ILLINOIS POLLUTION CONTROL BOARD
January 20,
1994
VILLAGE OF NORTH
AURORA,
)
Petitioner,
V.
)
PCB 93—164
)
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
OPINION
AND
ORDER OF THE BOARD
(by M. Nardulli):
This matter is before the Board on the September 3,
1993,
filing by petitioner Village of North Aurora
(Village, North
Aurora or petitioner)
of a petition for extension of variance.
North Aurora seeks an extension of the variances granted in PCB
89—66 and PCB 87—83.
In PCB 89-66 and PCB 87—83, the Board
granted North Aurora a variance from 35 Ill. Adm. Code
602.105(a),
“Standards for Issuance”,
and 602.106(a),
“Restricted
Status”, to the extent those rules are applicable to the maximum
concentration level
(MCL)
for combined radium-226 and radium-228
of
5 picocuries per liter
(pCi/i).
That standard is set forth at
35
Ill.
Adm. Code 611.330(a).
The Village requests an extension
of variance for one year from the date of this Board order or
until analysis pursuant to 35
Ill. Adm. Code 605.104(a)
shows
compliance with the standard regulating the contaminant,
whichever comes first.
On October 20,
1993,
the Illinois Environmental Protection
Agency (Agency) filed its variance recommendation.
On November
16,
1993, the Agency filed an amended 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 a municipality located in Kane County,
Illinois.
The Village provides potable water for residential,
commercial, governmental and industrial customers.
Petitioner
maintains the public water distribution system which includes
4
deep wells, two one-half million gallon reservoirs, pumps and
2
distribution facilities.
(Pet. at
3.)1
Petitioner’s average
daily water use in 1992 was approximately 900,000 to one million
gallons per day, resulting in an approximate annual use of 365
million gallons.
(Pet. at 4.)
The total population served by
the Village is approximately 9,000 persons.
(Pet. at 3.)
As of
June 1,
1987,
petitioner was not part of a regional public water
supply.
(Pet.
Attachment A at 5.)
By letter dated December 8~1986,
the Agency first advised
North Aurora that the Village’s water supply exceeded the maximum
allowable concentration for combined radium.
Recent tests
indicate that petitioner’s combined radium level consistently
exceeds 5 pCi/l.
(Pet.
Exhibit C at
1,
2.)
North Aurora
currently has no equipment in place to control the radium levels
in the water supplied to its customers who receive water from
petitioner’s deep wells.
(Pet.
at 4.)
Since January 1991, construction permits have been issued
for 277 single family residences, one multifamily residence,
seven commercial and four industrial establishments.
Plans are
under review for the construction of an additional 288
residential units.
(Pet. at 10.)
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 petition
shall
be cited
as
(Pet.
at
.)
and the
Agency’s recommendation shall be cited as
(Ag. Rec. at
.).
3
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.
In this case,
a denial of the
construction permit would prevent the Village from building and
operating new water main extensions.
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 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
(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 i~ 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.
Section 36(b)
of the Act allows the Board to grant an
extension of variance where satisfactory progress has been
demonstrated.
Section 36(b)
states:
Section 36
Variances
b.
Except as provided by Section 38 of this Act, any
variance granted pursuant to the provisions of this
Section shall be granted for such period of time,
not
exceeding five years, as shall be specified by the
Board at the time of the grant of such variance, and
upon the condition that’ the person who receives such
variance shall make such periodic progress reports as
4
the Board shall specify.
Such variance may be extended
from year to year by affirmative action of the Board,
but only if satisfactory progress has been shown.
FEDERAL STANDARDS
Standards for radium and gross alpha particle activity in
drinking water were first adopted as national Interim Primary
Drinking Water Regulations
(NIPDWR5) by the USEPA in 1976.
The
standards adopted were
5 pCi/i 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 NCL5 nevertheless are the maximum
allowable concentrations under both federal and Illinois law, and
will remain so unless modified by the USEPA.2
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.3
USEPA proposes to replace
the
5 pCi/i 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/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.
ENVIRONMENTAL IMPACT
North Aurora has made no formal assessment of the effect of
this variance extension upon the environment.
However, North
Aurora referenced the testimony and exhibits presented by Richard
E. Toohey and Dr. James Stebbings on July 30 and August 2,
1987
in R85-14, In the Matter of:
Proposed Amendments to Public Water
Supply Regulations.
35
Ill. Adm. Code Sections 602.105 and
602.106.
Based on Drs. Toohey and Stebbings’ testimony, North
Aurora believes that there will be little,
if any,
adverse impact
2
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 the current Illinois standard.
~ Publication occurred at 56 Fed. Reg.
33050, July 18,
1991.
5
caused by a grant of this variance extension.
(Pet.
at 4.)
The
Agency agrees with that assessment and states:
While radiation at any level created some risk,
the risk
associated with this level is very low...
.
