ILLINOIS POLLUTION CONTROL BOARD
September
7,
1995
CITY OF YORKVILLE,
)
Petitioner,
v.
)
PCB 95—142
)
(Variance—Water)
ILLINOTS ENVTR0NM~NTAL
PROTECTION AGENCY,
)
Respondent.
OPINION
AND
ORDER OF THE BOARD
(by J. Theodore Meyer):
On May 10, 1995 the Board received a petition for an
extension of variance filed by the City of Yorkville
(Yorkville).
Yorkville is seeking an extension of a variance granted the May
24, 1990 Board order in PCB 90-21.
Vorkville was granted relief
from 35 Ill.
Adm.
Code 602.105(a)
and 602.106(b)
to the extent
that those rules apply to the maximum concentration limit
(MCL)
for radium-226 and radium-228
(as
set forth at
35
Ill. Adm. Code
Section 611.330(a).)
The current variance expired Nay 24,
1995.
Yorkville
is asking that the Board extend the variance until Nay
24,
2000,
or until the United States Environmental Protection
Agency
(USEPA)
takes final action with respect to a new radium
standard, whichever comes first.
On June 9,
1995, the Board received a response from the
Illinois Environmental Protection Agency
(Agency) which
recommends that the variance be granted with certain conditions.
Yorkville waived hearing and the Board received no requests for a
hearing,
so none was held.
BACKGROUND
Yorkville is located in Kendall County and provides potable
water to
a population of 4,970,
including residential, commercial
and industrial customers.
(Pet.
at 2.)’
Yorkville’s water
distribution system consists of two deep wells, pumps and
distribution facilities.
(j~) In 1994, water was pumped at an
average rate of approximately 530,000 gallons per day.
(j~~)
The most recent analysis of petitioner’s water supply was
conducted in August,
1994.
(Rec. at
5.)
The results showed a
combined radium content of 14.0 pCi/L at Tap #2, and a combined
radium content of 12.6 PCi/L at Tap
#3.
(fl~)
These levels
exceed the current federal and state
5
pCi/L combined standard
1the Petition for Variance shall be referred to as
(Pet.
at
.)
and the
Agency Recommendation shall be referred to as (Eec.
at
.).
for radium
Yorkville is seeking an extension of the variance for its
water distribution system until May 24, 2000 or until the USEPA
adopts a new radium standard, whichever first occurs.
If the
USEPA enacts the proposed 20 pCi/L standard tor radium-226 and
radium-228,
as the parties contend, then Yorkville will be in
compliance without incurring additional cost.
(Pet.
at
9.)
REGULATORY
FRAMEWORK
The instant variance request concerns two features of the
Board’s public water supply regulations:
“Standards for
Issuance” and “Restricted Status”, which are found at 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
.
.
.
Act
(Ill.
Rev.
Stat.
1981,
ch.
111 1/2, par.
1001 et
seq.),
.
.
.
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 prohibit communities from
extending water service if their water fails to meet any of the
several standards for finished water supplies.
This provision is
a feature of the Illinois regulations and is not found in federal
law.
It is from this prohibition which Yorkville requests a
variance.
However, we emphasize that the duration of restricted
status is linked to the length of time it takes the water supply
to comply with the underlying standards.
As such, the tine
frames in the proposed compliance plan itself are an essential
consideration in a restricted status variance determination,
whether or not variance is being requested from those standards.
Granting a variance from restricted
status,
then, will be
conditioned
upon a schedule
of compliance with
the standards.
In consideration of any variance, the Board determines
whether
a petitioner has presented adequate proof that immediate
3
compliance with the Board regulations at issue would impose an
arbitrary or unreasonable hardship.
(415 ILCS 5/35(a) (1992).)
The burden is upon the petitioner to show that its claimed
hardship outweighs the public interest in attaining compliance
with regulations designed to protect human health and the
environment.
(Willowbrook Motel
v.
Illinois Pollution Control
Bard,
135 Ill.App.3d 343,
481 N.E.2d 1032
(1st Dist.
1985).)
Only with such a 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, and compliance is
to be sought regardless of the hardship which the task of
eventual compliance presents an individual polluter.
(Monsanto
Co. V.
IPCB,
67 Il1.2d 267,
367 N.E.2d 684
(1977).)
