ILLINOIS POLLUTION CONTROL
BOARD
November 21,
1991
VILLAGE OF BLOOMINGDALE,
)
Petitioner,
v.
)
PCB 91—135
)
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
OPINION
AND
ORDER OF THE BOARD
(by 3. Theodore Meyer):
This matter is before the Board on the August
5,
1991 filing
by petitioner Village of Bloomingdale (Village)
of a petition for
variance.
The
Village
seeks
relief
from
35
Iii.
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 standards for combined radium-
226 and radium-228 and
for gross
alpha particle activity.1
The
Village requests a two—year variance.
On September 26,
1991, the Illinois Environmental Protection
Agency
(Agency)
filed its variance recommendation,
with a motion
to file instanter.
The motion to file instanter 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 is a municipality located in DuPage County.
The
Village
provides
potable
water
supply
and
distribution
for
a
population of 6,684 residential and 576 industrial and commercial
utility
customers,
representing
some
16,000
residents
and
576
industries and businesses employing approximately 9,000 people as
of
1991.
(Pet.
7.)
The water system includes three deep wells,
two shallow wells,
pumps, and distribution facilities.
(Pet.
7.)
1
The standard for combined radium was formerly found at 35
Ill.
Adm.
Code 604.301(a);
effective September 20,
1990 it was
recodified at 35
Ill.
Admn.
Code 611.330(a).
129—195
2
The Village was first advised that its water supply exceeded
the
maximum
allowable
concentration
for
combined
radium
in
a
December
26,
1990
letter
from the Agency.
That
December
1990
analysis showed a combined radium content of 13.3 pCi/i.
(Pet. 8-
9; Rec.
4.)
On January
4,
1991,
the Agency notified the Village
that it would be placed on restricted status.
(Pet.
9; Rec.
4.)
This
is
the
Village’s
first
request
for
a
variance
involving
combined radium and gross alpha particle activity.
(Rec. at 3.)
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
½,
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 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
½,
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
(1977),
135
Ill.App.3d
343,
481 N.E.2d,
127—196
3
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 Iil.2d 276,
367 N.E.2d 684), and
compliance
is to be sought regardless of the hardship which the
task of ~ventual compliance presents an individual polluter
(n.).
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
j~,
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
the radium
standards.3
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
2
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.
~
Publication occurred at 56 Fed.Reg.
33050, July 18,
1991.
127—197
4
October l994.~
COMPLIANCE
PLAN
The Village intends to obtain Lake Michigan water (which has
a low radium content)
to replace the water currently supplied by
its deep wells.
The Village and several neighboring municipalities
have begun
construction
of
a
Lake Michigan water
transmission
system.
The facilities to accept and distribute
Lake Michigan
water ar~expected to be ready for operation by October 31,
1991.
(Pet.
18.)
The Village and other municipalities,
members of the
DuPage County Water Commission,
have secured allocations from the
State
of Illinois to use Lake Michigan water and have executed
numerous
contracts
with
each
other,
financial
institutions,
governmental and private property owners,
and contractors.
The
total cost for the water transmission system is over $350,000,000.
The
Village
states
that
although .the primary
purpose
of
this
program is to cease using the dwindling supply of groundwater and
assure
the
public
of
an adequate
supply
of high
quality
Lake
Michigan water, the program will also eliminate the radium in the
public water supply.
(Pet.
10-11.)
The Village states that Lake
Michigan water will be delivered beginning between January 31, 1992
and Nay
1,
1992, with the first full year of operation anticipated
in 1993.
(Pet.
11.)
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.
2.)
The Village states that only one
major project
is expected to connect to
its water distribution
system.
This
project
is
a
commercial/retail
planned
unit
development
with
an
expected
population
equivalent
of
270
PE
persons.
The Village maintains that this project is not expected
to connect to the water system for at least nine months, which is
after Lake Michigan water
is expected to be delivered.
However,
the Village’s placement on the restricted status list threatens the
development,
because the developer’s lender will not issue funds
for the project while the Village is on restricted status list.
Without
funds,
ground
cannot
be
•broken
for
the project.
The
Village contends that loss of the project would mean
a
loss
of
annual sales tax revenue of between $400,000 and $600,000 per year.
(Pet.
2.)
In sum,
the Village maintains that restricted status
~‘
The Board notes that the Agency states that it anticipates
that the new federal standard will be adopted within
12
to
18
months after the date of publication of the proposed
rule.
(Rec.
6.)
This would mean that the newfederal standard would be adopted
between July 1992 and January
1993,
significantly ahead
of the
April
1993
and
October
1994
dates
given
by USEPA
in
its July
publication.
127—198
5
inhibits the project (which is expected to be a significant source
of income), does little to protect the public health, does nothing
to
speed
the receipt
of
Lake Michigan
water,
and
accomplishes
little in preventing additional use of well water.
(Pet.
3.)
