ILLINOIS POLLUTION CONTROL BOARD

March 28,

1991

NORTH SUBURBAN PUBLIC UTILITY

)

COMPANY,

Petitioner,

v.

)

PCB 90—229

(Variance)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

OPINION AND ORDER OF THE BOARD

(by

R.C.

Flenial):

This matter comes before the Board upon the filing by the

North Suburban Public Utility Company

(“North Suburban”)

on

December

10,

1990 of a Petition for Extension of Variance

(“Pet.”).

North Suburban 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 North

Suburban’s public water supply of the 5 picocuries per liter

(“pCi/l”) combined radium-226 and radium-228 standard of

35

Ill.

Adm.

Code.Subtitle F1.

The variance extension is requested for

one year.

The Illinois Environmental Protection Agency (“Agency”)

filed its Variance Recommendation

(“Rec.”)

on January 18,

19912.

The Agency recom~nendsthat variance be granted, subject to

conditions.

North Suburban waived hearing and no hearing has

been held.

Based on the record before

it, the Board finds that North

Suburban 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’s Recommendation

is accompanied by a motion to

file instanter.

That motion is hereby granted.

120—2 87

---

—2—

BACKGROUND

North Suburban provides a public utility water service and

sanitary sewer service

in unincorporated areas

in proximity to

Glenview,

Illinois under certificates of public convenience and

necessity granted by the Illinois Commerce Commission.

North

Suburban

is an Illinois corporation and a public utility within

the meaning of the Illinois Public Utilities Act.

North

Suburban

was

initially

notified

of

noncompliance

with

the

combined

radium

standard

by the Agency on November 16,

1984

(Rec.

¶10).

The observed combined radium content then was 9.4

pCi/l

(Rec.

¶11);

the most recent analysis shows a combined

radium content of 7.8 pCi/l

~

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/l

of

combined

radium—226

and

radium—228.

Illinois

subsequently

adopted

the

same

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

~,

par.

1017.6),

any

revision

of

the

5

pCi/l

standard

by

the

USEPA

will automatically become the standard in Illinois.

The action that North Suburban requests here

is ~

variance

from

the

maximum

allowable

concentration

for

radium.

Despite

the

action

taken

by

the

Board

in

the

instant

matter,

this

standard

will

remain

applicable

to

North

Suburban.

Rather,

the

action

North Suburban 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.

1981,

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.

120—288

---

—3—

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 North Suburban

requests

be

lifted.

Moreover,

grant

of

the

requested

variance

would

not

absolve

North Suburban from compliance with the

combined

radium

standard,

nor

insulate

North

Suburban

from

possible

enforcement

action

brought

for

violation

of

those

standards.

In

consideration

of

any

variance,

the

Board

determines

whether

a

petitioner

h~s

presented

adequate

proof

that

immediate

compliance with the Board regulations at issue would impose an

arbitrary or unreasonable hardship

(Ill.

Rev.

Stat.

1989,

ch.

ill

~,

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.

IPCB

(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

(id.).

Accordingly,

except in certain

special

circumstances,

a

variance

petitioner

is

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.

PRIOR VARIANCE AND COMPLIANCE PLAN

North Suburban requests extension of the variance granted by

the Board on March

19,

1987 in PCB 86-199g.

Under the terms

of

this prior variance, North Suburban was to try to obtain Lake

Michigan water for the purposes of blending with water derived

from its well system (see conditions

(B) and

(C)

at 76 PCB 360).

See:

North

Suburban

Public

Utility

Company

y~ Illinois

Environmental

Protection

Agency,

PCB

86—199,

76

PCB

356,

March

19,

1987.

North Suburban requests that the record in PCB 86-199 be

incorporated into the instant record

(Pet.

¶11).

However, North

Suburban

has

not

met

the

filing

requirements

for

incorporation

of

a record, as found at

35 Ill. Adm. Code 101.106(a).

The

incorporation request

is accordingly denied.

120—289

---

—4—

North Suburban has been successful

in obtaining Lake

Michigan water, through contract with adjcYining municipalities,

in amount equivalent to approximately 45

of North Suburban’s

total needs

(Pet.

¶3); the remaining 55

continues to be provided

from groundwater sources

(u.).

Nevertheless, even with this

amount of Lake Michigan water available for blending,

North

Suburban apparently cannot consistently provide water at less

than

5

pCifl.

Now,

under terms of

a Water Supply Agreement dated June

8,

1990

between

North

Suburban

and

the

Village

of

Niles,

North

Suburban

will

obtain

Lake

Michigan

water

sufficient

to

meet

all

its

water

supply

requirements

(Pet.

¶6).

Given

the

low

radium

concentration

of

Lake

Michigan

water,

North

Suburban

should

be

in

compliance

with

the

radium

standard

following

full

conversion

from

well

water.

North

Suburban

estimates

that

construction

of

all

facilities

necessary

to

interconnect

the

North

Suburban

service

area

with

Niles

will

require

approximately

one

year

(~.

¶9).

It

is

this

one

year

period

for

which

North

Suburban

requests

variance.

HARDSHIP

If

North

Suburban

is

unable

consisteiitly

to

provide

water

at

or

below

the

radium

standard,

it

would

presumably

be

placed

on

Restricted

Status

following

expiration

of:its

current

variance

in

March

1991.

When

on

Restricted

Status,

North

Suburban

would

be

unable

to

extend

service

to

new

customers.

This

would

act

to

the

detriment

of

customers

who

need

public

water

supply

for

functional

use

of

property.

