
for radium and gross alpha.
2.
Minonk will
issue public notification every
three months
as
required to comply with the
Board’s
rules.
3.
By May,
1990,
pilot testing of the proposed
reverse osmosis equipment and pretreatment
equipment will
be started.
The same type of
equipment will
be used for the pilot testing
program as would be used for the full scale
treatment process,
to confirm
the proposed
treatment process design criteria.
4.
July,
1990
—
Apply
to DCC~for a grant under
the Community Development Assistance Program
(CDAP)
to assist
in financing the construction
of the reverse osmosis treatment plant.
5.
November,
1990
-
Approval
cf
the CDAP grant.
6.
February,
1991
—
Release of funds
from CDAP
grant.
7.
February,
1991
—
Start design and plans and
specifications
of the water treatment plant.
110—350
—5—
8.
June,
1991
—
Complete plans and specifications
and apply
for Agency construction permit.
9.
September,
1991
—
Agency construction permit
approved,
and
advertise
for
bids
from
contractors
and
suppliers.
10.
October,
1991
—
Award
contract
construction
and
being
operation
of
the
water
treatment
plant.
11.
September,
1992
—
Complete
construction
and
begin
operation
of
the water treatment plant.
12.
September,
1993
—
Complete one year
compliance
sampling and testing program
to prove
compliance with the Pollution Control Board
standards.
13.
Petitioner
will submit progress
reports to
Agency every six months during the variance
period
concerning
completion
of
each
of
the
steps
listed
in
the
paragraphs above.
(Amended
pet.
at
5—7)
Minonk,
with
its
consulting
engineers,
has
developed
a
compliance
plan
which
relies
on
one
single component
to insure
its
success.
The
single component
is receipt
of grant funds from
DCCA.
Without
the grant
funds Minonk cannot proceed with
construction
of the treatment plant necessary
to remove radium
from
its
water
supply.
Minonk
has
already
been
turned
down
for
a
CDAP
Grant
once
and
it
cannot
guarantee
that
it
will
receive
a
grant
in
1990.
Therefore,
the
Board
finds
that Minonk’s
compliance plan
is speculative.
(See Citizens Utilities Company
of
Ilinois
v.
IEPA,
PCB 88—151, March
8,
1990
p.
17 and
18.)
HARDSHIP
Minonk specifies two reasons why immediate compliance would
impose an arbitrary or unreasonable hardship.
First, Minonk
notes
that the cost of construction
of
a treatment
plant
to use
the reverse osmosis procedure would
be $677,000
(Pet.
par.
19.)
Because, Minonk points out that the capacity of the facility
could be smaller
if the radium standard
is amended, Minonk
states:
Hence,
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.
par.
19.)
110—351
—6—
Secondly,
Minonk asserts
that failure
to
obtain
a variance
will
create
a
economic hardship
in that construction within
Minonk’s service
area, which would require expansion of the water
supply system, could not
be undertaken.
Minonk states that:
This problem
is especially acute at
the
present
time because new 1—39
is currently
under construction along
the west side of
the
City.
Petitioner will
be excluded from growth
opportunities that will occur
in other
communities along
this corridor
if developers
are discouraged because
the petitioner
is on
Restricted Status.
(Pet.
at par.
30.)
The federal standard for radium has been under
review for
some time.
Additionally,
in anticipation
of
a federal
revisions
of
the radium standard,
the Act has been amended at Section 17.6
to provide that any new federal radium standard immediately
supersedes the current
Illinois standard.
Nevertheless,
it
remains uncertain as
to when and how the radium standard will
actually
be modified.
(City of Geneva
v.
IEPA, PCB 89—107, March
23,
1990,
p.
5).
Thus,
to delay compliance while awaiting new
standards could result
in indefinite delays.
Minonk has been
recording gross alpha particle activity
levels beyond the standards set forth
in Board regulations since
1981.
Minonk received a variance in 1981 and was ordered
to
investigate methods
for compliance.
In
1989, Minonk has again
petitioned
the Board
for
a variance from gross alpha
concentrations
as well as
radium—226 and radium—228
concentrations.
The record indicates
that
for over
eight years
Minonk has known
of its non—compliance and has been on restricted
status since
1986.
Minonk now claims hardship because
of the construction
of
I—
39 and Minonk’s
inability
to extend
its water system to allow
for
new construction.
The record does not indicate what steps,
if
any,
beyond searching out alternati~’ewater suppliesand
an
engineering report,
that Minonk
has taken
in an attempt
to
achieve compliance.
The construction
of
1—39 has been underway
for several years.
Minonk could have foreseen the need
for
economic growth with the development
of 1—39 and could have
better prepared for that growth
by bringing its public water
system into compliance with Board regulations.
The Board
finds
that because Minonk has had over eight
years
to achieve
compliance,
any hardship which Minonk may experience
“from
this
denial
of
variance
is largely self—imposed.”
(Citizens Utilities
Company
of Illinois
v.
IEPA,
PCB 88—151,
March
8,
1990
p.
16.)
