ILLINOIS POLLUTION CONTROL BOARD
May 19, 1994
VILLAGE OF MAPLETON,
)
Petitioner,
)
v.
)
PCB 94-99
)
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
OPINION
AND
ORDER OF THE BOARD
(by E. Dunham):
This matter is before the Board on the March 28,
1994,
filing by petitioner, Village of Mapleton (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 to the extent those rules involve 35 Ill. Adm.
Code 611.330(a)
(radiuin-226 and radium—228)
and 611.330(b) (gross
alpha particle activity).
The Village requests a variance for
five years or until analysis pursuant to 35 Ill. Adm. Code
611.371 shows compliance with the standard regulating the
contaminant, whichever comes first.
On April 25,
1994, the Illinois Environmental Protection
Agency
(Agency) filed its variance recommendation.
The Agency
recommends that the variance be granted,
subject to certain
conditions.
The Village waived hearing and none was 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.
Accordingly, the variance is granted,
subject to conditions set forth in the attached order.
BACKGROUND
The Village
is located in Peoria County,
Illinois.
(Pet.
at
1.)
The Village provides potable water supply and distribution
for a population of eighty—one residential and nine commercial
utility customers.
(Pet.
at 4.)
Petitioner is not part of
a
regional public water supply.
(Pet. at 5.)
The Village owns and
operates the distribution systems in question.
(Pet.
at 5.)
This
is a deep well water supply system consisting of one deep well,
pumps and distribution facilities.
(Pet.
at 5.)
If the requested variance is granted, petitioner currently
foresees extending its water mains to serve N.G. Industries and
Lonza
Inc. to meet existing demands by those industries.
(Pet.
at
2
5.)
Each industry would be have a separate hook up to the
proposed water main.
(Pet.
at 5.)
The Village was advised by the Agency that its water supply
exceeded the permissible levels in a letter dated January
4,
1994.
(Pet. at 6.)
The Agency letter indicates a maximum
contaminant level
(MCL) of 19.9 pCi/l for gross alpha particle
activity was detected in the samples, exceeding the 15 pCi/l
standard.
(Pet. at 6.)
The samples also showed a level of 6.0
pCi/l for radium 226 and 2.7 pCi/l for radium 228, exceeding the
combined 5 pCi/l standard.
(Pet.
at 6.)
On November 10,
1987,
the Village submitted a letter of commitment to the Agency
setting forth a plan to achieve compliance with the standard.
(Pet.
at 7.)
The letter of commitment was amended by addendum on
December 8,
1987.
(Pet. at 6.)
Compliance has not been achieved
to date because petitioner is awaiting information regarding
suggested new standards from the U.S.
EPA.
(Pet. at 6.)
REGULATORY
FRAMEWORK
The
instant
variance
request
concerns
two
features
of
the
Board’s
public
water
supply
regulations: “Standards for Issuance”
and “Restricted Status”.
These features are found at
35 Ill.
Adm. Code 602.105 and 602.106, which in pertinent part read:
Section 602.105
Standards for Issuance
a)
The Agency shall not grant any construction or
operating permit required by this Part unless the
applicant submits adequate proof 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
½,
pars.
1001 et seq.)
(Act), or of this Chapter.
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 principal effect of these regulations is to provide that
public water supply systems are prohibited from extending water
service, by virtue of not being able to obtain the requisite
permits,
unless and until their water meets all of the standards
for finished water supplies.
The Village requests that it be
allowed to extend the water service while they pursue compliance
with the combined radium standard and the gross alpha particle
standard,
as opposed to extending service only after attaining
compliance.
3
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
(1st Dist.
1977),
135 Ill.
App.
3d 343,
481 N.E.2d
1032).
Only with such a showing can the claimed hardship rise to
the level of arbitrary or unreasonable hardship.
A further feature of a variance is that it is, by its
nature,
a temporary reprieve from compliance with the Board’s
regulations
(Monsanto Co.
