1bLIiNU1~

IULLUHUN

LUNIXUL

IiUAKU

March 21,

1996

CITY OF GENEVA,

an illinois

)

Municipal Corporation,

)

Petitioner,

)

PCB96-161

)

(Variance

Public Water Supply)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

)

OPINION AND ORDER OF THE BOARD

(by

R.C. Flemal):

This matter is before the Board on the January 22,

1996 filing by the City of Geneva

(Geneva) of a

petition

forvariance.

Geneva seeks relief from 35

Iii.

Adm.

Code 602.105(a),

Standards forIssuance,

and

602.106(b), Restricted Status,

but only to the extent those rules

involve 35 ifi.

Adm.

Code 611.330 (combined radium-226 and radium-228).

Geneva requests

a variance for a term of five years.

On February 8,

1996 the Illinois Environmental Protection Agency (Agency) filed its

variance recommendation.

The Agency recommends that the variance be granted for relief

from

35111.

Adm.

Code 602.105(a), Standards for Issuance, and 602.106(b), Restricted

Status,

subject to certain conditions.

Geneva waived hearing and none was held.

The Board’s responsibility in this matter arises from the Environmental Protection Act

(Act) (415 ILCS

5/1

et seq. (1994).)

The Board is charged there with the responsibility of

granting variance from Board regulations whenever it is found that immediate compliance with

the regulations would impose an arbitrary or unreasonable hardship upon the petitioner.

(415

ILCS

5/35(a).)

The Agency is required to appear in hearings on variance petitions.

(415 ILCS

514(f).)

The Agency is also charged, among other matters,

with the responsibility of

investigating

each variance petition and making a recommendation to

the Board as

to the

disposition of thepetition.

(415

ILCS

5/37(a).)

For the following reasons, the Board finds that Geneva has presented adequate proof

that immediate compliance with the Board’s regulations for Standards for Issuance and

Restricted

Status

would impose an arbitrary or unreasonable hardship.

Accordingly, the

variance is granted, subject to conditions set forth in

the attached order.

BACKGROUND

The City of Geneva is an Illinois Municipal Corporation located at 22 South First

Street, Geneva, Kane County, Illinois.

Geneva provides a potable water

supply and

distribution for 16,578 residential customers representing

approximately 5,580 residents.

Geneva is

not part of a regional public water supply.

(Pet.

at 4.)

Geneva’s well water supply

system includes four (4) deep wells, two

(2) shallow wells,

and another under construction, as well as pumps and distribution facilities.

(Rec. at 3.)

Geneva provides the system to all residential users as needed and charges all users as

established by the City Council.

Geneva has the following wells in

use and abandoned:

Well No.

Year Drilled

Depth

Well #2

1924

Abandoned

in

1993

Well #3

1930

 1315 feet

Well #4

1944

 Abandoned in 1995

Well

1956

2264

feet

Well #6

1964

1350 feet

Well #7

1958

1986

feet

Well

1989

150 feet

Well

1993

153

feet

Well #10

1995

179

feet

(Pet.

at 4.)

Geneva requests the varianceto allow continued operation of the water

supply and

distribution system,

and expansion or extension of the distribution system as necessary.

(Rec.

at 4.)

TheAgency records indicate Geneva has not filed for a previous variance.

(Id.)

The Agency notes that Geneva is not presently on restricted

status for exceeding

any

other

contaminant.

(Rec. at

5.)

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

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.

1991,

ch.

111

pars.

1001

et seq.) (Act), or of this Chapter.

Section 602.106

Restricted Status

a)

 Restricted status shall

be defined as the Agency determination pursuant

to Section 39(a) of theAct and Section 602.105, thata public water

supply facility may

longer be issued a construction permit without

causing a violation of

the Act or this

Chapter.

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.

Section 611.330

Radium and

 Gross Alpha Particle Activity

The following are the MCL’s for radium-226 and radium-228.

Combined radium-226 and radium-228

-5

pCi/L.

The principal effect ofthese regulations is to provide that public water supply

systems

areprohibited 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.

In determining whether any variance is to be granted, the Act requires the Board

determine whether a petitioner has presented adequateproof that immediate compliance with

theBoard regulations at issue would impose an arbitrary or unreasonable hardship.

(415 ILCS

5/35(a)

(1994).)

Furthermore, the burden is upon petitioner to

show that its claimed hardship

outweighs the public interest

attaining compliance with regulations

designed to protect Lhe

public.

