ILLINOIS POLLUTION CONTROL BOARD
February 7,
1991
CITY OF MORRIS,
)
Petitioner,
v.
)
PCB 90—167
(Variance)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
)
Respondent.
OPINION
AND
ORDER OF THE BOARD
(by R.C. Flemal):
This matter comes before the Board upon filing by the City
of Morris (“Morris”)
on September 4,
1990 of a Petition for
Variance (“Pet.”) and on October 16,
1990 of an Amended Petition
for Variance (“Amend.
Pet.”).
Morris seeks relief from 35
Iii.
Adm. Code 602.105(a),
“Standards for Issuance”,
and 602.106(b),
“Restricted Status”, to the extent those rules relate to
violation by Morris’
public water supply of the 5 picocuries per
liter
(“pCi/i”) combined radium-226 and radium-228 standard and
the 15 pCi/l gross alpha particle activity of 35
Ill. Adm.
Code.Subtitle F1.
Facilities necessary to achieve compliance are anticipated
to be in place very shortly.
Variance is thus requested for a
period of one year essentially to provide for the necessary
compliance demonstration.
The Illinois Environmental Protection Agency (“Agency”)
filed its Variance Recommendation (“Rec.”)
on January 17,
1991
and an Amended Variance Recommendation
(“Amend. Rec.”)
on January
22,
19912.
The Agency recommends that variance be granted,
subject to conditions.
Hearing was waived and none has been
held.
1 The standard for combined radium was formerly found at 35
Ill. Adm.
Code 604.301(a);
effective September 20,
1990 it was
recodified to 35 Ill. Adm. Code 611.330(a).
The standard for
gross alpha particle activity was formerly found at
35 Ill. Adm.
Code 604.301(b); effective September 20,
1990 it was recodified
to 35
Ill. Adm. Code 611.330(b).
(see Illinois Register, Volume
14, Issue 40, October 5,
1990).
2
The Agency’s filings are accompanied by motions to file
instanter.
The motions are hereby granted.
118—245
—2—
Based on the record before
it, the Board finds that Morris
has presented adequate proof that immediate compliance with the
Board regulations at issue would impose an arbitrary or
unreasonable hardship.
Accordingly, the variance will be
granted, subject to conditions consistent with this Opinion.
BACKGROUND
Morris is a municipality located in Grundy County.
Among
other services, Morris provides potable water supply and
distribution to a population of approximately 9,000 residents
(Amend.
Pet. ¶22).
Morris’ water supply system is a deep well
system drawn from three wells,
identified respectively as wells
#3,
#4, and #5
(Ia.
¶15).
Well #3, the oldest well, was placed
into operation in 1915; well #5, the newest well, was placed into
operation in 1954
(Id.).
The most recent reported combined radium concentration in
Morris’ water supply is 10.4 pCi/i
(Amend.
Pet.
¶17; Amend. Rec.
¶2); the gross alpha particle concentration is 25 pCi/i
(u.).
REGULATORY FRAMEWORK
In recognition of a variety of possible health effects
occasioned by exposure to radioactivity, the United States
Environmental Protection Agency
(“USEPA”) has promulgated a
maximum concentration limit for drinking water of
5 pCi/i of
combined radium-226 and radium-228 and 15 pCi/l of gross alpha
particle activity.
Illinois subsequently adopted these same
limits as the maximum allowable concentrations under Illinois
law.
Pursuant to Section 17.6 of the Illinois Environmental
Protection Act
(Ill. Rev.
Stat.
1989,
ch.
ill
½,
par.
1017.6),
any revision of the 5 pCi/l standard by the USEPA will
automatically become the standard in Illinois.
The action that Morris requests here is ~
variance from
the maximum allowable concentrations for either radium or gross
alpha particle activity.
Regardless of the action taken by the
Board in the instant matter, these standards will remain
applicable to Morris.
Rather, the action Morris requests is the
temporary lifting of prohibitions imposed pursuant to 35 Ill.
Adm. Code 602.105 and 602.106.
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 Environmental
118—246
—3—
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.
Illinois regulations thus 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 Illinois regulations not found in
federal law.
It is this prohibition which Morris requests be
lifted.
Moreover, grant of the requested variance would not
absolve Morris from compliance with the combined radium or gross
alpha particle activity standards, nor insulate Morris from
possible enforcement action brought for violation of those
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.
1989,
ch.
