ILLINOIS POLLUTION CONTROL BOARD
November 16, 1995
CITY OF MONMOUTH
)
)
Petitioner,
)
)
v.
)
PCB 96-33
)
(Variance-Water)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
OPINION AND ORDER OF THE BOARD (J. Theodore Meyer):
This matter is before the Board on an August 4, 1995
Petition for Variance filed by the City of Monmouth (Monmouth).
Monmouth seeks a variance from 35 Ill. Adm. Code 602.105(a),
"Standards for Issuance", and 602.106(a), "Restricted Status", to
the extent that they relate to 35 Ill. Adm. Code 611.330(a),
combined radium-226, radium-228, and 611.330(b), gross alpha
particle activity. (Pet. at 1.)
1
Monmouth seeks a five-year
variance to allow the continued operation, and possible
expansion, of its water supply and distribution system. (Id.)
The Illinois Environmental Protection Agency (Agency) filed its
recommendation on August 31, 1995, advising that the variance be
granted, subject to certain conditions. Monmouth waived hearing
and none was held.
BACKGROUND
Monmouth is city located in Warren County, Illinois with a
population of 9,700. (Rec. at 3.) It owns and operates a water
supply and distribution system, providing potable water to 3,721
residents, as well as 356 industrial, governmental and commercial
businesses. (Id.) Monmouth's water supply currently serves a
4.5-mile area. (Id.)
Petitioner's water distribution system is comprised of five
deep wells, pumps, and distribution facilities. (Pet. at 1.)
The water is treated with chlorine, and a small amount of
phosphate for rust control, prior to distribution. (Pet. at 2.)
Approximately 1.89 million gallons of water are distributed
daily, which results in approximately 689.8 million gallons per
year. (Id.)
Monmouth first learned that its water supply exceeded the
1
Petitioner's Petition for Variance will be cited as (Pet. at __.). The
Agency's recommendation will be cited as (Rec. at __.).
2
maximum contaminant level (MCL) for radium by a letter from the
Agency dated September 18, 1984. (Pet. at 3.) Monmouth made
changes in its water distribution system and achieved compliance
as indicated by Agency letter dated November 13, 1991. (Id.) On
September 7, 1993 the Agency notified Monmouth that it was once
again out of compliance for the MCL for radium. (Id. at Exhibit
C.) The report indicated a value of 6.4 pCi/L for combined
radium-226 and radium-228 for Well #7, Tap 03. (Id.)
Quarterly sampling results for gross alpha particle activity
revealed that Monmouth was out of compliance from the mid-1980s
until August 20, 1990, when the Agency notified Monmouth of its
compliance. (Pet. at Exhibit D.) The current reading for gross
alpha particle activity at Well #6, Tap 2 is 16.5 pCi/L which is
over the 15.0 standard. (Rec. at 4.)
Since notification of the violation, Monmouth has developed
a program to reduce the contaminant to levels at or below the
MCL, which is explained below. Petitioner is not on restricted
status for exceeding any other contaminant. (Rec. at 5.)
REGULATORY FRAMEWORK
The United States Environmental Protection Agency (USEPA)
has promulgated an MCL for drinking water of 5 pCi/l for radium,
and an MCL of 15 pCi/L for gross alpha particle activity. (Rec.
at 3.) Illinois subsequently adopted the same limits. (Id.)
Pursuant to Section 17.6 of the Illinois Environmental Protection
Act (Act), any revisions to these standards by the USEPA will
automatically become the standard in Illinois.
Monmouth is not seeking a variance from the MCLs for radium
and gross alpha particle activity, which remain applicable to its
potable water supply. Rather, Monmouth is requesting a variance
from the prohibitions imposed at 35 Ill. Adm. Code 602.105(a) and
602.106(a) until it can achieve compliance. 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 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 the Act and
Section 602.105, that a public water supply facility may no
3
longer be issued a construction permit without causing a
violation of the Act or this Chapter.
Illinois regulations thus provide that communities are
prohibited from extending water service, by virtue of not being
able to obtain the requisite permits, 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
Monmouth 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 time frames for compliance with the underlying
standards in the proposed compliance plan are an essential
consideration in determining whether a restricted status variance
will be granted. Thus, grant of variance from restricted status
will be conditioned upon a schedule of compliance with the
underlying standards.
