ILLINOIS POLLUTION CONTROL BOARD
September 26, 1991
VILLAGE OF OAK BROOK,
)
Petitioner,
v
)
PCB 91—107
(Variance)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
OPINION AND ORDER OF THE BOARD
(by M. Nardulli):
This matter comes before the Board on the June 24, 1991 filing
by petitioner Village
of
Oak Brook
(Village)
of
a petition
for
variance extension seeking to extend the variance granted by the
Board on September 25, 1986 which expired September 25,
1991.
The
Village seeks relief from 35 Ill. Adm. Code 602.105(a),
“Standards
for Issuance”,
and 602.106(b),
“Restricted Status”,
to the extent
those
rules
relate
to
violation
by
the Village’s
public
water
supply of the
5 picocuries
per liter
(“pCi/l”)
combined
radium-
226 and radium-228 of 35 Ill. Adm. Code:
Subtitle F.1
The Village
requests
a
variance
“until
such time
as
Lake Michigan water
is
fully available to all customer’s of petitioner’s water system.”
On
August
8,
1991,
the
Board
granted
the
Illinois
Environmental
Protection
Agency’s
(Agency)
motion
to
file
its
variance recommendation instanter.
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 and that
it
is making satisfactory progress
toward
compliance
(Ill.
Rev.
Stat.
1989,
ch.
111
1/2,
par.
1036(b)).
Accordingly,
the
variance
is
granted,
subject
to
conditions set forth in the attached order.
BACKGROUND
As noted in the Agency’s recommendation, the Board granted the
Village
a
variance
from
restricted
status
and
standards
for
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).
126—305
2
issuance for radium—226 and radium-228 on September 25,
1986 which
expired on September 25,
1991.
(PCB 86-97.)
The Village moved to
incorporate the prior record and Board opinion and orders into this
proceeding.
The Board denied the request to incorporate the PCB
86—97
record
because
it
was
not
filed
in
accordance
with
the
Board’s
procedural
rules,
but
noted
that
the
Board
would
incorporate by reference its prior opinions and orders.
(PCB 91—
107
(July 11, 1991).)
A detailed statement of facts is set forth
in
PCB
86-97
and
the
Board
will
set
forth
only
those
facts
necessary
to
decide
the
instant
petition.
The
Village
is
a
municip~litylocated in DuPage County.
(Pet.
Ex.
B.)
The Village
provides
public
services
including
potable
water
supply
and
distribution
for
4,674
residential
and
390 commercial
customers
representing
approximately
21,000
residents.
(Pet.
1.)
The
Village’s
water
system
includes
seven
deep
wells,
pumps
and
distribution facilities.
(Pet.
2)
The Village was first advised that its water supply exceeded
the maximum allowable concentration for combined radium in a letter
dated
December
4,
1985.
(Ag.
Rec.
3.)
The Agency’s
analysis
showed combined radium-226
and radium-228 content of
7.0 pCi/l.
(Ag.
Rec.
3)
The most
recent
analyses
of May
1991,
showed
a
combined radium-226 and radiuin—228 content of 14.8 pCi/l.
(Id. at
4.)
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
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.
The principal effect of these regulations is to provide that
community water supply systems are prohibited from extending water
service,
by
virtue
of
not
being
able
to
obtain
the
requisite
126—306
3
permits,
unless and until their water meets all of the standards
for finished water supplies.
It is the Village’s request 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 th~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.
ill
½,
par.
1035(a)).
Additionally,
in
granting a variance extension, the applicant must show that it has
made satisfactory
progress toward
compliance.
(Ill.
Rev.
Stat.
1989,
ch. 111 1/2, par.
1036(b).)
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
(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.
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
(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 (Id.).
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
(NIPDWR5)
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
126—307
4
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 FR 45502).
It later republished this advance notice
in September 1986
(51 FR 34836).
Most recently, on June
1~’
1991,
USEPA
announced
a
proposal
to
modify
both
standards.
USEPA
proposes
to
replace
the
5
pCi/l
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 Village’s proposed method for achieving compliance
is to
purchase Lake Michigan water.
(Pet.
1-2.)
The Village is part of
the DuPage Water Commission (Commission) which expects to provide
Lake Michigan water to the Village by Spring of 1991.
(Pet.
2.)
The
Village
has
included
a
status
report
of
the
Commission
indicating that storage tanks have been completed and tested,
64
delivery
facilities
have
been
completed
and
tested,
the water
transmission tunnel has been completed,
14 miles of pipeline have
been installed and the DuPage pumping station is ready for testing.
(Pet. Ex.
B.)
The Commission anticipates partial service beginning
in November of 1991 and total service by spring of 1992.
(Id.)
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.
Ex.
A at
9-il.)
At the
time the
Village filed its original variance petition, the USEPA had not yet
proposed to modify the combined radium standards.
(Pet.
Ex.
A.)
At that time the Village
noted
that the promulgation
of
a
new
radium
standard
by
the
United
States
Environmental
Protection
Agency
(USEPA)
may
significantly alter
the Village’s compliance
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.
(See also, SB 1296 amend.
no.
