ILLINOIS POLLUTION CONTROL BOARD
November 16, 1995
VILLAGE OF PLAINFIELD, )
)
Petitioner, )
)
v. ) PCB 96-56
) (Variance - PWS)
ILLINOIS ENVIRONMENTAL )
PROTECTION AGENCY, )
)
Respondent.
)
OPINION AND ORDER OF THE BOARD (by E. Dunham):
This matter is before the Board on the September 11, 1995
filing by petitioner, Village of Plainfield (Village), of a
petition for variance. The Village seeks relief from 35 Ill.
Adm. Code 602.105(a), "Standards for Issuance", and 602.106(a),
"Restricted Status", but only to the extent those rules involve
35 Ill. Adm. Code 611.330(a) (radium-226 and radium-228) and
611.330(b)(gross alpha particle activity). The Village requests
an extension of the variance granted in Village of Plainfield v.
IEPA (November 29, 1990) PCB 90-162. The prior variance will
expire on November 29, 1995. The Village is requesting an
extension of the prior variance for five years or until analysis
pursuant to 35 Ill. Adm. Code 611.371 shows compliance with the
standard regulating the contaminant, whichever comes first.
On October 16, 1995, 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 was 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 located in Will County, Illinois. (Pet. at
5.) The Village provides chlorinated and fluoridated potable
water supply and distribution for a population of approximately
6400 persons. (Pet. at 5.) The distribution consists of three
deep wells, well pumps, elevated storage, and distribution
facilities. (Pet. at 5.) The water is supplied to all
residential, commercial and industrial users as needed at rates
established by ordinance. (Pet. at 6.) The Village is not part
of a regional public water supply. (Ag. Rec. at 3.) During the
last year water was pumped at an average rate of approximately
2
820,000 gallons per day. (Pet. at 6.)
The water from the deep wells contains levels of combined
radium-226 and radium-228 which exceed the current standard of 5
pCi/l set forth at 35 Ill. Adm. Code 611.330(a). (Pet. at 6.)
Data from deep well Nos. 3 & 4 show that the current combined
radium averages 9.9 pCi/l in each well. (Pet. at 8.)
The Village currently has no equipment to control the radium
levels. (Pet. at 8.) The Village had intended to obtain
compliance with the radium standard through the construction of a
new shallow well or wells to provide water for blending. (Pet. at
8.) However, it was determined that there are no significant
sources of shallow groundwater suitable for municipal use in the
immediate vicinity. (Pet. at 8.)
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
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 public water supplies. The Village requests that it be
allowed to extend the water service while it pursues compliance
with the combined radium standard and the gross alpha particle
standard, 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
3
presented adequate proof that immediate compliance with the Board
regulations at issue would impose an arbitrary or unreasonable
hardship. (415 ILCS 5/35(a) (1994).) 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 (1st Dist. 1977), 135 Ill. App. 3d 343, 481 N.E.2d
1032.) Only with such a 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 and compliance is to be sought regardless of the
hardship which the task of eventual compliance presents an
individual polluter. (Monsanto Co. v. IPCB (1977), 67 Ill. 2d
276, 367, N.E. 2d 684). 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.
A grant of variance from "Standards for Issuance" and
"Restricted Status" does not absolve a petitioner from compliance
with the drinking water standards at issue, and does not 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 combined radium and gross alpha particle
activity 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"), and 15 pCi/l for gross alpha ("particle activity").
Shortly thereafter Illinois adopted the same limits. Although
characterized as "interim" limits, these standards nevertheless
are the maximum contaminant levels under both federal and
Illinois law, and will remain so unless modified by the USEPA.
1
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. 45502). It later republished this
advance notice in September 1986 (51 Fed. Reg. 34836). On June
1
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.
4
19, 1991, USEPA announced a proposal to modify both standards.
2
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. The gross alpha particle activity standard is proposed to
be replaced by an adjusted gross alpha particle activity
standard; the latter would still have a 15 pCi/l value, but would
no longer include alpha particle activity associated with radium
or uranium decay.