V.
IPCB (1977),
67 Ill.2d 276,
367
N.E.2d 684),
and compliance is to be sought regardless of the
hardship which the task of eventual compliance presents an
individual polluter
(~.).
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.
A grant of variance from “Standards for Issuance” and
“Restricted Status” does ~
absolve a petitioner from compliance
with the drinking water standards at issue,
nor does it insulate
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 combined radium and gross alpha particle
activity in drinking water were first adopted as National Interim
Primary Drinking Water Regulations
(NIPDWRs) by the U.S. EPA in
1976.
The standards adopted were
5 pCi/l for the sum of the two
isotopes of radium, radium-226 and radium-228
(“combined
radium”), and 15 pCi/l for gross alpha
(“particle activity”).
Shortly thereafter Illinois adopted the same limits.
Although
characterized as “interim” limits,
these standards nevertheless
are the maximum contaminant levels under both federal and
Illinois law, and will remain so unless modified by the U.S.
•1
Since their original promulgation, the current radium and
gross alpha particle activity standards have been under review at
In
anticipation
of
U.S.
EPA
revision
of
the
radium
standard,
the
legislature
amended
the
Illinois
Environmental Protection Act at Section 17.6 in 1988 to
provide that any new federal radium standard immediately
supersedes the current Illinois standard.
4
the federal level.
The U.S. EPA 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,
U.S. EPA announced a proposal to modify both
standards.2
U.S. EPA proposes 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 is 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 U.S. EPA’s
calendar, these standards are scheduled to be published by April
30,
1995.
COMPLIANCE
PLAN
The Village does not have any existing controls for the
contaminants.
(Pet. at 7.)
Appropriate controls will be devised
and implemented as soon as the new standards are published by the
U.S. EPA.
(Pet.
at 7.)
The Village has committed to achieve
compliance once the U.S. EPA establishes its amended standards
for radium-226 and radium-228.
(Ag. Rec. at 5.)
The petitioner
has committed to achieving compliance by September 30,
1999 or
within
2 years of the date the U.S. EPA adopts its amendments for
the radionuclides.
(Ag.
Rec. at 5.)
The Village retains a
registered professional engineer to assist in meeting the
obligations of the letter of commitment.
(Pet. at 7.)
HARDSHIP
The Village contends that compliance with the standard does
not significantly insure the public or environment for the
limited time period of the variance.
(Pet. at 9.)
The Village
contends that the expenditure of significant sums of money by
petitioner to comply creates an arbitrary or unreasonable
hardship.
(Pet. at 10.)
The Village notes that the promulgation
of a new radium standard by the U.S. EPA may significantly alter
the Village’s compliance status and may even obviate the need for
a continued variance from Restricted Status.
(Pet.
at 11.)
According to the Village,
“the substantial expenditure of public
funds for treatment facilities which 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 11.)
The
Village further argues that denial of the requested variance
results in an arbitrary and unreasonable hardship because it
halts construction and hurts prospective and existing local
industry and the Village’s tax base.
(Pet.
at 11.)
2
Publication occurred
at
56
Fed.
Reg.
33050,
July
18,
1991.
5
The Agency agrees that denial of the variance would impose
an arbitrary or unreasonable hardship on the Village.
(Ag. Rec.
at 7.)
ENVIRONMENTAL IMPACT
Although the Village has not undertaken a formal assessment
of the environmental effects of the requested variance,
it
contends that there will be minimal or no adverse impact caused
by the granting of the variance.
(Pet.
at 8.)
Both the Agency
and the Village cite the testimony presented by Richard
E.
Toohey, Ph.D.,
of Argonne National Laboratory, at the July 30 and
August
2,
1985 hearings for the Proposed Amendments to Public
Water Supply Regulations
(R85—14),
35 Ill.
Adm. Code 602.105 and
602.106 and the updated testimony presented by Dr. Toohey in the
Board’s hearing on a variance requested by the City of Braidwood
in PCB 89-212,
in support of the assertion that the variance will
not result in any adverse environmental impact.