In consideration of any variance, the Board determines
whether a petitioner has presented adequate proof that immediate
compliance with the Board regulations at issue would impose an
arbitrary or unreasonable hardship. (Caterpillar Tractor Co. v.
Pollution Control Board, 48 Ill.App.3d 655, 363 N.E.2d 419 (3rd
Dist. 1977).) Further, the burden is on the petitioner to show
that its claimed arbitrary or unreasonable hardship outweighs the
public interest in attaining compliance with regulations designed
to protect human health and the environment. (Willowbrook Motel
v. Illinois Pollution Control Board, 135 Ill.App.3d 343, 481
N.E.2d 1032 (1st Dist. 1985).)
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 Ill.2d 267, 367 N.E.2d 684 (1977).) Accordingly, except
in certain special circumstances, a variance petitioner is
required, as a condition to grant of variance, to commit to a
plan that is reasonably calculated to achieve compliance within
the term of the variance.
ALTERNATIVE COMPLIANCE OPTIONS
To date, Monmouth has no equipment in place to control the
radium or gross alpha particle activity levels in its water
supply because it has limited blending capabilities that would
sufficiently lower the radiological levels in its entire system.
(Pet. at 3.) In addition, the radiological levels have
fluctuated in and out of compliance over the past 10 years,
creating confusion as to long-range planning and initiation of
expensive compliance measures. (Pet. at 4.) However, Monmouth
has investigated several compliance possibilities and envisions
4
the following alternatives in order to achieve compliance:
(a)
Utilize existing wells that are currently in
compliance, which would require extensive piping
installation for blending purposes at an estimated
cost of $2,000,000;
(b)
Construct a lime softening treatment facility at an
estimated cost of $1,500,000; and,
(c)
Apply ion exchange water softening at each well which
could pose an increase in risks and problems for well
operators, and a public health risk due to increases in
sodium levels in the water supply.
(Pet. at 4-5.)
COMPLIANCE PROGRAM
Although Monmouth has investigated three compliance
alternatives, the substantial anticipated expenditures, coupled
with the USEPA's expected change in radionuclide standards, have
postponed any long-range planning or implementation of any
compliance alternatives. However, Monmouth states that it will
undertake the following measures during the variance period to
minimize the impact of the discharge in the affected area:
(1)
In consultation with the Agency, continue its sampling
and testing program to determine as accurately as
possible the level of radium in its wells and finished
water.
(2)
Pursuant to 35 Ill. Adm. Code 611.851(b), in its
bimonthly water bills, send to each user of its public
water supply a written notice to the effect that
Monmouth has been granted by the Pollution Control
Board a variance from 35 Ill. Adm. Code 602.105(a),
Standard of Issuance, and 35 Ill. Adm. Code 602.106(a),
Restricted Status, as they relate to the radium and
gross alpha particle activity standards.
(Pet. at 5-6.)
HARDSHIP
Both parties agree that denial of a variance from 35 Ill.
Adm. Code 602.105(a), Standards for Issuance, and 35 Ill. Adm.
Code 602.106(a), Restricted Status, would result in an arbitrary
or unreasonable hardship for Monmouth. (Pet. at 6, Rec. at 9.)
First, a denial would require the Agency to refuse construction
and operating permits until compliance is achieved. (Rec. at 9.)
In turn, no new water main extensions could be issued permits
which would prevent further growth from occurring in Monmouth.
5
(Id.) This would have a severely adverse economic impact on
Monmouth. (Pet. at 6.) Specifically, two developments, Fair
Acres Subdivision and Fairway Meadows Subdivision, will need to
connect to Monmouth's water supply to provide water and fire
protection to approximately 51 residences. (Pet. at Exhibit F.)
In addition, continued development of Monmouth's City Industrial
Park is expected, as well as construction of housing for the
elderly adjacent to Community Memorial Hospital, will require
extension of Monmouth's water mains. (Id.)
