ILLINOIS POLLUTION CONTROL BOARD

August

5,

1993

CITY OF BYRON,

Petitioner,

v.

)

 PCB 93—110

(Variance)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondents.

BRIAN D.

 BROOKS APPEARED ON BEHALF OF THE PETITIONER,

 and STEPHEN

C. EWART APPEARED

ON

BEHALF OF THE RESPONDENT.

OPINION AND ORDER OF THE BOARD

 (by C.

 A. Manning):

This matter

 is before the Board on the June

4,

 1993,

petition for variance

 (Pet.)

 filed by the City of Byron

 (Byron).

The City of Byron seeks relief from 35

 Ill. Adm.

 Code 602.105(a),

Standards for Issuance, and from 35 Ill. Adm. Code 602.106(a),

Restricted Status, as they relate to 35

 Ill. Adm. Code

611.330(a),

 combined radium-226 and radium-228.

 Byron seeks the

variance for a two

 (2) year period or when analysis pursuant to

35

 Ill. Adm. Code 611.731 shows compliance, whichever comes

first.

 (Pet. at

1.)

The Illinois Environmental Protection Agency (Agency)

 filed

its variance recommendation

 (Rec.)

 on July 8,

 1993.

 The Agency

recommends that the Board grant the variance subject to certain

conditions.

 Hearing on this matter has been waived, and none has

been held.

For the reason discussed below, the Board finds pursuant to

Section 35(a)

 of the Environmental Protection Act

 (Act) that

Byron 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 on the City of Byron.

Accordingly,

 and for the following reasons, the variance is

granted subject to the conditions specified in the Board’s order.

BACKGROUND

Located

 in Ogle County,

 Byron provides public services which

include a potable water supply and distribution for a population

of 1216 residential and

 52 industrial and commercial utility

customers.

 Byron

 is not part of

 a regional public water supply.

(Pet.

 at 5.)

 The public water supply system owned and operated

by

Byron consists of one

(1)

 deep well,

two

(2)

 shallow wells,

and pump and distribution facilities.

 (Pet.

 at 5.)

 The Agency

indicates that prior to this petition Byron has not sought a

variance from regulations concerning the standard of issuance and

the restricted status requirements as they apply to the combined

radium limitations of

35

 Ill.

 Adm.

 Code 611.330.

A recent analysis of petitioner’s water distribution system

was made on December 4,

 1992,

 when petitioner’s water supply

showed

 a combined radium content of 5.9 pCi/L in well nos.

 1 and

2.

 This level exceeded the

 5 pCi/L standards.

 The Agency states

that the analysis was of an annual composite of four consecutive

quarterly samples or the average of the analyses of four samples

obtained at quarterly intervals.

 Another annual composite will

be analyzed in January,

 1994.

The Agency’s Division of Public Water Supplies originally

notified petitioner on February 18,

 1993 that the maximum

contaminant level

 (NCL)

 for combined radium—226 and radium—228

was exceeded.

 Petitioner was subsequently placed on restricted

status for showing combined radium contents that exceeded the

standard of

 5 pCi/L.

 Petitioner is not presently on restricted

status for exceeding any other contaminant.

Since receiving the Agency’s report, petitioner conducted

its own analysis of its water in its distribution system.

The

water analysis was performed on February

25,

 1993 and showed that

the combined radium-226 and radium-228 for wells

 1 and

 2 was 4.9

pCi/L which

 is below the ?ICL of

 5 pCi/L.

 (Rec.

p.

5.)

Located approximately three miles to the southeast of the

petitioner is the Byron Salvage Yard.

 The Agency asserts that

the salvage yard

is

 a Superfund site whose former operations have

adversely impacted groundwater.

 Residents who live between the

site and the petitioner’s public water supply were included in a

Superfund Remedial Action to extend the municipal water line to

the affected residents.

 This was included in the remedial action

to eliminate the threat of exposure to contaminated groundwater.

The petitioner’s public water supply is an integral part of the

Superfund remedy,

 and is

 in accordance with the Comprehensive

Environmental Response,

 Compensation, and Liability Act,

as

amended by the Superfund Amendments and Reauthorization Act

(“CERCLA/SARA”)

 (42 U.S.C.

9601

 (1991)).

 (Rec.

 p.4.)

