ILLINOIS POLLUTION CONTROL BOARD
April
22,
1993
VILLAGE OF BELLWOOD,
Petitioner,
v.
)
PCB 93—41
)
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
OPINION AND ORDER OF THE BOARD
(by
3.
C.
Marlin):
This matter is before the Board on the February 24,
1993
filing by petitioner, Village of Beliwood
(Village),
of a
petition for variance (“Pet.”).
The Village seeks relief from 35
Ill.
Adm. Code 602.105(a)
“Standards for Issuance”,
and
602.106(a),
“Restricted Status”, but only as these rules relate
to the radium—226 and radium-228 standard of
35 Ill. Adm. Code
611.330(a)
and the gross alpha standard of
35
Ill.
Adm. Code
611.330(b).
The Village requests a variance for five years from
the grant of the variance.
On April
8,
1993,
the Illinois Environmental Protection
Agency
(Agency)
filed its variance recommendation
(“Rec.”),
accompanied by a motion to file instanter.
The Agency’s motion
is granted.
The Agency recommends that the variance be granted
subject to certain conditions.
The Village waived hearing, and
none
has been held.
For the following reasons, the Board finds that the Village
has presented adequate proof that immediate compliance with the
Board’s regulations for “Standards for Issuance” and “Restricted
Status” would result in the imposition of an arbitrary or
unreasonable hardship.
Accordingly, the variance is granted,
subject to conditions set forth
in the attached order.
BACKGROUND
The Village,
located in Cook County,
is
a municipality which
provides public services,
including a potable water supply,
for a
population of 5,524 residential,
49 industrial and 310 commercial
utility customers,
representing approximately 20, 100 residents
and some 359 industries and businesses employing approximately
5,725 people.
(Pet.
at 4.)
The water system includes
3 deep
wells, pumps and distribution facilities.
(Pet.
at 5—6.)
The Agency states that this is petitioner’s first request
for
a variance involving the combined radium and gross alpha
particle activity limitations in 35 Ill. Adm. Code 611.330(a) and
(b).
(Rec.
at
4.)
The maximum contaminant level
(MCL)
for
011.4.1 -0247
2
combined radium-226 and radium-228
is 5pCi/1,
and for gross alpha
particle activity
is
15 pCi/l.
The Village states that
it was
first advised that its water supply exceeded the maximum
allowable concentration for combined radium in an August 31,
1990
letter from the Agency.
The Agency report indicates a 7.9 pCi/i
for combined radium—226 and radium-228,
thus exceeding the
5
pci/i standard.
(Pet.
at 6.)
The Village was advised in a letter
dated September
7,
1990,
that Petitioner was going to be placed
on Restricted
Status.
(Pet.
at
6.)
The Agency’s report was based upon the analysis done by the
Illinois Department of Nuclear Safety for radium activity.
(Pet.
at 6—7.)
The most recent analysis of petitioners water
distribution system was made on December
3,
1992,
and showed a
combined radium content of 5.5 pCi/L.
This level exceeded the
5
pCi/L standard.
That analysis was of an annual composite of four
consecutive quarterly samples or the average of the analyses of
four samples obtained at quarterly intervals.
In December,
1993,
another annual composite will be analyzed.
The most recent
analysis for gross alpha particle activity was done January
12,
1993 and showed a level of 4.18 pCi/L.
This does not exceed the
15 pCi/l standard for gross alpha particle activity,
at
35
Ill.
Adm.
Code 611.330(b).
To date,
further inspection has not
revealed any violation for this contaminant.
(Rec.
at 4—5.)
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
(“Act”)
(415
ILCS 5/01 et seq.
(1992).),
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 of the
Code,
that a public water supply facility may
no longer be issued a construction permit
0 1~
I
-82L~.8
3
without causing a violation of
the Act or of
this chapter.
The principal effect of these regulations is to provide that
community 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 its water service while
it pursues
compliance with the combined radium and gross alpha standards,
as
opposed to extending service only after attaining compliance.
In determining whether any variance is to be granted, the
Act requires the Board to determine whether a petitioner has
presented adequate proof that immediate compliance with the Board
regulations at issue would impose an arbitrary or unreasonable
hardship.
(415 ILCS 5/35(a)
(1992).)
Furthermore, the burden is
upon the petitioner to show that its claimed hardship outweighs
the public interest in attaining compliance with regulations
designed to protect the public.
(Willowbrook Motel v. Pollution
Control Board
(1985),
135 Ill.App.3d 343, 481 N.E.2d 1032.)
Only
with such a showing can the claimed hardship rise to the level
of
arbitrary unreasonable hardship.
A further feature of a variance
is that it
is,
by its
nature,
a temporary reprieve from compliance with the Board’s
regulations and compliance is to be sought regardless of the
hardship which the task of eventual compliance presents an
individual polluter.
(Monsanto Co.
v. IPCB
(1977),
67 Ill.2d
276,
367 N.E.2d 684.)
Accordingly,
except in certain special
circumstances,
a variance Petitioner
is required,
as a condition
to grant of variance, to commit to a plan which
is reasonably
calculated to achieve compliance within the term of the variance.
