ILLINOIS POLLUTION CONTROL BOARD
August
11,
1994
VILLAGE OF DIAMOND,
Petitioner,
v.
)
PCB 94—132
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
OPINION AND ORDER OF THE BOARD
(by M. McFawn):
This matter is before the Board on the April
21, 1994 filing
by Petitioner,
the Village of Diamond
(Village),
of a petition
for variance.
The Village seeks relief from 35
Ill.
Adm.
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 standard of 35 Ill. Adm.
Code 611.330(b).
The Village
requests a variance for up to and including December
31,
2000 or
five years from the grant of the variance or when analysis
pursuant to
35 Ill. Adm.
Code 605.104(a)
shows compliance with
the standard regulating radium-226, radium-228 and gross alpha
particle activity,
whichever occurs first.
On May 19,
1994,
the Illinois Environmental Protection
Agency
(Agency) filed its variance recommendation.~ The
Agency recommends that the variance be granted for eighteen
months subject to certain conditions.
The Village waived
hearing, and none has been held.
For the following reasons, the Board finds that the Village
has presented adequate proof that immediate compliance with the
Board’s regulations for “Standards for Issuance” and “Restricted
Status” would result in the imposition of an arbitrary or
unreasonable hardship.
Variance is be granted for five years,
the maximum time allowed by law
(415 ILCS 36(b)),
subject to
conditions set forth
in the attached order.
BACKGROUND
The Village,
located in Grundy County,
is an Illinois
The petition will
be
cited
as
(Pet.
at
.)
and the
Agency’s recommendation will be cited as
(Rec.
at
.).
2
municipality which provides public services including a
potable water supply and distribution system.
These services are
provided to a population of approximately 470 residential and 19
business customers,
representing approximately 1200 residents as
of the year of 1993.
(Pet. at 4.)
The Village is not part of a
regional public water supply.
The Village owns,
operates and maintains the deep well water
supply system in question.
The distribution system includes two
deep wells,
pumps and distribution facilities.
(Pet.
at 5.)
The
water
is provided to all residential and business users as needed
and charged according to the established ordinances.
The Village has the following number of wells:
(Pet. at 5.)
Placed
in
Gallons
Well
#
Depths
Operation
Per Minute
Location
1
470 feet
1955
170
1750 E. Division
2
772 feet
1964
300
260 N. Tinman
(Well #2 is for emergency use only due to its radium content)
The Village requests the variance to extend its water mains
to serve a new sewage treatment plant and new users in two
proposed subdivisions.
(Pet. at 5.)
One subdivision to be
located at Stellon and School Streets, the other is at McGinty
and Patmore Streets, both in Diamond, Illinois.
Each subdivision
will consist of approximately 35-40 single family residences with
an expected population of 120 persons.
(Pet.
at 5.)
Petitioner
is currently planning to provide a separate hookup to the
proposed water main for each house.
Additionally, the Village is
in the final stages of construction of its new sewage treatment
plant and extending the water main is necessary to support this
operation.
This is petitioner’s first request for a variance2 involving
the combined radium and gross alpha particle activity limitations
in 35
Ill. Adm.
Code 611.330(a)
and
(b).
(Rec.
at
3.)
According
to the Village,
blending of the waters from the wells was not a
consideration because the concentration of the contaminants was
approximately the same in both wells.
(Pet.
at 6.)
The maximum
contaminant levels
(NCLs)
for combined radium-226 and radium-228,
and gross alpha particle activity are respectively
5 pCi/L and 15
2
In
its
recommendation,
the
Agency
mistakingly
states
several times that the petitioner is requesting an extension to
a
variance
(Rec.
at
5.), while earlier stating that the petitioner
had not sought
a variance
from these
regulations
prior
to this
application.
(Rec. at
4, at Paragraph 9.)
3
pCi/L.
According to the Village,
it first learned of excessive
levels of these contaminants in the groundwater from the Agency
by letter dated November,
1985, and was first advised that the
MCLs were exceeded by letter dated November,
1986.
(Pet. at
6.)
According to the Agency,
it advised the Village that its water
supply exceeded the maximum allowable concentration for combined
radium in a letter dated September 14,
1984,
and that the MCL for
gross alpha particle activity was exceeded in a letter from the
Agency dated October
17,
1980.
(Rec.
at.
4.)
According to the
petitioner, the Agency’s report was based upon the analysis done
by the Illinois Department of Nuclear Safety for gross alpha
particle activity on an annual composite of four consecutive
quarterly samples.
(Pet.
at 6.)
