ILLINOIS POLLUTION CONTROL BOARD

August

8,

1993.

VILLAGE

OF

BENSENVILLE,

)

)

Petitioner,

)

v.

)

PCB 91-66

)

(Variance)

ILLINOIS

ENVIRONMENTAL

)

PROTECTI9N AGENCY,

Respondent.

OPINION

AND

ORDER OF THE BOARD

(by J. Theodore Meyer):

This matter is before the Board on the April 22,

1991 filing

by petitioner Village of Bensenville

(Village)

of a petition for

variance

extension.

The Village seeks relief from 35

Ill.

Adin.

Code

602.105(a),

“Standards

for

Issuance”,

and

602.106(a),

“Restricted Status”, to the extent those rules relate to violation

by the Village’s public water supply of the 5 picocuries per liter

(“pCi/i”)

combined

radiuin-226

and

radiuin-228.1

The

Village

requests a two—year variance.

On May 29, 1991, the Illinois Environmental Protection Agency

(Agency) filed its variance recommendation.

The Agency recommends

that the variance be granted subject to certain conditions.

The

Village waived hearing and none has been held.

For the following reasons, the Board finds that the Village

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

The Village is a municipality located in DuPage County.

The

Village

provides

potable

water

supply

and

distribution

for

a

population of 5,500 residential and 1,100 industrial and commercial

utility

customers,

representing some 17,800 residents and

1,100

industries and businesses employing approximately 20,000 people as

of 1991.

(Pet.

4.)

The water system includes 5 deep wells, pumps,

and distribution facilities.

(Pet.

5.)

1

The standard for combined radium was formerly found at 35

Ill.

Adm.

Code

604.30l(a);.effective September

20,

1990

it was

recodified at 35 Ill. Adm. Code 611.330(a).

125—17

---

2

The Village was first advised that its water supply exceeded

the

maximum

allowable

concentration

for

combined

radium

in

a

December

9,

1985

letter

from .the

Agency.

That.

December

1985

analysis showed a combined radium content of 9.8 pCi/l.

(Pet.

5;

Rec.

4.)

On May 22,

1986,

in docket PCB 86-42, the Board granted

the

Village

a

five-year

variance

from

restricted

status

for

combined radium.

That variance expired on May 22,

1991,

and the

Village seeks to extend that variance.

The most recent analysis

of the \~il1age’swater showed

a combined radium content of 18.2

pCi/l.

~Rec. 4.)

REGULATORY

FRAME

WORI

The

instant variance request

concerns two

features

of

the

Board’s public water supply regulations: “Standards for IL’suance”

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.

1003. 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.

The Village

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 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

125—18

---

3

regulations designed to protect the public

(Willowbrook Motel

v.

Pollution Control

Board

(1977),

135 Ill.App.3d

343,

481

N.E.2d,

1032).

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

a 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

(Monsantp 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 (j~.).

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).

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.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 radium

standards.3

USEPA proposes to replace the

5 pCi/i cOmbined radium

standard by separate standards of 20 pCi/i each for radlum-226 and

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.

125— 19

---

4

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 Village intends to obtain Lake Michigan water (which has

a low radium content) to replace the water currently supplied by

its deep wells.

The Village and several neighboring municipalities

have begun

construction

of

a

Lake Michigan

water

transmission

system.

DuPage

County passed

a referendum

in November 1985

to

issue

bonds

to

construct

the

system.

The

Village

and

other

municipalities have secured allocations from the State of Illinois

to use

Lake Michigan water and have executed numerous contracts

with each

other,

the City

of

Chicago,

financial

institutions,

governmental and private property owners,, and contractors.

The

total cost for the water transmission system is over $350,000,000.

The Village

states

that

although the primary

purpose

of

this

program is to cease using the dwindling supply of groundwater and

assure

the public

of

an

adequate

supply

of high

quality

Lake

Michigan water, the program will also eliminate the radium in the

public water

supply.

(Pet.

6.)

The Village

states that Lake

Michigan water will be delivered by 1992, with the first full year

of operation anticipated in 1993.

(Pet.

7.)

HARDSHIP

The Village contends that the hardship resulting from denial

of the requested variance outweighs any injury to the public from

granting the variance.

(Pet.

9-10.)

The Village

argues

that

denial of the requested variance would result in an arbitrary and

unreasonable hardship because construction requiring the extension

of the water supply system could not resume.

The Village states

that such

a halt in construction hurts prospective home buyers as

well as business developers and the Village’s tax base.

(Pet.

9.)

The Village also contends that

it has a great need for expansion

of the water distribution system in order to serve the domestic and

firs protection

requirements

of

its

customers.

(Pet.

9.)

It

maintains that the water system must be improved to assure adequate

quantities of water throughout

the service area,

reliable water

service, and fire protection.

(Pet., Attach. 2.)

The Village plans

to construct 4,600 feet of 12-inch water main to eliminate severe

flow restrictions.

2,800

feet of that 12—inch main

is already

under construction.

The Village also intends to construct 36,250

feet of waterinain to provide the Village with 12-inch water main

loops.

Additionally,

in order to eliminate dead end water mains,

the Village plans to construct an additional 7,950 feet of water

main.