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

3

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.

These regulations authorize the issuance of construction

permits only where the applicant submits proof that the public

water supply will be constructed, modified or operated in

accordance with the Act.

 In this situation,

 a denial of the

construction permit would prevent Byron from building and

operating new water main extensions necessary for the completion

of a Superfund remedial action.

 (Rec.

 at 4.)

 Currently,

residents who live between the Superfund site and Byron’s public

water supply need the extensions to eliminate the threat of

exposure to contaminated groundwater which resulted from the

contamination at the Superfund site.

 (Rec.

at

4.)

 The granting

 of the variance will allow Byron to obtain the construction

permits necessary for water main extension to those effected

residents.

 (Pet.

 at 5.)

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 ICLS 5/35(a)(l992)).

 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

(1977),

133

 Ill.

 App.

3d

343,

 481 N.E.

 2d 1032).

 The Board may

only grant a variance upon such adequate showing.

Additionally, the Board notes that

 a variance is only

temporary relief from the applicable Board rules and regulations

(Monsanto Co.

v.

 IPCB

 (1977),

67

 Ill.

 2d 276, 367 N.E.

 2d 684),

and ultimate compliance must be achieved by petitioner regardless

of the hardship presented.

 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.

The grant of variance from “Standards for Issuance” and

“Restricted Status” does not absolve a petitioner from compliance

with the MCL at issue,

 nor does

 it insulate

 a petitioner from

possible enforcement action brought for violation of the MCL.

The underlying MCL remains applicable to the petitioner

regardless of whether variance

 is granted or denied.

A standard for radium in drinking water was first adopted as

a national

 Interim Primary Drinking Water Regulation

 (NEPDWR) by

the USEPA in

 1976.

 The standard adopted was

 5 pCi/L for the sum

of the two isotopes of radium, radium-226 and radium—228

(combined radium).

 Shortly thereafter Illinois adopted the same

limits.

 Although characterized as an “interim”

 limit, this

standard nevertheless

 is the maximum allowable concentration

under both federal and Illinois law,

 and will remain so unless

modified by the USEPA.1

Over much of the seventeen years since its original

promulgation,

 the current radium standard has been under review

at the federal level.

 The USEPA first proposed revision of the

standard in October 1983

 in an Advance Notice of Proposed

Rulemaking

 (48 FR 45502).

 It later republished this advance

notice

 in September 1986

 (51 FR 34836).

 Most recently,

 on June

19,

 1991,

 USEPA announced

 a proposal to modify both standards.2

USEPA proposes to replace the

 5 pCi/L combined radium standard by

separate standards of

 20 pCi/L each for radium-226 and radium-

228.

PETITIONER’S COMPLIANCE PLAN

The City of Byron states that there are two

 (2) alternatives

for resolving the compliance problem;

(a)

 construction of a new

well which would replace water presently being supplied by

existing wells,

 or construct a treatment facility to properly

treat the water supply.

 (Pet.

 at 9.)

 Byron indicates that it

intends to construct a new well

 in order to come into compliance

and requests a two

 (2) year variance to complete the project.

(Pet.

 at 9.)

ENVIRONMENTAL IMPACT

The City of Byron states the following concerning the

expected environmental impact of the grant of variance:

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

standards immediately supersede the current Illinois standard.

In

1991

 Section

 17.6 was

 additionally

 amended

 to require that the

 Board adopt any new radium standards by peremptory rulemaking.

 Publication occurred

at

 56 FR 33050,

 July

18,

 1991.

5

No formal assessment of the effect of this

variance on the environment has been made by

Petitioner.

However,

Petitioner

refers

the

Board

and

Agency

the

testimony

and

exhibits

presented

by Dr. Richard

 E. Toohey,

 Ph.D. and Dr. James

Stebbings,

 Ph.D.

 both of the Argonne National

Laboratory,

 on July

 30 and August 2,

 1985 in R85—

14, Proposed Amendments to Public Water Supply

Regulations,

Ill.

Adm.

Code

602.105

and

602.106.

 Updated information regarding the

effects

of

combined radium levels was heard at the

Braidwood variance hearing, PCB 89-212.

 That

Testimony and those exhibits are incorporated by

reference.