Currently,
the petitioner
is not
in violation of the gross alpha particle activity standard.
(Rec. at 4.)
According to the petitioner, the radium analyses are also
conducted by the Illinois Department of Nuclear Safety.
(Pet. at
6.)
The most recent results obtained from composite analyses of
the radium content in petitioner’s water distribution system
exceed the sum of the two isotopes of radium, radium-226 and
radium-228
(“combined radium”)
5 pCi/L standard and are as
follows
(Pet.
at
4,
5.):
August 1992 through May 1993 testing:
Radium-226
8.1 pCi/L
Radium-228
4.1 pCi/L
The last two analyses of gross alpha particle activity in
petitioner’s water distribution system produced the following
results:
Last Sampling Period using four consecutive quarterly
samples:
Gross Alpha
12.3 pCi/L
First two quarters of the current sampling period:
Gross Alpha
14.30 pCi/L
Gross Alpha
35.50 pCi/L
While no violation is evident based on recent past analysis
of gross alpha particle activity, the analysis for the first two
quarters of the current sampling period indicates that the
average for the upcoming sample period will exceed the MCL of
15.0 pCi/L standards.
(Rec.
at 4,5.)
The Village has controls for these contaminants,
as well as
others, which were put into operation in February 1992.
(Pet. at
4
6.)
These controls consist of two reverse osmosis filtering
units which are leased from Culligan International.
The controls
were installed with the approval of the Agency by Culligan for
the purpose of removing all contaminants.
(Pet. at 7.)
These
units filter the well water to virtually zero contaminants.
The
pure water
is then blended with well water for economic and
chemistry—based reasons.
The blending process is controlled
based on the results of Agency analyses and analyses done by the
Village through an approved independent laboratory.
(Pet. at
7.)
In either case, these analyses are very expensive and take from
four to eight weeks or longer to perform.
(Rec.
at 5.) The Agency
acknowledges that more frequent sampling would be cost
prohibitive at this time.
(Rec. at 5.)
Pursuant to 35 Ill.
Adm. Code 104.180(a), the Agency has
investigated the facts alleged by the petitioner.
(Rec.
at 6.)
In accordance with 35 Ill. Adm. Code 104.140(b), the Agency
attempted to ascertain the views of persons who might be affected
by the grant of the variance by publishing in a newspaper of
general circulation in petitioner’s county
a solicitation of
views of such persons and by sending notices of the petition for
the variance to the appropriate State legislators and county
officials.
According to the Agency there has been no response to
this newspaper solicitation and notices as of May 19,
1994.
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 permit without
causing a violation of the Act or this chapter.
5
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.
The Village 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 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.
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.3
In anticipation of USEPA revision of the radium standard,
the legislature amended the Illinois Environmental Protection Act
6
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
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
30,
1995.
However, the U.S. Congress
passed and President Clinton signed Public Law 103-124
(October 28,
1993)
which included a prohibition for use of any
funds by USEPA in promulgating a new standard for radon in
drinking water.
(Rec.
at 8.)
Prior to the enactment of this
legislation, the Agency had anticipated that the new standard for
radon and the amended standards for the radium isotopes would be
adopted in the winter of 1993-1994.
This congressional action
has suspended any USEPA regulatory activity for radionuclides
until
1995.
(Rec.
at 8.)
COMPLIANCE
PLAN
According to the Agency, the Village is committed to achieve
compliance with these contaminants once the USEPA establishes its
amended standards for radium—226 and radium—228.
No mention is
made by the Agency concerning the Village’s commitment concerning
the standard for gross alpha particle activity
(if it is still
applicable after the long-anticipated federal rule change).
The
Agency states its belief that the Village must operate the
reverse osmosis units to remove the radium isotopes to the extent
necessary to reliably and consistently comply with the existing
radium and gross alpha particle activity standards.
The Agency
further states that
it cannot support a variance that would
permit “engineered noncompliance” for the period of the variance.
(Rec. at 6.)
The Board does not understand this term.
Yet it
is
for that reason apparently,
that the Agency limits its support
for the requested variance to a period of
18 months or less.
The
at Section
17.6
in
1988
to
provide that any new federal
radium
standard
immediately
supersedes
the
current
Illinois
standard.
(See
P.A.
87-650,
which
amends
Section
17.6
of
the
Act
to
specifically require Board adoption of federal combined radium-226
and
radium—228
and
gross
alpha
particle
activity
standards
by
peremptory rulemaking.)
7
Agency states that any longer time period would permit the
Village to “under—utilize” its existing reverse osmosis units.
