ILLINOIS POLLUTION CONTROL BOARD
May 21,
1992
CITY OF BRAIDW000
)
Petitioner,
)
v.
)
PCB 91—118
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
OPINION
AND
ORDER OF THE BOARD
(by J. C. Marlin);
This matter is before the Board on the January 29,
1992
filing by petitioner City of Braidwood
(City)
of a third amended
petition for variance.
The City seeks relief from 35
Ill.
Adin.
Code 602.105(a),
“Standards for Issuance”,
and 602.106(a),
“Restricted Status”,
to the extent those rules relate to
violation by the City’s public water supply of the 5 picocuries
per liter
(“pCi/i”) combined radium—226 and radium—228 and 15
pCi/i gross alpha particle activity limitation.1
The City
requests variance for five years.
On February 10,
1992, the Illinois Environmental Protection
Agency (Agency)
filed its variance recommendation.
The Agency
recommends. that the variance be granted subject to certain
conditions.
The City waived hearing and none has been held.
For the following reasons,
the Board finds that the City 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 City is a municipality operating in Will County.
The
City provides a potable water supply and distribution for a
population of 1300 residential and commercial utility customers,
representing approximately 3500 residents.
(Pet.
3.)
The water
system includes
3 deep wells, storage tanks, water reservoirs and
distribution system.
(Pet.
4.)
1
The standard for combined radium was formerly found at 35
Ill. Adm. Code 604.301(a)
and for gross alpha particle activity
at 604.301(b); effective September 20,
1990 they were recodified
at 35 Iii.
Adm. Code 611.330(a)
and
(b). respectively.
133—485
2
This is petitioner’s second request for a variance involving
the combined radium standard.
The City’s first request was denied
by the Board in PCB 89-212.
The Agency had recommended denial of
that request.
(Rec.7.)
The most recent analyses for radium content
in the City’s
water distribution system was made April,
1991.
Wells
1 and
2
showed a combined radium level of 14.4 pCi/i.
Well
3
demonstrated
a level of 31.8 pCi/i for combined radium content.
The 1991 yearly average for gross alpha particle activity content
in the City’s water was 16.4 pCi/l for Well
1 and 26.3 pCi/l for
Well
2.
(Rec.lO.)
Petitioner has been subject to “Restricted
Status” since January 25,
1984 for excess radium- content in its
water supply and since July 10,
1081 for excess gross alpha
particle activity in its water supply.
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 1/2,
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 City requests that it be
allowed to extend its water servj~cewhile
it pursues compliance
with the radium 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
I
33—486
3
presented adequate proof that immediate compliance with the Board
regulations at issue would impose an arbitrary or unreasonable
hardship.
(Ill. Rev. Stat.
1989,
ch.
ill 1/2, par. 1035(a)).
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
(Wiilowbrook Motel
v.
Pollution Control Board
(1977),
133
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.
Where,
as here,
the petitioner seeks to
extend a variance,
the petitioner must show satisfactory
progress.
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
(~4.).
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 ~
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/i for the
sum of the two isotopes of radium,
radiuin-226 and radium-228
(combined radium).
Shortly thereafter Illinois adopted the same
limits.
Although characterized as “interim” limits,
these
standards 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 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
21n 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 Board standard.
1
33—487
4
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.3
USEPA proposes to replace the
5 pCi/l
combined radium standard with separate standards of 20 pCi/l 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 City presents three options for achieving compliance.
The first involves soda and ash treatment,
the second a cation
exchange and the third purchasing water from neighboring
Wilmington.
Connection to the Kankakee River was evaluated and
rejected.
(Rec.
16, Pet.
14.)
Petitioner has started
construction of a fourth well which could be used in conjunction
with the cation softening plant and as an additional water
source.
(Rec.
8.)
Petitioner does not give an economic
assessment of these alternatives.
HARDSHIP
The City contends that the hardship resulting from denial of
the requested variance outweighs any injury to the public from
granting the variance.
(Pet.
9.)
The City argues that denial of
the requested variance would result in an arbitrary or
unreasonable hardship because construction requiring the
extension of the water supply system could not begin.
The City
lists six developments which are prevented due to the City’s
being placed upon restricted status.
(Pet.
10.)
The City states
that such a halt in construction hurts the City’s tax base.
(Id.)
The Agency agrees that denial of the variance would impose
an arbitrary or unreasonable hardship on the City.
(Rec.
22.)
ENVIRONMENTAL IMPACT
Although the City has not undertaken a formal assessment of
the environmental effects of its requested variance,
it contends
that there will be minimal or no adverse impact cause by the
granting of the variance.
(Pet.
9.)
The Agency agrees with the
City’s assertion.
(Rec.
22,
23.)
The Agency cites 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 35
Ill.
Adm.
Code 602.105 and 602.106
(R85—14)
in support of the
3Publication occurred at 56 Fed.Reg.
33050, July
18,
1991.
I 33—488
5
assertion that the variance will not result in any adverse
environmental impact.
(Rec.