This change was to be promulgated by April 1995, but this
deadline was extended to September 1995. However, Congress has
prohibited funds to promulgate final radon standards for fiscal
years 1994 and 1995. Mr. Joseph Harrison, Chief of the Safe
Drinking Water Division, USEPA, Region V, announced that in light
of the projected proposal for the relaxed standard, the USEPA
would not force any municipality to spend funds to comply with
the federal combined standard.
COMPLIANCE PLAN
The Village has expended over $200,000 in its search for a
reliable supply of shallow groundwater to blend with the deep
well water and reduce the concentration of radium. (Pet. at 18.)
This search determined that there are no shallow aquifers
suitable for municipal use in the immediate vicinity. (Pet. at
18.) The Village has two alternatives for compliance: 1)
purchasing water from a neighboring community; or 2) the
installation of radium removal equipment at each well. (Pet. at
18.)
The Village has held discussions with Citizens Utility
Company and the City of Joliet concerning the purchase of water.
(Pet. at 18.) The Village maintains that the cost of service
from the potential suppliers is too high. (Pet. at 18.)
Plainfield believes its only alternative is to use ion-exchange
softening of the deep well water supply. (Pet. at 18.) The
Village has made provisions to construct a treatment facility
near well No. 5. (Pet. at 18.) However, the Village recognizes
that ion-exchange softening has drawbacks of adding sodium to the
water supply and concentrating radioactive waste in the brine, as
well as being more costly to implement. (Pet. at 18.)
HARDSHIP
The Village contends that denial of the variance extension
would constitute an arbitrary or unreasonable hardship in that
2
Publication occurred at 56 Fed. Reg. 33050, July 18, 1991.
5
the granting of the variance will cause little or no adverse
environmental impact and denial of the variance would delay or
preclude significant development in and around Plainfield. (Pet.
at 19.)
The Village anticipates that the next few years will
continue to be a period of significant growth with numerous
developments. (Pet. at 19.) The Village maintains that the loss
of any of these developments would have a serious economy impact
on the Village which would far outweigh any health effects
associated with the consumption of Plainfield's water for the
limited time of the variance. (Pet. at 20.)
The Village notes
that the promulgation of a new radium standard by the USEPA may
significantly alter the Village's compliance status. (Pet. at
21.)
The Agency agrees that denial of the variance would impose
an arbitrary or unreasonable hardship on the Village. (Ag. Rec.
at 10.)
ENVIRONMENTAL IMPACT
Although the Village has not undertaken a formal assessment
of the environmental effects of the requested variance, it
contends that there will be minimal or no adverse impact caused
by the granting of the variance. (Pet. at 12.)
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 and the updated testimony presented by Dr. Toohey in the
Board's hearing for a variance requested by the City of Braidwood
in City of Braidwood v. IEPA, (June 21, 1990), PCB 89-212, in
support of the assertion that the variance will not result in any
adverse environmental impact. (Pet. at 12, Ag.
Rec. at 8.)
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. at 8.)
The Agency states that "an
increase in the allowable concentration 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." (Ag. Rec. at 10.)
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 the extension. 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, the Agency concludes that denial of a variance
would impose an arbitrary or unreasonable hardship upon
6
petitioner.
The Agency observes that the grant of the 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. at 12 - 13.)
CONSISTENCY WITH FEDERAL LAW
The Agency states that the requested variance may be granted
consistent with the Safe Drinking Water Act (SDWA), PL 93-523, as
amended by PL 96-502, 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. at 11.) The Agency states that granting a
variance from the effects of restricted status affects State and
not federal law and regulations; a variance from the effect of
restricted status would allow water main extensions, under the
Act and Board regulations. (Ag. Rec. at 11.)
The Agency further
states that the recommended variance is not a variance from
USEPA's national primary drinking water regulations and does not
suspend the effect of the SDWA. (Ag. Rec. at 11.)
The Agency
asserts that a federal variance is not at issue, and there should
be no risk to the State of Illinois of loss of primacy. (Ag. Rec.
at 12.)
The Agency states that petitioner will remain subject to
the possibility of enforcement for violations of the MCL for the
contaminants in question under state and federal law. (Ag. Rec.
at 12.) The Agency concludes that because continuing progress is
being made towards compliance while awaiting final promulgation
of the standard, it is unlikely that the USEPA will object to the
issuance of the recommended variance. (Ag. Rec. at 12.)
