ILLINOIS POLLUTION CONTROL BOARD
April
6,
1995
SILVER GLEN ESTATES,
)
)
Petitioner,
)
v.
)
PCB 95—6
(Variance-PWS)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
)
Respondent.
OPINION
AND
ORDER OF THE BOARD
(by R.C. Flemal):
This matter comes before the Board upon filing by Silver
Glen Estates
(Silver Glen)
on February 14,
1995 of an amended
petition for variance.
Silver Glen seeks relief from 35 Ill.
Adiu. Code 602.105(a)
“Standards for Issuance”, and 602.106(a),
“Restricted Status”, but only as these rules relate to the
radium—226 and radium-228 standard of 35 Ill. Adm. Code
611.330(a)
and the gross alpha particle activity standard of 35
Ill.
Adm. Code 611.330(b).
Silver Glen requests variance for
five years or when analysis pursuant to 35 Ill. Adm. Code
605.104(a)
shows compliance with the standards for radium—226,
radium—228, and gross alpha particle activity, whichever occurs
first.
The Board’s responsibility in this matter arises from the
Environmental Protection Act
(Act)
(415 ILCS 5/1 et seq.
(1992).)
The Board is charged there with the responsibility of granting
variance from Board regulations whenever it is found that
compliance with the regulations would impose an arbitrary or
unreasonable hardship upon the petitioner.
(415 ILCS 5/35(a).)
The Illinois Environmental Protection Agency (Agency)
is required
to appear in hearings on variance petitions.
(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 of the
petition.
(415 ILCS 5/37(a).)
The Agency filed its variance recommendation (Rec.)
on March
16,
1995.
The Agency recommends grant of the variance with
conditions.
Silver Glen waived hearing, and none has been held.
As presented below,
the Board finds that Silver Glen has met
its burden of demonstrating that immediate compliance with 35
Ill.
Adm. Code 218.586(d) (3) would impose an arbitrary or
unreasonable hardship.
Accordingly, the variance request will be
granted subject to conditions as discussed below.
—2—
The Board notes that on April
4,
1995 Silver Glen filed a
motion for expedited decision of this matter.
Inasmuch as the
Board today grants Silver Glen’s request for variance, the motion
for expedited decision is hereby denied as moot.
BACKGROUND
Silver Glen Estates is a housing development located in Kane
County.
At issue is a small, privately—owned public water
utility operated by Silver Glen.
The water utility currently
serves 71 homesites, representing a population of approximately
284 persons.
(Pet. at 3.)
The Silver Glen water supply and distribution system is
owned by the homeowners who live in Silver Glen Estates.
Supply
is obtained from a deep well.
The water is provided to all
residential users as needed and charges,
as established by
resolution, are made to all users.
(Rec. at 3.)
Silver Glen plans to extend water mains to serve 32 new
homesites
(128 anticipated persons)
in a residential housing
development.
(Pet. at 3.)
Silver Glen requests the instant
variance to allow the extension of the distribution system as
necessary to serve these new homesites.
The most recent analysis of radium in Silver Glen’s water
was made on March 25,
1994 on a sampling composited from four
consecutive quarterly samples.
(Rec. at 4.)
The combined
radium-226 and radium-228 level was 9.4 pCi/L, which exceeds the
current 5.0 pCi/L standard.
(u.)
An earlier composite sample
contained combined radium at 8.4 pCi/L.
(Pet. at 3.)
REGULATORY
FRAMEWORK
The
instant
variance
request
concerns
two features of the
Board’s
public
water
supply regulations, standards for issuance
and restricted status,
as found at 35 Ill. Adm.
Code
602.105
and
602.106.
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
Environmental Protection Act
(Ill.
Rev.
Stat.
1989,
ch.
111½,
pars.
1001 et seq.)
(Act), or of
this Chapter.
—3—
Section 602.106
Restricted Status
b)
The Agency shall publish and make available to the
public,
at intervals of not more than six months,
a comprehensive and up-to—date list of supplies
subject to restrictive status and the reasons why.
The cumulative effect of these regulations is to prohibit
community water supply’ systems 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 finished
water supplies.
Silver Glen requests that it be allowed to
extend its water service while it continues to pursue compliance
with the combined radium and gross alpha standards,
as opposed to
extending service only after attaining compliance.
In determining whether any variance is to be granted, the
Act requires the Board to determine whether a petitioner has
presented adequate proof that immediate compliance with the Board
regulations at issue would impose an arbitrary or unreasonable
hardship.
(415 ILCS 5/35 (a) (1992).)
Furthermore, the burden is
upon the petitioner to show that its claimed hardship outweighs
the public interest in attaining compliance with regulations
designed to protect the public.