The Agency
believes that the grant of this variance should cause no
significant health risk for the limited population served by
new water main extensions for the time period of the
recommended variance.
(Ag. Rec.
at 9.)
PAST COMPLIANCE EFFORTS
In its October
15,
1987 order,
the Board directed North
Aurora to negotiate a contract with the City of Aurora
(City)
to
obtain water service and to begin construction of a water
treatment facility starting no later than October 15,
1989.
(Pet.
at 6.)
However,
contract negotiations between North Aurora
and the City were delayed due to revisions by the City of the
design and engineering of its new water treatment system.
As a
result, North Aurora was able to complete the designs for, but
not begin, construction of the distribution system.
On March 16,
1989, during the discussions between North Aurora and the City,
USEPA announced that it would not force any municipality to spend
funds preparing a final design or constructing a treatment system
to comply with the interim combined Standard of
5 pCi/i.
(Pet.
at 6.)
North Aurora was granted a variance extension on February
8,
1990.
In August
1990, the City terminated negotiations with
North Aurora.
Thus, North Aurora’s compliance plan, which relied
on receiving treated water from the City, was no longer a viable
final compliance alternative.
In September 1990, North Aurora
retained Rempe-Sharpe
& Assoc.
Inc.
(Rempe-Sharpe)
to pursue a
compliance alternative that would require the blending of treated
shallow well water existing deep well water.
(Pet.
at 7.)
COMPLIANCE ALTERNATIVES
Rempe-Sharp has concluded that the blending of shallow well
water with existing deep well water is the most practical and
cost—effective alternative for North Aurora to achieve compliance
with the radium standards in its deep well water.
In general,
the blending alternative would blend treated shallow well water,
which contains little,
if any radium, with deep well water to
achieve compliance.
This compliance alternative requires North
Aurora to construct the following:
three 700 gpm shallow wells,
each requiring a one acre site; and two MGD lime—softening water
treatment plant and sludge lagoons; .a 16—inch shallow well water
transmission main from the shallow wells to the water treatment
plant site;
a 16—inch potable water transmission main from the
6
blending tank at the water treatment plant site to two elevated
tanks; and an altitude valve at the west elevated tank.
In
addition, existing deep well No.
4 would be modified to reduce
capacity from 1200 gpm to 700 gpm.
North Aurora estimates the
cost to complete the blending project is $10,786,000 based on
August 1993 cost data.
This figure does not include the cost of
acquiring the six to eight acre site for the treatment plant, the
one acre sites for each of the new wells or the easements for the
transmission and distribution mains.
(Pet.
at 7.)
In October 1990, North Aurora received a grant from Kane
County to conduct both the necessary preliminary engineering to
route the 16 inch water transmission main and the required
Seismic Refraction Survey
(SRS)
to locate an aquifer suitable for
the siting of the shallow wells.
On March 22,
1991, North Aurora
contracted with the Illinois State Geological Survey
(ISGS)
to
determine the location of the necessary aquifer.
ISGS completed
the SRS in November 1991.
(Pet. at 8.)
North Aurora has also authorized Rempe—Sharpe to develop a
preliminary design to locate feasible routing of the transmission
main.
In order to construct the transmission main,
North Aurora
must obtain an easement from Commonwealth Edison for the
placement of the transmission main.
Discussions between North
Aurora and Commonwealth Edison regarding the easement began in
May 1992 and are continuing.
(Pet. at 8.)
On August 16,
1993,
North Aurora received a construction permit from the Agency to
begin Phase
I of the transmission main project.
Depending upon
the outcome of discussions with Commonwealth Edison, North Aurora
reports it will solicit bids for Phase
I until the end of March
1994 and estimate Phase
I will be completed by August 1994.
(Pet. at 9.)
North Aurora estimates that the transmission
line,
water treatment plant and necessary storage and related equipment
required to obtain water from the shallow well will cost over $11
million based upon August 1993 cost data.
(Pet.
at 9.)
The Agency believes that petitioner has demonstrated
continuing process towards compliance while awaiting final
promulgation of the federal standard.
(Ag.
Rec. at 9.)
ARBITRARY OR UNREASONABLE HARDSHIP
North Aurora believes that denial of a variance extension
would constitute an arbitrary or unreasonable hardship since the
grant of a variance extension will cause little,
if any, adverse
environmental impact.
In cotitrast,
North Aurora believes denial
of the variance extension would result in the termination of the
significant development taking place
in North Aurora that
requires the extension of the water supply system.
(Pet.
at 10.)
North Aurora argues that the adverse economic impact resulting
from the compliance plans would far outweigh any health effects
associated with the consumption of North Aurora’s water for the
7
limited period covered by the requested variance extension.
North Aurora argues that the growth and development that North
Aurora is experiencing, the expense it will incur
in completing a
treatment system, the low level of radium activity in North
Aurora’s water, and the positions of the Agency and USEPA all
demonstrate the hardship that North Aurora would suffer
if the
variance extension were denied.
