ILLINOIS POLLUTION CONTROL BOARD

August 22,

1991

VILLAGE OF CARBON HILL,

)

)

Petitioner,

)

v.

)

PCB 91—32

)

(Variance)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

OPINION

AND

ORDER OF THE BOARD

(by N. Nardulli):

This matter comes before the Board on the May 10, 1991 filing

by petitioner Village of Carbon Hill

(Village) of a third amended

petition for variance.

The Village seeks relief from 35

Iii. Adm.

Code

602.105(a),

“Standards

for

Issuance”,

and

602.106(a),

“Restricted Status’t, to the extent those rules relate to violation

by the Village’s public water supply of the 5 picocuries per liter

(“pCi/i”)

combined radium-226 and radium-228

and

is pci/i

gross

alpha particle activity of

35

Ill.

Adin.

Code:

Subtitle F.1

The

Village requests a five-year variance.

On May 1,

1991, the Illinois Environmental Protection Agency

(Agency) filed its variance recommendation and on May 30, 1991, the

Agency

filed its amended

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 Grundy County.

(Pet.

1)

The Village provides public services including potable water

supply

and

distribution

for

130

residential

and

2

commercial

utility customers representing approximately 342 residents and two

businesses employing approximately 8 persons as of 1990.

(Pet.

5)

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).

125— 34

1

---

2

The Village’s water system includes two deep wells, pumps and

distribution facilities.

(Pet.

6)

If the requested variance

is

granted,

the Village anticipates extending service to the Tjelle

subdivision

and

possible

annexation

of

unincorporated

areas

adjoining the Village with

a population

of approximately

2,100

consisting

of

600

residential

users

with

an

expected

growth

potential ~f 50 to 100 users.

(Pet.

6)

The Village was first advised that its water supply exceeded

the maximum allowable, concentration for gross

alpha

in

a letter

dated April

22,

1982 and for combined radium

in

a

letter dated

August

23,

1985.

(Pet.

7;

Ag.

Rec.

4)

The Agency’s analysis

showed combined radium-226 and radium-228 content of 7.2 pCi/i and

a gross alpha particle activity concentration of 18.0 pCi/i.

(Ag.

Rec.

4)

The most recent analyses of May 1990,

showed

a combined

radiu~n-226and radium-228 content of 17.6 pCi/i and a gross alpha

concentration of 20.9 pCi/l.

(Id.)

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.

lii

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

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.

It is the Village’s request that it

be allowed to extend its water service while it pursues compliance

with the radium and gross alpha particle standards, as opposed to

extending service only after attaining compliance.

125—342

---

3

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

~,

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

Motei

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

arbitrai~yor unreasonable hardship.

A further feature of a variance is that it is, by its nature,

a temDorarv reprieve from compliance with the Board’s regulations

(Monsanto Co.

v.

IPCB (1977),

67 Ili.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.

It

is to be noted that grant of variance from “Standards for

issuance”

and “Restricted Status”

does

r~

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

and

gross

alpha

particle activity

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/i for the sum of the two isotopes of

radium, radium—226 and radiuin-228 (“combined radium”), and 15 pCi/i

for

gross

alpha

(article activity.

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

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.

(See also, SB 1296 amend.

no.

3, June 20,

1991, awaiting approval by the Governor,

which

amends

Section

17.6

of the Act

to

specifically

refer to Board adoption of

federal combined radium—226

and

radiutn-228

and

gross

alpha

particle

activity

standards by peremptory rulemaking.)

125—343

---

4

Over

much

of

the

fifteen

years

since

their

original

promulgation, the current radium and gross alpha particle activity

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 FR 45502).

It

later

republished this advance notice in September 1986

(51 FR 34836).

Most recently,

on

‘June

19,

1991,

USEPA announced

a proposal to

modify

both 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.

The

gross

alpha

particle

activity

standarc~ is proposed to be replaced by an adiusted gross

alpha

particle activity standard; the latter would still have a 15 pCi/i

value,

but

would

no

longer

include

alpha

particle

activity

associated

with

radium

or

uranium

decay.

Under

the

USEPA’s

calendar, these standards are scheduled f•r promulgation by April

1993 with an effective date of October 1994.

COMPLIANCE PLAN

The Village proposes method for achieving compliance

is

to

connect its water supply to the village of Coal City’s treatment

facilities,

when completed,

and repurchasing the treated

water.

(Pet.

9;

Ex.