(Willowbrook Motel v. Pollution
Control Board
(1985),
135 Ill. App.3d 343,
481 N.E.2d 1032.)
Only with such a showing can the claimed hardship rise to the
level of arbitrary or unreasonable hardship.
A further feature of a variance is that it is, by its
nature, a temporary reprieve from compliance with the Board’s
regulations, and compliance is to be sought regardless of the
hardship which the task of eventual compliance presents an
individual polluter.
(Monsanto Co.
v. IPCB
(1977),
67 Ill.2d
276, 367 N.E.2d 684.)
Accordingly, except in certain special
circumstances, a variance petitioner is required,
as a condition
to grant of variance, to commit to a plan which is reasonably
calculated to achieve compliance within the term of the variance.
It should be noted that grant of variance from “Standards
for Issuance” and “Restricted Status” neither absolves a
petitioner from compliance with the drinking water standards at
issue, nor insulates a petitioner from possible enforcement
action brought for violation of those standards.
The underlying
standards remain applicable to the petitioner regardless of
whether variance is granted or denied.
“Community water supply”
is defined at Section 3.05 of the
Act (415 ILCS 5/3.05)
as “a public water supply which serves or
is intended to serve at least 15 service connections used by
residents or regularly serves at least 25 residents”.
It is
uncontested that the Silver Glen system is a community water
supply by this definition.
—4—
Standards for radium in drinking water were first adopted as
National Interim Primary Drinking Water Regulations by the United
States Environmental Protection Agency
(USEPA)
in 1976.
The
standards adopted were 5 pCi/L for the sum of the two isotopes of
radium, radium-226 and radium-228.
A 15 pCi/l standard was also
adopted for gross alpha particle activity.
Shortly thereafter,
Illinois adopted the same standards.
Although characterized as
“interim” limits, the standards nevertheless are the maximum
allowable concentrations under both federal and Illinois law, and
will remain so unless modified by the USEPA2.
Since their original promulgation, the current radium and
gross alpha particle activity standards have been under review at
the federal level.
USEPA first proposed revision of the
standards in October 1983 in an Advance Notice of Proposed
Rulemaking
(48 Fed. Reg. 45502).
It later republished this
advance notice in September 1986 (51 Fed. Reg. 34836).
On June 19,
1991, USEPA announced a proposal to modify
radionuclide standards generally (56 Fed. Reg. 33050, July 18,
1991).
USEPA proposed to replace the 5 pCi/L combined radium
standard with separate standards of 20 pCi/L each for radium-226
and radium-228.
The gross alpha particle activity standard was
proposed to be replaced by an adjusted gross alpha particle
activity standard; the latter would still have a
15 pCi/L value,
but would no longer include alpha particle activity associated
with radium or uranium decay.
Pursuant to a consent decree entered in federal court3, the
standards proposed in June 1991 were to become effective in April
1995.
However, the earliest anticipated date is now September,
1995.
(Rec. at 8.)
In the interim, USEPA has announced that,
in
light of the projected proposal for the relaxed standards,
it
would not force any municipality to spend funds preparing a final
design or constructing a treatment system to comply with the
federal standards.
(Rec. at 8.)
The Board and the Agency have
also been reluctant to force compliance in this uncertain
regulatory environment.
COMPLIANCE PROGRAM
According to the Agency,
Silver Glen has been actively
investigating compliance alternatives.
(Rec.
at 5.)
Silver Glen
currently believes that the compliance would best be achieved via
2
In anticipation of USEPA revision of the radium standard,
the Illinois legislature amended the Act at Section 17.6 (415
ILCS 5/17.6)
in 1988 to provide that any new federal radium
standard immediately supersedes the current Illinois standard.
~ Miller v. Browner,
No. 89—6328—HO
(D.C. Or.,
1990).
—5—
a reverse osmosis system.
The estimated implementation time for
reverse osmosis is 24 months, and the cost is $150,000 to
$200,000.
(n.)
In addition, Silver Glen is currently developing a second
well.
(Pet. at 3.)
Once the radiological quality of this well
becomes known, replacement and blending or mixing possibilities
may arise.
Silver Glen also anticipates retaining an outside consultant
to assist in evaluating and resolving compliance options.
(Pet.
at 4.)
HARDSHIP
Silver Glen contends that denial of the requested variance
would constitute an arbitrary or unreasonable hardship.
Silver
Glen observes that requiring compliance with the current
standards, in light of the USEPA’s proposal to alter the
standards, would require substantial expenditure of funds for
treatment facilities that “may become obsolescent in the near
future,
is not in the public interest and does not grant a
corresponding benefit to the public”.
(Pet. at 6.)
