ILLINOIS POLLUTION CONTROL

BOARD

February

1,

1996

WYNSTONE PROPERTY OWNERS’

ASSOCIATION,

Petitioner,

v.

)

 PCB 96—113

(Variance

 Water)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

OPINION

AND

ORDER OF THE BOARD

 (by R.C.

 Flenal):

This

matter

is

before the Board on the November 29,

1995

filing by the Association, Wynstone Prbperty Owners’ Association

(Association),

of

 a petition for variance.

 The Association seeks

relief

 from

35

 Ill. Adm.

 codc 602.lOS(a),

 Standarda

for

 Issuance,

and 632.106(b), Restricted Status,

 but only to the extent those

rules involve 35

 Ill. Adn. Code

 611.330

 (combined radium—226 and

radium—228)

 The Association requests a variance for five years

from January 18,

 1996,

 until January 18,

 2001,

 or until the

United States Environmental Protection Agency

 (USEPA)

 adopts

revised radium standards.

On December 22,

 1995,

 the Illinois Environmental Protection

Agency

 (Agency)

 filed its variance recommendation.

 The Aciency

recommends that the variance be granted for relief from 35 Ill.

Adi’a.

 Code

 602.105(a),

 Standards for Issuance,

 and 602.106(b),

Restricted Status,

 subject to certain conditions.

The

Association 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

L-egulations would ±itipo~e

dl!

arbitrary or unreasonable hardship upon the petitioner.

 (415

ILCS

 5/35(a)

 The Agency is required to appear in hearings on

variance petitiono.

 (415 ILCS 5/4(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 cf the petition.

 (415 ILCS

5/37(a).)

2

For the following reasons,

 the Board finds

 that the

Association 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 Wynstone Property Owners’ Association is located at 133

North Wynstone Drive, North Barrington, Lake County,

 Illinois.

According to the Association,

 it provides potable water through a

distribution system for a population of 250 residential customers

representing approximately 1,000 residents.

 The Association is

not part or

 a regional public water supply system.

 Water

is

provided to all residential users

 as needed and charged according

to rates established by the Association.

 (Pet.

at

3.)

The Association’s water supply system consists of four deep

wells, pumps, and distribution facilities.

 (Pet.

 at 3.)

The

wells dcpth and the year drilled

is

as

 follows:

 Well

 ff1,

 1,000

ft,

 1988;

 Well

#2,

 1,000

 ft.,

 1988;

 Well

#3,

 1,321

 ft.,

 1992;

and Well

#4,

 1,000,

 1989.

 (Pet.

 at 3.)

 According to the Agency

records,

 the Association has not previously sought variance from

radium regulations.

 The Association 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

a)

 The Agency shall not grant any construction or

operating permit required by this Part unless the

applicant submits adequate proof

 tflat tne 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 the Act and

3

Section 602.105,

 that

 a public water supply facility

may no longer be issued a construction permit without

causing a violation of the Act or this Chapter.

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.

Section 611.330

 Radium and Gross Alpha Particle Activity

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

a)

 Combined radium-226 and radium-228

 5 pCi/L.

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

the

standards

for public water supplies.

In determining whether any variance is to be granted,

the

Act requires the Board to determine whether

 a petitioner has

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

 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

 (Monsanto Co.

v.

 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.

 (Id.)

 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 not absolve the Association from

compliance with the drinking water standards at issue,

 and does

not insulate the Association from possible enforcement action

brought for violation of those standards.

 The underlying

standards remain applicable

 to the Association regardless

of

4

whether variance

 is granted or denied.

Standards for combined radium in drinking water were first

 adopted as National Interim Primary Drinking Water Regulations

(NIPDWRs)

 by the USEPA in 1976.

 The standard adopted was

.5

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 ot 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

19,

 1991,

 Lhe USEPA announced a proposal to

modify both standards.

 USEPA proposes to replace the 5 pCi/i

combined radium standard by separate standards of

 20 pCi/i each

for radium-226 and radium 220.

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 flivision,

 TTSEPA 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.

 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.)

COMPLIANCE PLAN

As referenced above, the current combined standard for

radium-226 and radium-228

is

 5 pCi/L.

 The Association’s most

recent water supply analyses,

 completed on August

8,

 1995,

 showed

a combined radium content of 8.1 pCi/U.

 (Kec.

at

 ‘A.)

 The b.i

pCi/L was obtained from composite samples compiled from four

consecutive quarterly

 samples.