I 10—352
—7—
PUBLIC
INJURY
Although
Minonk
has
not
undertaken
a formal assessment
of
the environmental effect of its variance request,
it contends
that
a grant
of variance will
not cause any significant harm to
the environment or
to the people served by the potential
watermain extensions
for the limited time of the requested
variance.
(Pet.
par.
22).
The Agency does not
rebut
this,
stating
that while radiation at any level creates some risk,
the
risk associated with Minonk’s water
is low (Rec.
par.
14).
In
support of these contentions,
Minonk and the Agency reference
testimony presented
by Richard
E. Toohey,
Ph.D and James
Stebbins,
Ph.D, both of Argonne National Laboratory, at the
hearings held on July
30 and August
2,
1985,
in R85—14,
Proposed
Amendments to Public Water Supply Regulations,
35
Ill.
Adm.
Code
602.105 and 602.106.
The Board agrees that there ordinarily would be
little risk
during the term of the variance
to persons newly receiving
Minonk’s noncomplying water.
This assumes,
however,
that
compliance would occur during the term of the variance, an
assumption
that cannot be relied upon because of the speculative
nature of the compliance plan.
We also agree
that grant
of
a
variance from restricted status
se does not provide direct
relief
to persons presently served by the water
supply,
except
insofar as grant
of variance by
its conditions may hasten
compliance.
(See City of Joliet
v.
Illinois Environmental
Protection Agency, PCB 86—121,
November
6,
1986
at
6).
ASSESSMENT
OF
FEDERAL
LAW
Both Minonk and the Agency agree
that the Board may grant
the variance consistent with
the Safe Drinking Water Act.
However,
the Agency
is concerned
that,
if the variance were
granted and the compliance plan mirrored Minonk’s proposed plan,
the “USEPA would
not consider a Board variance order
to
be a
compliance order, and might
not defer
federal enforcement in the
matter.”
(Rec.
par.
20).
AGENCY RECOMMENDATION
The Agency has recommended
that
this variance be denied.
The Agency has
no objection to the outlined proposal for
compliance proposed by Minonk;
however,
it believes that the plan
is speculative due
to the fact
that
it rests
on Minonk’s
receipt
of
a Community Development Assistance Program Grant
to finance
the construction
of
the reverse osmosis treatment plant.
The
Agency has communicated
to Minonk that
it believes such
a plan
would be
speculative because
the community
is not committing
to
the construction
of the reverse osmosis
treatment plant.
(Rec.
par.
21.)
In a meeting held between Minonk and the Agency,
Minonk
indicated that
it will
not commit
to construction of the
110—353
—8—
reverse osmosis treatment plant without
the monies necessary
for
construction having been obtained and
in hand.
(Rec.
par.
21.)
Because Minonk cannot
be certain when or
if
a grant will be
received,
the Agency
recommends that the variance be denied.
Minonk has presented a compliance plan which would,
if
implemented,
bring
its public water supply
into compliance.
The
Agency,
in its recommendation,
observes that
it has no objection
to the compliance method chosen by Minonk and
it believes that
if
such
a
plant
is
properly
constructed
and
operated,
that
it
may
lower the excessive levels of
radium found
in the water
to
a
level
that
would
achieve
compliance.
“Additionally,
the
Agency
does
not believe the proposed compliance schedule
is
unreasonable,
if
the community will
fully commit
to the
compliance
plan”.
(Rec.
par.
22.)
CONCLUS ION
The Board has granted variances which required completion
of
the compliance
plan within suitable timeframes
in order
to insure
that
a petitioner
is proceeding toward attainment of
the Board
standards.
However,
in this case,
the granting of the variance
conditioned on proceeding with the compliance plan as set
forth
by Minonk would not hasten compliance.
As previously
stated,
the
Board
finds
that Minonk’s plan for compliance
is speculative and
any hardship which
it
may experience
is largely self—imposed.
Therefore,
based
on the record before the Board,
the Board denies
the requested variance.
This Opinion constitutes
the Board’s findings
of fact and
conclusions of law
in this matter.
ORDER
For the foregoing reasons
the
request for variance
from 35
Ill. Adm.
Code 602.105(e)
(Standards
for Issuance)
and 602.106(b)
(Restricted Status),
to the extent that those
rules
involve
35
Ill. Adm.
Code 604.301(a)
and
(b),
by
the City of Minonk
is
denied.
Section
41 of the Environmental Protection Act,
Ill.
Rev.
Stat.
1987,
ch.
ll1~,
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.
:T IS SO ORDERED.
Board Members
R.
Flemal dissented and J.
Dumelle and
B.
Forcade
concurred.
1. 10—354
—9—
I,
Dorothy
M.
Gunn,
Clerk
of
the
Illinois
Pollution
Control
Board,
hereby certify that the above Opinion and Order
was
adopted
on
the-l~7
day
of
(~-~i
,
1990,
by
a
vote
of
~
-~
/
.
/~
-
:~
//
‘borothy
M. dunn, Clerk
Illinois Pollution Control Board
110—355