ILLINOIS POLLUTION CONTROL BOARD

January 20,

1994

VILLAGE

OF

PRINCEVILLE,

)

Petitioner,

)

v.

)

PCB 93—227

(Variance)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

OPINION AND ORDER OF THE BOARD

(by E. Dunham):

This matter is before the Board on the November 17,

1993,

filing by petitioner, Village of Princeville

(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)

(radium—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 Iii.

Adm. Code 605.104(a)

shows compliance with the standard

regulating the contaminant, whichever comes first.

On December 17,

1993,

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

2.)

The Village provides potable water for 1421 residential and

56 commercial and industrial customers.

(Pet.

at 5.)

Petitioner

is not part of a regional public water supply.

The Village owns

and operates the distribution systems in question.

(Pet.

at 5.)

This is a deep well water supply system consisting of

3 deep

wells, pumps and distribution facilities.

(Pet. at 5.)

If the requested variance is granted, petitioner currently

foresees extending their water mains to serve new users

in the

extension to Ostrom Meadows subdivision.

(Pet.

at 6.)

The

subdivision would consist of 42 single family residences or

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2

duplexes, with an expected population of 120 persons.

(Pet.

at

6.)

The Village was first advised by the Agency that their water

supply exceeded the permissible levels on September 25,

1987.

(Pet.

at

6.)

The Agency report indicates a maximum contaminant

level

(MCL)

of 21±10pci/i for gross alpha particle activity,

exceeding the 15 pCi/i standard.

(Pet. at 6.)

The report also

showed a level of 10.2 pCi/i for radium 226 and 4.0 pci/i for

radium 228, exceeding the combined

5 pCi/i standard.

(Pet.

at 7.)

The Village subsequently submitted a letter of commitment to the

Agency.

(Pet.

at 7.)

The letter of commitment has been revised

several times.

(Pet, at 7.)

A new letter of commitment was

accepted by the Agency on May

11,

1993.

(Pet.

at 7.)

Subsequent testing has cleared three of the five violations

listed in the original report of the Agency.

(Pet.. at 7.)

The

remaining violations are related to radium 226, radium 228 and

gross alpha particle activity.

(Pet.

at 7.)

The Agency and the

Village have agreed to delay compliance for combined radium and

gross alpha activity until such time as the USEPA has issued new

standards for these contaminants.

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

---

3

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.

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 Iil.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

(u.).

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 flQ~,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 USEPA in

1976.

The standards adopted were

5 pCi/i for the sum of the two

isotopes of radium, radiuin-226 and radium-228

(“combined

radium”), and 15 pCi/i 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 USEPA.’

In anticipation of USEPA 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

---

4

Over much of the fifteen years 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 standards.2

USEPA proposes to replace

the 5 pCi/i combined radium standard by separate standards of 20

pci/i each

£or radium-226 and radium-228.

The gross alpha

particle activity standard is proposed to be replaced by an

adiusted gross alpha particle activity standard; the latter would

still have a 15 pCi/i value,

but would no longer include alpha

particle activity associated with radium or uranium decay.

Under

the USEPA’s calendar, these standards are scheduled for an

effective date of October 1994.

COMPLIANCE

PLAN

The letter of commitment binds the Village to achieving full

compliance for the contaminants by September 30,

1988

or within

two years after USEPA adopts new standards.

(Ag. Rec.

at 4.)

The

Village has retained a registered professional engineer to assist

in meeting the obligations of the letter of commitment.

(Pet.

at

8.)

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 10.)

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 United States Environmental

Protection Agency

(USEPA) may significantly alter the Village’s

compliance status and may even obviate the need for a continued

variance from Restricted Status.

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 12.)

The Village further argues that denial of

the requested variance results in an arbitrary and unreasonable

hardship because it halts construction and hurts prospective home

buyers as well as business developers and the Village’s tax base.

(Pet.

at 12.)

the current Illinois standard.

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

8.)

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 8-9.)

The Agency

agrees with the Village’s assertion.

(Ag. Rec. 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-l4),

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 9; Ag.

Rec.

at

8.)

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 7.)

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 8.)

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 that 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 the grant of extension 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 11.)

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6

CONSISTENCY WITH

FEDERAL

LAW

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.

The Agency further states that the

recommended variance

is not a variance from USEPA’s national

primary drinking water regulations and does suspend the effect of

the SDWA.

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.

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.

The Agency concludes that because continuing progress

is being

made towards compliance while awaiting final promulgation of the

standard,

it is unlikely that USEPA will object to the issuance

of the recommended variance.

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 Princeville.

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 USEPA action to promulgate new standards for

radionuclides in drinking water.

USEPA 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 this year.

New radionuclide standards

from USEPA 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 USEPA 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 today’s 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 Princeville 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 USEPA action

shall consist of the earlier date of the:

(1)

Date of promulgation by the U.S. Environmental

Protection Agency (“USEPA”)

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 USEPA that no

amendments to the

5 pCi/i combined radium standard

or the method for demonstrating compliance with

the

5 pCi/i standard will be promulgated.

(B)

Variance shall terminate on the earliest of the

following dates:

(1)

Two

years following the date of USEPA action; or

(2)

September 30,

1998; 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 collect quarterly samples of water

from their distribution system at locations approved by

the Agency.

Petitioner shall composite the quarterly

---

8

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,

IL 62794—9276

(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 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 USEPA 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 USEPA action.

One year will

be necessary to prove compliance.

(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

---

9

order, whichever occurs first,

and every three months

thereafter, petitioner will send to each user of their

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 their

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

P.O. Box 19276

2200

Churchill

Road

Springfield,

Illinois

62794—9276

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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 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 93-227,

January 20, 1994.

Petitioner

Authorized Agent

Title

Date

IT IS SO ORDERED.

Section 41 of the Environmental Protection Act, 415 ILCS

5/41, 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.

I,

Dorothy M. Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify that the above

Onion and order was

adopted on the

~~‘-

day of

~‘

,

1994,

by

a vote of

7

--~

.

1/

t.~

~?~~L4

~.

Dorothy

N.

G9hn,

Clerk

Illinois Po1,,Iution Control Board