ILLINOIS POLLUTION CONTROL BOARD
January 19,
1995
CITY OF BATAVIA,
Petitioner,
)
v.
)
PCB 94—276
(Variance)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
OPINION
AND
ORDER OF THE BOARD
(by G.
T. Girard):
On September 28,
1994, the Board received a petition for an
extension of variance filed by the City of Batavia
(Batavia).
Batavia is seeking an extension of a variance granted by the
Board in PCB 89—183
(City of Batavia v.
IEPA,
114 PCB 21
(August
9,
1990))’ from the Board’s drinking water rules at 35 Ill. Adm.
Code 602.105(a)
and 602.106(b) to the extent that those rules
apply to the maximum
concentration limit
(MCL)
for radium-226 and
radium-228
(as set forth at Ill.
Adm.
Code Section 611.330(a)).
The current variance expires November 1,
1994.
Batavia is asking
that the Board extend the variance until November 1,
1997 or
until the USEPA takes final action with respect to a new radium
standard, whichever comes first.
On October 28,
1994, the Board received a response from the
Illinois Environmental Protection Agency
(Agency) which
recommends that the variance be granted with certain conditions.
Batavia waived hearing and the Board received no requests for a
hearing, so no hearing was held.
BACKGROUND
Batavia is located in Kane County, Illinois and provides
potable water to approximately 20,200 residential customers as
well as industrial, governmental and commercial utility
customers.
Batavia employs approximately 4,000 people.
(Ag.
Rec. at 3.)
Batavia’s water supply and distribution system is
divided into a west side system, providing water to the west side
and an east side system providing water to the east side.
The
two sides are separated by the Fox River and connected by two
river crossing mains.
(Id.)
As a condition of the variance
granted in 1990 to Batavia, the west side system was to be
The Board’s 1990 opinion and order will be cited
hereinafter as “114 PCB
_“;
the petition for variance will be
cited as “Pet. at
_“;
the Agency recommendation will be cited
as “Ag. Rec. at
____
2
upgraded to achieve compliance with the radium standard.
(114
PCB 29.)
The work has been completed as required by that
condition.
(Pet. at 2; Ag. Rec at 5.)
Cost of compliance to
date has been $4,020,192.
(Pet. at 4.)
The water supply system consists of two deep aquifer wells,
three shallow wells,
a treatment plant, reservoir and
distribution facilities on the west side.
(Ag. Rec. at 3.)
The
east side system consists of two deep aquifer wells and a
distribution system.
(Id.)
Approximately 1.17 million gallons
per day is provided by east side wells.
(Pet. at 4.)
Water from
the east side wells
(deep wells No.
4 and No.
5) does not comply
with the radium standards.
(Pet. at 4.)
The most recent
analyses
(June 29,
1995)
indicate a combined radium content at
Well No.
4, Tap No.
3 of 12.3 picocuries per liter
(pCi/L) and at
Well No.
5, Tap No.
4
a content of 9.0 pCi/L.
(Ag. Rec.
at 5.)
The Agency also indicates that at Well No.
2, Tap No.
1 a radium
content of 6.6 pCi/L was shown.
(Id.)
The MCL for combined
radium—226 and radiuin—228 is 5 pCi/L.
(35 Ill. Adm. Code
611.330(a).)
Batavia is seeking an extension of the variance for its
entire system until November 1,
1997 or until the USEPA adopts a
new radium standard.
Batavia believes that during normal periods
of demand, Batavia can supply all its customers with compliant
water.
(Pet.
at 4.)
However, during periods of peak usage,
“compliance on a regular basis cannot be assured”.
(Id.)
REGULATORY
FRAMEWORK
The
instant
variance
request
concerns two features of the
Board’s
public
water
supply
regulations:
“Standards for
Issuance”
and
“Restricted
Status”,
which
are
found
at
35
Ill.
Adm. Code
602.105
and
602.106.
In pertinent part they 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.
111 1/2, 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 Section 602.105, that a public water supply
facility may no longer be issued a construction
3
permit without causing a violation of the Act or
this chapter.
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 is important to recognize 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.
Standards for radium in drinking water were first adopted as
National Interim Primary Drinking Water Regulations by the USEPA
in 1976.
The standards adopted were 5 pCi/L for the sum of the
two isotopes of radium, radium-226 and radium-228.
Shortly
thereafter, Illinois adopted the same limits which are now found
at 35 Ill.
Admn. Code Section 611.330.
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 USEPA.
Since their original promulgation, the current radium and
gross alpha particle activity standards have been under review at
the federal level.
The 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 both radium
standards
(56 Fed. Reg. 33050, July 18,
1991).
USEPA proposed to
replace the 5 pCi/L combined radium standard by separate
4
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. Under the USEPA’.s calendar, these standards were scheduled
to be published by April 1995.
COMPLIANCE
PLAN
Batavia has already spent $4,020,192 to date on a compliance
plan.
