ILLINOIS POLLUTION CONTROL BOARD
March 26,
1992
CITY OF KEWANEE,
)
)
Petitioner,
v.
)
PCB 91—236
)
(Variance)
ILLINOIS, ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
OPINION
AND
ORDER OF THE BOARD
(by J. Theodore Meyer):
This matter is before the Board on the November 22,
1991
filing by petitioner,
City of Kewanee
(City)
of
a petition for
variance.
The City 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.
Adin. Code 611.330(b).
The City
requests a variance for~five years from the grant of the
variance.
On December 20,
1991,
the Illinois Environmental Protection
Agency
(Agency)
filed its variance recommendation (“Rec”.).
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,
located in Henry County,
is a municipality which
provides a potable water supply for a population of 4,900
residential, industrial and commercial utility customers,
representing approximately 12,935 residents.
(Pet.
5.)
The water
system includes 4 deep wells, pumps and distribution facilities.
(Pet.
5.)
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
13
1—511
2
(b).
(Rec.
3.)
The maximum contaminant levels
(MCLs)
for
combined radium—226 and radium—228,
and gross alpha particle
activity are respectively
5 pCi/i and 15 pCi/l.
The City states
that it was first advised that its water supply exceeded the
maximum allowable concentration for combined radium in a
September 14,
1984 letter from the Agency.
The City was advised
that the MCL for gross’alpha particle activity was exceeded in an
October 17,
1980 letter from the Agency.
(Pet.
6.)
The Agency’s
report was based upon the analysis done by the Illinois
Department of Public Health for gross alpha particle activity of
an annua~icomposite of four consecutive quarterly samples.
The
radium analyses are conducted by the United States Environmental
Protection Agency (USEPA).
(Pet.
6.)
The last two composite
analyses of the radium content
in petitioner’s water distribution
system show the following results:
March 21,
1990
Tap #1 at Tremont Street
Combined Radium 12.4 pci/i
Well #3
Combined Radium 13.2 pCi/l
Well #4
Combined Radium
8.7 pCi/i
~pri1 3.
1991
Tap #1 at Tremont Street
Combined Radium 11.2 pCi/i
Well #4
Combined Radium
6.7 pCi/l
July 1991
Well #3
Combined Radium 12.8 pCi/i
The most recent analyses of gross alpha particle activity in
petitioner’s water distribution system produced the following
results:
September 6.
1991
Tap #1 at Treinont Street
Gross Alpha
11.0 pCi/i
Well #3
Gross Alpha
9.3 pCi/i
Well #4
Gross Alpha
6.2 pCi/l
(Rec.
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
13 1—512
3
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.
11.
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.
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 City 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.
(Ill. Rev.
Stat.
1989,
ch.
111 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.
(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 pblluter.
(Monsanto Co.
v.
IPCB
(1977),
67 Ill.2d
276,
367
M.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 achi~evecompliance within the term of the variance.
131—513
4
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 Interi1~iPrimary Drinking Water Regulations
(“NIPDWRs”)
by the U~SEPAin 1976.
The standards adopted were 5 pCi/I for the
sum of the two isotopes of radium, radiumn-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.1
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~proposalto modify the radium standards.
(56 Fed. Reg.
33050, July 18,
1991.)
USEPA proposes to replace
the 5 pCi/i 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 City has considered three compliance alternatives.
The
first involves the installation of a reverse osmosis treatment
facility.
The City has retained professional consultants to
c~ompletethis installation and anticipates a
10 to 18 month
period to accomplish this task.
(Pet.
8.)
The second alternative
is a spectral gamma logging and stimulation, which proved to be
unsuccessful in March 1991.
(u.)
1
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.
(See
also,
P.A.
87—650
which
amends
Section
17.6
of
the
Act
to
specifically refer to Board adoption of federal combined radium-226
and radium-228
and
gross
alpha particle
activity
standards
by
peremptory rulemaking.)
131—514
5
The third alternative involves the process of blending.
The
petitioner has been preparing a well for the primary source that
could be used to blend existing water supplies
if other
alternatives failed.
Thus far, the costs associated with this
alternative exceed $100,000.00, and the method appears to provide
little success.
(Pet.
10.)
HARDSHIP
The’ City 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.
16.)
‘The city also argues that grant of the variance would only
prohibit the Agency from legally denying construction or
operating permits based on the City’s violation of the standards,
and would not make less strict the standard that petitioner must
meet.
(Pet.
13.)
The City 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.
15.)
The~.Cityalso 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 City 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.
15.)
ENVIRONMENTAL IMPACT
The City has made no formal assessment of the effect of the
variance on the environment.
The City, 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
R85-14, Proposed Amendments to Public Water Supply Regulations 35
Ill.