Accordingly,
a petitioner is required,
except in certain circumstances, to
commit to a plan which is reasonably calculated to achieve
compliance with the term of the variance.
Is it important to recognize that grant of variance from
“Standards for Issuance” and “Restricted Status” neither absolves
a petitioner from compliance with the drinking water standards at
issue, nor insulates a petitioner from possible enforcement
action brought for violation of those standards.
The underlying
standards remain applicable to the petitioner regardless of a
variance grant or denial.
Standards for radium in drinking water were first adopted as
National Interim Primary Drinking Water Regulations 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.
Shortly
thereafter, T11inc~sadopted the same
limits
which are now found
at 35 Ill.
Adm. Code Section 611.330.
Although characterized as
“interim” limits, the standards nevertheless are the maximum
allowable concentrations under both federal and Illinois law, and
will remain so unless modified by the USEPA.
Since their original promulgation, the current radium and
gross alpha particle activity 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.
45501).
It later republished this
advance notice in September 1986 (51 Fed. Reg.
34836).
On June
19,
1991, USEPA announced a proposal to modify both radium
standards
(56 Fed.
Reg.
33050, July
18, 1991).
USEPA proposed to
replace the 5 pCi/L combined radium standard by separate
standards of 20 pCi/L each for radium-226 and radium—228.
(56
Fed.Reg.
33050, 33100
(July 18,
1991).
Under the USEPA’S
calendar, these standards were scheduled to be published by April
1995.
Due to lack of funding, however, the publishing deadline
was extended to September 15,
1995.
4
COMPLThNCE
PLAN
After being informed that radium levels were above the
standard, Yorkville investigated options which would bring radium
concentrations into compliance.
(Pet.
at 4-5.)
At the
recommendation of its consultants, Yorkville first explored tile
Iso—Clear system, a promising new treatment that ultimately
proved infeasible because a filter unit could not withstand the
demands of a full-scale operation.
(Pet.
at 5.)
Yorkville also attempted to purchase water from the
neighboring city
of Piano.
Negotiations, however, broke down
several times, and no agreement was ever reached.
Yorkville then investigated blending as a feasible
compliance option.
This option required the construction of a
shallow well,
from which water would then be blended with the
city’s deep wells, thereby diluting the radium concentrations.
Over a 15—nioiith period,
Yorkville’s
consultants
explored several
sites, finally settling upon one which required Yorkville to
enter into protracted negotiations with the owner of the site.
Yorkville spent nearly $150,000 for radium testing,
consultants’ reports,
locating potential well sites for blending,
and purchasing a shallow well site for blending.
(Pet. at
7.)
Yorkville further states that all actions with respect to the
shallow well site are completed,
short of final design and
construction.
(Pet.
at 7.)
ENVIRONMENTAL IMPACT
The Agency states that,
while
radiation
at
any level creates
some risk, the risk associated with this level is very low.
(Rec. at 7.)
Further, information regarding effects of combined
radium levels was presented in testimony before the Board at the
Aurora variance hearing
(PCB 85-54)
on June 25,
1985,
by Richard
E. Toohey, Ph.D.,
and at the hearings on the Agency rule change
proposal in R85—14.
(~~)
The Agency concludes that an increase
in the allowable concentration for the contaminants in question
should cause no significant health risk for a limited population
served by new water main extensions for the time period of this
recommended variance.
(Rec.
at
9.)
Yorkville incorporated by reference the testimony of and
exhibits presented by Richard E.
Toohey,
Ph.D.
and Dr. James
Stebbings, and based on that testimony,
stated that there will be
little,
if any, adverse environmental or health impact caused by
a grant of the requested variance.
(Pet.
at 3.)
HARDSHIP
Yorkville asserts that denial of the variance would
5
constitute an arbitrary or unreasonable hardship because the
grant of the variance would cause little if any adverse
environmental impact.
(Pet.
at 8.)
In contrast, Yorkville
argues,
a denial of the variance extension would terminate the
significant development which it currently is experiencing, and
which has necessitated the expansion of the water supply system.
(Rec.
at 8.)
Denial of Yorkville’s variance
request would also
require
the city to expend hundreds of thousands of dollars to blend deep
well water with shallow well water to come into compliance with a
standard which
nay
be changed
soon
to a point where said
expenditures would be unnecessary.