As a result, a part of the water system is now in
compliance with the combined radium standard.
(Pet.
at 4.)
Batavia states that it is committed to continuing to construct
improvements to the west side system to insure that the radium
standard is continued to be met in that part of the system.
(Pet. at
7)
Batavia intends to seal off the portion of Well No.
3 that extends into the Mt. Simon deep aquifer.
(Id.)
This will
reduce the level of radium in Well No.
3 and will cost
approximately $22,000.
(Id.)
For the east side of Batavia’s system, Batavia states that
it believes it is first “appropriate to wait and see what action
U.S.EPA takes with respect to the radium standard in April of
1995.”
(Pet.
at 7.)
Batavia states that if the USEPA proposes a
more stringent standard than the proposed 20/20, Batavia will
achieve compliance by blending radium—free shallow well water
with the deep well water.
(Id.)
Batavia will construct a water
main from the shallow wells on the west side directly to the
wellhead for Wells No.
4 and 5 and then directly blend the water
at the wellhead.
(Id.)
Batavia will also construct a third
interconnecting water main to provide additional shallow well
water for incidental blending to provide adequate water during
peak usage periods.
(Pet.
at 7-8.)
The cost of this plan is
estimated at $100,000.
(Pet.
at 8.)
ENVIRONMENTAL
IMPACT
The Agency states that while radiation at any level creates
some risk, the risk associated with this level is very low.
(Ag.
Rec. at 7.)
Further, information regarding effects of combined
radium levels was presented in testimony before the Board at the
Aurora variance hearing (PCB 85-54)
on June 25,
1985, by Richard
E.
Toohey, Ph.D.,
and at the hearings on the Agency rule change
proposal in R85-14.
(Ag. Rec. at 7.)
Finally the Agency states
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.
(Ag. Rec. at 8.)
Batavia incorporated by reference the testimony by Richard
E.
Toohey, Ph.D and Dr. James Stebbings and stated that based on
5
that testimony “Batavia believes that there will be little,
if
any, adverse impact caused by a grant of this variance
extension.”
(Pet. at 5.)
Batavia is also committed to
continuing the improvements to the west side system and to blend
water to reduce the radium levels.
(Pet.
at 8.)
HARDSHIP
Batavia asserts that denial of a variance would constitute
an arbitrary or unreasonable hardship because the grant of the
variance will cause little if any adverse environmental impact.
(Pet.
at 8-10.)
Batavia argues that in contrast, denial of the
variance extension would result in the termination of the
significant development taking place in Batavia that requires the
extension of the water supply system.
Development in Batavia has
been very active, with 437 total building permits in 1992, 290
in 1993 and 143 by August of 1994.
(Pet.
at 9.)
Batavia also argues that denial would require Batavia to
incur hundreds of thousands of dollars in completing a treatment
system that will blend deep aquifer water with shallow aquifer
water to achieve compliance with the combined radium standard of
5 pCi/l, which may no longer be in effect.
(Pet.
at 9.)
Batavia
asserts that the adverse economic impact would far outweigh any
health effects associated with the consumption of Batavia’s water
for the limited period covered by the requested variance
extension.
(Pet.
at 9.)
Batavia acknowledges that Section 35(a)
of the Act states
that “the Board is not required to find that an arbitrary or
unreasonable hardship exists exclusively because the regulatory
standard is under review and the costs of compliance are
substantial and certain”.
That provision, according to Batavia,
however, does not preclude such a finding in this case in that
USEPA has proposed a revised standard of 20 pCi/l and is under a
court order to promulgate a new standard by April 15,
1995.
(Pet. at 9.)
The Agency believes that the grant of the variance would
impose no “significant injury” to the public or to the
environment.
(Ag. Rec. at 8.)
The Agency stated that “denial of
the recommended variance would be an arbitrary and unreasonable
hardship to petitioners.”
(Ag. Rec. at 8.)
Thus, the Agency
supports a grant of the variance.
CONSISTENCY WITH
FEDERAL LAW
Batavia and the Agency agree that the Board may grant the
requested variance consistent with federal law.
(Pet.
at 10; Ag.
Rec. at 10.)
The requested variance will allow the extension of
water mains but it is not a variance from the national primary
drinking water regulations.
(Pet. at 10.)
Further, granting
6
variance form the effects of restricted status affects State and
not federal law and regulations according to the Agency.
(Ag.
Rec. at 10.)
CONCLUSION
Batavia is requesting an extension of an existing variance
granted by the Board in 1990.
Batavia has substantially complied
with the conditions of the prior variance, however, Batavia is
currently not in compliance with the drinking water standard for
radium.
Batavia completed the construction of improvements to
the west side water system at a cost in excess of four million
dollars, as required by condition 8 of the 1990 variance.
Batavia has shown that the Illinois drinking water standards for
radium are based on the federal standards which are presently
under review by USEPA.