(Pet.,

Attach.

2.)

The Agency agrees that denial of the variance would impose an

arbitrary or unreasonable hardship on the Village.

(Rec.

7,

8.)

125—20

---

5

ENVIRONMENTAL IMPACT

-.

Although the Village 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.

7.)

The Agency agrees with the

Village’s assertion.

(Rec.

4-5.)

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

ProposedAmendments to Public Water Supply Recnilations 35 Ill. Adm.

Code 602~lO5and 602.106 (R85—14)

in support of the assertion that

the variance will not result in any adverse environmental impact.

(Pet.

14;

Rec.

5)

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.

5.)

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.

5.)

The Agency

states

that

“an

incremental

increase

in the allowable concentration for the contaminants

in

question

even

up

to

a

maximum

of

two

times

the

MCL

for

the

contaminants in question 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.

5)

In

summary, the Agency states as follows:

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

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 MCL 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.

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.

(Rec.

8—9.)

125—21

---

6

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.

7.)

CONCLUSION

Bas~d-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 Village of Bensenville.

The Board notes that the

Village has

provided only minimal

information on the

issue

of

arbitrary or unreasonable hardship as

it relates to an inability

to extend water mains.

No specific information regarding possible

new development was provided,

for example.

However,

given the

Village’s need to upgrade and expand its water system for domestic

and fire protection needs, the Board will grant the variance.

The Board notes that the Village has only requested a two-

year variance.

However,

the Village states that

it anticipates

delivery of Lake Michigan water beginning in 1992,

“with its first.

full year of operation anticipated in 1993.”

(Pet.

7.)

Assuming

that delivery does not begin until

1992,

the two-year requested

variance would

be

insufficient pursuant

to

35

Ill.

Adm.

Code

611.731(a)

which

requires

four

quarterly

samples

to

establish

compliance.

Hence,

the

Board

will

grant

this variance

for

a

maximum period of three years, with the third year being solely for

the purpose of testing, subject to certain conditions which could

result in an earlier termination of this variance.

Today’s action is solely

a grant of variance from standards

of

issuance and restricted status.

The Village

is not granted

variance from compliance with the combined radium standard,

nor

does today’s action

insulate the Village

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 Village of Bensenville is hereby granted a variance from

35

Ill.

Adin.

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.

Adin.

Code 611.330(a), subject to the following

conditions:

(A)

Variance shall terminate on the earliest of the following

125—22

---

7

dates:

(1)

August

8,

1994; or

(3)

When

analysis

pursuant

to

35

Ill.

Adm.

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.

(B)

Compliance

shall

be

achieved

with

any

standards

for

radium then in effect no later than the date on which

this variance terminates.

(C)

The Village shall report to the Agency within

6 months

of

the

grant

of

this

variance

as

to

the

status

of

obtaining Lake Michigan water and shall

submit to the

Agency a copy of the fully executed contract between the

Village and all other interested parties.

(D)

Construction of all installations, changes or additions.

necessary

to

achieve

compliance

with

the

maximum

contaminant level in question shall be completed no later

than two years

from the grant

of this variance.

The

third year of the variance is to be used solely to prove

compliance.

(E)

In

consultation

with

the

Illinois

Environmental

Protection Agency (“Agency”), the Village shall continue

its sampling

level

of radioactivity

in

its wells

and

finished

water.

Until

this variance terminates,

the

Village shall collect quarterly samples of its water from

its distribution

system at

locations

approved by

the

Agency.

The

Village

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

radiuin-228.

At

the

option

of

the

Village,

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

(F)

Pursuant to

35

Ill.

Adia.

Code 611.851(b)

(formerly 35

Ill.

Adm. Code 606.201), in its first set of water bills

125—23

---

8

or within three

months after the date

of this Order,

whichever

occurs

first,

and

every

three

months

thereafter,

the Village will send to each user of

its

public water supply a written notice to the effect that

the Village has been granted by the Pollution Control

Board

a

variance

from

35

Ill.

Adm.

Code

602.105(a)

Standards of Issuance and

35

Ill.

Adin.

Code 602.106(a)

Restricted Status, as they relate to the radium standard.

(G). Pursuant to

35

Ill.

Adm.

Code

611.851(b)

(formerly

35

Ill.

Adin. 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,

the Village will send to each user of

its

public water supply a written notice to the effect that

the Village

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.

(H)

Until full compliance is achieved, the Village shall take

all reasonable measures with its existing equipment to

minimize the level combined radium-266 and radium-228,

in its finished drinking water.

(I)

The Village 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, the Village

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.

125—24

---

9

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 91-66, August

8,

.1991.

Petitioner

Authorized Agent

Title

Date

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.

IT IS SO ORDERED.

J.D. Dumelle concurred,

and B. Forcade dissented.

I,

Dorothy M.

Gunn,

Clerk of the Illinois Pollution Control

Board, hereb~’~ertify

that the ab~veOpinion and Order was adopted

on the

___________

day of

__________________,

1991,

by a vote

of

-

/.

Lborothy N. G~n, Cleric

Illinois Pol~itionControl Board

125—25