(~Wil1owbrook

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

(Monsanto Co.

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.

(14.)

Accordingly, except

in certain

special circumstances, a 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

absolve

Geneva from

compliance with the drinking water

standards at issue,

and does not insulate

Geneva from possible enforcement action brought for violation ofthose standards.

The

underlying standards remain applicable to Geneva regardless of whether variance is granted or

denied.

Standards forcombined radium in drinking water were first adopted as National

Interim

Primary Drinking Water Regulations (NTPDWRs) by the USEPA in

1976.

The standard

adopted was

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 contaminant

levels Under both federal and Illinois law,

and will remain

so unless modified by

the USEPA’.

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

an Advance Notice ofProposed Rulemaking (48 Fed.

Reg.

45502).

It later republished this

advance notice in September

1986 (51 Fed.

Reg.

34836).

On June 19,

1991

the USEPA

announced a proposal to modify both

standards.

USEPA

proposes to replace the S pCi/i

combined radium standard by separate standards of 20 pCi/l

each for radium-226 and radium-

228.

This change was to be promulgated by April 1995,

but this deadline was later extended

to September

1995.

However, Congress has prohibited funds to promulgate

final radionuclide

standards for fiscal years

1994 and 1995.

Mr. Joseph Harrison, Chief of the Safe Drinking

Water Division,

USEPA Region V,

announced that in light ofthe projected proposal for the

relaxed standard,

the USEPA would not force any municipality to

spend funds to comply with

the federal combined

standard.

Most recently the Federal Register has indicated that

radionuclide standards

are no longer scheduled for a specific final regulatory action date.

(60

Fed. Reg.

60656,

November 28,

1995.)

According to the Agency,

in the absence of a revised

Safe Drinking Water Act,

the USEPA has held a series of meetings with States, water system

representatives and public interest groups to assess the priorities for the development of

drinking water regulations.

(Rec.

8.)

A timetable for promulgation of the regulations was

expected in December

1995,

but has been

delayed; the Agency now expects that within 75

days ofUSEPA FY96 appropriation the USEPA will commit to a timetable.

(Rec. at 8-9.)

COMPLIANCE PLAN

As referenced above, thecurrent combined standard for radium-226 and

radium-228 is

5 pCi/L.

On November 8,

1995

the Agency notified Geneva that the radium content in its

water supply exceeded the MCL.

The most recent analysis of Geneva’s

water supply

was

completed on June 20,

1995

at Tap 4 and showed a combined radium level of 6.4 pCi/L.

‘In anticipation of USEPA revision ofthe radium standard, the legislature amended the Act at

Section 17.6 in

1988

to provide that any new federal radium standard immediately supersedes the

current Illinois standard.

(Rec. at 4.)

Tap 5

analysis was completed on October

16,

1995 and showed a combined

radium content of 10.3 pCi/L.

(Rec. at 4-5.)

Geneva also states that analysis at Tap 6

showed

4.2 pCi/L.

(Pet. at

5.)

The results were compiled from four (4) consecutive quarterly

samples and exceeded the 5 pCi/L combined standard for radium-226 and radium-228.

Accordingly the Agency notified Geneva that it is being placed on Restricted

Status/Critical

Review List on November 20,

1995.

Sincebeing notified of the MCL violation, Geneva has

been investigating options for reducing the amount of radium in its water supply.

(Rec.

at 5.)

Prior to being placed on restricted status,

Geneva received the following reports

from

the illinois Department of Nuclear Safety,

Division of Radiochemistry, dated July

31,

1995,

August 2,

1995

and October 30,

1995:

Well No.

Radium 226

Radium

228

Combined Radium

Abandoned

Stand-by Well

Abandoned

Stand-by Well

3.2 pCi/L

(+/-0.l)

3.2 pCi/L

(+/-0.9)

6.4 pCi/L

pCi/L

(+/-0.2)

6.5

pCi/L

(-I-/-l.l)

10.3 pCi/L

2.2 pci/L

(+/-0.l)

2.2

pCi/L

(+/-0.8)

2.0 pCi/L

Stand-by Well

Under Construction

(Pet.

at 5-6.)

Geneva states

that although it has two

(2) operable shallow wells,

Wells 8 and 9, with a

combined pumping rate of 3500 gallons per minute and an additional shallow well under

construction,

the iron and manganese removal capacity for the shallow wells is limited

1500

gallons per minute.

(Pet. at 6.)