It
is to be noted that grant of variance from “Standards for
Issuance” and “Restricted Status” does not 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 radium 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/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 “interim”
limits, the
standards nevertheless are the maximum allowable concentrations
under both federal and Illinois law, and will remain so unless
modified by the USEPA.
Lt.
I -02t~9
4
Over much of the fifteen years since their promulgation,
the
current radium standards have been under revision 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.)
Most recently,
on June 19,
1991, USEPA announced a proposal to modify the radium standards.
(56 Fed.
Reg.
33050, July 18,
1991.)
USEPA proposes to replace
the 5 pCi/l combined radium standard by separate standards of
20
pCi/i each for radium-226 and radium-228.
Under the USEPA’s
calendar,
these standards are scheduled for promulgation by April
1993 with an effective date of October 1994.
COMPLIANCE PLAN
The Village has considered two treatment methods.
The first
primary treatment method is lime or lime—soda softening.
Lime
softening can remove 80—90 percent of the contaminant.
However,
this method produces large quantities of sludge and concentrates
the contaminant.
This causes additional problems and expenses in
proper waste disposal.
(Pet.
at 8.)
The second treatment method
is
ion exchange water softening.
This method is effective and will remove more than 90
of the
contaminant.
However,
if an ion exchange softener which is
regenerated with salt is used, the sodium content of the water
will be increased significantly.
This may create a risk to
persons who are hypertensive or who have heart problems.
Hence
the Agency has informed Petitioner that it actively discourages
the use of the ion exchange process for radionuclide removal,
unless that is the best treatment method available for a
particular supply.
(Pet.
at 8-9.)
Additionally, the Village has been actively blending Lake
Michigan water with existing water supplies.
As stated in the
petition:
The Petitioner has been blending with Lake
Michigan water since June 9,
1992.
Petitioner currently receives one million
gallons of water a day and has an average
consumption of 2.6 million gallons per day.
The problem of radium in Petition’s water
supply will be eliminated when the amount of
Lake Michigan water delivered is gradually
increased.
Petitioner will cease using its
ground water supplies and rely on Lake
Michigan water for the entire community as of
May 1995.
(Pet.
at 7—8)
UI
~
I -0250
5
The petitioner
states that reliance on Lake Michigan water will
bring them into compliance by May of 1995.
HARDSHIP
The Village argues that the expenditure of significant sums
of money in order to come into compliance would be an arbitrary
or unreasonable hardship,
because there
is no significant risk of
harm to the environment or people for the limited time period of
the variance at the current levels of the contaminants.
(Pet.
at
9-10.)
The Village also argues, that grant of the variance would
only prohibit the Agency from legally denying construction or
operating permits based on the Village’s violation of the
standards,
and would not make less strict the standard that
petitioner must meet.
(Pet.
at 13.)
The Village asserts that
the substantial expenditure of public funds for treatment
facilities,
which may become obsolete in the near future as a
result of the USEPA proposed relaxation of the current standards,
is not
in the public interest and does not grant a corresponding
benefit to the public.
(Pet.
at 14—15.)
The Village also
asserts that a failure to obtain a variance will negatively
impact prospective home purchasers as well as business developers
and petitioner’s tax base, because all construction within the
petitioner’s service area requiring the extension of the water
supply system could not resume.
Finally, the Village argues that
the time involved for planning,
financing,
engineering, and
construction of water treatment facilities prevents immediate
compliance with the standards,
and that,
in the interim period,
there
is a great need for the expansion of the water distribution
system in order to serve the domestic and fire protection
requirements of the local population.
(Pet.
at 15.)
ENVIRONMENTAL IMPACT
The Village has made no formal assessment of the effect of
the variance on the environment.
The Village, however, refers to
the testimony and exhibits presented by Dr. Richard E.
Toohey,
Ph.D.,
and Dr. James Stebbings,
Ph.D,
on July 30 and August 2,
1985,
in R85-l4, Proposed Amendments to Public Water Supply
Regulations 35 Ill.
Adm. Code 602.105 and 602.106,
in support of
the assertion that the variance will not result in any adverse
environmental impact.
(Pet.
at 9,
10.)
The Agency believes that radiation at any level
supply
is very low.
(Rec.
at 6.)
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 to the public
from grant of the variance.
In light of the likelihood of
no significant injury to the public from continuation of the
o
~
t-0251
6
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 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.)
CONSISTENCY WITH FEDERAL LAW
The Agency states that the requested variance may be granted
consistent with the Safe Drinking Water Act, PL 93-523,
as
amended by PL 96-502,
42 U.S.C.
300(f), and the USEPA Drinking
Water Regulations
(40 CFR Part 141),
because the variance does
not grant relief from compliance with the federal primary
drinking regulations.
(Rec.
at 9.)
CONCLUSION
Given that the level
of combined radium-226 and radium—228
is
low,
and that petitioner has committed to a schedule for
compliance using Lake Michigan water.
The Board believes that
the grant of variance is the appropriate action
in this case as
to combined radium.
However, variance as to gross alpha particle
activity is denied as unnecessary as there is no evidence
presented which even indicates any excursion from the15
pCi/l
standard.