(Id.)
The Village does not specifically address the issue of a
compliance plan in its petition.
However, the Village does
represent that it has retained an “outside consultant” to assist
it in evaluating “this situation” and to prepare recommendations
for resolving the problem.
The only recommendations of that
consultant were the “IEPA recommended methods for removal”:
ion
exchange and lime softening.
According to the Village, both
systems cost over $1 million and would be impossible to operate
since the Village does not have a waste treatment system
(sic)
at
this time.
(Pet.
at
7
& 8.)
However, we know,
based on the information provided in its
petition and in the Agency’s recommendation,
that the Village
currently operates its reverse osmosis units and then conducts
blending operations.
However,
the Village states that blending
to guarantee compliance is “very cost prohibitive” and would
result in very corrosive water due to very low concentration of
dissolved solids.
Therefore, the Village blends to achieve
levels just below the MCL for the contaminants.
(Pet.
at
7.) The
Agency recommends as a condition to the variance,
if granted,
a
requirement that the Village operate this equipment to minimize
or eliminate the level of contaminants in its finished drinking
water.
However, the Agency does not recommend any changes to the
reverse osmosis and blending operations,
or any additional
treatment equipment.
Furthermore, the Agency does not recommend
any change in the current sampling protocol.
ENVIRONMENTAL IMPACT
The Village has made no formal assessment of the effect of
the variance on the environment.
Instead, the Village, refers to
the testimony and exhibits presented by Dr. Richard E.
Toohey,
Ph.D., and Dr. James Stebbings, Ph.D, on July 30 and August
2,
1985,
in R85—l4. Proposed Amendments to Public Water Supply
Regulations
35
Ill. Adm.
Code 602.105 and 602.106,
in support of
the assertion that the variance will not result in any adverse
environmental
impact.
(Pet.
at 8.)
The Agency simply states
its belief that radiation at any level creates some risk,
but
that the risk associated with this level
is very low.
(Rec.
at
7.)
HARDSHIF
The Village correctly points out that a grant of the
requested variance only prohibits the Agency from legally denying
construction or operating permits based on the Village’s
8
violation of the standards,
and does not make less strict the
standards that petitioner must meet.
(Pet. at 10.)
The Village
asserts that a substantial expenditure of public funds for
treatment facilities, which may become obsolete in the near
future as a result of the USEPA proposed relaxation of the
current standards,
is not in the public interest and does not
grant a corresponding benefit to the public.
(Pet.
at 11.)
The
Village also asserts that a failure to obtain a variance will
negatively impact prospective home purchasers as well as business
developers and the Village tax base,
because all construction
within the Village’s service area requiring the extension of the
water supply system would be prohibited.
Finally, the Village
argues that the time involved for planning, financing,
engineering, and construction of water treatment facilities
prevents immediate compliance with the standards,
and that,
in
the interim period, there is a great need for the expansion of
the water distribution system in order to serve the domestic and
fire protection requirements of the local population.
(Pet.
at
12.)
The Agency believes that a denial of the variance would be
an arbitrary and unreasonable hardship to the petitioner.
(Rec.
at 9.)
Denial of a variance from the two rules imposing
restricted status on the Village would result in an arbitrary or
unreasonable hardship because denial would require that the
Agency:
(1) publish the Village on the Restricted Status List,
and
(2) deny construction and operating permits until compliance
is achieved.
The second action would prevent further development
from taking place in the Village of Diamond, while the first
might mislead developers and other persons who check this list
and their contemplated economic activity might be delayed or
discontinued.
(Rec. at 9.)
The Agency believes 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 extension.
The Agency observes that
this grant of the variance from restricted status should affect
only those users who consume water drawn from any newly extended
water lines and states that an increase in the allowable
concentration for these contaminants should cause no significant
health risk for this limited population.
(Rec. at 8.)
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.
(Rec. at 11.)
The Board notes that the granting of this variance
should not cause any “increase in the allowable concentration of
these contaminants,” but agrees with the Agency’s latter
statement that compliance may be hastened.
9
CONSISTENCY WITH FEDERAL LAW
The Agency states that the requested variance may be granted
consistent with the Safe Drinking Water Act, PL 93-523, as
amended by FL 96-502,
42 U.S.C.
§300(f)(l992), and the USEPA
Drinking Water Regulations
(40 CFR Part 141
(1991)), because the
variance does not grant relief from compliance with the National
Primary Drinking Water Regulations.
(Rec.
at
10..)
Granting a variance from the effects of restricted status
affects State and not federal law and regulations.
