ILLINOIS POLLUTION CONTROL BOARD
May
30, 1985
VILLAGE OF HANOVER PARK,
)
Petitioner,
v.
)
PCB 85—22
)
tLLIt’IOIS ENVIRONMENTAL
PROTECTION AGENCY
Respondent.
OPINION AND ORDER OF THE BOARD
(by J. Theodore Meyer):
This matter comes before the Board on a variance petition
filed by the Village of Hanover Park
(Hanover Park)
on February
20, 1985.
The Petitioner requests
a variance from the combined
radium standard of
35
Iii.
Adin. Code 604.301(a)
up
to and
including January
1,
1989.*
The Illinois Environmental
Protection Agency
(Agency) filed
its recommendation that variance
be granted on May 9,
1985.
Hanover Park waived hearing and none
has been held.
The Village of Hanover Park
is located
in Cook and DuPage
Counties, Illinois.
The Village owns and operates its water
distribution system which consists of four deep wells,
two
shallow wells, pumps and other distribution facilities.
The
system provides potable water
to approximately 8,592
residential
and 120 industrial and commercial utility customers.
Section 604.301(a) provides
for
a maximum allowable
concentration for combined radium—226 and radium—228 activity in
community water supplies of
5 picoCuries/liter
(pCi/i).
An
analysis of Hanover Park~swater performed by USEPA indicated
a
combined radium content of 6.8 pCi/i, while an analysis performed
by Petitioner
from samples taken on September 20,
1984 indicated
the level at 8.95 pCi/l.
The Village states that
it was
subsequently placed on the Agency~sRestricted Status list for
public water supplies.
The Agency maintains, however, that its
Public Water Supply Division has not yet informed the Village
*Reference
is also made
in the petition to gross alpha particle
activity in the Vi1iage~swater
supply.
The Agency states,
however, that it has no analysis demonstrating that the Village
is exceeding this standard.
Accordingly,
it is the Agency’s
opinion and the Board concurs, that any references
in the
petition to gross alpha activity are inadvertent.
64-141
—2—
that
it
will
be placed on Restricted Status but that it will do
so
if variance
is not granted.
The variance is sought to allow
for
the continued operation of the Petitioner’s water supply and
distribution system,
the expansion or extension of the system as
necessary,
and the “removal of this facility from the Agency’s
Restricted Status List”
(Pet.
at par. 1).
The requested term of
the variance is until January
1, 1989 or until such time
as the
Village
receives Lake Michigan water
to combine with existing
well source water and is no longer
in violation of the Public
water Supply Rules.
(Pet. at par. 1,6).
Under Section 35 of the Environmental Protection Act,
Ill.
Rev.
Stat. i~83,ch.
111—1/2, par.
1035,
a variance from the
drinking water regulations can only be granted upon a showing of
arbitrary or unreasonable hardship which outweighs any
environmental detriment and if consistent with
the Federal Safe
Drinking Water Act (SDWA),
42 U.S.C.
300f et seq.,
and
regulations pursuant thereto.
Hanover Park claims that
it will suffer an arbitrary and
unreasonable hardship
if required to immediately reduce the
combined radium level
in
its public drinking supply.
The Village
is currently pursuing
a conforming water supply as
a member
of
a
regional public water supply agency known as the Northwest
Suburban Municipal Joint Action Water Agency
(JAWA). JAWA was
created by seven contiguous municipalities for the purpose
of
securing Lake Michigan water
for its members.
JAWA’s system is
scheduled to be completed and
in operation with delivery of lake
~iaterto Petitioner by June 20~1985.
Upon receipt of the lake
water,
the Village intends to blend not less than
50 percent lake
water with existing well water,
Beginning after
1985,
the
Village will increase the percentage of lake water used until
1989 when lake water
will
be used exclusively. Hanover Park
states that
it has already
issued $1.6 million in bonds for
start—up costs associated with its membership in JA~A(Pet,
at
7).
Hanover Park’s only other compliance alternative would be
to
construct new treatment facilities which would cost
in excess
of
$1.5 million and take approximately two years to implement.
In
light of the substantial time and funds
the Village has expended
as
a member of JAWA,
requiring the construction of new treatment
facilities would be unreasonable.
Moreover,
such facilities
would become obsolete upon delivery of the anticipated lake
supply.
The Agency also notes
increased health risks are
associated with control methods such as ion exchange softeners
because the necessary regeneration raises the sodium content of
the water.
This may result in
a significant health risk to
persons who are hypertensive or who have heart problems.
Illinois has adopted state regulations which are no less
stringent than the national primary drinking water
regulations
in
effect and
thus,
it has been delegated primary enforcement
responsibility for its public water systems under the SDWA.
