ILLINOIS POLLUTION CONTROL BOARD
December 7, 1995
TOWN OF CORTLAND,
)
)
Petitioner,
)
v.
)
PCB 96—36
)
(Variance-Public Water
ILLINOIS ENVIRONMENTAL
)
Supply)
PROTECTION AGENCY,
)
Respondent.
OPINION AND ORDER OF THE BOARD (J. Theodore Meyer):
This matter is before the Board on a Petition for Extension
of Variance filed with the Clerk of the Board on August 9, 1995.
Cortland seeks a variance from 35 Ill. Adin. Code 602.105(a),
“Standards for Issuance”, and 602.106(a), “Restricted Status”, as
these relate to the combined radium requirements under 35 Ill.
Adm. Code 611.301(b). Cortland was granted a five-year variance
on August 9, 1990, in PCB 90—43. (Pet. at 1..) Cortland seeks a
five—year extension of that variance to allow the continued
operation, and possible expansion, of its water supply and
distribution system. The Illinois Environmental Protection
Agency (Agency) filed its recoinxnendation on September 11, 1995,
advising that the variance be granted, subject to certain
conditions. Cortland 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.).
The
Board is charged therein to “determine, define and implement the
environmental control standards applicable in the State of
Illinois” (Section 5(b) of the Act) and to “grant
. . .
an
adjusted standard for persons who can justify such an adjustment”
(Section 28.1(a) of the Act). More generally, the Board’s
responsibility in this matter is based on the system of checks
and balances integral to Illinois environmental governance; the
Board is charged with the rulemaking and principal adjudicative
functions, and the Agency is responsible for carrying out the
principal administrative duties.
BACKGROUND
Cortland is a town in DeKalb County, Illinois which
currently provides a chlorinated potable water supply and
distribution system to approximately 434 residents, and 36
industrial, governmental and commercial customers. (Pet. at 1.)
The average daily water use for 1994 was about 94,000 gallons, or
34.3 million gallons per year. (Pet. at 4.)
2
Cortland’s water distribution system is comprised of one
deep well which obtains water from the Galesville Aquifer, and
two shallow wells. (Pet. at 3-4.) Based on water quality
studies in the adjacent communities of Sycamore and DeKalb,
Cortland expected its deep well water to reduce the radium
levels, resulting in compliance with the applicable standards.
(Pet. at 4.) However, results of Cortand’s quarterly water
sampling from 1990 to the present reveal an average total of 6.72
for combined radium which exceeds the current standard of 5
pci/L.
REGULATORY
FRAMEWORK
The
United States Environmental Protection Agency (USEPA)
has promulgated
an MCL for drinking water of 5 mg/l of radium.
(Rec. at
3.) Illinois subsequently adopted the same limit.
(35
Ill. Adm. Code 611.330.) Pursuant to Section 17.6 of the
Illinois Environmental Protection Act (Act), any revisions to the
5 mg/l standard by the USEPA will automatically become the
standard in Illinois.
Cortland is not seeking a variance from the MCL for radium,
which remains applicable to its potable water supply. Rather,
Cortland 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
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
Cortland 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.
3
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 Il1.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.
PAST COMPLIMICE EFFORTS
Upon notification of its noncompliance status, Cortland
initiated a groundwater investigation and hired a consultant to
research compliance alternatives. (Pet. at 7.) The most
desirable method to achieve compliance was to develop a deep well
in the Galesville aquifer. (Id.) Drilling began in the summer
of 1992 and completed that fall.
(~I~
at 8.) Blending of
Cortland’s three wells, however, resulted in higher levels of
radium than prior to construction of the new well.
(~~)
ALTERNATIVE COMPLIP~NCE OPTIONS
Currently, Cortland has neither control equipment in place
for radium levels, nor access to a radium free supply of water
with which to blend its well water. (Pet. at 5.) However,
Cortland has researched and envisions the following alternatives
in order to achieve compliance:
(1) Construction of a new well; or,
(2) Extending a water main to DeKalb or Sycamore.
4
(Pet. at 9.) In terms of alternative (1), Cortland is currently
seeking funds for well #4 from the Bond Council, local banks and
Illinois Rural Bond Bank.
(~~)
Cortland’s consultants are also
investigating additional groundwater resources. (Id.)
Alternative (2), extension of a water main to DeKaib or Sycamore,
is expected to increase the service cost to customers without
providing any guarantee that radium levels would be reduced.
(k)
Cortland therefore chose the first alternative and plans
to begin construction of well #4 in 1996.
(~~)
IMPACT MINIMIZATION
Shortly after first discovering its water supply was not in
compliance with the combined radium levels, Cortland began
pursuing compliance. By hiring consultants, researching
compliance alternatives, and constructing well #3, Cortland has
spent nearly $400,000 in its efforts to achieve compliance as
required by the variance granted in PCB 90-43. During the course
of the requested variance, Cortland will continue to:
1. pursue a radium—free water supply source by developing
Well #4;
2. blend and mix water to achieve the lowest possible test
results for radium activity;
3. test for radium in its water supply;
4. submit quarterly reports to the Agency regarding
testing and compliance results; and,
5. notify its customers of the variance and the
radiological levels in its water supply.
(Pet. at 10.)
HABDSHI P
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 Cortland. (Pet. at 10, 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 development from occurring in
Cortland.
(i~
at 10.) This would have a severely adverse
economic impact on Cortland. (Pet. at 10.) Specifically,
Cortland is experiencing active residential and commercial
development that would be impeded should a variance be denied.