(Rec.
at 10.)
Therefore,
a variance under the Act and Board regulations
is not
a variance from USEPA’s National Primary Drinking Water
Regulations.
The Agency believes there should be no resulting
risk to the State of Illinois of loss of its primary enforcement
responsibility (“primacy”)
under the Safe Drinking Water Act.
(Rec. at 10.)
CONCLUSION
Based on the record, the Board finds that the Village has
presented adequate proof that immediate compliance with the
“Standards for Issuance” and “Restricted Status” regulations
would impose an unreasonable hardship on the Village pursuant to
Section 35(a)
of the Act.
The Board will grant this variance for
a period of five years subject to conditions similar to those
recommended by the Agency.
If, during the course of the
following five years, the standards for combined radium and gross
alpha particle activity as set forth in 35 Ill.
Adm. Code
611.330(a) and
(b), are changed due to the long awaited and now
uncertain action by the USEPA,
this variance may no longer be
applicable.
The Agency recommends that the term of the variance be
limited to 18 months or less for the reasons recounted above.
The Board does not understand how granting the requested variance
for a period of time longer than 18 months would “permit the
Petitioner to under—utilize the existing reverse osmosis units.”
(Rec. at 6.)
Pursuant to the conditions recommended by the
Agency and adopted by the Board hereunder, the Village will be
required to “take all reasonable steps with the existing
equipment to minimize or eliminate the level of contaminants in
its finished drinking water.”
(Rec.
at 13; Order at Paragraph
5.)
The Board notes that little information has been provided by
the Agency or the Village, which agreed to comply with this type
of condition at page
9 of its Petition, about what constitutes
“reasonable steps.”
Based on the description by the Village and
the Agency about the current operations and that non—compliance
appears in large part to be due to delays inherent in the
sampling protocol, the Board believes that the current operations
constitute reasonable compliance measures.
10
As acknowledged by the parties, today’s action
is solely a
grant of variance from “Standards of Issuance” and “Restricted
Status”.
The Village is not granted variance from compliance
with the combined radium standard,
or the gross alpha particle
standard, and today’s action does not insulate the Village in any
manner against enforcement for violation of these standards.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Village of Diamond is hereby granted a five-year
variance from 35
Ill.
Adm. Code 602.105(a),
“Standards for
Issuance”,
and 602.106(a),
“Restricted Status”,
as they relate to
the standard 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 shall terminate on the earliest of the
following dates:
a)
Two years following the date of USEPA action;
or
b)
August 11,
1999; or
c)
When analysis pursuant to 35 Ill. Adm. Code
611.720(d),
or any compliance demonstration method
then in effect,
shows compliance with any
standards for radium
in drinking water.
(2)
For purposes of this order, the date of 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 for combined radium,
either of the
isotopes of radium,
or the method by which
compliance with a radium maximum contaminant
level
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.
(3)
In consultation with the Agency, the Village shall
continue its sampling program to determine as
accurately as possible the level of radioactivity
in
its wells and finished water.
Until this variance
11
expires,
the Village shall collect quarterly samples of
its water from its distribution system at locations
approved by the Agency.
The Village 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 analyses 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 Village, 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)
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, the Village will send to each
user of its public water supply
a written notice to the
effect that the Village is not in compliance with the
combined radium and gross alpha particle activity level
standards.
The notice shall state the average content
of the combined radium and gross alpha particle
activity in question in samples taken since the last
notice period during which samples were taken.
(5)
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 Village will
send to each user of its public water supply a written
notice to the effect that the Village 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 MCL standards for combined radium—226
and radiuin-228 of
5 pCi/L, and for gross alpha particle
activity of 15 pCi/L.
(6)
Until full compliance is reached, the Village shall
take all reasonable measures to operate its existing
equipment as necessary to minimize the level of
radium-226 and radium—228,
and gross alpha particle
activity
in its finished drinking water.
(7)
The Village shall provide written progress reports to
Agency’s Division of Public Water Supplies,
Field
Operations Service every six months concerning steps
12
taken to comply with paragraphs
4,
5 and 6.
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 the Village chooses to accept this variance subject to
the above order, within forty-five days of the grant of the
variance,
the Village 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 Village 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.
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—132, August
11,
1994.
Petitioner
Authorized Agent
Title
Date
13
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 N. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certi~ythat the abo
Opinion and Order was
adopted on the
//
day of
__________________,
1994,
by a
vote of
_________.
/?
//
/~‘-~
Dorothy N. ~nn,
Clerk
Illinois Pdjilution Control Board