A)

The Village has begun negotiating a contract and

easement procurement with the Village of Coal City and has received

tentative approval of the plan.

(Pet.9; Ex.

D and F)

The Village

has

included

a copy

of the proposed contract easement agreement

with its petition.

(Ex.

D and F)

The Village has also considered

several alternative methods of compliance including lime and soda

ash

treatment,

anion

exchange,

casing

installation

in existing

wells

and

cation

exchange.

(Pet.

10-il;

Ex.

A

at

19)

The

Village’s Exhibit A sets forth the costs of the various alternative

compliance methods.

(Ex. A at 21-31)

Agency records establish that the Village has not previously

sought a variance from the Board’s public water supply’ regulations.

(Ag. Rec.

3;

Pet.

15)

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.

18-22)

Because

the

Village’s

petition was filed

prior

to USEPA’s June

19,

1991

proposal

to

modify the standards,

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.

(Pet.

20-21)

The Agency

agrees with this

Publication occurred at 56 FR 33050, July 18, 1991.

125—344

---

5

statement

noting

that

USEPA

has

indicated

that

the

proposed

standard will be less stringent than the current standard.

(Ag.

Rec.

5

Ex.

1)

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.

21)

The

Village

further

argues

that denial

of

the

requested

variance results in an arbitrary and unreasonable hardship because

of the great need for expansion of the water system to serve the

domestic and fire protection requirements of the local population.

(Pet.

21)

In light of US~PA’srecent proposal which would render

the standards for combined radium and gross alpha particle activity

less

stringent than

the

current

standard,

these

arguments

are

persuasive.

The Agency agrees that denial of the variance would impose an

arbitrary or unreasonable hardship

or’ 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.

(Ag.

Rec.

5—6)

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

Iii.

Adm.

Code

602.105

and

602.106

in

support of the assertion that the variance will not result in any

adverse environmental impact.

(Pet.

14; Ag. Rec.

5—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.

(Ag. Rec.

6)

While the Agency believes that radiation at any level creates

some risk,

the risk associated with the Village’s water supply is

very low.

(Ag. Rec.

5)

The Agency states that “an 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.

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 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

125—345

---

6

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

coi~isumewater 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.

(Ag. Rec.

8-9)

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.

(Ag. Rec.

7—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 Vi11~geof Carbon Hill.

Thc 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.

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.

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.

Today’s action

is solely

a grant of variance from standards

of

issuance and restricted status.

The Village

is not granted

125—346

---

variance from compliance with the combined radium or gross alpha

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 Carbon Hill 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 radiuin-228 and gross alpha particle

activity

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 5pCi/l combined radium standard,

the 15 pCi/i gross alpha particle activity standard

or

the method

for demonstrating

compliance

with

either 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)

August 22,

1996;

or

(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

125—347

---

8

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)

(1)

Petitioner

shall

submit

a

written report to the

Agency 18 months from the date of this variance as to the

status of obtaining water from the Village of Coal City.

in

addition

to

this

status

report,

Petitioner

shall

provide

the Agency

with

a

copy

of

a

fully

executed

contract between Petitioner and Coal City.

The contract

shall provide for delivery of sufficient quantities of

water from the Village of Coal City that will assure that

Petitioner

will

be

in

compliance

with

the

standards

regulating combined radium-226 and radium-228 and gross

alpha particle activity prior to the expiration of this

variance.

(2)

If Petitioner fails to comply with paragraph

(E) (1)

and no extension has been granted by the Agency to comply

with

paragraph

(E) (1),

Petitioner

shall

pursue

its

alternative

of

constructing

a

treatment

facility.

Petitioner shall apply for all necessary permits for the

construction of

said facility no

later than two years

prior

to

the

expiration

of

this

variance,

and

shall

install and have operational said facility no later than

one year prior to the expiration of this variance.

(F)

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.

125—348

---

9

(G)

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

(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 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.

(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

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.

(J)

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 and

gross alpha particle activity,

in its finished drinking

water.

(K)

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

125—349

---

10

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

91-32, August

8,

1991.

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.

125—350

---

11

IT IS SO ORDERED.

B. Forcade and J.D. Dumelle dissent.

I,

Dorothy N.

Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify that the ~ove

Opinion and Order was adopted

on the

~

day of

~

,

1991,

by a vote

of

~

.

0

Dorothy M. Gu(n,

Clerk

Illinois Pollution Control Board

125—35 1