ILLINOIS POLLUTION CONTROL
BOARD
March 28, 1991
CITY OF PROSPECT HEIGHTS
(Rob Roy Water System),
Petitioner,
V.
)
PCB 90—224
(Variance)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
OPINION AND ORDER OF THE BOARD
(by R.C.
Flemal):
This matter comes before the Board upon filings by the City
of Prospect Heights (“Prospect Heights”)
on November 29,
1990 of
a Petition for Variance (“Pet.”).
Prospect Heights 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 Prospect Heights’ public water supply of the 5
picocuries per liter
(“pCi/i”) combined radi~m—226 and radium-
228 standard of 35
Ill. Adm. Code.Subtitle F
.
The variance
request is
solely for the portion of the Prospect Heights public
water supply system known as the Rob Roy Water System.
Variance
is requested until March 15,
1993.
The Illinois Environmental Protection Agency
(“Agency”)
2
filed its Variance Recommendation
(“Rec.”)
on January 17,
1991
The Agency recommends that variance be granted,
subject to
conditions.
Prospect Heights waived hearing and no hearing has
been held.
Based on the record before
it, the Board
finds that Prospect
Heights has presented adequate proof that immediate compliance
with the Board regulations at issue would impose an arbitrary or
unreasonable hardship.
Accordingly,
the variance will be
granted, subject to conditions consistent with this Opinion and
as set forth in the attached Order.
1 The standard for combined radium was formerly found at 35
Ill.
Adm.
Code 604.301(a); effective September 20,
1990 it was
recodified to
35
Ill. Adm.
Code 611.330(a)
(see Illinois
Register, Volume
14, Issue 40, October
5,
1990).
2 The Agency Recommendation
is accompanied by a motion to
file instanter.
That motion
is hereby granted.
120—2 75
—2—
BACKGROUND
Prospect Heights
is a municipality located in Cook County.
Prospect Heights provides public services including potable water
supply and distribution for its citizens.
Among these are an
estimated 1820 residential customers whose homes surround the Rob
Roy Country Club golf course and who are served by the Rob Roy
Water System.
The Rob Roy Water System has two water wells, one deep and
one shallow well, plus pumps and distribution facilities.
The
deep well, Well No.
2,
is both the principal supply well and the
source of the elevated radium concentrations
(Pet.
¶14, ¶20).
Prospect Heights was first advised that its water supply
was
being placed on Restricted Status by letter from the Agency dated
April
11,
1988
(Rec.
¶10).
Placement on Restricted Status was
based on a combined radium concentration of 9.1 pCi/i
(Rec.
¶11).
Subsequent analyses from both Well No.
2 and the distribution
system are as follows,
in pci/i
(Pet.
¶20).
Well No.
2
Distribution System
Date
Ra—226
Ra—228
Total
Ra—226
Ra—228
Total
12/87
4.9
1.6
6.5
4.6
2.2
6.8
2/88
13.5
3.9
17.4
3.4
1.8
5.2
4/88
10.9
4.5
15.4
3.9
1.8
5.7
8/88
4.9
2.6
7.5
5.1
2.6
7.7
10/88
3.0
2.5
5.5
2.1
1.7
3.8
1/89
3.1
2.8
5.9
3.7
2.5
6.2
4/89
3.4
3.8
7.2
4.6
3.7
8.3
7/89
3.3
1.5
4.8
3.9
1.5
5.4
3/90
3.0
2.6
5.6
Prospect Heights has not previously sought variance
regarding this matter.
REGULATORY
FRANEWORK
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 radiurn-226 and radiuin—228.
Illinois subsequently
adopted this
limit as the maximum allowable concentration under
Illinois
law.
Pursuant to Section 17.6 of the Illinois
Environmental Protection Act
(Ill.
Rev.
Stat.
1989,
ch. 111
½,
par.
1017.6), any revision of the
5 pCi/l standard by the USEPA
will automatically become the standard in Illinois.