(Pet.
at 10.)
Moreover, North Aurora believes continued construction is
inconsistent with USEPA’s position that it will not intervene in
variances that trigger final design and construction of
compliance equipment by the date on which USEPA revised the MCLs
for radium.
If USEPA enacts 20 pCi/l standard for both radium-
226 and radium-228, North Aurora believes it would then be
compliance and would not need to build the treatment system.
(Pet.
at
10..)
The Agency believes that grant of the requested variance
would impose no significant injury to the public or to the
limited time period of the requested variance extension and that
denial of the recommended variance would be an arbitrary and
unreasonable hardship to petitioners.
(Ag. Rec. at 9.)
CONSISTENCY WITH FEDERAL LAW
The Agency states that the requested variance may be granted
consistent with the Safe Drinking Water Act
(42 U.S.C.
300(f))
and corresponding regulations
(40 CFR Part 141) because the
variance does not grant relief from national primary drinking
water regulations.
(Ag. Rec. at 10)
CONCLUSION
Pursuant to Section 36(b)
of the Act, the Board may grant an
extension of variance where satisfactory progress has been
demonstrated.
Here, the record indicates that the Village of
North Aurora has been diligent in its efforts to comply with the
conditions of the initial variance.
The Board finds that the
Village of North Aurora has presented adequate proof of
satisfactory progress towards compliance.
In addition, 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 North Aurora.
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
8
radionuclides
in drinking water.
USEPA has recommended a
standard of 20 pCi/i 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.
New radionuclide standards from USEPA could
significantly alter the Village’s need for a variance or
alternatives for achieving compliance.
Accordingly, the Board hereby grants Village of North Aurora
an extension of variance subject to the conditions stated below.
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, 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 North Aurora
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),
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/l standard will be promulgated.
(B)
Variance shall terminate on the earliest of the
following dates:
(1)
One year from the date of this order;
(2)
When analysis pursuant to 35
Ill. Adm. Code
611.720(d),
or any compliance with standards then
in effect,
shows compliance with standards for
radium in drinking water then in effect.
9
(C)
In consultation with the Illinois Environmental
Protection Agency
(“Agency”), petitioners shall
continue their sampling level of radioactivity
in their
wells and finished water.
Until this variance
terminates, petitioners shall collect quarterly samples
of their water from their distribution system at
locations approved by the Agency.
Petitioners shall
composite the quarterly samples from each location
separately and shall analyze them ‘annually by a
laboratory certified by the State of Illinois
radiological analysis so as to determine the
concentration of radium-226 and radium-228.
At the
option of petitioners, the quarterly samples may be
analyzed when collected.
The results of the analyses
shall be reported within 30 days of receipt of the most
recent result 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 USEPA action, petitioners 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 System
Permit Section
P.O. Box 19276
2200 Churchill Road
Springfield,
IL 627.94—9276
(E)
Within six months of USEPA action after each
construction permit
is issued by IEPA, petitioners
shall advertise for bids, to be submitted within 60
days,
from contractors to do the necessary work
described in the construction permit. The petitioners
shall accept appropriate bids within a reasonable time.
Petitioners 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) whenever
petitioners accepted the bids.
(F)
Construction allowed on said construction permits shall
begin within a reasonable time of bids being accepted,
10
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 the first set of water
bills or within three months after the date of this
Order,
whichever occurs first1 and every three months
thereafter, petitioners will send to each user of their
public water supply a written notice to the effect that
petitioners have 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
radium
standard.
(H)
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, petitioners will send to each user of their
public water supply a written notice to the effect that
petitioners are 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.
(I)
Until full compliance is achieved, petitioners shall
take all reasonable measures with their existing
equipment to minimize the level combined radium-266 and
radium-228,
in their finished drinking water.
(J)
Petitioners
shall provide written progress reports
to
the
Agency
at
the
address
below
every
six
months
concerning
steps
taken to comply with the
paragraphs
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
Within forty-five days of the date of this Order,
petitioners shall execute and forward to:
11
Stephen
C.
Ewart
Division of Legal Counsel
Illinois Environmental Protection Agency
P.O. Box 19276
2200 Churchill Road
Springfield, Illinois 62794—9276
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—164, January 20,
1994.
Petitioner
Authorized Agent
Title
Date
Section 41 of the Environmental Protection Act, 415 ILCS
5/41, provides for appeal of final orders of the Board within 35
days.
The Rules of the Supreme Court of Illinois establish
filing requirements.
IT
IS
SO
ORDERED.
I, Dorothy M.
Gunn,
Clerk of the,I.~llinoisPollution Control
Board, hereby certif
that the above /op~.nionand order was
adopted on the
~
day of
_________________,
1994,
by
a vote of
______________.
/‘
/
1~
-
4~•’:•
~
//~,
-
-
Dorothy N. Gw~n,Clerk
Illinois Pollution Control Board