The parties further assert that granting of a variance as to
Section 602.105(a), then granting a variance from Section
602.106(a) is critical to restrain the Agency from publishing
that Monmouth is on the restricted list for violating those
standards. (Rec. at 9.) Publication on the restricted list
would mislead developers and other persons about the compliance
status of Monmouth's water supply, and could stifle the area's
economic growth. (Id.)
ENVIRONMENTAL IMPACT
Although Monmouth made no formal assessment of the
environmental effect of the requested variance, it contends that
the water from its existing wells will result in only a minimal
amount of radium entering its potable water system. (Pet. at 3.)
Further, Monmouth incorporated by reference the testimony of and
exhibits presented by Richard E. Toohey, Ph.D. and Dr. James
Stebbings at the 1985 hearings in R85-14, In the Matter of:
Proposed Amendments to Public Water Supply Regulations, 35
Ill.Adm.Code 602.105 and 602.106. (Id.) Based on that
testimony, Monmouth asserts that there will be little, if any,
adverse environmental or health impact caused by a grant of the
requested variance. (Id.)
The Agency states that, while radiation at any level creates
some risk, the risk associated with levels found in Monmouth's
water supply is very low. (Rec. at 6.) In addition, the MCL
for combined radium is currently under review by the USEPA, which
has recommended a standard of 20 pCi/L for each isotope. (Id.)
It had been anticipated that a new standard will be adopted in
September 1995. (Id.) Mr. Joseph F. Harrison, chief of the Safe
Drinking Water Division, USEPA, announced that as a result of the
proposed relaxed standard, no municipalities would be required to
spend funds preparing for final design and construction of a
treatment system to achieve compliance with the current standard.
(Id. at 7.)
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. (Id. at 8.) The Agency observes that granting this
6
variance from restricted status should affect only those users
who consume water drawn from any newly extended water lines.
(Rec. at 11.) According to the Agency, also states that the
variance should not affect the status of the rest of Monmouth's
population drawing water from existing water lines, except if the
variance, by its conditions, hastens compliance. (Id.) Finally,
the Agency recommends that the variance terminate five years
after the date the variance is granted, or two years following
the date of USEPA action, whichever comes first. (Id. at 12.)
CONSISTENCY WITH FEDERAL LAW
Both Monmouth and the Agency state that Monmouth may be
granted variance consistent with the requirements of the Safe
Drinking Water Act (42 U.S.C. 300(f)
et. seq.
), as amended by the
Safe Drinking Water Act Amendments of 1986 (Pub. 99-339, 100
Stat. 642 (1986)), and the USEPA National Interim Primary
Drinking Water Regulations (40 CFR Part 141) because the
requested relief would not be a variance from national primary
drinking water regulations or a federal variance. (Pet. at 6,
Rec. at 10.) Specifically, granting a variance from the effects
of restricted status means that only the State's criteria for
variances are relevant. (Rec. at 10.)
Both Monmouth and the Agency recognize that Monmouth remains
subject to the possible enforcement actions for violating
standards for the contaminant in question. (Pet. at 7, Rec. at
10.)
TERMS OF VARIANCE
Monmouth requests that the term of variance be from August
5, 1995 to August 5, 2000. (Pet. at 1.) The Agency recommends
that an extension of the variance be granted until the earliest
of the following dates: two years following the date of the
USEPA action or August 5, 2000. (Rec. at 11-12.)
CONCLUSION
After considering all the facts and circumstances of this
case, the Board finds that Monmouth has presented adequate proof
that immediate compliance with 35 Ill. Adm. Code 602.105(a),
Standards of Issuance, and 602.106(a), Restricted Status, would
impose an arbitrary or unreasonable hardship upon Monmouth. The
Board therefore will allow Monmouth until November 16, 2000 to
achieve compliance, subject to conditions listed in this opinion
and order.
The Board agrees with the parties that granting this
variance will pose no significant health risk to either the
persons served by Monmouth's potable water supply, or the
7
surrounding environment, assuming that compliance is timely
forthcoming. Although Monmouth requested a retroactive
application of this variance, no evidence was provided to support
this request. The Board will accordingly grant a variance from
November 16, 1995 to November 16, 2000, consistent with this
opinion and order.