Admn. Code 602.105 and 602.106,
in support of the assertion
that the variance will not result in any adverse environmental
impact.
(Pet.
9,
10.)
While the Agency believes that radiation at any level
creates some risk, the risk associated with the City’s water
13 1-~5
15
6
supply is very low.
(Rec~ 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
present level of the contaminants in question in the
Petitioner’s water for the limited time period of the
var’iance, 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.
10,
11.)
CONSISTENCY WITH FEDERAL LAW
The Agency states that the requested variance may be granted
consistent with the Safe Drinking Water Act, FL 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.
9.)
CONCLUSION
The Board notes that little information has been presented
describing efforts made to achieve compliance since petitioner’s
1980 and 1984 notices of non—compliance.
The City asserts,
without detail, that it has been active in preparing one well
that would be used to blend existing water supplies
if oth~r
alternatives failed,
and further asserts that costs to date
associated with this work are in excess of $100,000 and have
provided little success.
(Pet.
10.)
However, given that the
levels of petitioner’s non—compliance for combined raclium—226 and
radiuin-228, and gross alpha particle activity are low, and that
petitioner has committed to a schedule for compliance,
the Board
believes that the grant of variance
i-s the appropriate action in
this case.
13 1—516
7
Based upon the record, the Board finds that the city 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 City of
Kewanee under Section 35(a) of the Environmental Protection Act
(Ill. Rev.
Stat.
1989,
ch.
111 1/2,
Par. 1035(a)).
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 City may
be affedted by pending USEPA action to promulgate new standards
for radionuciides in drinking water.
New radionuclide standards
from USEPA could significantly alter the City’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)
of the radium standards.
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 standard, or
gross alpha particle standard nor does today’s action insulate
the City 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 city of Kewanee 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 and
gross alpha particle activity as set forth in 35 Ill.
Adm. Code 611.330(a)
and 611.330(b), respectively,
subject to the following conditions:
(A)
The variance shall terminate on the earliest of the
following dates:
1)
Two years following the date of USEPA action; or
2)
March 26,
1997; 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.
13 1—517
8
(B)
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/i combined radium standard
or the method for demonstrating compliance with
the
5 pCi/i standard will be promulgated.
(C)
In consultation with the Agency, the City 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 City shall collect quarterly samples of
its water from its distribution system at locations
approved by the Agency.
The City 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 City,
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,
the City shall
apply to the Agency at the address below for all
permits necessary’ for the construction, installation,
changes,
or additions to the City’s public water supply
needed for achieving compliance with the Maximum
Contaminant Level for combined radium or with any other
standard for radium in drinking water then in effect,
and for the gross alpha particle activity standard:
Illinois Environmental Protection Agency
Public Water Supply Program
Permit Section
2200 Churchill Road
Springfield, IL
62794—9276
131—5 18
9
(E)
Within six months of USEPA action after each
construction permit
is issued by IEPA, the City shall
advertise for bids, to be submitted within 60 days,
from contractors to do the necessary work described in
the construction permit.
The City shall accept
appropriate bids within a reasonable time.
The City
shall notify IEPA, DPWS, within .30 days,
of each of the
following actions:
(1) advertisements for bids,
(2)
names of successful bidders, and
(3) whether the City
accepted the bids.
(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 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),
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 City will send to each
user of its public water supply a written notice to the
effect that the City is not in compliance with the
standards for combined radium-2.26 and radium-228 of
5
pCi/l, and for gross alpha particle activity of
15
pci/i.
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 variance order, whichever occurs first,
and every three months thereafter, the City will send
to each user of its public water supply a written
notice to the effect that the City 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 standards for combined radium-226
and radium—228 of
5 pCi/l,
and for gross alpha particle
activity of 15 pCi/i.
(I)
Until full compliance is reached, the City shall take
all reasonable measures with its existing equipment to
minimize the level of radium-226 and radium-228,
and
gross alpha particle activity in its finished drinking
water.
(J)
The City shall provide written progress -reports to
IEPA,
DPWS,
FOS every six months concerning steps taken
13 1—5 19
10
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)
That within forty-five days of the grant of the
variance, the City shall execute and forward
a
certificate of acceptance and agreement to:
Stephen C.
Ewart
Division of Legal Counsel
Illinois Environmental Protection Agency
P.
0. Box 19276
2200 Churchill Road
Springfield,
IL
62794—9276
2.
A certificate of acceptance and agreement shall bind
the City 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 91-236, March 26,
1992.
Petitioner
By: Authorized Agent
Title
13 1—520
11
Date
Section 41 of the Environmental Protection Act,
Ill.
Rev.
Stat.
1989,
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 and Order was
adopted on the
c~
(-~“
day of
2~m
.,
1992,
byavoteof
(~‘/
Dorothy M.
Illinois
Control
Board
13 1—521