In June 1991, USEPA proposed raising the
radium drinking water standards to a higher level, and if those
standards are adopted as proposed, Batavia would be in
compliance.
USEPA is under a court order to promulgate the new
radium drinking water standards by April 1995.
The Agency agrees
with Batavia that no significant injury to the public is likely
from contamination at the present radium levels.
Batavia has shown that a hardship would exist if a variance
from Section 602.105(a)
and Section 602.106(b) was not granted by
the Board.
If the federal standard for radium in drinking water
is not raised, Batavia has submitted a compliance plan that would
be implemented.
Batavia has demonstrated that a variance is
warranted.
Therefore, the Board will grant a variance from the
Board’s rules at 35 Ill. Adm. Code Sections 602.105(a)
and
602.106(b)
to the extent that those rules apply to the maximum
concentration of radium—226 and radium—228, as regulated at
Section 611.330.
The variance will terminate two years following
the date of USEPA action on the radium standards,
or November 1,
1997, whichever is earlier.
This opinion constitutes the Board findings of fact and
conclusions of law in this matter.
ORDER
The Board hereby grants the petitioner, City of Batavia,
a
variance from 35 Ill. Adm.
Code 602
•
105(a), Standards of
Issuance, and 602.106 (a), Restricted Status, but only as the
rules relate to the contaminants in question, subject to the
following conditions:
(A)
For purposes of this recommendation, the date of USEPA
action shall consist of the earlier date of the:
(1)
date the regulation is promulgated by the U.
S.
7
Environmental Protection Agency (“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
maximum contaminant level is demonstrated; or
(2)
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.
(B)
The variance shall terminate on the earliest of the
following dates:
(1)
Two
years following the date of USEPA action; or
(2)
November 1,
1997.
(C)
In consultation with the Agency, petitioner 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,
petitioner shall collect quarterly samples of water
from their distribution system at locations approved by
the Agency.
Petitioner 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.
The results of the analysis shall be
reported to the Compliance Assurance Section, Division
of Public Water Supplies, 2200 Churchill Road,
IEPA,
Springfield, IL 62794-9276, within 30 days of receipt
of each analysis.
At the option of the petitioner, 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.
(D)
Within three months of USEPA action, petitioner shall
apply to the Agency at the address below for all
permits necessary for the construction,
installation,
changes, or additions to petitioners’ 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
8
Springfield, IL 62794—9276
(E)
Within three months of the issuance of each
construction permit by the Agency, petitioner shall
advertise for bids,
to be submitted within 60 days,
from contractors to do the necessary work described in
the construction permit.
The petitioner shall accept
appropriate bids within a reasonable time.
Petitioner
shall notify the Agency,
DPWS, within 30 days,
of each
of the following actions:
1)
advertisements for bids,
2) names of successful bidders, and 3) whether
petitioners 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.
Admit.
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, petitioner will send to each
user of its public water supply a written notice to the
effect that the petitioner 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.
(H)
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, the petitioner will
send to each user of its public water supply a written
notice to the effect that petitioners have been granted
by the Illinois Pollution Control Board a variance from
35 Ill.
Admit. Code 602.105(a),
Standards of Issuance,
and 35 Ill.
Adm. Code 602.106 (a), Restricted Status, as
it relates to the NCL standard in question.
(I)
Until full compliance is reached, the petitioner shall
take all reasonable measures with existing equipment to
minimize the level of contaminants in its finished
drinking water.
(J)
The petitioner shall provide written progress reports
to the Agency’s DPWS,
FOS every six months concerning
steps taken to comply with paragraphs C,
D,
E,
F,
G,
and H.
Progress reports shall quote each of said
9
paragraphs and immediately below each paragraph state
what steps have been taken to comply with each
paragraph.
If the petitioner .chooses to accept this variance subject to the
above order, within forty—five days of the grant of the variance,
the petitioner must execute and forward the attached certificate
of acceptance and agreement to:
Stephen C. Ewart
Division of Legal Counsel
Illinois Environmental Protection Agency
P.
0. Box 19276
2200 Churchill Road
Springfield,
IL
62794—9276
Once executed and received, that certificate of acceptance
and agreement shall bind the petitioner to all terms and
conditions of the granted variance.
The 45-day period shall be
held in abeyance during any period that this matter is appealed.
Failure to execute and forward the certificate within 45-days
renders this variance void.
The form of certificate 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 94-276, January 19,
1995.
Petitioner
_____
Authorized Agent
Title
___________
Date
____________
10
IT IS SO
ORDERED.
Section 41 of the Environmental Protection Act, Ill. Rev.
Stat. 1989,
ch.
111 1/2 par.
1041, provides for appeal of final
Orders of the Board within 35 days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby cert(1~ythat the
a1?ov~
opinion and order was
adopted on the
/
‘~‘
day of
___________________,
1995, by a
vote of
~
.
7
7/
7/
Dorothy M.79~unn,Clerk
Illinois Pdllution Control Board