It

 is the opinion of the Petitioner

that the granting of this variance for the limited

time period of the requested variance will not

cause any significant harm to the environment or

to the people served by the potential water main

 extensions that would be allowed

 if this variance

is granted.

 The Petitioner does not consider the

radiological quality of this community water

supply to be a significant health risk for the

limited time period of the requested variance.

(Pet.

 at 9,10.)

In addition, Byron states that the USEPA is considering the

adoption of significantly higher standards for radium-226 and

radium-228.

 (Pet.

 at 14)

 TheBoard notes that it

 is the

petitioner who carries the burden

 in assessing the environmental

impact in this situation.

 Although the Board hesitates to allow

the extrapolation of the findings

 in other matters to this it

will do so because,

 together with the Agency’s recommendation,

the environmental impact

 is sufficiently addressed.

While the Agency believes that radiation at any level

creates some risk,

 the risk associated with Byron’s water supply

is very low

 (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”.

 (Rec.

 at 8.)

 I~summary,

the Agency states:

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 variance.

In

light of the likelihood of

rio

significant

injury to the public from continuation of the

present

 level

 of the contaminants

 in question

6

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 this grant of 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.

 (Rec.

 at 10-il.)

HARDSHIP

Both the Agency and Byron state that the denial of the

variance in this situation would cause arbitrary or unreasonable

hardship to Byron.

 (Pet.

 at 12,

 Rec.

 at 8.)

 The Agency states

that

“.

.grant of the requested variance would impose no

significant injury to the public or to the environment for the

limited time period of the requested variance...”

 (Rec. at

8.)

Byron states that the denial of the variance would impact the

development of the service area,

 which negatively impacts Byron’s

tax base.

 (Pet.

at

 15.)

 Further, both the Agency and Byron state

that since the MCL will still. be enforceable, the effect of the

variance would be limited

 in that the Agency no longer by law

would have to deny construction and operating permits for Byron

due to its violation of 35

 Ill.

 Adm. Code 611.330.

 (Pet.

 at 13,

Rec.

 at 8,9)

CONSISTENCY WITH FEDERAL LAW

Both the Agency and Byron state that the requested variance

may be granted consistent with the Safe Drinking Water Act

(42

U.S.C.

 300(f)

 (1991))

 and corresponding regulations

 (40 C.F.R.

Part 141) because the requested variance does not grant relief

from national primary drinking water regulations.

 (Rec.

 at 9—10,

Pet. at

16)

 Furthermore, both parties state that since the

variance will not be from USEPA’s national primary drinking water

regulations there

 is no federal variance and Byron would remain

subject to the MCL for the contaminants

 in question under State

or federal

 law.

CONCLUSION

Based on these facts,

 the Board finds that pursuant to

Section

 35(a)

 of the Act there exists adequate proof that

immediate compliance with the “Standards

 for Issuance” and

7

“Restricted Status” regulations with respect to radium-226 and

radium-228 would impose an arbitrary or unreasonable hardship on

the City of Byron.

 The worst analysis of radium level of the

City’s water,

 showing

 a level of

 5.9 pCi/L is only slightly over

the 5.0 pCi/L standard, while the other analysis at 4.9 pCi/L is

slightly below the standard.

 Water provided to customers

pursuant to this variance would replace groundwater contaminated

at the Superfund site.

The Board will accordingly grant this variance for a maximum

period of two

(2)

 years to allow the petitioner to come into

compliance.

The Board notes that timely compliance by Byron may be

affected by pending USEPA action to promulgate new standards for

radium

 in drinking water.

New

radium standards from USEPA could

significantly

alter

Byron’s

 need for a variance.

 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 alternation

 (or notice of refusal to alter)

 of the

radium standard.

This opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

1)

 The City of Byron is hereby granted

 a variance from 35

Ill. Adm. Code 602.105(a),

 “Standards for Issuance”,

 and from 35

Ill. Adm. Code 602.106(b),

 “Restricted Status”,

 as they apply to

35

 Ill.

 Adm. Code 611.330(a)

 combined radium—226 and radium—228

MCLs.

 The variance will

 be in effect until August

5,

 1995,

subject to the following conditions:

(A)

 Variance shall terminate on the earliest of the

following dates:

(1)

 August

5,

 1995; or

(2)

 Two years following the date of USEPA action.