111
½,
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
(~Wi1lowbrookMotel v. Pollution Control Board
(1977),
135
Ill.App.3d,
481 N.E.2d,
1032).
Only with such showing can the
claimed hardship rise to the level of arbitrary or unreasonable
hardship.
Lastly,
a variance by its nature is 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
(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.
COMPLIANCE PROGRAM
Morris intends to achieve compliance through use of a sodium
zeolite ion exchange system, the installation of which is in
progress
(Amend.
Pet.
¶26).
In this system, water
is passed
through a special resin which exchanges radium
(along with other
cations including iron, manganese, and calcium)
for sodium.
Morris anticipates that the radium removal efficiency of the ion
118—247
—4—
exchange system will parallel that of the general hardness
reduction, or approximately 72
(u.).
The resultant rinse and
spent brine containing the exchanged ions will be discharged to a
sanitary sewer and treated at the Morris’ sewage treatment plant
(a.).
Morris anticipates that the installation of the ion exchange
system will be completed between February 19 and March
1,
1991
(Amend. Pet.
¶4,
27) at an estimated cost of $599,777
(~.
¶27).
Morris has issued general obligation bonds and has sufficient
funds on hand to complete the installation; the Agency has also
issued a construction permit for the project
(~.
¶2,
25).
The imminency of use of the ion exchange system
notwithstanding, Morris will not be eligible for removal from
restricted status, absent variance,
for up to one year after the
ion exchange system comes on line.
The reason is that removal
from restricted status for the parameters in question requires a
demonstration that samples averaged over four quarters comply
with the standards.
Morris will thus need up to one additional
year to collect the necessary samples.
PREVIOUS VARIANCE
Morris was previously granted variance for the same matters
at issue here in Board Docket PCB 86-125
(74 PCB 390, January
8,
1987).
That variance expired by it own terms on January
8,
1990.
Under the terms of that variance Morris was to identify and
implement a compliance program such that compliance was achieved
by the January 8,
1990 termination date.
Aside from the time
required to identify the appropriate compliance method, Morris
explains:
Compliance with the January
8,
1990 date was not
achieved because it took approximately 180 days to have
the plans and permit request for the radium removal
system to be reviewed and approved by the Illinois
Environmental Protection Agency and because the City
elected to start construction in the Spring of 1990
rather than the 1989-1990 winter so that construction
cost would be less and money would be saved for the
taxpayers.
(Amend. Pet. ¶16)
Its failure to achieve compliance within the terms of the
previous variance notwithstanding, Morris contends that it has
demonstrated good faith in attempting to achieve compliance
(Amend. Pet. ¶27).
As partial evidence thereto, Morris notes
that it had expended $208,658 toward installing the ion exchange
system at the time of filing of the Amended Petition, and that it
will eventually expend approximately $600,000 on this compliance
effort.
118—248
—5—
HARDSHIP
Morris contends that denial of variance would constitute an
arbitrary or unreasonable hardship.
It notes, among other
matters, that:
Failure to obtain a variance means that all
construction within the Petitioner’s service area
requiring the extension of the water supply system,
could not resume.
This hurts prospective home
purchasers and business developers as well as
Petitioner’s tax base.
(Amend. Pet.
¶20).
Among projects which Morris foresees as requiring water main
extensions are projects designed to serve residential,
commercial,
and fire protection needs
(Amend. Pet.
¶14, 21).
The
Agency also contends that denial of variance would constitute an
arbitrary or unreasonable hardship (Rec.
¶22).
PUBLIC INTEREST
Although Morris has not undertaken a formal assessment of
the environmental effect of its requested variance,
it contends
that there will be little or no adverse impact caused by the
granting of variance (Amend.
Pet. ¶23).
The Agency contends
likewise
(Rec.
¶16).
In support of their contention the Agency
(Rec.
¶15) references testimony presented by Richard
E. Toohey,
Ph.D.
of Argonne National Laboratory at the hearing held on July
30 and August
2,
1985
in R85-14, Proposed Amendments to Public
Water Supply Regulations,
35 Ill. Adm. Code at 602.105 and
602.106, to the testimony of Dr. James Stebbings in the same
proceeding,
and to updated testimony presented by Dr. Toohey in
the Board’s hearing on the Braidwood variance, PCB 89-212.
The Agency believes that while radiation at any level
creates some risk, the risk associated with Morris’ water is very
low
(Rec.
¶13).