A
64-142
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state with primary enforcement responsibility may grant variances
from those regulations pursuant to section 1415 of the SDWA, but
only upon a finding that:
a)
Because of characteristics of
the raw water
sources
which are reasonably available to the system,
the system cannot
rn~st
the requirements respecting the maximum contaminant levels
of the drinking water regulations despite application
of the best
technology,
treatment techniques,
or other means, which the
USEPA
Administrator finds
are generally available
(taking costs
into consideration~and
b)
The
grarLt.ing of
a variance will not result
in an
unreasonable risk
to the health of persons served by the
system.
Section 14i5
of the SDWA,
42 U.S.C.
300g—4(a)(l)(A).
The Agency maintains and the Board has previously determined
that
since the Administrator has issued no regulation respecting
treatment technologies under Section l4l5(a)(l)’A)
the Board has
the authority to
grac~i: individual variances under
the SDWA to
both small and large water systems provided that there
is
a
demonstration of arbitrary or unreasonable hardship.
City of
Crystal Lake v.
IEPA, PCB 84-2, May 29,
1984.
As noted by the
the Agency, USEPA has published a “Manual
of Treatment Techniques
for Meeting the Interim Primary Drinking Water Regulations” which
identifies some treatment technologies and serves as
a helpful
guidance.
These suggested treatment techniques, however,
do not
fulfill the requirement that USEPA promulgate regulations.
The Agency states,
however, that it “recognizes that USEPA
disagrees with
this
analysis”
citing
a notice
of proposed
amendment to the national interim primary drinking water
regulations.
45
Fed. Reg~56633, July 31, 1980.
The notice
contained USEPA’S legal interpretation of the requirements of
Section l415(a)(1)(A) for
a federal variance from maximum
contaminant levels
(MCL),
Specifically,
the notice stated that
“the determination of
‘best technology generally available’
is
made only by the Administrator when the MCL
is established
through rule—making~”
In
a footnote thereto
it
is
stated that:
“These techniques were described by EPA
in the economic
impact assessments prepared for the proposal and the promulgation
of the National Interim Primary Drinking Water Regulations,
as
well as in USEPA~Spublication vManual of Treatment Techniques
for Meeting the Interim Primary Drinking Water Regulations’.”
Notably,
the proposed rule was never promulgated.
However,
it appears to be USEPA’S interpretation that the Manual and any
economic impact assessments prepared for the promulgation of MCLs
address the requirement that the Administrator determine through
“rulemaking”
generally available treatment techniques taking
costs
into consideration.
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The Agency, while not retreating from its conclusion that
the Board has authority to grant federal variances,
recommends
that the variance from combined radium be denied,
Rather, “the
Agency believes
that the concerns of the public water supplies to
no
longer be under Restricted Status and the concerns of the
USEPA that
federal. variances not
be granted without installation
of specific control technology can both be met by the Board
granting variance from the effect of being on Restricted Status,
i.e.,
from 35
Ill. Adm.
Code 602.105(a),
Standards for Issuance,
and not granting
a variance from the combined radium
standards.”
(Agency Rec.
at par.
36),
The Board notes
that Hanover Park has specifically requested
variance from the combined radium standard and that grant of
a
variance from Restricted Status would not afford
the Village the
full relief sought.
First,
as noted by the
Agency,
such a
variance would not insulate the Village from the possibility of
federal enforcement
for violation
of the combined radium
standard.
The Agency opines,
however,
that
if the Board requires
a compliance plan within appproximately three years and ultimate
compliance w:Lthin five years,
possibly (JSEPh may consider the
variance order
to be
a “Compliance Order”
and defer
federal
enforcement.
The Board points out, however,
that all variances
in which
the petitioner demonstrates
a plan for ultimate
compliance could be considered “compliance orders”.
In any
event, Hanover Park will shortly be in compliance by utilizing
its allotment for Lake Michigan water,
and thus a five year
compliance plan is unnecessary.
Secondly, even if
a variance from “Restricted Status”
could
operate
to deter federal enforcement
it cannot prevent
enforcement proceedings brought by third oarties against the
Village for violations under
the Illinois Environmental
Protection Act and the applicable
radiu
regulat.ion.
USEPA’s interpretation that the Manual suffices
to identify
applicable treatment technology has been before
the Board
previously.
City of Crystal Lake v.
IEPA, suDra at 3—4; Village
of Altona
V.
IEPA, PCB 80—74,
July 10, 1980 at
3; Turnberry
Utilities,
Inc.
v. IEPA~PCB 79—257, March
20, 1980 at
4.