(Pet.
at
8; Ag.
Rec.
at 7.)
While the Agency believes that radiation at any level
creates some risk,
the risk associated with the Village’s water
supply is very low.
(Ag. 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.”
(Ag.
Rec. at 7.)
In
summary, the Agency states as follows:
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 of the public
from grant of the extension.
In light of the likelihood of
no significant injury to the public from continuation of the
present level of the contaminants in question, the Agency
concludes that denial of a variance would impose an
arbitrary or unreasonable hardship upon petitioner.
The Agency observes that the grant of the 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.
(Ag. Rec.
at 10.)
CONSISTENCY WITH FEDERAL LAW
6
The Agency states that the requested variance may be granted
consistent with the Safe Drinking Water Act (SDWA), PL 93-523,
as
amended by PL 96-502,
42 U.S.C.
300(f) and corresponding
regulations
(40 CFR Part 141) because the variance does not grant
relief from compliance with the federal primary drinking
regulations.
(Ag.
Rec. at 9.)
The Agency states that granting a
variance from the effects of restricted status affects State and
not federal law and regulations;
a variance from the effect of
restricted status would allow water main extensions,
under the
Act and Board regulations.
(Ag. Rec. at 9.)
The Agency further
states that the recommended variance is not a variance from U.S.
EPA’S national primary drinking water regulations and does
suspend the effect of the SDWA.
(Ag.
Rec. at 9.)
The Agency
asserts that a federal variance is not at issue,
and there should
be no risk to the State of Illinois of loss of primacy.
(Ag. Rec.
at 9.)
The Agency believes that petitioner will remain subject
to the possibility of enforcement for violations of the MCL for
the contaminants in question under state and federal law.
(Ag.
Rec. at 9.)
The Agency concludes that because continuing
progress is being made towards compliance while awaiting final
promulgation of the standard,
it
is unlikely that the U.S. EPA
will object to the issuance of the recommended variance.
(Ag.
Rec. at 9.)
CONCLUSION
Based upon the record, the Board finds that immediate
compliance with the “Standards for Issuance” and “Restricted
Status” regulations would impose an arbitrary or unreasonable
hardship on the Village of Napleton.
The Board also agrees with
the parties that granting this variance does not pose a
significant health risk to those persons served who will be
affected by the variance, assuming that compliance is timely
forthcoming.
The Board notes that timely compliance by the Village may be
affected by pending U.S. EPA action to promulgate new standards
for radionuclides in drinking water.
U.S. EPA has recommended
a
standard of 20 pCi/l for both radium-226 and radium-228.
This
proposed standard was published on July 18,
1991
(56 Fed.
Reg.
33,050
(1991)), and the public hearings on the standard began on
September
6,
1991.
It is anticipated that the new standard as
amended will be adopted within a year.
New radionuclide
standards from U.S. EPA could significantly alter the Village’s
need for a variance or alternatives for achieving compliance.
In
recognition of this situation, as recommended by the Agency, the
variance will contain suitable time frames to account for the
effects of any U.S. EPA alteration
(or notice of refusal to
alter) of the radium standards.
Today’s action is solely
a grant of variance from standards
of issuance and restricted status.
The Village is not granted a
7
variance from compliance with the combined radium standard, nor
does todayts action 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 Mapleton is hereby granted a variance from 35
Ill. Adm.
Code 602.105(a),
“Standards for Issuance”, and
602.106(b),
“Restricted Status”,
as they relate to the standards
for combined radium-226 and radium-228
in drinking water as set
forth in
35 Ill. Adm. Code 611.330(a), and gross alpha particle
activity as set forth in 35 Ill. Adm. Code 611.330(b)
subject to
the following conditions:
(A)
For purposes of this order,
the date of U.S.