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 Plainfield. The Board also agrees
with the parties that granting this variance does not pose a
significant health risk to those persons served who will be
affected by the variance, assuming that compliance is timely
forthcoming.
The Board notes that timely compliance by the Village may be
affected by pending USEPA action to promulgate new standards for
7
radionuclides in drinking water. USEPA has recommended a
standard of 20 pCi/l for both radium-226 and radium-228. This
proposed standard was published on July 18, 1991 (56 Fed. Reg.
33,050 (1991)), and the public hearings on the standard began on
September 6, 1991. (Ag. Rec. at 9.) Congress has prohibited
funds to promulgate final radon standards for fiscal years 1994
and 1995. (Ag. Rec. at 9.) It is anticipated that the new
standard as amended will be adopted when the necessary funding is
allocated for this program. 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 a
variance from compliance with the combined radium standard, and
today's action does not 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 Plainfield 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), and gross alpha particle
activity as set forth in 35 Ill. Adm. Code 611.330(b) subject to
the following conditions:
(A)
For purposes of this order, the date of U.S.
Environmental Protection Agency (USEPA) action shall
consist of the earlier date of the following:
(1)
Date of promulgation by the 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 5 pCi/l combined radium standard
or the method for demonstrating compliance with
the 5 pCi/l standard will be promulgated.
(B)
Variance shall terminate on the earliest of the
8
following dates:
(1)
Two years following the date of USEPA action; or
(2)
November 16, 2000; or
(3)
When analysis pursuant to 35 Ill. Adm. Code
611.720, or any compliance with standards then in
effect, shows compliance with standards for radium
in drinking water then in effect.
(C)
In consultation with the Illinois Environmental
Protection Agency (Agency), petitioner shall continue a
sampling program to determine as accurately as possible
the level of radioactivity in its wells and finished
water. Until this variance expires, petitioner shall
collect quarterly samples of water from the
distribution system at the locations approved by the
Agency. Petitioner shall composite the quarterly
samples from each location and shall analyze them
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. The results of the analyses
shall be reported within 30 days of receipt of each
analysis to:
Illinois Environmental Protection Agency
Compliance Assurance Section
Drinking Water Quality Unit
Bureau of Water
P. O. Box 19276
Springfield, Illinois 62794-9276
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 System
Permit Section
2200 Churchill Road
P. O. Box 19276
9
Springfield, IL 62794-9276
(E)
Within three months of USEPA action and after each
construction permit is issued 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, Division of Public
Water Supplies, within 30 days, of each of the
following actions: 1) advertisements for bids, 2)
names of the successful bidders, and 3) whether
petitioner accepted the 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 three years following USEPA action. One year will
be necessary to prove compliance.
(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)
Pursuant to 35 Ill. Adm. Code 611.851(b) (formerly 35
Ill. Adm. Code 606.201), in the 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 MCL standard
in question.
(I)
Until full compliance is achieved, petitioner shall
take all reasonable measures with its existing
equipment to minimize the level of contaminants in its
finished drinking water.
10
(J)
Petitioner shall provide written progress reports
to the Agency at the address below every six
months concerning steps taken to comply with the
paragraphs C, D, E, F, G and H 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
IT IS SO ORDERED.
If the Village of Plainfield chooses to accept this variance
subject to the above order, within forty-five days of the date of
this order, the Village of Plainfield shall execute and forward
to:
Stephen C. Ewart
Division of Legal Counsel
Illinois Environmental Protection Agency
2200 Churchill Road, P.O. Box 19276
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 the certificate is as follows:
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 96-56,
November 16, 1995.
11
_____________________________________
Petitioner
_______________________________________
Authorized Agent
______________________________________
Title
_________________________________
Date
Section 41 of the Environmental Protection Act, (415 ILCS
5/41 (1994)), provides for appeal of final orders of the Board
within 35 days of the date of service of this order. The Rules
of the Supreme Court of Illinois establish filing requirements.
(See also 35 Ill. Adm. Code 101.246, Motion for Reconsideration.)
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 , 1995,
by a vote of .
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board