ILLINOIS POLLUTION CONTROL BOARD
September 26,
1991
COUNTY OF LAKE
(VERNON HILLS
)
WATER SYSTEM),
)
)
Complainant,
)
PCB 91-88
(Variance)
vs.
)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
)
Respondent.
OPINION AND ORDER OF THE BOARD
(by R.
C.
Fletnal):
This matter conies before the Board on the May 29,
1991
filing by petitioner,
County of Lake
(“Lake County”), for the
Village of Vernon Hills Water System (“Vernon Hills”), of a
petition for variance (“Pet.”).
Lake County 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 Vernon Hills’ public water supply of the
5
picocuries per liter
(“pCi/l”) combined radiuni-226 and radium-
228 standards of 35
Ill. Adm. Code.Subtitle F1.
Lake County
requests a two—year and five—month variance, retroactive to Nay
31,
1991.
On July 15,
1991,
the Illinois Environmental Protection
Agency (“Agency”)
filed its variance recommendation (“Rec.”).
The Agency recommends that variance be granted subject to certain
conditions.
Lake County waived hearing and none has been held.
For the following reasons, the Board finds that Lake County
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
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. Adm.
Code 611.330(a).
126—277
2
System.Description and Sample Analyses
Lake County solely owns and operates the Vernon Hills Public
Water Supply System.
It is for this water supply system that
variance is sought.
The Vernon Hills service system includes
potable water supply and distribution for a population of 14,600,-
including residential,
industrial and commercial utility
customers.
The distribution system currently includes three deep
wells
(Wells
1,
2,
and 3),
pumps, and distribution facilities.
Three s~iallowwells are no longer in use, one of which is
permanently sealed.
Lake County was first advised that Vernon Hills’ water
supply exceeded the maximum allowable concentration for combined
radium in a letter from the Agency dated December 9,
1985.
Subsequent analyses have been conducted,
including the most
recent analysis reported on or about March 15,
1991.
The water
samples show the following results:
Sample
Description
Collection
Date
Lab Code
Concentration
(pCiIL)
Ra-226
Ra-228
Vernon Hills
02—07—91
02—07—91
02—07—91
SPW—441
SPW—442
SPW—443
6.4±0.4
6.4±0.4
3.5±0.2
4.2±0.1
5.0±1.7
4.6±1.1
Well No.
1
Well No.
2
Well No.
3
*
*
*
The error given is the probable c~untingerror at the 95
confidence level
(Pet.
at Exh.
B)
Prior Variances
Lake County has received two prior variances from restricted
status due to combined radium exceedences for the Vernon Hills
public water supply.
These are PCB 86-35
(69 PCB 455, Nay 9,
1986)
and PCB 87—198
(89 PCB 69, May 5,
1988).
The second
variance term was set to expire May
31,
1992, with an interim
deadline providing that variance would terminate on May 31,
1991.
The earlier termination date was set contingent upon full
compliance by having all installations, changes or additions
necessary to bring Lake Michigan water to the Vernon Hills Water
2
Information on radiological parameters
was also included
regarding the Wildwood Subdivision.
Lake County has also been a
petitioner
in
separate
proceedings
on
behalf
of
the
Wildwood
Subdivision Water Supply.
126—278
3
System operational by May 31,
1991, with other additional
conditions.
Lake County states it cannot meet the interim deadline for
compliance for the reasons stated below in the compliance plan
section of this Opinion.
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.
111½,
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 contain the
requisite permits, unless and until their water meets all of the
standards for finished water supplies.
It is Lake County’s request 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.
111½, 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.
126—279
4
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.
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 Ill.2d 676,
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 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 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 radium-228 (“combined radium”), and 15
pCi/l for gross alpha particle 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 USEPA3.
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
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 radiuni-228 and gross alpha particle activity standards by
peremptory rulemaking.)
126—280
5
proposal to modify both standards4.
USEPA proposes to replace
the
S pCi/l combined radium standard by separate standards of 20
pCi/l each for radium-226 and radium-228.
The gross alpha
particle activity standard is proposed to be replaced by an
adiusted gross alpha particle activity standard; the latter would
still have a 15 pCif1 value, but would no longer include alpha
particle activity associated with radium or uranium decay.
Under
the USEPA’s calendar, these standards are scheduled for
promulgation by April 1993 with an effective date of October
1994.
COMPLIANCE
PLAN
Lake County intends to achieve compliance by replacing the
current Vernon Hills well-based water supply with Lake Michigan
water.
In 1981, Lake County and several neighboring
municipalities began planning to design,
construct,
and operate a
Lake Michigan water transmission system.
Special legislation
enacted in 1985 permitted Lake County and other municipalities to
create the Central Lake County Joint Action Water Agency
(“CLCJAWA”).
Since that time, Lake County and other
municipalities have secured allocations from the State of
Illinois to use Lake Michigan water and have entered into
ôontracts for completion of transmission systems to deliver Lake
Michigan water
(Pet. ¶30-2).
The problem of excessive radium in Vernon Hill’s water
supply will be eliminated5 when CLCJAWA delivers Lake Michigan
water beginning in mid-1992, with its full year of operation in
1993.
When that occurs, Vernon Hills will cease using its ground
water supplies and use Lake Michigan water
(Pet
34).
Lake County reports that compliance has not been achieved by
the compliance date required in the PCB 87-198 variance because
all installations, changes,
or additions to Vernon Hills public
water supply were not operational by May 31,
1991, as required by
Condition G of the previous variance (PCB 87—198).
Lake County
states that the activities involved in the project and the
construction period for bringing Lake Michigan water to central
Lake County communities have exceeded the time period reported to
the Board in the previous PCB 87-198 variance.