(Pet.
at 9.)
Thus, the
adverse economic impact would far outweigh any health effects
associated with the consumption of Yorkville’s water.
(~4~)
Petitioner acknowledges that Section 35(a)
of the Act states
that “the Board is not required to find that an arbitrary or
unreasonable hardship
exists
exclusively because the regulatory
standard is under review and the costs of compliance are
substantial and certain”.
However, according to Iorkville, that
provision does not preclude such
a finding
in this
case
in that
USEPA has proposed a revised standard of 20 pCi/L and is under a
court order to promulgate
a new standard.
(Pet.
at
9.)
The Agency believes that the grant of the variance would
impose “no significant health risk for a limited population
served by new water main extensions”.
(Rec. at
9.)
Denial of
the requested variance, the Agency believes, would result in an
arbitrary or unreasonable hardship due to resulting denials of
construction and operating permits.
(j~)
Thus, the Agency
supports
a
grant of the variance.
CONSISTENCY WITH FEDERAL
LAW
Both Yorkville and the Agency agree that the Board may grant
the requested variance consistent with federal law.
(Pet.
at
12;
Rec.
at
10.)
The requested variance would allow for water main
extensions, but is not a variance from the national primary
drinking water regulations.
(Pet.
at 12.)
Further, according to
the Agency, granting variance from the effects of restricted
status affects state, not federal,
laws and regulations.
(Rec.
at 10.)
CONCLUSION
Yorkville is requesting an extension of an existing variance
granted by the Board in 1990.
Despite substantially conforming
to the conditions of the prior variance, Yorkville is not
currently in compliance with the drinking water standard for
radium.
At
a cost of nearly $150,000 petitioner completed
preliminary work for the construction of a shallow well in
£
anticipation of combining it with deep well water which would
achieve compliance with the current radium standard of 5 pCi/L.
Yorkville has shown that the Illinois drinking water
standards for radium are based on the federal standards which are
presently under review by USEPA.
In June 1991, USEPA proposed
raising the radium drinking water standards to a higher level,
and if the standards are adopted as proposed, Yorkville would be
in compliance.
USEPA is under court order to promulgate the new
radium drinking water standards by September 15,
1995.
(Miller
v. Browner,
No. 89—6328—HO,
56 Fed.
Reg.
33050, 33126
(July
1,
1991).)
The Agency agrees with Yorkville that no significant
injury to the public is likely from contamination at the present
radium levels.
(Rec.
at 8.)
Yorkville has shown that a hardship would result if a
variance from Section 602.105(a) and Section 602.106(b) was not
granted by the Board.
If the federal standard for radium in
drinking water is not raised, Yorkville has submitted a
compliance plan that would be implemented.
Yorkville has
demonstrated that a variance is warranted.
Therefore, the Board
will grant a variance from the Board’s rules at 35 Iii.
Adm. Code
Sections 602.105(a)
and 602.106(b) to the extent that those rules
apply to the maximum concentration of radium—226 and radium—228,
as regulated at the date of USEPA action on the radium standards,
or May 24,
2000, whichever is earlier.
This opinion constitutes the Board findings of fact and
conclusions of law in this matter.
ORDER
The Board hereby grants the petitioner, City of Yorkville,
a
variance from 35 Ill.
Atha. Code 602.105(a), Standards of
Issuance, and 602.106(b), Restricted Status, but only as the
rules relate to the contaminants in question, subject to the
following conditions:
(A)
For purposes of this recommendation, the date of USEPA
action shall consist of the earlier date of the:
(1)
date the regulation
is
promulgated by the U.S.
Environmental Protection Agency (USEPA) which
amends the maximum contaminant level
(MCL)
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 or publication or notice by the USEPA that no
amendments to
the 5 pCi/L combined radium
standard or the method for demonstrating
compliance with the 5 pCifL standard will be
7
promulgated.
(B)
The variance shall terminate on the earliest of the
following dates:
(1)
Two years following the date of USEPA action;
or
(2)
May 24,
2000.
(C)
In consultation with
the Agency,
petitioner shall
continue a sampling program to determine as accurately
as
possible
the
leve1~ of radioactivity
in its wells and
finished water.
Until this variance expires,
petitioner shall collect quarterly samples of water
from its distribution system at locations approved by
the Agency.