The Agency agrees that denial of the variance would impose an
arbitrary or unreasonable hardship on the Village.
(Rec.
7.)
ENVIRONMENTAL
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
caused by the
granting of the variance.
(Pet.
11-12.)
The Agency agrees with
the Village’s assertion.
(Rec.
5-7.)
Both the Village and the
Agency cite 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 assertion that the variance will not result
in
any
adverse environmental impact.
(Pet.
12; Rec.
6.)
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.
6.)
While the Agency believes that radiation at any level creates
some risk,
it contends that the risk associated with the Village’s
water supply is very low.
(Rec.
6.)
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 of
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.
9—10.)
127—199
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.
8.)
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
Bloomingdale.
The Village is well on
its way to receiving Lake Michigan water, which has a low radium
content.
As the Village points
out,
denial of
a variance from
restricted status will not speed up the delivery of Lake Michigan
water,
and will not lower the number of people using the higher-
radium
well
water.
Denial
of
the
requested
variance
would,
however, endanger the commercial/retail project which is expected
to
provide
a
significant
source
of
income
to
the
Village.
Therefore, the Board’ will grant the variance.
The Board notes that the Village has only requested a
two-
year variance.
However,
the Village states
that
it anticipates
delivery of Lake Michigan water beginning in 1992, “with its first
full
year
of
operation
in
1993.”
(Pet.
11.)
Assuming
that
delivery does not begin until May 31,
1992, the two-year requested
variance
might
be
insufficient
pursuant
to
35
Ill.
Adm.
Code
611.731(a)
which
requires
four
quarterly
samples
to
establish
compliance.
Hence,
the
Board
will
grant
this
variance
for
a
maximum period of two and a half years, with the extra time being
solely for the purpose of testing, subject to certain conditions
which could result in an earlier termination of this variance.
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 or gross alpha
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 Bloomingdale 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
for
gross
alpha
127—200
7
particle activity
in drinking water as set
forth
in
35
Ill.Adm.
Code 611.330,
subject to the following conditions:
(A)
Variance shall terminate on the earliest of the following
dates:
(1)
May
31,
1994;
or
(3)
When
analysis
pursuant
to
35
Ill.
Adm.
Code
611.720(d)
and
611.731(a),
or
any
compliance
with
standards
then
in
effect,
shows
compliance’ with
standards
for
radium
in
drinking water
then
in
effect.
(B)
Compliance
shall
be
achieved
with
any
standards
for
radium then
in effect no
later than the date on which
this variance terminates.
(C)
The Village shall
report to the Illinois Environmental
Protection Agency (Agency) within
6 months of the grant
of
this variance
as to
the status
of obtaining
Lake
Michigan water and shall submit to the Agency a copy of
the fully executed contract between the Village and all
other interested parties.
(D)
Construction of all installations, changes or additions
necessary
to
achieve
compliance
with
the
maximum
contaminant level in question shall be completed no later
than Nay 31,
1993.
The additional year of the variance
(from May 31,
1993 to May 31, 1994)
is to be used solely
to prove compliance.
(E)
In
consultation
with
the
Agency,
the
Village
shall
continue its sampling level of radioactivity in its wells
and finished water.
Until this variance terminates, 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 radiological analysis so as to determipe the
concentration of radium—226,
radium—228
and
gross alpha
particle activity.
At the option of the Village, 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
127—201
8
(F)
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,
the Village will send to each user of
its
public water supply a written notice to the effect that
the Village
has been granted by the Pollution Control
Board
a
variance
from
35
Ill.
Admn.
Code
602.105(a)
Standards of
Issuance and 35 Ill.
Adm.
Code 602.106(a)
Restricted Status, as they relate to the combined radium
and gross alpha standards.
(G)
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,
the Village will send to each user of
its
public water supply a written notice to the effect that
the Village
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.
(H)
Until full compliance is achieved, the Village shall take
all reasonable measures with its existing equipment to
minimize the level
of combined radiumn-266 and radium-
228 and gross alpha
particle activity
in
its finished
drinking water.
(I)
The Village shall provide written progress reports
to the Agency at the address below 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.
The progress reports shall be
sent 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, the Village
shall execute and forward to:
Stephen
C. Ewart
Division of Legal Counsel
Illinois Environmental Protection Agency
12
7—202
9
P.O. Box 19276
2200 Churchill Road
Springfield, Illinois 62794—9276
a certificate of acceptance and 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.
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 91-135,
November
21,
1991.
Petitioner
Authorized Agent
Title
Date
IT IS SO ORDERED.
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.
J.D. Dumelle concurred, and B.
Forcade dissented.
I,
Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the alagvp Opinion and Order was adopted
on
the
~/-~-~
day
of
__________________,
1991,
by
a
vote
of
•.5~~—I
.
~
~77.
Dorothy M. ~inn, Clerk
Illinois Pà4lution Control Board
12 7—203