PUBLIC

INTEREST

The

Agency

contends

that

there

will

be

little

or

no

adverse

impact

caused

by

the

granting

of

variance

(Rec.

¶16).

In

support

of

this

contention,

the

Agency

references

testimony

presented

by

Richard

E.

Toohey,

Ph.D.

of

Argonne

National

Laboratory

at

the

hearing

held

on

July

30

and

August

2,

1985

in

R85-14,

Proposed

Amendments

to

Public

Water

Supply

Regulations,

35

Ill.

Adm.

Code

at

602.105

and

602.106,

and

to

updated

testimony

presented

by

Dr.

Toohey

in

the

Board’s

hearing

on

the

Braidwood

variance,

PCB

89-

212

(Rec.

¶15)

The

Agency

believes

that

while

radiation

at

any

level

creates

some

risk,

the

risk

associated

with

North

Suburban’s•

water

is

very

low

(Rec.

¶14).

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

that

variance.

Considering

the

likelihood

of

no

significant

injury

to

the

public

120—2 90

---

—5—

from continuation of the present level of the

contaminant in question in the Petitioner’s water for

the limited period of the variance, the Agency

concludes that denial of a variance from the effects of

Restricted Status would impose an arbitrary or

unreasonable hardship upon Petitioner.

The Agency observes that this grant of variance from

restricted status should affect only those users who

consume water drawn from any newly extended water

lines.

This

variance

should

not

affect

the

status

of

the rest of Petitioner’s population drawing water from

existing water lines, except insofar as the variance by

its conditions may hasten compliance.

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.

¶28 and ¶29)

CONCLUSION

The Board finds that,

in light the facts and circumstances

of

this

case,

denial

of

variance

would

impose

an

arbitrary

or

unreasonable

hardship

upon

North

Suburban.

The

Board

also

ag:

with

the

parties

that

no

significant

health

risk

will

be

incui.

by persons who are served by any new water main extensions,

assuming that compliance

is timely forthcoming.

In reaching

these conclusions, the Board notes that it gives weight to North

Suburban’s compliance efforts to date, the apparent imminency of

compliance,

and the small amount by which the combined radium

standard is exceeded.

Accordingly, variance will be granted.

North Suburban’s request for a one—year term of variance

is

premised solely on the time needed for facility development;

it

does not recognize the time needed for a demonstration of

compliance.

A demonstration of compliance requires that the

concentration

in an annual composite of consecutive quarters or

the average of the analyses of four consecutive quarterly samples

be less than the 5 pCi/l standard, pursuant to 35

Ill.

Adm. Code

61l.Subpart

Q

(formerly 35 Ill.

Adm. Code 605.105(a)).

Thus,

the

accumulation of data necessary to demonstrate compliance may

require as much as a year after the date on which North Suburban

asserts

it will have the facilities necessary to attain

compliance.

In recognition of this needed additional year,

the

variance

will

be

granted

for

two

years,

with

the

second

year

intended for the compliance demonstration.

Should compliance be

demonstrated earlier, the variance will alternatively terminate

at the earlier date.

120—29 1

---

—6—

The

Board

also

notes

that

promulgation

of

a

new

radium

standard by the USEPA might significantly alter North Suburban’s

compliance circumstance, even perhaps removing the need for a

continued variance from Restricted Status.

Although it now

uncertain whether USEPA will complete promulgation of

a new

radium standard during the two—year variance period at issue

here,

the Board will also make the termination of variance

dependent upon the date of USEPA alteration

(or notice of refusal

to alter)

of the radium standard.

North Suburban is to bear in mind that today’s action

is

solely a grant of variance from Restricted Status.

North

Suburban is not being granted variance from compliance with the

combined radium standard, nor does today’s action insulate North

Suburban 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,

North Suburban Public Utility Company,

is hereby

granted variance 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:

(I)

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

(2)

Date

of

publication

of

notice

by

the

USEPA

that

no

amendments to the

5 pCi/i 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)

March

28,

1993;

or

(2)

When analysis pursuant to 35 Ill.

Adm. Code

6ll.Subpart

Q,

or any compliance demonstration

method then in effect,

shows compliance with any

120—292

---

—7—

standards for radium in drinking water then in

effect;

or

(3)

One

year

following

the

date

of

USEPA

action.

(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

EnviroxuRt~iital

Protection Agency (“Agency”), Petitioner shall continue

its sampling program to determine as accurately as

possible

the

level

of

radioactivity

in

its

wells

and

finished

water.

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 the grant

of this variance,

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

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

120—2 93

---

—8—

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)

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.

Adin.

Code 602.105(a)

Standards

of

Issuance

and

35

Ill.

Adm.

Code

602.106(b)

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 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.

(I)

Until full compliance

is achieved, Petitioner shall

take all reasonable measures with its existing

equipment to minimize the level of combined radium,

radiurn-226,

and

radiuxn-228

in its finished drinking

water.

(J)

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

120—294

---

—9—

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 that this 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 90-229, March

28,

1991.

Petitioner

Authorized Agent

Title

Date

Section 41 of the Environmental Protection Act,

Ill.

Rev.

Stat.

1989 ch.

111 ~ 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,

J. Theodore Meyer, and Bill

Forcade dissented.

I,

Dorothy M.

Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certi~,~thatthe abo e Opinion a

Order was

adopted on the

~Y~i’-

day of

_____________________,

1991,

by

a vote of

_____________

Dorothy

N. ,4Qnn,

C.

Illinois

P~lution

Control

Board

120—295