According to Geneva,

this limitation restricts the amount of

shallow well water

available for blending

with deep wells.

(Id.)

During the variance Geneva will maximize the utilization of water from Wells Number

9 and

10,

and minimize the use of deep wells Numbers 3,

6 and 7.

(Pet.

at 7,

Rec. at

5.)

Additionally Geneva states it will continue to take all reasonable measures to

minimize the

radium levels in its finished water, as well as submitting

the required bi-annual progress

reports to the Agency.

HARDSHIP

Geneva asserts that compliance with the

standard does not significantly benefit the

public or environment but may in fact harm both.

(Pet.

at 8.)

Geneva claims

that any

expenditure of money to

comply is an arbitrary or unreasonable hardship regardless of its

financial capacity to comply with the current MCL standard.

(Id.)

Denial of the requested

extension of variance would prohibit all construction within Geneva’s service area from

resuming and would hurt prospective home purchasers,

business developers,

and Geneva’s tax

base.

(Pet. at 9.)

The Agency believes that while radiation at any level creates some risk,

the risk

associated with this level is very low.

(Rec. at 6.)

The Agency agrees with Geneva that grant

of the requested variancewould impose no significant injury to the public or to the

environment for thelimited time period requested and that denial would be an

arbitrary and

unreasonable hardship to Geneva.

(Rec. at 9.)

The Agency also states that denial of the

variance would require the Agency to deny construction and operating permits until

compliance is achieved.

According to the Agency, the result of placing Geneva on restricted

status would mean no new water main

extensions could be issued and

would prevent further

development from taldng place.

(Rec. at 9.)

ENVIRONMENTAL IMPACT

Geneva has made no formal assessment ofthe effect of this variance on the

environment.

(Pet.

At 7.)

However, Geneva is of the

opinion

that granting the variance will

not cause harm to the environment or to the people served by the wells and distribution system

in question.

(Id.)

Geneva does not consider the radiological quality of this community water

supply to be a significant health risk.

(Id.)

The Agency believes an increase in

the allowable concentration for 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.)

The Agency

cites the testimony presented by Richard E. Toohey, Ph.D., at the June 25,

1985

hearing in

PCB

85-54

and R85-14, the Proposed Amendments to Public Water Supply Regulations,

Ill.

Adm.

Code 602.105 and 602.106,

as well as the updated testimony presented by Dr.

Toohey in the

Board’s

hearing for a variance requested by

Geneva of Braidwood in

Association of Braidwood v.

IEPA,

(June 21,

1990), PCB 89-212,

to show additional

information regarding combined radium levels.

(Rec. at 7.)

The Agency

notes that the

variance should affect only those users who consume water drawn from any newly extended

water lines.

(Rec. at 11.)

CONSISTENCY WITH FEDERAL LAW

The Agency states

that the requested variance for relief from

Ill.

Adm.

Code

602.105(a) and 602.106(b) 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 national primary drinking regulations.

(Rec, at

10.)

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.

(Rec. at

10.)

The Agency

further states that the recommended variance is not a variance from USEPA’s national primary

drinldng water regulations and does suspend the effect of the SDWA.

(Id.)

The Agency

asserts that a federal variance is not at issue and there should be no risk to the State of Illinois

ofloss ofprimacy.

The Agency states that Geneva will remain subject to the possibility of enforcement for

violations of the MCL for the contaminants in question under state and

federal law.

(Rec. at

11.)

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.

(Id.)

CONCLUSION

Based upon the record,

the Board finds that immediate compliance with the Standards

for Issuance and Restricted Status regulations would imposc an arbitrary or unrcasonablc

hardship on Geneva.

The Board agrecs with the Agency that denial of therecommended

variancewould outweigh the injury to the public from granting variance.

The Board also

agrees with the parties that granting this variance does not pose a significant health risk

those persons served who will be affected by thevariance,

assuming that compliance is timely

forthcoming.

The Board notes that timely compliance by Geneva may be affected by USEPA action

to promulgate new standards for radionuclides in drinking water.

USEPA has recommended a

standard of20 pCi/l for both radium-226 and radium-228.

This proposed standard was

published on July

18,

1991

(56 Fed.

keg.

33,050 (1991)), and the public hearings on the

standard began on September 6,

1991.

New radionuclide standards would

significantly alter

Geneva’s need for a variance or alternatives for achieving compliance

Today’s action is

solely a grant of variance extension from standards of issuance arid

restricted status.