Petitioner shall composite the quarterly
samples from each location separately and shall analyze
them annually by a laboratory certified by the State of
Illinois
for radiological analysis
so as to determine
the concentration of the contaminants in question.
The
results of the
analyses shall be reported to the
Compliance Assuranc~ Section,
Drinking Water Quality
Unit,
Bureau of Water,
P.O. Box 19276,
IEPA,
Springfield,
IL 62794-9276, within 30 days of receipt
of each analysis.
At the option of the petitioner, the
quarterly samples may be analyzed when collected.
The
running average of the most recent four quarterly
sample results shall be reported to the above address
within 30 days of receipt of the most recent quarterly
sample.
(D)
Within three months of
USEPA action, petitioner shall
apply to the Agency at the address below for all
permits necessary for the construction, installation,
changes or additions to petitioner’s public water
supply needed for achieving compliance with the MCL for
combined radium or with any other standard for radium
in drinking water then in effect:
Illinois Environmental Protection Agency
Public Water Supply Program
Permit Section
2200 Churchill Road
Springfield,
IL
62794—9276
(E)
Within three months of the issuance of each
construction permit by the Agency, petitioner shall
advertise for bids, to be submitted within 60 days,
from contractors to do the necessary worK described in
the construction permit.
The petitioner shall accept
appropriate bids within a reasonable time.
Petitioner
shall notify the Agency,
DPWS, within 30 days,
of each
8
of the following actions:
1) advertisements for bids;
2) names of successful bidders; and 3) whether
petitioners accepted bids.
(F)
Construction allowed on said construction permits shall
begin within a reasonable time of bids being accepted,
but in any case, construction of all installations,
changes or additions necessary to achieve compliance
with the MCL
in question shall
be
completed
no later
than two years following USEPA action.
One year will
be necessary to prove compliance.
(G)
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 will send to each
user of its public water supply a written notice to the
effect that the petitioner
is not in compliance with
the standard
in question.
The notice
shall
state the
average content of the contaminants in samples taken
since the last notice period during which samples were
taken..
(H)
Pursuant to 35 Iii.
Adm.
Code 611.851(b),
in its first
set of water bills or within three months after the
date of this variance 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
Illinois Pollution Control Board a variance from
35 Ill.
Adm. Code 602.105(a), Standards of Issuance,
and
35
T1I..
Adm. Code
602.106(b), Restricted Status, as
it relates to the
MCL
standard in question.
(I)
Until full compliance is reached, petitioner shall take
all reasonable measures with existing equipment to
minimize the level of contaminants in its finished
drinking water.
(J)
Petitioner
shall provide written
progress reports to
the Agency’s DPWS,
FOS every six months concerning
steps taken to comply with paragraphs
C,
D,
E,
F, G and
H.
Progress reports shall quote each of said
paragraphs and immediately below each paragraph state
what steps have been taken to comply with each
paragraph.
IT IS SO ORDERED.
If petitioner chooses to accept this variance subject to the
above order, within forty-five days of
the grant of variance,
petitioner must execute and forward the attached certificate of
9
acceptance and agreement to:
Stephen C.
Ewart
Division of Legal Counsel
Illinois Environmental Protection Agency
P.O. Box 19276
2200 Churchill Road
Springfield,
IL
62794—9276
Once executed and received, that certificate of acceptance
and agreement shall bind the petitioner 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.
The form of certificate is as
follows:
CERTIFICATION
I,
(We),
________________________,
hereby accept
and
agree to be
bound by all
terms and conditions
of the
Order of the Illinois
Pollution Control Board,
in PCB 95—
142,
September 7,
1995.
Petitioner:
___________________________
By:
Authorized Agent
Title:
_______________________________
Date:
_____________________________
Section 41 of the Environmental Protection Act
(415 ILCS
5/41
(1994))
provides for the appeal
of final Board orders within
35 days
of the date
of
service of
this
order.
The Rule of the
Supreme Court of Illinois establish filing requirements.
(See
also
35 Ill.
Adm. Code 101.246, Motions for Reconsideration.)
I, Dorothy Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certj~ythat the abo e
o inion and order was
adopted on the
7(~
day of
~
1995,
by
a vote of
1-
O
.
Dorothy M.
Illinois
lution Control Board