This opinion constitutes the Board's findings of fact and
conclusions of law in this matter.
ORDER
Petitioner, the City of Monmouth (Monmouth), is hereby
granted variance from 35 Ill. Adm. Code 602.105(a), Standards of
Issuance, and 602.106(a), Restricted Status, but only as they
relate to the 5 pCi/L radium standard of 35 Ill. Adm. Code
611.330(a), and the 15 pCi/L gross alpha particle activity
standard of 35 Ill. Adm. Code 611.330(b), subject to the
following conditions:
(1)
For purposes of this variance, the date of the United
States Environmental Protection Agency (USEPA) action
shall consist of the earlier date of the:
(a)
date the regulation is promulgated by the 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 MCL is demonstrated; or
(b)
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.
(2)
This variance shall terminate on the earliest of the
following dates:
(a)
two years following the date of USEPA action; or
(b)
five years after the date the variance is granted.
(3)
In consultation with the Illinois Environmental
Protection Agency (Agency), Monmouth shall continue its
sampling program to determine as accurately as possible
the level of radium in its wells and finished water.
Until this variance terminates, Monmouth shall collect
and analyze quarterly samples of its water from its
entry point into the distribution system at locations
approved by the Agency. Monmouth shall composite the
quarterly samples from each location separately and
shall analyze them annually by a laboratory certified
8
by the State of Illinois for radiological analysis so
as to determine the concentration of the contaminants
in question. Results of the analyses shall be reported
within 30 days of receipt of each analysis to:
Illinois Environmental Protection Agency
Bureau of Water, Drinking Water Quality Unit
Compliance Assurance Section
P.O. Box 19276
Springfield, Illinois 62794-9276
If Monmouth elects, 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.
(4)
Within 3 (three) months of USEPA action, Monmouth shall
apply to the Agency at the address below for all
permits necessary for the construction, installation,
changes, or additions to Monmouth'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, Illinois 62794-9276
(5)
Within 3 (three) months of the issuance of each
construction permit by the Agency, Monmouth shall
advertise for bids, to be submitted within 60 days,
from contractors to do the necessary work described in
the construction permit. Monmouth shall accept
appropriate bids within a reasonable time, and shall
notify the Agency, Division of Public Water Supplies
(DPWS) within 30 days, of each of the following
actions:
(a)
advertisements for bids;
(b)
names of successful bidders; and,
(c)
whether Monmouth accepted the bids.
(6)
Construction allowed on said construction permits shall
commence within a reasonable time of bids being
accepted, but in any event, 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
9
compliance.
(7)
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, Monmouth shall send to each
user of its public water supply a written notice to the
effect that Monmouth 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.
(8)
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, Monmouth shall send to each
user of its public water supply a written notice to the
effect that Monmouth has been granted by the Pollution
Control Board a variance from 35 Ill. Adm. Code
602.105(a), Standard of Issuance, and 35 Ill. Adm. Code
602.106(a), Restricted Status, as it relates to the MCL
standard in question.
(9)
Until full compliance is reached, Monmouth shall take
all reasonable measures with existing equipment to
minimize the level of contaminants in its finished
drinking water.
(10) Monmouth shall provide written progress reports to the
Agency's DPWS, FOS every six months concerning steps
taken to comply with paragraphs 3, 4, 5, 6, 7, 8 and 9.
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 Monmouth chooses, to accept this variance subject to the
above order, within 45 days of the date of this order, an officer
of Monmouth properly authorized to bind Monmouth to all the terms
and conditions of the variance, shall execute and forward the
attached Certificate of Acceptance and Agreement to:
Stephen C. Ewart
Division of Legal Counsel
Illinois Environmental Protection Agency
2200 Churchill Road
P.O. Box 19276
Springfield, Illinois 62794-9276
Once executed and received, the Certification of Acceptance
10
and Agreement shall bind petitioner to all terms and conditions
of this variance. The 45-day period shall be held in abeyance
during any period that this matter is being appealed. Failure to
execute and forward the Certificate within 45 days renders this
variance void. The form of said Certification shall be 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 96-33,
November 16, 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 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