The

date of USEPA action shall consist of the earlier

date of the:

(A)

 date the regulation

 is promulgated by

the U.S.

 Environmental Protection Agency

(“USEPA”) which amends the maximum

contaminant level

 (“MCL”)

 for combined

radium,

 either of the isotopes of

radium,

 or the method by which

compliance with

 a radium maximum

contaminant level

 is demonstrated; or

8

(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)

When

analysis

pursuant

 Ill. Adm. Code

611.720(d),

any

compliance

demonstration

method

then

effect,

shows

 compliance with any

standards

for

radium

drinking

water.

(B)

consultation

with

the

Agency,

the

petitioner

shall

continue

 its sampling program to determine as

accurately as possible the level of radioactivity

in

its wells and finished water.

 Until this variance

expires,

the

petitioner

shall

collect

quarterly

samples

of its water from its distribution system at locations

approved by the Agency.

 Petitioner shall composite the

quarterly samples from each location separately and

shall analyze them annually by a laboratory certified

by the State of Illinois for radiological analysis so

as to determine the concentration of the contaminants

in question.

 The results of the analyses shall be

 reported to the Compliance Assurance Section, Division

of Public Water Supplies,

 2200 Churchill Road,

 Illinois

Environmental Protection Agency,

 Springfield,

 IL 62794—

9276,

 within 30 days

 of receipt of each analysis.

At

the option of the petitioner,

 the quarterly samples may

be analyzed when collected.

 The running average of the

most recent four quarterly sample results shall be

reported to the above address within 30 days of receipt

of the most recent quarterly sample.

(C)

 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 Program

Permit Section

2200 Churchill Road

Springfield,

IL

 62794—9276

(D)

 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

9

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 successful bidders,

and

 3) whether petitioner

accepted the bids.

(E)

 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.

(F)

 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,

 petitioner will send to each

user of its public water supply a written notice to the

effect that the petitioner is not in compliance with

the standard

 in question.

 The notice shall state the

average content of the contaminants

 in question in

samples taken since the last notice period during which

samples were taken.

(G)

 Pursuant to 35

 Ill. Adm. Code 611.851(b),

 in its first

set of water bills or within three months after the

date of this Variance Order, whichever occurs first,

and every three months thereafter,

 the petitioner will

send to each user of its public water supply a written

notice to the effect that

 petitioner has been granted

by the Illinois 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 NCL standard in question.

(H)

 Until

 full compliance is reached, the petitioner shall

take all reasonable measures with its existing

equipment to minimize the level of contaminants in

question

 in its finished drinking water.

(I)

 The petitioner shall provide written progress reports

to the Agency’s Division of Public Water Supplies,

Field Operation Section every six months concerning

steps taken to comply with paragraphs

C,

D,

E,

F,

G,

and H.

 Progress reports shall quote each of said

paragraphs and immediately below each paragraph state

what steps have been taken to comply with each

paragraph.

10

(2)

 That within forty-five

 (45)

 days of the grant of the

 variance,

 petitioner shall execute and forward to:

Stephen

C.

 Ewart

Division of Legal. Counsel

Illinois Environmental Protection Agency

p.

 Box 19276

2200 Churchill Road

Springfield,

IL

 62794—9276

a Certificate of Acceptance and Agreement to be bound

to all terms and conditions of the granted variance.

The 45 day period will be held in abeyance during any

period that this matter

 is being appealed.

 Failure to

execute or forward this certificate within forty—five

(45)

 days will render the variance null and void.

The

form of the certificate ia 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—l~0,August

5,

 1993.

Petitioner

Authorized Agent

Title

Date

IT IS SO ORDERED.

B.

 Forcade dissented.

Section 41 of the Environmental Protection Act

 (415 ILCS

5/41

 (1992)) provides for the appeal of final orders of the Board

with 35 days.

 The Rules of the Supreme Court of Illinois

establish filing requirements.

 (See also 35 Ill. Adm. Code

101.246, Motion for Reconsideration.)

11

I,

 Dorothy M. Gum,

 Clerk of the Illinois Pollution Control

Board,

 hereby certify that the ab~veopinion and order was

adopted on the

 day of

_______________,

 1993,

 by a vote of

~ ~

Dorothy M. ~/nn, Clerk

Illinois Po~IutionControl Board