The action that Prospect Heights requests here
is not
variance from the maximum allowable concentration for radium.
120—276
—3—
Regardless
of the action taken by the Board in the instant
matter, this standard will remain applicable to Prospect Heights.
Rather, the action Prospect Heights requests
is the temporary
lifting of prohibitions imposed pursuant to 35
Ill.
Adm. Code
602.105 and 602.106.
In pertinent part these Sections 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.
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 Prospect Heights
requests be lifted.
Moreover, grant of the requested variance
would not absolve Prospect Heights from compliance with the
combined radium standard, nor insulate Prospect Heights from
possible enforcement action brought for violation of those
standards,
as Prospect Heights itself notes
(Pet.
¶47).
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.
lii
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,
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 Co.
v.
IPCB
(1977),
67 Ill.2d 276,
367 N.E.2d,
684), and compliance is
to be sought regardless of the hardship that the task of eventual
compliance presents an individual polluter
(a.).
Accordingly,
except in certain special circumstances,
a variance petitioner
is
120—277
—4—
required,
as a condition to grant of variance, to commit to
a
plan that is reasonably calculated to achieve compliance within
the term of the variance.
COMPLIANCE PROGRAM
Prospect Heights is examining two alternatives for achieving
compliance with the combined radium standard:
(1)
using Lake
Michigan water in place of water currently provided by Well No.
2, and
(2) constructing treatment facilities to treat all water
supplied by Well No.
2
(Pet. ¶23—~25).
At this time Prospect Heights has not yet determined which
of the two options is most appropriate, although the Lake
Michigan option
is Prospect Heights first choice.
Prospect
Heights has hired an outside consultant to study the means to
achieve a Lake Michigan water supply.
Additionally, Prospect
Heights has secured an allocation from the State of Illinois to
use Lake Michigan water and has begun negotiations with the
Village of Glenview for supply
(Rec.
¶17).
Prospect Heights’s favored treatment alternative,
at this
time,
is
ion exchange water softening (Pet.
¶25).
Prospect
Heights has engaged an outside consultant to study this
compliance means
(~.).
Lime or lime—soda water softening has
also been considered by Prospect Heights
(Pet.
¶28).
Overall,
Prospect Heights proposes the following schedule of
activities during the term of the proposedvariance (Pet ¶33):
April 1991
Referendum on Lake Michigan water for
Rob Roy System (and remainder of City)
May
-
Oct. 1991
Negotiate for Lake Michigan water for
Rob Roy System (and remainder of City)
Oct. 1991
-
Hire consulting engineer to design
March 1992
facilities for Lake Michigan water
supply or well water softening treating.
April
1992
Review plans
May 1992
Advertise for bids
June 1992
Accept bids
Aug
‘92
-
Mar.
‘93
Construction period
March
15,
1993
Place facilities into service so that
Rob Roy Water System is in compliance
with radium standard.
120—278
—5—
HARDSHIP
Prospect Heights contends that denial of variance would
constitute an arbitrary or unreasonable hardship.
It notes that:
Failure to obtain a variance means that all
construction within the Petitioner’s service area
requiring the extension of the water supply system,
could not resume.
This hurts prospective home
purchasers and business developers as well as
Petitioner’s tax base
.
.
.
The time involved for the
planning,
financing, engineering and construction of
water treatment facilities prevents immediate
compliance
.
.
.
In the interim period,
there
is a
great need for expansion of the present water system in
order to serve the domestic,
as well as fire
protection,
needs of the proposed development.
(Pet.
¶4l—~43)
The proposed development in question consists of a 12.42
acre commercial development site.
Tenants of the site are
intended to be principally retail stores, plus two restaurants,
a
medical
facility,
a food store,
and a bank
(Pet.
¶13).
Prospect Heights further contends that the expenditure of
public
funds for treatment facilities that may become obsolescent
in
the
near
future
due
to
revision
of
the
radium
standard
is
not
in the public interest and does not grant a corresponding benefit
to the public
(Pet.