The
Board has received no new information which would cause
it
to
retreat from its finding in those cases that granting variances
from the SDWA is within its authority.
Accordingly,
the Board
can find no reason to deny the Viilage~srequest for
a variance
from the combined radium standard.
The Board wishes
to note,
however,
that in affirming that it does have the power
to grant
variances under
the SDWA,
it
is not deciding whether variances
from “Restricted Status” should or should not be granted.
In the
context of Hanover Park, which has
riot requested such
a variance,
the issue
is
inappropriately presented.
The Village has performed no formal assessment
of the effect
on the
environment, should this variance be granted,
The Agency
states that although radiation at any level contains some risk,
64-144
—5—
the risk associated with this level
is very low.
This conclusion
reflects research demonstrating that much less radium is retained
in the body than originally thought when the federal standard was
established.
See Village of Lemont
v.
IEPA, PCB 80—48,
May
1,
1981.
The current standard
is now under
review by
USEPA.
The Board
finds that granting the variance will not
create
an “unreasonable risk
to the health
of the persons served
by the system”
at these concentrations.
Balancing the great expense to immediately comply with the
minimal threat to the public health,
the Board finds
that
requiring immediate compliance with the radium standard would
constitute an
arbit~:’aryand unreasonable hardship.
However,
the
Board ‘ill not gra~.. the variance for the requested term through
January
1,
1989.
The Village has stated that delivery of lake
water
is anticipated by June 20, 1985 at which
time 50
blending
will begin.
Using
the Petitioner’s data of
a combined radium
level
of 8.95 pCi/i,
the initial blending program should result
in
a reduction in the level to below
4.5 pCi/l.
This reduced
level falls below the 5.0 pCi/i standard.
Nevertheless, the
Board will grant variance to make provision for unexpected delays
in delivery of lake water and start—up time in establishing the
blending program as well as for adequate time
to demonstrate
compliance with the regulations which requires at least a year.
Accordingly, variance
is hereby granted
to the Village of Hanover
Park from the provisions of
35 111.
Adm. Code 604.301(a)
for
18
months or until compliance is demonstrated
in accordance with
35
Ill. ~dm. Code 605.105(a),
whichever occurs first,
subject to
conditions.
This Opinion constitutes the Board’s findings of fact and
conclusions of
law in this matter,
ORDER
The Village of Hanover Park is hereby granted
a variance
from 35
Ill. Mm,
Code 604.301(a)
for
18 months subject to the
following conditionsr
1,
That this variance expires when analysis
pursuant to
35 Iii. Adm. Code
605.105(a)
demonstrates compliance with
the combined radium standard or for
18
months from the grant of this variance,
whichever occurs
first.
2.
That Petitioner
shall blend
its well
water with the maximum amount of Lake
rlichigan water legally available to
Petitioner
so as
to achieve compliance
with
35
Iii. Mm, Code 604.301(a)
in as
timely a manner
as possible.
64-145
—6—
3,
That pursuant
to
35
Ill.
Adra.
Code
606~201,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
the radium—226 and radium—228 standard
in the first
set of water bills issued
aft.er
the grant
of this variance and
~sry
three months thereafter until
time as the water supply
is
in
r~~istratedcompliance with Section
4,
P~’!.~.ionershall take all reasonable
~reswith its existing equipment
to
i~
~
the level of combined radium-
2.~•. ~nd radium—228 in its finished
~
but that at no time during the
p:i~d of
this variance shall the
mr.~thum allowable combined
cc~:.sntrationfor radium—226 and
ra~i~m—228in Petitioner’s public water
y he more than 9 pCi/l.
5.
Th~within forty—five days of the date
of ~is
order, Petitioner shall execute
and :~orwardto Wayne Wiemerslage,
Enforcement Programs, Illinois
Environmental Protection Agency,
2200
Churchill Road,
Springfield, Illinois,
62706,
a Certificate of Acceptance and
Agreement to be bound
to all terms and
conditions of this variance.
This
forty—five day period shall
be held
in
abeyance for any period this matter
is
being appealed.
CERTIFICATION
I,
(c~e)
,
hereby accept
and agree
to be bound
by all terms and conditions of
the Order
of
the Pollution Control Board in PCB
85—22, May 30,
1985.
Petitioner
84-148
—7—
Authorized Agent
Date
IT IS SO ORDERED.
I, Dorothy
M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was
adopted on the
~
day of
_________________,
1985,
by
a
vote of
(~,—o
.
Dorothy
M.
G nn, Clerk
Illinois Pollution Control Board
64-147