3, June 20,
1991, awaiting approval by the Governor,
which
amends
Section
17.6
of
the Act to specifically
refer
to Board adoption of federal combined radium-226
and
radium-228
and
gross
alpha
particle
activity
standards by peremptory rulemaking.)
Publication occurred at 56 FR 33050, July 18,
1991.
126—308
5
status and may even obviate the need for a continued variance from
Restricted Status.
(Pet. Ex. A at 10.)
According to the Village,
“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.
Ex.
10-11.)
In
light
of USEPA’s recent
proposal which would render the standards for combined radium less
stringent
than
the
current
standard,
these
arguments
are
persuasive.
The Agency agrees that denial of the variance would impose an
arbitrary or unreasonable hardship on the Village.
(Rec.
6,
7—8)
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.
Ex. A at
8.)
The Agency agrees
with the Village’s assertion.
(Ag. Rec.
4-6.)
Both the Village
and the Agency cite the testimony presented by Richard
E. Toohey,
Ph.D.,
of Argonne National Laboratory,
at the July 30
and August
2, 1985 hearings for the Proposed Amendments to Public Water Supply
Regulations
(R85—14),
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.
Ex. A at
8; Ag. 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.
(Ag.
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.
(Ag.
Rec.
5.)
The Agency states that “an 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
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
126—3 09
6
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.
(Ag. Rec.
7—8.)
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.
(Ag. Rec.
7.)
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 Village of Oak Brook and that the Village through
participation with the DuPage Water Commission has made significant
progress toward compliance.
The Board also agrees with the parties
that granting this variance does not pose a significant health risk
to those persons served by any new water main extensions, assuming
that compliance is timely forthcoming.
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.
The Board notes that timely compliance by the Village may be
affected by pending USEPA action to promulgate new standards for
radionuclides
in drinking water.
New radionuclide standards from
USEPA could significantly alter the Village’s need for a variance
or alternatives for achieving compliance.
In recognition of this
situation, as recommended by the Agency, the variance will contain
suitable
time
frames
to
account
for
the
effects
of
any
USEPA
alteration
(or notice of refusal to alter) of the radium standards.
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 standards,
nor
does
today’s
action
insulate the Village
in any manner
against
enforcement for violation of these standards.
126—310
7
This Opinion constitutes
the Board’s
findings
of
fact
and
conclusions of law in this matter.
ORDER
The Village of Oak Brook is hereby granted a variance from 35
Ill.
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
in drinking water as
set
forth
in
35
Ill.
Adm. Code 611.330(a),
for a period of two years
subject to the following conditions:
(A)
For purposes
of
this
Order,
the date
of USEPA
action
shall consist of the earlier date of the:
(1)
Date
of
promulgation
by
the
U.S.
Environmental
Protection Agency (“USEPA”) of any regulation which
amends the maximum concentration level 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 5pCi/l combined radium standard,
the 15 pCi/l gross alpha particle activity standard
or
the
method
for
demonstrating
compliance
with
either 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)
September 25,
1993; or
(3)
When
analysis pursuant
to
35
Ill.
Adm.
Code
611
Subpart Q,,
or any compliance with standards then
in
effect,
shows
compliance
with
standards
for
radium in drinking water then in effect.
(C)
Compliance
shall
be
achieved
with
any
standards
for
radium then in effect no later than the date
on which
this variance terminates.
(D)
In
consultation
with
the
Illinois
Environmental
Protection Agency
(“Agency”), Petitioner shall continue
its
sampling
level
of radioactivity
in
its
wells
and
finished
water.
Until
this
variance
terminates,
Petitioner shall collect quarterly samples of its water
from its distribution system at locations approved by the
Agency.
Petitioner shall composite the quarterly samples
126—311
8
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 combined radiuin-226 and radium-228.
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
2200 Churchill Road
Springfield, Illinois 62794—92.76
(E)
Petitioner shall submit
a written report to the Agency
6 months from the date of this variance as to the status
of obtaining water Lake Michigan water.
(F)
Pursuant to
35
Ill.
Adm.
Code 611.851(b)
(formerly
35
Ill. Adm. 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,
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 they relate to the radium standard.
(G)
Pursuant to
35
Ill.
Adm.
Code 611.851(b)
(formerly
35
Ill. Adm. 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,
Petitioner will
send
to each user
of
its
public water supply a written notice to the effect that
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.
(H)
Until full compliance is achieved, Petitioner 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)
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
126—312
9
paragraph state what steps have been taken to comply
with each paragraph:
Illinois Envirornr~entalProtection 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, Petitioner
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.
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 this variance is granted.
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
91-32, August
8,
1991.
Petitioner
Authorized Agent
Title
Date
126—3 13
10
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.
B.
Forcade dissents.
J.D. Duinelle concurs.
I,
Dorothy N.
Gunn,
Clerk
of the Illinois Pollution Control
Board,
hereby certify that the ab ye
inion and Order was adopted
on the
____________
day of
____________________
,
1991, by
a vote
of
_______
/~7
/~-~-~
Dorothy M./,áunn, Clerk
Illinois ~6llution Control Board
126—3 14