¶40).
The Agency also contends that denial of variance would
constitute an arbitrary or unreasonable hardship (Rec.
¶19).
PUBLIC INTEREST
Although Prospect Heights has not undertaken a formal
assessment of the environmental effect of its requested variance,
it contends that there will be little or no adverse impact caused
by the granting of variance
(Pet.
¶30).
The Agency contends
likewise
(Rec.
¶16).
In support of their contention,
Prospect
Heights
(Pet.
¶30) and the Agency
(Rec.
¶15)
reference testimony
presented by Richard E.
Toohey, Ph.D.
of Argonne National
Laboratory at the hearing held on July 30 and August
2,
1985
in
R85-l4, Proposed Amendments to Public Water Supply Regulations,
35 Ill.
Adm. Code at 602.105 and 602.106, to the testimony of Dr.
James Stebbings in the same proceeding,
and to updated testimony
presented by Dr. Toohey in the Board’s hearing on the Braidwood
variance, PCB 89-212.
The Agency believes that while radiation at any level
creates some risk,
the risk associated with Prospect Heights’s
water is very low
(Rec.
¶14).
In summary, the Agency states:
120—27 9
—6—
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 contaminant 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.
Grant of
variance may also,
in the interim, lessen exposure for
that portion of the population which will be consuming
more effectively blended water.
In so saying, the
Agency emphasizes that it continues to place a high
priority on compliance with the standards.
(Rec.
¶27 and ¶28)
CONCLUSION
The Board finds that,
in light of the facts and
circumstances in this case, denial of variance would impose an
arbitrary or unreasonable hardship upon Prospect Heights.
The
Board also agrees with the parties that no significant health
risk will be incurred by persons who are served by any new water
main extensions,
assuming that compliance is timely forthcoming.
The Board also notes that promulgation of a new radium
standard by the USEPA might significantly alter Prospect Heights’
compliance circumstance, even perhaps removing the need for
variance.
While it
is well-established that a speculative change
in the law is not grounds for establishing arbitrary or
unreasonable hardship (e.g.,
Citizens Utilities Company of
Illinois v. IPCB (1985),
134 Ill.App.3d,
111,115), the Board
believes that in some circumstances a prospective change in law
may appropriately be reflected in the conditions upon which a
variance is granted.
In the instant case the Board believes that
it
is appropriate to condition the grant of variance so as to
best assure that Prospect Heights will achieve compliance with
120—280
—7—
whatever standard is ultimately applicable and that Prospect
Heights will not need to prematurely return to this Board to
request a variance extension.
With these ends in mind,
the Board will require that
Prospect Heights timely proceed with its compliance options so
that
it will be prepared to implement an appropriate option as
needed.
Similarly,
the Board will make expiration of the
variance dependent upon the date of USEPA alteration
(or notice
of refusal to alter)
of the radium standard; should Prospect
Heights still need to take steps to come into compliance after
USEPA action, Prospect Heights will have one year thereafter to
make the improvements necessary to achieve com~lianceand one
additional year for a compliance demonstration
.
Finally, should
the USEPA default in taking action on the radium standard, the
variance will be conditioned to provide for achievement and
demonstration of compliance no later than three years hence.
Prospect Heights is to bear in mind that today’s action is
solely a grant of variance from standards of issuance and
Restricted Status.
Prospect Heights
is not being granted
variance from compliance with the radium standard, nor does
today’s action insulate Prospect Heights in any manner against
enforcement for violation of that standard.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Petitioner, City of Prospect Heights,
is hereby granted
variance for its Rob Roy Water System from 35 Ill. Adm. Code
602.105(a), Standards of Issuance, and 602.106(b), Restricted
Status,
as they relate to the standard for radium in drinking
water of 35
Ill.
Adm.