Silver Glen also observes that failure to grant the variance
would cause further construction at Silver Glen to cease.
Silver
Glen contents that prospective home purchasers and business
developers would be negatively impacted.
(Pet. at 6.)
Silver Glen concludes that its hardship would rise to the
level of being arbitrary or unreasonable because the hardship
would outweigh any injury of the public from grant of the
variance.
(Pet.
at 6.)
The Agency is also of the opinion that the hardship
resulting from denial of the variance, which would have the
effect of putting petitioner on restricted status, would outweigh
the injury to the public from grant of the variance.
(Rec.
at
9.)
ENVIRONMENTAL IMPACT
Although Silver Glen has not undertaken a formal assessment
of the environmental effects of its requested variance,
it
contends that there will be minimal or no adverse impact caused
by the granting of the variance.
(Pet.
at 4.)
The Agency agrees
with Silver Glen’s assertion.
(Rec.
at 6-7.)
Both Silver Glen
and the Agency cite testimony presented by Richard E.
Toohey,
Ph.D., of Argonne National Laboratory, at the Board’s July 30 and
August 2,
1985 hearings in In re: Proposed Amendments to Public
Water Supply Reciulations,
35 Ill. Adm. Code 602.105 and 602.106
(R85-14)
in support of the assertion that the variance will not
—6—
result in any adverse environmental impact
(Pet.
at 4; Rec. at
6).
The Agency also refers to updated testimony presented by Dr.
Toohey in the Board’s hearing on a variance requested by the City
of Braidwood in PCB 89-212
(Rec. at 7).
While the Agency believes that radiation at any level
creates some risk,
it also believes that the risk associated with
Silver Glen’s water supply is very low.
(Rec.
at 6.)
The Agency
states that “an increase in the allowable concentration for the
contaminants in question should cause no significant health risk
for the limited population served by new water main extensions
for the time period of this recommended variance”
(Rec.
at 8).
In summary, the Agency states:
The Agency believes that the hardship resulting from
denial of the recommended variance from the effect of
being on restricted status would outweigh the injury to
the public from grant of the variance.
In light of the
likelihood of no significant injury to the public from
continuation of the present level of the contaminants
in question in the petitioner’s water for the limited
time period of the variance, the Agency concludes that
denial of a variance from the effects of restricted
status would impose an arbitrary or unreasonable
hardship upon petitioner.
The Agency observes that this grant of variance from
restricted status should affect only those users who
consume water drawn from any newly extended water
lines.
This variance should not affect the status of
the rest of petitioner’s population drawing water from
existing water lines,
except insofar as the variance by
its conditions may hasten compliance.
In so saying,
the Agency emphasizes that it continues to place a high
priority on compliance with the standards.
(Rec. at
10—11.)
CONSISTENCY
WITH
FEDERAL LAW
The Agency states that the requested variance may be granted
consistent with the Safe Drinking Water Act
(42 U.S.C.
300(f))
and corresponding regulations
(40 CFR Part 141) because the
variance does not grant relief from compliance with the federal
primary drinking water regulations.
(Rec.
at 10).
CONCLUSION
Based upon the record, the Board finds that immediate
compliance with the Boards standards for issuance and restricted
status regulations would impose an arbitrary or unreasonable
hardship on Silver Glen.
The Board also agrees with the parties
—7—
that granting this variance does not pose a significant health
risk to those persons served by any new water main extensions.
Hence, the Board will grant this variance for the requested
period of time.
The Board notes that compliance by Silver Glen may be
affected by pending USEPA action to promulgate new standards for
radionuclides in drinking water.
New radionuclide standards from
USEPA could significantly alter Silver Glen’s need for a
variance.
In recognition of this situation,
as recommended by
the Agency, the variance will contain suitable time frames to
account for the effects of any USEPA alteration
(or notice of
refusal to alter) of the radionuclide standards.
Today’s action is solely a grant of variance from standards
of issuance and restricted status.
Silver Glen is not granted
variance from compliance with the combined radium or gross alpha
particle standards, nor does today’s action insulate Silver Glen
in any manner against enforcement for violation of these
standards.
This opinion constitutes the Board’s findings of fact and
conclusions of law in the matter.
ORDER
Silver Glen Estates is hereby granted variance from 35 Ill.
Adm. Code 602.105(a),
“Standards for Issuance”, and 602.106(a),
“Restricted Status”,
as these provisions relate to the standards
for combined radium and gross alpha particle activity as set
forth
in 35 Ill. Adm. Code 611.330(a)
and 611.330(b),
respectively, subject to the following conditions:
(1)
The variance terminates on the earliest of the
following dates:
a)
Two years following the date of USEPA action; or
b)
April
6, 2000;
or
C)
When analysis pursuant to 35 Ill. Adm. Code
611.720(d),
or any compliance demonstration method
then in effect,
shows compliance with the
radionuclide standards in question.