Geneva is not granted a variance from compliance with the combined

radium

standard,

and today’s action does not insulate Geneva in any

manner against enforcement for

violation of these standards.

As the Agency has observed,

granting this extension of variance

should affect

only those users who consume water drawn from any newly extended water

lines.

(Rec. at

11.)

And

therefore this variance should not

affect the status of the rest of

Geneva’s population

drawing water from existing water lines.

This opinion constitutes the Board’s findings of fact and conclusions of law in

this

matter.

ORDER

The City of Geneva (Geneva) 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

III.

Adm. Coe•611.330(a)

subject to the following conditions:

(A)

For purposes of this order,

the date of United States Environmental Protection

Agency (USEPA) action consists

of the earlier date of the following:

(1)

Date ofpromulgation 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 ofpublication of notice by the USEPA that no amendments to the

pCi/l combined radium standard or the method for demonstrating

compliance with the

pCi/l 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)

March21,

2001; 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),

Geneva shall continue a sampling program to

determineas accurately as

possible the level of radioactivity in its wells and finished water.

Until this

variance expires,

Geneva shall collect quarterly samples of water from the

distribution system at locations approved

by the Agency.

Geneva 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 radium-226 and radium-22L

the option of Geneva,

the quarterly samples may be

analyzed when collected.

The running

average of the most recent four quarterly sample results

shall be

reported within 30 days ofreceipt of the most recent quarterly sample:

Illinois Environmental Protection Agency

Compliance Assurance Section

Drinking Water Quality Unit

Bureau of Water

P.O.

Box

19276

Springfield,

IL 62794-9276

(D)

Within threc months of USEPA

action,

Geneva shall apply to the Agency at the

address below for all permits necessary for the construction, installation,

changes or additions to Geneva’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

Springfield,

62794-9276

(B)

Within three months of USEPA action and after each construction permit

issued by the Agency,

Geneva shall advertise for bids, to be submitted within 60

days, from contractors to do the necessary work described in the construction

permit.

Geneva shall accept appropriate bids

within a reasonable time.

Geneva

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 Geneva 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 two years following USEPA

action.

One year will be necessary to prove compliance.

(G)

Pursuant to 35

Ill.

Adm.

Code 611.851(b) (formerly

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, Geneva

will

send to each user of its puhlic

water supply a written notice to the effect

that Geneva 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

111.

Adm.

Code 611.851(b) (formerly

35 Ill.

Adm.

Code

606.201),

the first set of water bills or within

three months

after the date of

this order,

whichever occurs first, and every three months thereafter, Geneva

will send to

each user of its public water supply a written notice to the effect

that Geneva has been granted by the Illinois Pollution Control Board a variance

from 35 III. Adm.

Code 602.105(a),

Standards of Issuance, and

35 Ill.

Adm.

Code 602.106(b), Restricted Status,

as they relate to the MCL standard in

question.

(I)

Until full compliance is achieved, Geneva

shall take all reasonable measures

with its existing equipment to

minimize the level of contaminants in its fmished

drinking water.

(J)

Geneva 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, IL 62794-9276

IT IS SO ORDERED.

Ifthe City of Geneva chooses to

accept this variance subject to the above order,

within

forty-five

(45)

days

of the date of this order,

the City of Geneva shall execute and forward to:

Stephen C.

Ewart

Division of Legal Counsel

Illinois Environmental Protection Agency

2200 Churchill Road, P.O.

Box

19276

Springfield, IL 62794-9276

a Certificate of Acceptance and agreement to be bound

all terms and conditions of the

granted variance.

The forty-five (45) day period shall be held in abeyance during any period

that this matter is appealed.

Failure to execute and forward the certificate within forty-five

(45)

days renders this variance void and of no force and effect as a shield against enforcement

ofrules from which this variance is granted.

The form ofthe certificate is as follows.

I(We),

to be bound by all terms and conditions of the

PCB 96-161, March 21,

1996.

Geneva

hereby accept and agree

order of the Illinois Pollution Control Board in

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

days of the date of service of this order.

The

Rules of the Supreme Court ofillinois establish

filing requirements.

(See also

Ill.

Adm.

Code 101.246,

Motion for Reconsideration.)

I, Dorothy M.

Gunn,

Clerk of the Illinois ?ollution Control Board,

hereby certify that

the above opinion and order was adopted on the

di”’

day of

/h4-~~~~c-4-/

1996, by a

voteof

7-~O

Dorothy M4Iunn, Clerk

Illinois Poljdtion Control Board