Code.Subtitle
F,
subject
to
the
following
conditions:
(A)
For the purposes of this Order, the date of USEPA
action shall consist of the earlier of the:
(1)
Effective date on any regulation promulgated by
the U.S. Environmental Protection Agency
(“USEPA”)
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 concentration level
is demonstrated; or
The addition year for a compliance demonstration, pursuant
to 35
Ill. Adm. Code 611.Subpart
Q,
is based on the Agency’s
recommendation
(Rec.
¶29(A)),
in which the Board concurs.
120—28 1
—8—
(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 5 pCi/l standard will be promulgated.
(B)
Variance shall terminate on the earliest of the
following dates:
(1)
When analysis pursuant to 35
Ill. Adm. Code
6ll.Subpart
Q,
or any compliance demonstration
method then in effect,
shows compliance with any
standards for radium in drinking water then in
effect;
(2)
Two years following the date of USEPA action; or
(3)
March 28,
1994.
(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 program to determine as accurately as
possible the level of radioactivity in its wells and
finishedwater.
Until this variance terminates,
Petitioner shall collect quarterly samples of water
from its distribution system at locations approved by
the Agency.
Petitioner shall composite the quarterly
samples for each location separately and shall have
them analyzed annually by a laboratory certified by the
State of Illinois for radiological analysis to
determine the concentration of 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
P.O. Box 19276
2200 Churchill Road
Springfield, Illinois 62794—9276
(E)
Within three months of USEPA action or one year after
the grant of this variance, whichever is sooner,
Petitioner shall apply to the Agency at the address
below for all permits necessary for construction of
installations, changes, or additions to Petitioner’s
public water supply needed for achieving compliance
with the maximum allowable concentration for combined
120—282
—9—
radium,
or with any standards for radium in drinking
water then in effect:
Illinois Environmental Protection Agency
Division of Public Water Supply
Permit Section
2200 Churchill Road
Springfield, Illinois 62794—9276.
(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 condition
(E)
of each of the
following actions:
1) advertisement for bids,
2)
names
of successful bidders, and
3) whether Petitioner
accepted the bids.
(G)
Construction allowed on said construction permits shall
begin within a reasonable time of bids being accepted.
In any case,
construction of all installations, changes
or additions necessary to achieve compliance with the
maximum allowable concentration of combined radium,
or
with any standards for radium in drinking water then in
effect,
shall be completed no later than two years
following the date of USEPA action or March 28,
1992,
whichever is earlier.
(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 shall 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(b)
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 shall send to each user of its
public water supply a written notice to the effect that
Petitioner is not in compliance with standard for
radium.
The notice shall state the average content of
radium in samples taken since the last notice period
during which samples were taken.
120— 283
—10—
(J)
Until full compliance
is achieved, Petitioner shall
take all reasonable measures with its existing
equipment to minimize the level of combined radium,
radiuin-226,
and
radium-228
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
Springfield,
Illinois
62794—9276.
Within 45 days of the date of this Order, Petitioner shall
execute and forward to Stephen C. Ewart,
Division of Legal
Counsel, Illinois Environmental Protection Agency,
2200 Churchill
Road,
Post Office Box 19276, Springfield,
Illinois 62794—9276,
a
Certification of Acceptance and Agreement to be bound to all
terms and conditions of this variance.
The 45—day period shall
be held in abeyance during any period thatthis matter is being
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 variance was
granted.
The form of said Certification shall be as follows:
CERTIFICATION
I
(We),
hereby accept and agree to be bound by all terms and conditions
of
the Order of the Pollution Control Board in PCB 90-224, March
28,
1991.
Petitioner
Authorized Agent
Title
Date
12 0—284
—11—
Section 41 of the Environmental Protection Act,
Ill. Rev.
Stat.
1989 ch.
111
½
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 Members Jacob
D.
Dumelle and Bill Forcade dissented.
I,
Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certi~v~jthatthe above 0 inion and Order was
adopted on the
c~d~-”
day of
~t-’z~-.~LJ
,
1991,
by
a vote of
_______________
,~L~j)).
/JL~’
ution Control Board
Illinois
120—2
85