(~)
5
Secondly, granting the requested variance from Sections
602.105(a) and 602.106(a) would relieve the Agency from listing
Cortland on the Agency’s six—month comprehensive list of
restricted public water supplies, as required pursuant to Section
602.106(b) of the Board’s Rules. (Rec. at 10.) Publication in
this restricted list would mislead developers and other persons
about the compliance status of Cortland’s water supply, and could
stifle the area’s economic growth.
(~~)
ENVIRONMENTAL IMPACT
Although Cortland made no formal assessment of the
environmental effect of the requested variance, it contends that
the blended water from its wells will result in only a minimal
amount of radium entering its potable water system. (Pet. at 5.)
Further, Cortland 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, Cortland 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 Cortland’s
water supply is very low. (Rec. at 7.) In addition, the NCL
for combined radium is currently under review by the USEPA, which
hasIt
hadrecommendedbeen anticipateda
standardthatofa 20newpCi/Lstandardfor eachwillisotope.be
adopted
(~~)
in
September 1995.
(~~)
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.
~
at 8.) 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 9.)
The Agency observes granting an extension of the variance
from restricted status should affect only those users who consume
water drawn from any newly extended water lines, and states that
the variance should not affect the status of the rest of Elburn’s
population drawing water from existing water lines, except if the
variance, by its conditions, hastens compliance. (Rec. at 12.)
Finally, the Agency recommends that the variance terminate on
August 9, 2000, or two years following the date of USEPA action,
whichever comes first.
(~
at 13.)
6
CONSISTENCY WITH
FEDERAL
LAW
Both Cortland and the Agency state that Cortland 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 11,
Rec. at 10-11.) Specifically, granting a variance from the
effects of restricted status means that only the State’s criteria
for variances are relevant. (Rec. at 11.)
Both parties recognize that Cortland remains subject to the
possible enforcement actions for violating standards for the
contaminant in question. (Pet. at 12, Rec. at 11.)
TERMS OF VARIANCE
Cortland requests that the term of variance be from August
9., 1995 to August 9, 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 9, 2000. (Rec. at 13.)
CONCLUSION
After considering all the facts and circumstances of this
case, the Board finds that Cortland 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 Cortland. The
Board therefore will allow Cortland until August 9, 2000 to
achieve compliance, subject to conditions listed in this opinion
and order.
Cortland filed its petition requesting an extension of its
prior variance on August 9, 1995, the day the variance expired.
Cortland requests that a five year extension be granted,
beginning on the date of filing, and ending August 9, 2000. The
term of variance usually begins on the date the Board renders its
decision, except upon a showing of unusual or extraordinary
circumstances.
(See, e.g.
DM1. Inc.
v. IEPA (December 19, 1991),
PCB 90—277, 128 PCB 245—249.) Filing for an extension of a
variance on the date of its expiration does not constitute
unusual or extraordinary circumstances; however, as Cortland
acknowledges, the requested variance will not shield Cortland
from enforcement for violation of the underlying radium standard.
Furthermore, granting the variance retroactively for the short
period of four months allow the original variance and its
extension to run consecutively. In turn, this alleviates the
7
requirement, pursuant to Section 602. 106 (b), that the Agency
retroactively include Cortland on its six-month list of
restricted water supplies for such a short period of time. Such
a listing could lead to confusion among those consulting the
list. For these reasons the Board finds that a short retroactive
grant of the requested variance is warranted.
The Board agrees with the parties that granting this
variance will pose no significant health risk to either the
persons served by Cortland’s potable water supply, or the
surrounding environment, assuming that compliance is timely
forthcoming. The Board will accordingly grant a variance
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 Cortland (Cortland), 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), 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) August 9, 2000; or
(b) two years following the date of USEPA action.
(3) In consultation with the Illinois Environmental
Protection Agency (Agency), Cortland 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, Cortland shall collect
8
and analyze quarterly samples of its water from its
entry point into the distribution system at locations
approved by the Agency. Cortland shall composite the
quarterly samples from each location separately and
shall analyze them annually by a laboratory certified
by the State of Illinois for radiological analysis so
as to determine the concentration of the contaminants
in question. 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 Cortland 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, Cortland shall
apply to the Agency at the address below for all
permits necessary for the construction, installation,
changes, or additions to Cortland’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, Cortland shall
advertise for bids, to be submitted within 60 days,
from contractors to do the necessary work described in
the construction permit. Cortland 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 Cortland accepted the bids.
(6) Construction allowed on said construction permits shall
commence within a reasonable time of bids being
9
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
compliance.
(7) Pursuant to 35 Ill. Adni. 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, Cortland shall send to each
user of its public water supply a written notice to the
effect that Cortland 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, Cortland shall send to each
user of its public water supply a written notice to the
effect that Cortland 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 NCL
standard in question.
(9) Until full compliance is reached, Cortland shall take
all reasonable measures with existing equipment to
minimize the level of contaminants in its finished
drinking water.
(10) Cortland 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 Cortland chooses, to accept this variance subject to the
above order, within 45 days of the date of this order, an officer
of Cortland properly authorized to bind Cortland 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
10
2200 Churchill Road
P.O. Box 19276
Springfield, Illinois 62794—9276
Once executed and received, the Certification of Acceptance
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 96-36,
December 7, 1995.
Petitioner: ___________________________
By: Authorized Agent
Title: _______________________________
Date: ______________________________
Section 41 of the Environmental Protection Act (415 ILCS
5/41 (1994)) provides for the appeal of final Board orders within
35 days of the date of service of this order. The Rule of the
Supreme Court of Illinois establish filing requirements.
(See
also
35 Ill. Adm. Code 101.246, Motions for Reconsideration.)
I, Dorothy Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above opinion and order was
adopted on the
7~-~
day of
______________,
1995, by a vote of
_____
7
/
~t
Dorothy M.,’Øunn, Clerk
Illinois P~llution Control Board
