ILLINOIS POLLUTION CONTROL BOARD
January 23,
1992
CITY OF KNOXVILLE,
)
Petitioner,
v.
)
PCB 91—126
)
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
OPINION
AND
ORDER OF THE BOARD
(by 3.
C.
Marlin):
This matter is before the Board on the October
8,
1991
filing by petitioner City of Knoxville
(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
(upCi/1~)combined radium-226 and radiuia-228 standards.~ The
Village requests a variance for five years up to and including
December 19,
1996.
On November 22,
1991,
the Illinois Environmental Protection
Agency
(Agency)
filed its variance recommendation (“Rec.”).
By
today’s Opinion and Order that motion is granted.
The Agency
recommends that the variance be granted subject to certain
conditions.
In a filing dated November 25,
1991 the Village
requested that the Board’s decision in this matter be expedited
and waived its hearing request.
The Board granted the Village’s
motion on December
6,
1991.
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 which provides a potable water
supply and distribution for a population of 4600 residential and
250 commercial and 25 industrial utility customers, reiresentinq
‘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. Adm. Cod 611.330(a).
129—283
approximately 15,000 residents.
The water system includes
4
deep
wells
(Nos. 7,8,9 and 10),
3 storage tanks and pumps.
(Pet.
9)
The Agency states that the Village was granted a prior
variance in PCB 86-41 which expired on May
1,
1991 at which time
the Village was not in violation of the radium standards.
(Rec.
7).
The Village states that it was first advised that its water
supply currently exceeded the maximum allowable concentration for
combined radium in a May 16,
1991 letter from the Agency.
An
analysis showed a combined radium content of 12.7 pCi/l for Well
No.
7 only.
(Pet.
5)
The Village asserts that since 1986,
its
public water supply system had achieved full compliance with the
applicab~Lecombined radium standards.
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.
ill
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 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
129—284
3
claimed hardship outweighs the public interest in attaining
compliance with regulations designed to protect the public
(Willowbrook Motel
v.
Pollution Control Board
(1977),
133
Il1App.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, ~ 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
(~.).
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
(NIPDWR5) 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
2In 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.
129—285
4
the
radium
standards.3
T.TSEPA
proposes
to
replace
the
5
pCi/I
combined
radium
standard
by
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
PLPtN
The
Village
intends
to
retain
a
consulting
engineer
to
assist
it
in
reviewing
and
evaluating
compliance
alternatives.
It
anticipates
a
six
month
period
to
accomplish
this
task.
(Pet.
20)
Two alternatives are envisioned.
The first is the use of
shallow
wells
for
blending
and
dilution.
The
estimated
construction cost for drilling and development of each of the
four shallow wells is $400,000 to $600,000.
(u.)
The second alternative is construction of treatment
facilities to treat all the water supplied by the Village.
Estimated construction costs per well of the new facilities is
$400,000.
The Village would implement this plan should the
federal radium standard not change.
(~.)
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.
25)
The
Village
argues
that
denial
of
the
requested
variance
would
result
in
an
arbitrary
or
unreasonable hardship as it would negatively impact the Village’s
entire development community including home builders and buyers,
commercial and industrial enterprises and retail businesses that
may wish to locate within the Village’s municipal boundaries.
The Village would suffer not only a loss of tax revenues in the
period before compliance is achieved but for many years
thereafter.
(Pet.
30)
The
Village
also
contends
that
it
has
a
need
for
expansion
of
the
water
distribution
system
in
order
to
reinforce
and
upgrade
the
existing
system
and
to
provide
water
to
new
areas
within
the
Village’s
service
area.
(u.)
The
Agency
agrees
that
denial
of
the
variance
would
impose
an
arbitrary
or
unreasonable
hardship
on
the
Village.
(Rec.
19,
20)
3Publication
occurred
at
56
Fed.Reg.
33050,
July
18,
1991.
129—286
5
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 cause by
the
granting
of
the
variance.
(Pet.
21)
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
Regulations
35
111.
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.
(u.)
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.
(~.)
While the Agency believes that radiation at any level
creates some risk,
the risk associated with the Village’s water
supply
is
very
low.
(ic~.)
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
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.
28)
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
129—287
6
variance
does
not
grant
relief
from
compliance
with
the
federal
primary
drinking
regulations.
(Rec.
22)
CONCLUS ION
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
City
of
Knoxville.
Lake
Zurich
has
committed
to
a
schedule
which
will
result
in
compliance
at
the
end
of
the
variance’
term.
The
Board
will
grant
this
variance
for
the
requested
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
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
The
City
of
Knoxville
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
in
drinking
water
as
set
forth
in
35
Ill.
Adm.
Code
611.330(a),
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
combined
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)
December
19,
1996;
or
129—288
7
(3)
When
analysis
pursuant
to
35
Ill.
Adm.
Code
611
Subpart
Q,
or
any
compliance
with
standards
then
in
effect,
shows
compliance
with
standards
for
radium
in
drinking
water
then
in
effect.
(C)
Compliance
shall
be
achieved
with
any
standards
for
radium
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
annually
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
6
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
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
129—289
8
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.
Adin.
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,
in
its
finished
drinking
water.
(L)
Petitioner
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:
129—290
9
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 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
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 91-126,
January
23,
1992.
Petitioner
Authorized
Agent
Title
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.
12 9—29 1
10
B.
Forcade
dissented.
I,
Dorothy
N.
Gunn,
Clerk
of
the
Illinois Pollution Control
Board,
hereby
certify that the above
Op1n1q~TTa1~d
Order~er
was
adopted
on
the
~
day
of
_______________________
1992
by
a
vote
of
_______________.
~
~
Dorothy M.,4~1nn,Cle~k
Illinois f~lutionControl Board
129—292