Based upon the record, the Board finds that the Village has
presented adequate proof that immediate compliance with the
“Standards for Issuance” and “Restricted Status” regulations
would impose an arbitrary or unreasonable hardship on the Village
of Bellwood under Section 35(a)
of the Act.
Therefore, the Board
will grant this variance for the requested period of five years,
subject to conditions similar to those recommended by the Agency.
The Board also notes that timely compliance by the Village
may be affected by pending LJSEPA action to promulgate new
standards for radionuclides in drinking water.
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)
.-
.
.
I
7
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
variance from compliance with the combined radium standard,
or
gross alpha particle 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
1.
The Village of Bellwood is hereby granted
a
five—year
variance from 35
Ill. Adm.
Code
602.105(a),
“Standards for Issuance”, and
602.106(a),
“Restricted Status”,
as they
relate to the standard for combined radium 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 the regulation is promulgated by the USEPA
which amends the maximum contaminant level for
combined radium,
either of the isotopes of radium,
or the method by which compliance with
a radium
maximum contaminant level is demonstrated; or
2)
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.
(B)
The variance shall terminate on the earliest of the
following dates:
1)
Two years following the date of USEPA action; or
2)
April
22,
1998;
or
3)
When analysis pursuant to 35
Ill. Adm.
Code
611.720(d),
or any compliance demonstration method
then in effect,
shows compliance with any
standards for radium in drinking water.
(C)
In consultation with the Agency, the Village shall
continue its sampling program to determine as
a
~
1-0253
8
accurately as possible the level
of radioactivity in
its wells and finished water.
Until this variance
expires, the Village shall collect quarterly samples of
its water from its distribution system at locations
approved by the Agency.
The Village shall composite
the quarterly samples from each location
separately and shall analyze them annually by
a laboratory certified by the State of
Illinois for radiological analysis so as to
determine the concentration of the
contaminants
in question.
The results of the
analyses shall be reported to the Compliance
Assurance Section, Division of Public Water
Supplies,
2200 Churchill Road,
IEPA,
Springfield,
IL
62794—9276, within
30 days
of receipt of each analysis.
At the option
of the Village,
the quarterly samples may be
analyzed when collected.
The running average
of the most recent four quarterly sample
results shall
be reported to the above
address within 30 days of receipt of the most
recent quarterly sample.
(D)
Within three months of USEPA action,
pettioner 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
stnadard 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
(E)
Within three months after each construction
permit is issued by IEPA, 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, DPWS within 30 days,
of
each of the following action:
1)
a’dvertisements
for bids,
2)
names of
successful bidders, and
3) whether Petitioner
accepted the bids.
01
L.
I
-0251i.
9
(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 begin no later
than two years following USEPA action.
One
year will be necessary to prove compliance.
(C)
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 Petitioner
is not in compliance with the standards 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),
in its first
set of water bills or within three months after the
date of this Order, whichever occurs first,
and every three months thereafter, the 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 it
relates to the MCL standard in question.
(I)
Until full compliance is reached,
Petitioner
shall take all reasonable measures with its
existing equipment to minimize the level of
the contaminant in its finished drinking
water.
(J)
The Petitioner shall provide written progress
reports to Agency’s DPWS,
FOS 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.
(K)
Within forty—five days of the grant
of the
variance,
the Village shall execute and
forward a certificate of acceptance and
agreement to:
OjL~I-Q255
10
Stephen
C.
Ewart
Division of Legal Counsel
Illinois Environmental Protection Agency
P.
0.
Box 19276
2200 Churchill Road
Springfield,
IL
62794—9276
2.
Variance is denied as unnecessary as
it
relates to restriced status for excursion
from the gross alpha particle activity
standard of
35
Ill.
Adm. code 611.330(b).
3.
A certificate of acceptance and agreement
shall bind the Village to all terms and
conditions of the granted variance.
The
45-day period shall be held in abeyance
during any period that this matter is
appealed.
Failure to execute and forward the
certificate within 45-days renders this
variance void.
The form of certificate
is as
follows:
CERTIFICATION
I
(we),
,
hereby
accept and agree to be bound by all terms and conditions of the
order of the Pollution Control Board
in PCB 93-41,
April 22,
1993.
Petitioner
By: Authorized Agent
Title
Date
01
‘~
1-0256
11
IT IS SO ORDERED.
Board Member Bill Forcade Dissented.
Section 41 of the Environmental Protection Act
(415 ILCS
5/41
(1992).) provides for appeal of final orders of the Board
within 35 days.
The rules of the Supreme Court of Illinois
establish filing requirements.
(But see also
35 Ill.
Adm. Code
101.246, Motions for Reconsideration,
and Castenada v.
Illinois
Human Rights Commission
(1989),
132
Ill.
2d
304,
547 N.E.2d 437;
Strube v.
Illinois Pollution Control Board,
No. 3-92-0468,
slip
op.
at 4—5
(3d Dist.
March 15,
1993).)
I,
Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above opinion~,andorder was
adopted on the
~
day of
______________________,
1993,
by a vote of
..5~/
.
Dorothy N.
G)~’nn,
Clerk
Illinois Po~utionControl Board
Ok 1-0257