15)
The Agency also refers to
updated testimony presented by Dr. Toohey in the Board’s hearing
on a variance requested by the City of Braidwood in PCB 89—212.
(Rec.
15.)
While the Agency believes that radiation at any level
creates some risk, the risk associated with the City’s water
supply is very low.
(Rec.
14.)
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 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 bf 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.
30,
31.)
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 coit~ipliancewith the federal
primary drinking regulations.
(Rec.
25.)
CONCLUSION
Based upon the record,
the Board finds that immediate
compliance with the “Standards f9r Issuance” and “Restricted
Status” regulations would impose an arbitrary or unreasonable
hardship on the City of Braidwood.
The City has committed to a
schedule which will result in compliance at the end of the
variance term.
The Board will grant this variance for a maximum
period of five years.
I
33—489
6
Today’s action is solely a grant of variance from Standards
of Issuance and Restricted Status.
The City
is not granted
variance from compliance with the combined radium or gross alpha
particle activity standards, nor does today’s action insulate the
City in any manner against enforcement for wiolation of these
standards.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The City of Braidwood 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 and gross alpha particle
activity in drinking water as set forth in
3t5
Ill. Adm. Code
611.330(a)
and
(b), for a period of five years 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/l conbined radium standard
or the method for demonstrating compliance with
the 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)
May 21,
1997;
or
(3)
When analysis pursuant to 35 Ill. Adm. Code 611
Subpart Q,
or any method of analysis then in
effect,
shows compliance with standards for radium
and gross alpha particle activity in drinking
water then in effect.
(C)
Compliance shall be achieved with any standards for
radium and gross alpha particle activity then in effect
no later than the date on which this variance
terminates.
1
33—49()
7
(D)
In consultation with the Illinois Environmental
Protection Agency (“Agency”), Petitioner shall continue
its sampling level of radioactivity in its wells and
finished water.
Until this variance terminates,
Petitioner shall collect quarterly samples of its water
from its distribution system at locations approved by
the Agency.
Petiticrner 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 combined radiuiu—226 and 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 the most recent
result to:
Illinois Environmental Protection Agency
Compliance Assurance Section
Division of Public Water Supplies
2200 Churchill Road
Springfield,
Illinois
62794—9276
(E)
Petitioner shall submit a written report to the Agency
no later than three years prior to the expiration of
this variance as to the selection of a compliance
alternative.
The City shall provide the Agency with a
copy of the consultant’s report prepared pursuant to
this paragraph.
(F)
Petitioner shall apply for all necessary permits for
the construction of any required facilities no later
than two years prior to the expiration of this
variance, and shall install and have operational said
facilities no later than one year prior to the
expiration of this variance.
(G)
Within three months 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.
Petitioner shall accept appropriate bids
within a reasonable time.
Petitioner shall notify the
Agency at the address in paragraph
(D) within 30 days
of each of the following:
(1)
advertisement for bids;
(2)
names of successful bidders; and
(3)
whether
petitioner accepted sajd bids.
(H)
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
133—491
8
with the maximum allowable concentration of the
standards in question shall begin no later than two
years prior to the expiration of the variance and shall
be completed no later than one year prior to the
expiration of this variance, with the final year being
solely for the purposes of testing to demonstrate
compliance.
(I)
Pursuant to 35
Ill. Adm. Code 611.851(b)
(formerly
35 Ill. Adm. Code 606.201),
in its first set of water
bills or within three months after the date of this
Order, whichever occurs first,
and every three months
thereafter, Petitioner will send to each user of its
public water supply
a written notice to the effect that
Petitioner 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 radium
standard.
(J)
Pursuant to 35
Ill. Adm. Code 611.851(b)
(formerly
35
Ill. Adm. Code 606.201),
in its first set of water
bills or within three months after the date of this
Order, whichever occurs first, and every three months
thereafter,
Petitioner will send to each user of its
public water supply a written notice to the effect that
Petitioner is not in compliance with the standard in
question.
The notice shall state the average content.
of the contaminants in question in samples taken since
the last notice period during which samples were taken.
(K)
Until full compliance is achieved, Petitioner shall
take all reasonable measures with its existing
equipment to minimize the level of combined radium-226
and radium-228 and gross alpha particle activity in its
finished drinking water.
(L)
Petitioner shall provide written progress reports to
the Agency 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.
Progress
reports shall be mailed to:
Illinois Environmental Protection Agency
Division of Public Water Supply
Field Operat~ionsSection
2200 Churchill Road
Springfield, Illinois
62794—9276
133—492
9
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
a Certificate of Acceptance containing an 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 o~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 91-118, May
21,
1992.
Petitioner
Authorized Agent
Title
Date
Section 41 of the Environmental Protection Act,
Ill. Rev.
Stat.
1991,
ch.
111 1/2, par.
1041, 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.
B.
Forcade dissented.
133—49
3
10
I,
Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board,
hereby certify that the above opinion and order was
adopted on the
~
day of
~
~z_~__,
1992 by a vote of
-
.
I-
,
Clerk
.lution Control Board
133—494
