ILLINOIS POLLUTION CONTROL BOARD
July 11, 1991
VILLAGE OF WESTMONT,
)
)
Petitioner,
)
V.
)
PCB 91—59
)
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
OPINION
AND
ORDER OF THE BOARD
(by M. Nardulli):
This matter comes before the Board on the April 1, 1991 filing
by petitioner
Village of Westmont
(Village)
of
a
petition for
variance.
The
Village
seeks
relief
from
35
Ill.
Adm.
Code
602.105(a),
“Standards for Issuance”, and 602.106(b),
“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 radium-226 and radiun~-228of
35 Ill. Adm. Code
Subtitle F.1
The Village requests a two—year variance.
On May
6,
1991,
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 located in DuPage County.
(Pet.
1)
The Village provides public services including potable water
supply and distribution for 5,662 residential and 542 industrial
and commercial utility customers representing approximately 20,516
residents and 600-700 industries and businesses employing 12,000
persons as of 1989.
(Pet.
5)
The
Village’s water
system
includes
two deep
wells,
five
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. Code 611.330(a).
124—61
2
shallow wells,
pumps and distribution facilities.
(Pet.
5)
If
the
requested
variance
is
granted,
the
Village
anticipates
extending
service
to
the
Willow
Manner
subdivision,
Dellongo
subdivision,
Canton
Court
and Wynwood
Estates.
(Pet.
6)
In
addition
to
these
private
developments,
the
Village
plans
to
install new or replacement water mains and storage facilities at
various locations within the Village.
(Pet.
6)
REGULATORY
FRAMEWORK
In
recognition
of
a
variety
of
possible
health
effects
occasioned
by
exposure
to
radioactivity,
the
United
States
Environmental Protection Agency (“USEPA”) has promulgated a maximum
concentration
limit
for drinking water
of
5
pCi/i
of
combined
radium-226 and radium-228.
Illinois subsequently adopted these
same limits as the maximum allowable concentrations under Illinois
law.
Pursuant
to
Section
17.6
of
the
Illinois
Environmental
Protection Act (Ill. Rev. Stat.
1989, ch.
111
~,
par. 1017.6), any
revision of the 5 pCi/l standard by the USEPA will automatically
become the standard in Illinois.
The action the Village requests here is
ji~
variance from the
maximum allowable concentrations for radium.
Regardless of the
action taken by the Board
in the instant matter,
these standards
will remain applicable to the Village.
Rather,
the action the
Village requests is the temporary lifting of prohibitions imposed
pursuant to 35 Ill.
Adm. Code 602.105 and 602.106.
In pertinent
part these Sections provide:
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
~,
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.
Illinois
regulations
thus
provide
that
communities
are
prohibited
from extending water service,
by virtue of not being
able to obtain the requisite permits,
if their water fails to meet
any of the several standards for finished water
supplies.
This
provision is a feature of Illinois regulations not found in federal
law.
It is this prohibition which the Village requests be lifted.
124—62
3
Moreover,
grant
of the requested variance would not relieve the
Village
from compliance with the combined radium standards,
nor
insulate the Village from possible enforcement action brought for
violation of those standards.
In consideration of any variance, the Board determines 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
~,
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,
1032).
Only with such showing can the
claimed hardship rise to the level
of arbitrary or unreasonable
hardship.
Lastly,
a variance by its nature is a temporary reprieve from
compliance with
the
Board’s
regulations
(Monsanto
Cc.
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
(u.).
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.
COMPLIANCE PLAN
The Village
first
became
aware
that
it was
exceeding the
maximum allowable concentration level
(MCL)
for combined radium in
November of 1990 when the Agency advised the Village that testing
indicated
a
concentration
of
6.3
pCi/i.
(Pet.
7;
Rec.
3)
On
December 6, 1990, the Agency notified the Village that it would be
placed
on restricted
status.
(Pet.
7;
Rec.
3)
The
Village
proposes two alternative methods
for achieving compliance:
(1)
using
Lake
Michigan
water;
and
(2)
construction
of
treatment
facilities to treat all well water except well no.
12 for a total
cost
of
$3,000,000
and an
estimated
implementation time
of
43
months.
(Pet.
10)
Regarding the first alternative, the Village states that,
in
concert with 26 other DuPage County municipalities and the County
of DuPage,
have secured allocations from the State
to use Lake
Michigan water
and have
negotiated
a
water purchase
and
sale
contract
which
includes
provisions
for
the
construction
of
a
county—wide transmission and distribution system.
(Pet.11; Rec.
5)
While
the primary purpose
of this program
is to
secure
an
adequate supply of high quality Lake Michigan water and cease using
the county’s dwindling supply of groundwater, the program will also
have the effect of eliminating the problem of radium in the public
water supply system.
(Pet.l2)
The Village expects deliveries of
124—63
4
Lake Michigan water
“beginning
in 1991-1992.”
(Pet.
12;
Rec.5)
With the introduction of lake water,
the Village will abandon its
deep
wells
and
will
maintain
the
remaining
wells
for
extreme
emergencies.
(Pet.
12)
Water from these remaining wells is not
expected to exceed the maximum allowable concentration of radium-
226 and radium-228.
(Pet.
13)
As
to
the
second
alternative method
of
compliance,
the
Village estimates that the per capita costs for constructing the
treatment facilities would be a one-time expense of $135, that the
increase
in
monthly
water
bills
for
the
average
residential
consumer for construction costs would
be
$29 per quarter
for
5
years and that the increase for the average residential consumer
for the increased cost of operation, maintenance and sludge removal
would be $117 per quarter for an indefinite time period.
(Pet.
8,9)
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.