(2)
For purposes of this order,
the date of USEPA action is
the earlier date of:
a)
The date a regulation is promulgated by the USEPA
that amends the maximum contaminant level for
combined radium, either of the isotopes of radium,
or gross alpha particle activity, or amends the
—8—
method by which compliance with these maximum
contaminant levels is demonstrated; or
b)
The date of publication of notice by the USEPA
that no amendments to the 5 pCi/L combined radium
standard or the
15 pCi/L gross alpha particle
standard,
or the method for demonstrating
compliance with these standards, will be
promulgated.
(3)
In consultation with the Agency,
Silver Glen shall
continue its sampling program to determine as
accurately as possible the level of radioactivity in
its wells and finished water.
Until this variance
expires, Silver Glen shall collect quarterly samples of
its water from its distribution system at locations
approved by the Agency.
Silver Glen shall composite
the quarterly samples from each location separately and
shall have them analyzed annually by a laboratory
certified by the State of Illinois for radiological
analysis so as to determine the concentration of the
contaminants in question.
The results of the analyses
shall be reported to
Illinois Environmental Protection Agency
Compliance Assurance Section
Drinking Water Quality Unit
Bureau of Water
P.O. Box 19276
Springfield,
IL
62794—9276
within 30 days of receipt of each analysis.
At the
option of Silver Glen,
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 three months after USEPA action, Silver Glen
shall apply to the Agency at the address below for all
permits necessary for the construction, installation,
changes,
or additions to its water supply needed for
achieving compliance with the maximum concentration
level of any of the contaminants in question as then in
effect.
Illinois Environmental Protection Agency
Public Water Supply Program
Permit Section
P.O. Box 19276
2200 Churchill Road
Springfield,
IL
62794—9276
—9—
(5)
After each construction permit is issued by the Agency,
and within six months after USEPA action, Silver Glen
shall advertise for bids, to be submitted within 60
days,
from the contractors to do the work described in
the construction permit.
Silver Glen shall accept
appropriate bids within a reasonable time.
Silver Glen
shall notify the Agency at the address in
(4), within
30 days,
of each of the following actions:
a)
advertisement for bids,
(b) names of successful
bidders, and
C)
whether Silver Glen accepted the bids.
(6)
Construction allowed on said construction permits must
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 maximum concentration levels in questions must
be completed no later than two years following USEPA
action.
(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,
Silver Glen shall send to each
user of its public water supply a written notice to the
effect that Silver Glen is not in compliance with the
standards 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.
(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 variance order, whichever occurs first,
and every three months thereafter, Silver Glen shall
send to each user of its public water supply a written
notice to the effect that Silver Glen has been granted
by the Pollution Control Board a variance from 35 Ill.
Adm. Code 602.105(a), “Standards of Issuance”, and 35
Ill. Adm. Code 602.106(a),
“Restricted Status”, as it
relates to the standards in question.
(9)
Until full compliance is reached, Silver Glen shall
take all reasonable measures to operate its existing
equipment as necessary to minimize the level of
radium-226, radium-228, and gross alpha particle
activity in its finished drinking water.
(10) Silver Glen shall provide written progress reports to
Agency’s Division of Public Water Supplies, Field
Operations Service every six months concerning steps
taken to comply with paragraphs
(3) through
(9), above.
Progress reports shall quote each of said paragraphs
—10—
and immediately below each paragraph state what steps
have been taken to comply with that paragraph.
IT IS SO ORDERED.
If petitioner chooses to accept this variance subject to the
above order, within 45 days of the date of this order petitioner
shall execute and forward to:
Stephen
C.
Ewart
Division of Legal Counsel
Illinois Environmental Protection Agency
P.O. Box 19726
Springfield,
Illinois
62794—9276
a Certification of Acceptance and Agreement to be bound 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 and of no force and effect as
a shield against enforcement of rules from which variance was
granted.
The form of said Certification is as follows:
CERTIFICATION
I
(We),
hereby accept and agree to be bound by all terms and conditions
of the order of the Pollution Control Board in PCB 95-6,
April
6,
1995.
Petitioner
Authorized Agent
Title
Date
Section 41 of the Environmental Protection Act
(415 ILCS
5/41
(1992)) provides for the appeal of final Board orders 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 “Motions for Reconsideration”.)
—11—
I, Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above opinon apd order was
adopted on the
C~Z
day of ______________________,
1995 by a
vote of
7 ~
.
Dorothy M
Gunn,
Clerk
Illinois
ollution Control Board