In summary, the Agency states:
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 cost to the Petitioner of treatment of its current
water supply, 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,
and the
possibility of compliance with a new NCL standard by
less expensive means if the standard is revised upward,
the Agency concludes that denial of a variance from the
effects of Restricted Status would impose an arbitrary
or unreasonable hardship upon Petitioner.
118—249
—6—
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.
In so saying,
the Agency emphasizes that it continues to place a high
priority on compliance with the standards.
(Amend. Rec. ¶17 and ¶18)
CONCLUSION
The Board finds that,
in light of all the facts and
circumstances
in this case,
denial of variance would impose an
arbitrary or unreasonable hardship upon Morris.
The Board also
agrees with the parties that no significant health risk will be
incurred by persons who are served by any new water main
extensions, assuming that compliance is timely forthcoming.
Morris is to bear in mind that today’s action is solely a
grant of variance from standards of issuance and restricted
status.
Morris
is not being granted variance from compliance
with either the radium or gross alpha particle standard, nor does
today’s action insulate Morris 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
Petitioner, City of Norris,
is hereby granted variance from
35 Ill. Adm. Code 602.105(a),
Standards of Issuance, and
602.106(b), Restricted Status,
as they relate to the standards
for radium and gross alpha particle activity in drinking water of
35 Ill.
Adm. Code.Subtitle F, subject to the following
conditions:
(A)
Variance shall, terminate on the earliest of the
following dates:
(1)
When analysis pursuant to 35 Ill. Adm. Code
611.731(a),
or any compliance demonstration method
then in effect,
shows compliance with any
standards for radium and gross alpha particle
activity in drinking water then in effect; or
(2)
March
1,
1992.
118—250
—7—
(B)
Compliance shall be achieved with any standards for
radium and gross alpha particle activity then in effect
no later than the date on which this variance
terminates.
(C)
In consultation with the Illinois Environmental
Protection Agency (“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 terminates,
Petitioner shall collect quarterly samples of water
from its distribution system at locations approved by
the Agency.
Petitioner shall composite the quarterly
samples for each location separately and shall have
them analyzed annually by a laboratory certified by the
State of Illinois for radiological analysis so as to
determine the concentration of radium-226,
radium-228,
and gross alpha particle activity.
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
P.O. Box 19276
2200 Churchill Road
Springfield,
Illinois 62794—9276
(D)
Construction of all installations, changes or additions
necessary to achieve compliance with the standards for
combined radium and gross alpha particle activity shall
be completed not later than March,
1991.
(E)
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 Order, whichever occurs first, and every
three months thereafter,
Petitioner shall 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(b) Restricted Status,
as they relate to
the radium and gross alpha particle activity standards.
(F)
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 Order, whichever occurs first,
and every
three months thereafter, Petitioner shall send to each
user of its public water supply
a written notice to the
effect that Petitioner is not in compliance with
standard for radium and gross alpha particle activity.
118—25 1
—8—
The notice shall state the average content of radium
and gross alpha particle activity in samples taken
since the last notice period during which samples were
taken.
(G)
Until full compliance is achieved, Petitioner shall
take all reasonable measures with its existing
equipment to minimize the level of combined radium,
radium-226,
radiuin-228, and gross alpha particle
activity its finished drinking water.
(H)
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 45 days of the date of this Order, Petitioner shall
execute and forward to Stephen C.
Ewart, Division of Legal
Counsel,
Illinois Environmental Protection Agency,
2200 Churchill
Road,
Post Office Box 19276,
Springfield, Illinois 62794—9276,
a
Certification of Acceptance and Agreement to be bound to all
terms and conditions of this variance.
The 45—day period shall
be held in abeyance during any period that this matter
is being
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 of rules from which variance was
granted.
The form of said Certification shall be as follows:
CERTIFICATION
I
(We),
hereby accept and agree to be bound by all terms and conditions
of the Order of the Pollution Control Board in PCB 90-167
February 7,
1991.
Petitioner
Authorized Agent
118—252
—9—
Title
Date
Section 41 of the Environmental Protection Act,
Ill.
Rev.
Stat.
1989 ch.
111
½
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.
IT IS SO ORDERED.
Board Member Bill Forcade dissented.
I, Dorothy N. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certi~ythat the abov
pinion and Order was
adopted on the
7~L~
day of
~
,
1991, by
a vote of
5—,’
.
Dorothy N. ñunn,
Clerk
Illinois ‘P~LlutionControl Board
118—253