17)
The Village notes
that the
promulgation
of
a
new
radium
standard
by
the
United
States
Environmental Protection Agency (USEPA) may significantly alter the
Village’s compliance status and may even obviate the need for
a
continued variance from Restricted Status.2
The Agency agrees with
this statement noting that USEPA has indicated that the proposed
standard will be less stringent than the current standard.
(Rec.
5 Ex.
1)
However, the Agency also states that it has no way of
knowing
what the
final
standard will
be until
it
is
formally
adopted.
(Pet.
5)
According to the Village,
“the substantial
expenditure
of public
funds
for treatment facilities which may
become obsolescent in the near future is not in the public interest
and does not grant a corresponding benefit to the public.”
(Pet.
19)
The Village
further
argues that
denial
of
the requested
variance results in an arbitrary and unreasonable hardship because
it halts construction and hurts prospective home buyers as well as
business developers and the Village’s tax base.
(Pet.
20)
The Agency agrees that denial of the variance would impose an
2
In a Federal Register Notice published April
22,
1991,
TJSEPA states that it will publish
a Notice of Proposed
Rulemaking
(“NPRN”)
in June,
1991, and expects to issue
final action on a new radium standard in April of 1993
(56 Fed. Reg.
18014, April 22, 1991).
In a press release
dated June 19,
1991, USEPA stated its intent to propose
a
standard
of
20
pCi/l
for radium-226
and radium-228
respectively.
Final action is due in April of 1993 and
would become effective
in 1994
according to the press
release.
cite to Fed. Reg.
if published.
124—64
5
arbitrary or unreasonable hardship on the Village.
(Rec.
6,
7-8)
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.
14)
The Agency agrees with the
Village’s assertion.
(Rec.
4-5)
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
(R85—14),
35
Ill.
Adin.
Code 602.105
and 602.106
in
support of the assertion that the variance will not result in any
adverse environmental impact.
(Pet.
14; Rec.
5)
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.
5)
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.
5)
The
Agency
states
that
“an
incremental
increase in the allowable concentration
for the contaminants
in
question even
up
to
a maximum
of
two
times
the
MCL
for
the
contaminants in question should cause no significant health risk
for the limited population served by new water main extensions for
the time period
of
this
recommended
variance.”
(Rec.
5)
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
cost to the Petitioner of treatment of its current water
supply,
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,
and
the
possibility of compliance with a new MCL standard by less
expensive means
if the standard is revised upward,
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
124—65
6
priority on compliance with the standards.
(Rec.
7—8)
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.
7)
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 Westinont.
The Board also agrees with
the parties that granting this variance does not pose a significant
health
risk
to
those
persons
served
by
any
new
water
main
extensions,
assuming that compliance
is timely forthcoming.
The
Board notes that while the Village has given the construction of
treatment facilities as an alternative method
of compliance,
it
has only requested a two—year variance.
A two—year variance is an
insufficient
time
period
to
complete
construction
and
implementation of this second alternative compliance method, which
the Village states would take 43 months to implement.
(Pet.
10)
Similarly, the Agency’s recommendation does not appear to take this
second alternative compliance method
into account.
Both parties
apparently base the variance request upon the time frame needed to
obtain Lake Michigan water.
The Board also notes that the Village
states
that
it
anticipates
delivery
of
Lake
Michigan
water
“beginning in 1991—1992.”
(Pet.
12)
Assuming that delivery does
not begin
until
1992,
the two—year requested variance would be
insufficient
pursuant
to
35
Ill.
Adm.
Code
611.731(a)
which
requires four—quarterly samples tà establish compliance.
Hence,
the Board will grant this variance for
a maximum period of three
years, with the third year being solely for the purpose of testing,
subject to certain conditions which could result
in an earlier
termination of this variance.
The Board notes that timely compliance by the Village may be
affected by pending USEPA action to promulgate new standards for
radionuclides
in
drinking water.
USEPA
recently
proposed
to
publish its Notice of Proposed Rulemaking
(“NPRN”)
in June 1991,
and expects to issue final action on new radionuclide standards in
April, 1993 (56 Fed. Reg. 18014, April 22, 1991).
New radionuclide
standards from USEPA could significantly alter the Village’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.
124—66
7
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 Village of Westmont 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),
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 SpCi/l combined radium standard
or the method for demonstrating compliance with the
5pCi/l standard will be promulgated.
(B)
Variance shall terminateon the earliest of the following
dates:
(1)
Two
years following the date of USEPA action;
or
(2)
July
11,
1994;
or
(3)
When
analysis
pursuant
to
35
Ill.
Adin.
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.
(C)
Compliance
shall
be
achieved
with
any
standards
for
radium then in effect no
later than the date on which
this variance terminates.
(D)
Petitioner shall report to the Agency within
6 months of
124—67
8
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 Petitioner and the
DuPage Water Commission.
(E)
Construction of all installations, changes or additions
necessary
to
achieve
compliance
with
the
maximum
contaminant level in question shall be completed no later
than two years from the grant of this variance.
(F)
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
radium-226
and
radiuiu-228.
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
(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,
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.
Adin.
Code
602.105(a)
Standards of Issuance and 35
Ill.
Adin.
Code 602.106(a)
Restricted Status, as they relate to the radium standard.
(H)
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
124—68
9
the contaminants in question in samples taken since the
last notice period during which samples were taken.
(I)
Until full compliance is achieved, Petitioner shall take
all reasonable measures with its existing equipment to
minimize the level combined radium—266 and radium-228,
in its finished drinking water.
(3)
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:
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 91-59,
July
11,
1991.
Petitioner
124—69
10
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.
J.D. Dumelle and B. Forcade dissent
I, Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby~ertify
that
the
abOVe
Op~.inion
and Order was adopted
on
the
//~-J~---
day
of
1991,
by
a
vote
of
____________
Dorothy
N.
Illinois
Control Board
124—70