In anticipation of USEPA revision of the 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.

5

On February

6,

 1995,

 the Agency notified the Association of

 the exceedence of the MCL for radium-226 and radium-228 in its

water supply.

 Accordingly on February 21, 1995 the Association

was placed on the Restricted Status List.

 (Rec.

at

5.)

Subsequent to being placed on restricted status,

the

Association had been investigating opportunities to reduce the

amount of radium in its water supply.

 During the term of the

variance the Association will maximize the utilization of water

from Wells

#1,

 #2, and #4,

 in addition to increasing the

production

 of Well #3; Well #3 has the highest combined radium

level and is the principal water supply source.

 The Association

believes it is not feasible to blend the existing water well

supplies to meet the MCL.

 (Pet. At 4.)

The Association claims it will continue its good faith

effort to achieve compliance with the radium standards.

 (Rec.

at

7.)

 The Association agrees

to continue

 its present

 LesLuiiy

program to accurately determine the level of radioactivity in its

wells and finished water.

 (Rec.

 at 7.)

 The Association shall

submit quarterly progress reports to the Agency regarding all

actions taken to determine and implement

 a compliance plan

as

well as continue to notify its customers of its variance and

radiological levels in its water.

 (Id.)

 Additionally,

the

Association will plan for additional water storage facilities.

(Pet.

at

6.)

HARDSHIP

The Association asserts that compliance with the standard

does not significantly benefit the public or environment and any

expenditure of money to comply is an arbitrary or unreasonable

hardship.

 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 the Association that

grant of the requested variance would impose no significant

injury to the public or to the environment for the limited time

period requested and that denial would be an arbitrary and

unreasonable hardship to the Association.

 (Rec.

at

9.)

 Denial

the

requested

extension

 vaLidnoc

would require

 Llie Agency

deny

construction

and

 operating permits until compliance is

achieved.

According

 the Agency,

 the result of placing the

Association

restricted

status

would

mean

new

 water main

extensions

permits

could

issued

and

further

 development would

prevented.

 (Id.)

6

ENVIRONMENTAL

 IMPACT

The Association has not formally assessed the effect of this

variance on the environment.

 (Pet. At 5.)

 However, the

Association

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

question.

(Id.)

The

Agency

believes

increase

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 8.)

 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,

35

 Ill. Adm. Code 602.105 and

602.106,

 as well as the updated testimony presented by Dr. Toohey

in the Board’s hearing ror a variance requested by the

Association

Braidwood

 in Association of Braidwood v.

 IEPA,

(June

21,

1990),

PCB

89-212,

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 35

 Iii. Adm. Code

 602.105(a)

 and 602.106(b) may be granted

consistent with the Safe Drinking Water Act

 (SDWA),

PT

 QR-52T~,

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.

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

US~J?A’snational primary drinking 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 of loss of primacy.

 (Id.)

 The Agency

states that the Association will remain subject to the

possibility of enforcement for violations of the MCL for the

contaminants in question under state and federal law.

 (Id.)

The

Agency concludes that because continuing progress is being made

towards compliance while awaiting final promuLgation of the

7

standard,

unlikely

that

 the USEPA will object to the

issuance

the

recommended

variance.

(Id.)

CONCLUS ION

Based

upon

the

record,

the

Board

finds

that

immediate

compliance

with

the

Standards

for

Issuance

and

Restricted

Status

regulations

would

impose

 arbitrary or unreasonable hardship on

the

Association.

The

Board

agrees

with

the

Agency

that

denial

the

recommended

variance

would

outweigh

the

injury

the

public

from

granting

variance.

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 Association

may

affected

USEPA

action

promulgate

new

standards

for

radionuclides

 in drinking water.

 USEFA has recommended

a

standard of 20 pCi/l

 for both radium-226 and radiun-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.

 New radionuclide standards would

significantly alter the Association’s need for a variance or

alternatives

 for achieving compliance

Today’s action is solely a grant of variance extension from

standards of issuance and restricted status.

 The Association is

not granted a variance from compliance with the combined radium

standard, and today’s action does not insulate the Association 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 12.)

And

therefore

 this

variance should not affect the status of the rest of the

Association’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 Wynstone Property Owners’ Association (Association)

is

hereby granted a variance from 35

 Ill.

 Acim.

 Code 602.105(a),

Standards

for

Issuance,

and

602.106(b),

Restricted

Status,

they

relate

the

standards

for

combined

radium—226

and

radium-

228

drinking

water

set

forth

Ill.

