ILLINOIS POLLUTION CONTROL BOARD
May 2?,
1992
VILLAGE OF GLASFORD
)
Petitioner,
)
v.
)
PCB 92—18
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
OPINION AND ORDER OF THE
BOARD
(by J.
C. Marlin):
This matter is before the Board on the February 3,
1992
filing by petitioner Village of Glasford
(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”, to the extent those rules relate to violation by the
Village’s public water supply of the
5 picocuries per liter
(“pCi/l”) combined radiuin-226 and radium-228 and the 15
picocuries per liter gross alpha particle activity limitation.1
The Village requests variance for a period of five years.
On March
3,
1992,
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 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 is a municipality operating in Peoria County.
The Village provides a potable water supply and distribution for
a population of 1100.
(Pet.
8)
The water system includes
2 deep
wells, pumps,
and distribution facilities.
(Pet.
12)
1The standard for combined
r”adiuui was formerly found at
35
Ill. Adm. Code 604.301(a)
and the standard for gross alpha
particle activity at 35
Ill.
Adm. Code 604.301(b); effective
September 20,
1990 they were recodified at 35
Ill. Adm. Cod
611.330(a)
and
(b), respectively.
133—52 1
2
The Agency, states that the Village was granted prior
variances in PCB 79-238 and again in PCB 82-42.
The latter
expired by its terms on January
1,
1984.
(Rec. 7)
The Agency
advises that on March 13, 1981,
it advised petitioner by letter
that its gross alpha particle activity in its water system
exceeded the standard and on October 4,
1985 that the combined
radium content exceeded standards.
(Rec.
11.)
The most recent
analysis for radium content in petitioner’s water distribution
system was made in April 1991 and showed a level
of 16.5 pCi/l
for radium —226 and 3.2 pCi!? for radium -228.
(Rec.10.)
Petitioner’s 1991 yearly gross alpha particle activity level was
19.8
pCi/l.
(Rec.
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 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 Village requests that it be
allowed to extend its water service while it pursues compliance
with the radium standards,
as opposed to extending service only
after attaining compliance.
In determining whether any ~ariance
is to ~begranted,
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.
(Ill.
Rev. Stat.
1989,
ch.
111 1/2, par.
1035(a)).
I
33—522
3
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
(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. (~c~.)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,
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
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
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.
33—523
4
the radium standards.3
USEPA proposes to replace the
5 pCi/l
combined radium standard with separate standards of 20 pCi/l each
for radiuxn-226 and radiuin-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 intends to retain a consulting engineer to
assist it
in reviewing and evaluating compliance alternatives.
It anticipates a twelve month period to accomplish this task.
(Pet.
25.)
The Village hired a registered professional engineer in 1988
to assist in reviewing and evaluating its situation, and to
prepare recommendations for reducing the radiological content in
its water system.
The engineer investigated various compliance
methods,
including:
(A)
using green sand filters with Zeolite
softening,
(B) constructing a waterline from Hanna City to
Glasford,
(C) constructing a shallow well near the Illinois River
with a pipeline to Glasford and an ion removal plant,
(D)
constructing a waterline from Bartonville to Glasford, and
(E)
constructing
a lime softening plant.
It was thereafter
determined that a lime softening plant would be the best
alternative to achieve compliance with the MCL levels for radium
and gross alpha particle activity.
A Public Facilities Grant in the amount of $316,000 was
approved for petitioner under the Community Development
Assistance Program for petitioner to build a lime softening
plant.
Petitioner’s participation was to be $84,000.
However,
despite an attempt to revise the original plans, the bids
received on the project at two different bid lettings were all
rejected as being too far above the estimated cost of the project
and beyond petitioner’s financial resources.
The Village is also considering the installation of a
packaged reverse osmosis plant, which could be installed for
approximately $260,000 to $300,000.
Petitioner considers this
figure to be economically feasible,
but is unable to afford the
estimated operating costs of $87,000 per year.
(Pet.
16-22.)
HARDSHIP
The Village contends that the hardship resulting from denial
of the requested variance outweighs any injury to the public from
granting the variance.
(Pet.
26.)
The Village argues that
denial of the requested variance~would result in an arbitrary or
unreasonable hardship because Petitioner would not be able to
3Publjcation occurred at 56 Fed.Reg.
33050, July 18,
1991.
1
33—524
5
extend water mains to include residents of the Village who are
not presently served.
(Pet.
28.)
The Agency agrees that denial of the variance would impose
an arbitrary or unreasonable hardship on the Village.
(Rec.
19,
20.)
ENVIRONf4ENTAL IMPACT
Although the Village 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.
19.)
The Agency agrees with
the Village’s assertion.
(Rec.
14,
18.)
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 Reciulations
35
Ill. Adm. Code 602.105 and 602.106
(R85—14)
in support of the
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 Village’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 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.
28.)
133—525
6
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 compliance with the federal
primary drinking regulations.
(Rec.
23.)
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 Glasford.
Glasford 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.
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 and gross
allpha particle activity standards, 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 Glasford
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 35
Ill.
Adm. Code
611.330(a)
and 611.330(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/i combined radium standard
or the method for demonstrating compliance with
the standard will be promulgated.
1
33—526
7
(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
in drinking water and gross alpha particle
activity 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.
(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.
Petitioner shall composite the quarterly
samples from each location separately and shall analyze
them annuarly by a laboratory certified by the State of
Illinois radiological analysis so as to determine the
concentration of combined radium—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
12 months from the date of this variance as to the
selection of a compliance alternative.
The Village
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
I
:33—527
8
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 said 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
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
133—528
9
and radiuin—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.
Progres
reports shall be addressed to:
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, 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 abe.yance 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 92—18, May 21,
1992.
Petitioner
Authorized Agent
Title
I
33—529
10
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.
I,
Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above opinion ~I
order was
adopted on the
____________
day of ________________________
1992, by a vote of
________________.
7’t
~
Dorothy M. pi~nn,Clerk
Illinois P~jlutionControl Board
133—530