Environmental Protection Agency
(U.S.
EPA) action shall
consist of the earlier date of the following:
(1)
Date of promulgation by the U.S. EPA of any
regulation which amends the maximum concentration
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
(2)
Date of publication of notice by the U.S. EPA 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)
Variance shall terminate on the earliest of the
following dates:
(1)
Two years following the date of U.S. EPA action;
or
(2)
April 30,
1999;
or
(3)
When analysis pursuant to 35 Ill. Adm. Code
611.720, or any compliance with standards then
in
effect,
shows compliance with standards for radium
in drinking water then in effect.
(C)
In consultation with the Illinois Environmental
Protection Agency
(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
8
collect quarterly samples of water from the
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 radium—226, radium—228 and gross
alpha particle activity.
At the option of petitioner,
the quarterly samples may be analyzed when collected.
The results of the analyses shall be reported within
30
days of receipt of each analysis to:
Illinois Environmental Protection Agency
Compliance Assurance Section
Division of Public Water Supplies
2200 Churchill Road
Springfield, Illinois 62794—9276
(D)
Within three months of U.S. EPA action, petitioner
shall apply to the Agency at the address below for all
permits necessary for the construction, installation,
changes or additions to petitioner’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 System
Permit Section
2200 Churchill Road
Springfield, IL 62794—9276
(E)
Within six months of U.S. EPA action after each
construction permit
is issued 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, Division of Public
Water Supplies, within 30 days,
of each of the
following actions:
1) advertisements for bids,
2)
names of the successful bidders, and 3) whether
petitioner 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 U.S. EPA action.
One year
will be necessary to prove compliance.
9
(G)
Pursuant to 35 Ill.
Adm. Code 611.851(b)
(formerly 35
Ill. Adm. Code 606.201),
in its first set of water
bills or within three months 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
petitioner is not in compliance with the standard in
question.
The notice shall state the average content
of the contaminants in question in samples taken since
the last notice period during which samples were taken.
(H)
Pursuant to 35
Ill. Adm. Code 611.851(b)
(formerly 35
Ill.
Adm. Code 606.201),
in the 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
petitioner 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 they relate to the MCL standard
in question.
(I)
Until full compliance is achieved, petitioner shall
take all reasonable measures with its existing
equipment to minimize the level of contaminants in its
finished drinking water.
(J)
Petitioner shall provide written progress reports
to the Agency at the address below every six
months concerning steps taken to comply with the
paragraphs C,
D,
E,
F, G and H of this order.
Progress reports shall quote each of said
paragraphs and immediately below each paragraph
state what steps have been taken to comply with
each paragraph:
Illinois Environmental Protection Agency
Division of Public Water Supply
Field Operations Section
2200 Churchill road
Springfield, Illinois 62794—9276
(K)
Within forty-five days of the date of this order,
petitioner shall execute and forward to:
Stephen
C. Ewart
Division of Legal Counsel
Illinois Environmental Protection Agency
2200 Churchill Road,
P.O. Box 19276
Springfield, Illinois 62794—9276
10
a Certificate of Acceptance and agreement to be bound
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 and of no force and effect
as a shield against enforcement of rules from which
this variance is granted.
The form of the certificate
is as follows.
I
(We),
,
hereby
accept and agree to be bound by all terms and conditions of the
order of the Pollution Control Board in PCB 94-99, May 19,
1994.
Petitioner
Authorized Agent
Title
Date
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act,
(415 ILCS
5/41
(1992)), provides for appeal of final orders of the Board
within 35 days of the date of service of this order.
The Rules
of the Supreme Court of Illinois establish filing requirements.
(See also 35
Ill. Adm. Code
101.246, Motion for Reconsideration.)
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certif~ythat the above opth~jonand order was
adopted
on
the
/TtZ~
day of
by
a
vote
of
_______
1994,
Dorothy M.
Illinois Po~
Control
Board