Petition Exhibit
A, the construction phase progress report of April,
1991,
shows
that Lake Michigan water is projected to be available by April,
1992
(Pet.
¶28)
~ Publication occurred at 56 FR 33050, July 18,
1991.
Lake Michigan water does not contain amounts of radium in
excess of the standards.
126—28 1
6
Lake County states that it has complied with other
conditions of the prior variance, short of completion of
construction and compliance.
These include:
1.
Submittal to the Agency of the interim public
water supply contract signed by all members
of the CLCJAWA (Condition D);
2.
Reporting to the Agency that CLCJAWA
transmission facilities would provide for
delivery of sufficient quantities of Lake
Michigan Water to assure compliance by Vernon
Hills public water supply with the standards
for radium
(part of Condition E);
3.
Participation in applying for and obtaining
of two permits for segments of the CLCJAWA
water transmission system
(Condition F);
4.
Participation in applying for two permits
(Condition G);
5.
Taking reasonable measures to minimize the
level of contaminant in its finished drinking
water (Condition J);
6.
Sending of required notices (Conditions H and
I).
(Pet.
¶8)
Lake County requests variance from May 31,
1991 to October,
1992 for having all installations, changes, or additions relative
to the CLCJAWA Lake Michigan water project constructed and
operational, and requests extension to October 1993 to allow the
required demonstration of compliance,
or when analysis pursuant
to 35
Ill. Adm. Code.Subpart F shows compliance with the
standards, whichever occurs first
(Pet.
¶9).
HARDSHIP
Lake County contends that the hardship resulting from denial
of the requested variance outweighs any injury to the public from
granting the variance
(Pet.
¶45-55).
Lake County states that
denial of variance would mean that ale construction within the
Vernon Hills service area would cease
.
This would harm
prospective home purchasers as well as business developers and
Lake County’s tax base.
Lake County asserts that the Vernon
6
The Board notes that ongoing construction where water main
extensions have already been approved would not cease.
It is only
that new water
mains
could
not be
extended,
should variance be
denied.
126—282
7
Hills area has nearly one billion dollars of construction
currently underway or imminent.
Lake County notes four
developments specifically, each consisting of between 300 and
1200 acres and including both residential and business
development
(Pet. ¶~9and 52).
Lake County states that should variance be.denied,
it would
be forced to proceed with the design and construction of
treatment facilities at its well sites which would likely be
abandoned when Lake Michigan is obtained.
Also,
Lake County adds
that the temporary facilities would not even be completed before
the time Lake Michigan water would be available (Pet.
¶53).
Lake County further notes the USEPA proposal to revise the
regulations for radionuclides
(Pet.
¶50).
The Agency agrees that denial of the variance would impose
an arbitrary or unreasonable hardship on Lake County
(Rec.
¶19,
20)
ENVIRONMENTAL IMPACT
Although Lake County 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.
¶39).
The Agency agrees
with Lake County’s assertion (Rec. ¶13—16).
Both Lake County and
the Agency cite and 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.
Adm.
Code
602.105 and
602.106
in
support
of
the
assertion
that
the
variance
will
not
result
in
any
adverse environmental impact
(Pet. ¶39;
Rec. ¶15)
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.
¶15).
While the Agency believes that radiation at any level
creates some risk, the risk associated with Lake County’s water
supply is very low
(Rec.
¶14).
The Agency states that “an
increase in the allowable concentration 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.
¶16).
In summary, the
Agency states:
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 the variance.
In light of the
cost to the Petitioner of treatment of its current
water supply, the likelihood of no significant injury
126—283
8
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
copsume 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.
¶27-
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
variance does not grant relief from compliance with the federal
primary drinking water regulations
(Rec.
¶22).
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 Lake County (Vernon Hills water system).
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 further finds that Lake County has shown
satisfactory progress toward compliance with the Board’s
regulations for radionuclides.
Hence, the Board will grant this
variance for a maximum period of two years and five months,
retroactive to Nay 31,
1991, with the final 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 Lake County may be
affected by pending USEPA action to promulgate new standards for
radionuclides in drinking water.
New radionuclide standards from
USEPA could significantly alter Lake County’s need for a
variance.
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 alternation
(or notice of
refusal to alter)
of the radium standards.
126—284
9
Today’s action is solely a grant of variance from standards
of issuance and restricted status.
Lake County is not granted
variance from compliance with the combined radium standards,
nor
does today’s action insulate Lake County in any manner against
enforcement for violation of these standards.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in the matter.
ORDER
Lake County 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 6ll.330(~),for a period of two years and five
months from May 31,
1991,
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,
or the method for demonstrating compliance with
the 5pCi/l 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)
October 31,
1993; or
(3)
October 31,
1992; absent full compliance with
condition
(F)
below; 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.
126—285
10
(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 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)
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.
(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 maximum allowable concentration of the
standards in question shall be completed no later than
October 31,
1992, with the final year of variance being
solely for the purposes of testing to demonstrate
compliance.
(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. Adm. Code 602.105(a)
Standards of Issuance and
35 Ill.
Adm. Code 602. 106(a)
126—286
11
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 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-226 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 52794—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.
126—287
12
I
(We),
hereby accept and agree to be bound by all terms and conditions
of the Order of the Pollution Control Board
in PCB 91-88,
September 26,
1991.
Petitioner
Authorized Agent
Title
Date
Section 41 of the Environmental Protection Act,
Ill.
Rev.
Stat.
1989 ch.
111½ 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.
Board Member
B. Forcade dissented.
Board Member J.D.
Duinelle
concurred.
I,
Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above Op~nionand Order was
adopted on the
___________
day of
~
,
1991,
by
avoteof
____________.
~.
Dorothy M. ,~nn,Clerk
Illinois Pó~lutionControl Board
126—288