 Adm.

Code

611.330(a)

subject

the

following

conditions:

(A)

 For purposes

 of this order,

 the date

 of United States

8

Environmental

Protection

Agency

(USEPA)

action

consists

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

the

isotopes

radium,

the

method

which

compliance

with

radium

maximum

 contaminant level is

demonstrated;

(2)

Date

 publication of notice by the USEPA that no

amendments

the

pCi/l

combined

radium

standard

the

method

for

demonstrating

compliance

with

the

pCi/i

standard

will

promulgated.

(B)

Variance

shall

 terminate on the earliest of

the

following

dates:

(1)

Two

years

following

the

date

USEPA

action;

(2)

 February

1,

 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)

consultation

with

the

Illinois

Environmental

Protection

Agency

(Agency),

 the Association 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,

the

Association shall collect quarterly samples of water

from the distribution system at locations approved by

the Agency.

 The Association 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

.Ladlum—228.

 At the option of the Association,

the

quarterly samples may be analyzed when collected.

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

Water

P.O.

Box

19276

Springfield,

Illinois

62794—9276

(D)

Within

three

months

USEPA

action,

the

Association

shall

apply

the

Agency

the

address

below

for

all

permits necessary for

 the construction,

 installation,

changes

additions

 the Association’s public water

supply

needed

for

achieving

compliance

with

the

MCL

for

combined

radium

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

(E)

Within

three

months

USEPA

action

and

after

each

construction

permit

issued

the

Agency,

the

Association shall advertise for bids,

 to be submitted

within

 60 days,

 from contractors to do the necessary

work

described

the

construc

Lion

penal

The

Association

shall

appropriate

bids

within

reasonable time.

 The Association shall notify the

Agency,

Division

Public

Water

Supplies,

within

days,

 of each of the

following actions:

1)

 advertisements

 for bids,

2)

names

of

the successful bidders,

and

 3) whether

the Association accepted the bids.

(F)

Construction

allowed

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 35

Ill. Adm.

 Code

 606.201),

 in its first set of water

bills or within three months atter the date of this

order, ~whicheveroccurs first,

 and every three months

thereafter,

 the Association will send to each user of

iLs

public

waLer

supply

written

notice

the

effect

that

the

Association

not

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.

10

(H)

Pursuant

Ill.

 Adm.

Code

611.851(b)

(formerly

Ill.

 Adm.

Code

606.201),

the

first

set

water

bills

within

three

months

after

the

date

 this

order,

whichever

occurs

first,

and

every

three

months

thereafter,

the

Association

will

 send

to each user of

its

public

water

supply

written

notice

the

effect

that

the

Association

has

been

granted

the

Illinois

Pollution

Control

Board

variance

from

Ill.

 Adrn.

Code

602.105(a),

Standards

Issuance,

and

ill.

Adm.

Code

602.106(b),

Restricted

Status,

•as

they

relate

the

MCL

standard

question.

(I)

Until

full

compliance

achieved,

the

Association

shall take all reasonable measures with its existing

equipment to minimize the level

 of contaminants in its

finished drinking water.

(J)

The

Association

shall

provide

written

 progress

reports to the Agency at the address below every

six months concerning steps

 taken

 to comply with

the

paragraphs

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

comply

with

each

paragraph:

Illinois

Fnvironmental

 Protection Agency

Division of Public Water Supply

Field Operations Section

2200

Churchill

Road

Springfield,

Illinois

62794—9276

 ORDERED.

the

Wynstone

 Property Owners’ Association chooses

to

this

variance

subject

the

above

order,

within

forty-

five days of the date of this order,

 the Wynstone Property

Owners’ Association 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

Certificate

Acceptance

and

agreement

bound

all

terms

and

conditions

the

granted

variance.

The

45-day

period

shall

held

abeyance

during

any

period

that

this

matter

appealed.

Failure

execute

and

forward

the

certificate

within

11

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

the

certificate

follows.

(We),

hereby

and

agree

bound

all

terms

and

conditions

the

order

the

Illinois

Pollution

Control

Board

PCB

96-113,

February

1996.

The

Association

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 Contrcl

Board, hereby certify that the abovegpnion

 and order was

adopted on the

/~‘~

day

_________________________,

 1996,

vote

____________

Dorothy

G,kthn,

Clerk

Illinois

Poé4ution

Control

Board