ILLINOIS POLLUTION CONTROL BOARD
May 23, 1991
CITY OF MINONK,
)
)
Petitioner,
)
v.
)
PCB 91—22
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
OPINION AND ORDER OF THE BOARD (by R.C. Flemal):
This matter comes before the Board upon the filing by the
City of Ninonk (“Minonk”) on February 5, 1991 of a Petition for
Variance (“Pet.”). Ninonk seeks relief from 35 Iii. Adm. Code
602.105(a), “Standards for Issuance”, and 602.106(b), “Restricted
Status”, to the extent those rules relate to violation by Ninonk’
public water supply of the 5 picocuries per liter (“pCi/I”)
combined radiuin-226 and radium-228 standard and the 15 pCi/i
gross alpha particle activity of 35 Ill. Adm. Code.Subtitle F1.
Minonk requests variance for five years.
The Illinois Environmental Protection Agency (“Agency”)
filed its Variance Recommendation (“Rec.”) on March 11, 19912.
The Agency recommends that variance be granted, subject to
conditions. Ninonk waived hearing and no hearing has been held.
Based on the record before it, the Board finds that Minonk
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.
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). The standard for
gross alpha particle activity was formerly found at 35 Ill. Adm.
Code 604.301(b); effective September 20, 1990 it was recodified
to 35 Ill. Adin. Code 611.330(b). (see Illinois Register, Volume
14, Issue 40, October 5, 1990)
2 The Agency’s filing is accompanied by a motion to file
instanter. The motion was granted by the Board on March 14,
1991.
122—265
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BACKGROUND
Minonk is a municipality located in Woodford County. Ninonk
provides public services including potable water supply and
distribution for a current estimated population of 2,050 persons.
There are approximately 896 water customers currently served; 828
residential, 60 businesses, 6 churches, and 2 schools (Pet. ¶7).
The Ninonk water system has three water wells, plus storages
and distribution facilities. The three wells are all deep wells,
drawing from the St. Peter Formation and finished at depths
ranging from 1850 to 2005 feet (Pet. ¶9). The oldest of the
wells dates from 1897; the newest well was place in operation in
1985
(Id.).
Ninonk has previously been before the Board with three
variance requests related in part or wholly to radiological
standards. In the initial request, PCB 80—136 (see City ~
Minonk v. IEPA, 39 PCB 550, October 2, 1980), Ninonk sought
variance from the standards for both gross alpha particle
activity and fluoride. The Board granted the fluoride variance,
but denied the gross alpha particle variance as unnecessary based
on the absence of reliable data showing violation of the gross
alpha particle standard. Minonk returned to the Board in PCB 81-
32 Minonk with a renewed request for variance from the gross
alpha particle standard based upon a new analytical result. This
variance request was granted for the period May 28, 1981 to
October 2, 1985 (see City of Ninonk v. IEPA, 41 PCB 489, May 28,
1981)
Minonk’s first request both with respect to combined radium and
from Restricted Status was placed before the Board in PCB 89-
140. This request was denied based on the speculative nature of
Ninonk’s compliance plan (see City ~ Minonk v. IEPA, PCB 89-
140, 110 PCB 347, April 26, 1990).
The sample result upon which the original (PCB 81-32) gross
alpha variance was based indicated a gross alpha particle
activity of 39.0 ±11.8 pCi/l (41 PCB 489), or more than two-
and—a—half times the 15 pCi/l standard. This high value has not
been confirmed in any of the later analyses, however (Pet.
Attachment 2). Moreover, the sampling record is charactered by
substantial variation in concentration, with eleven of the
nineteen results
122—266
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and many of the four—consecutive—quarter samples below the 15
pCi/l standard (L~.)3.
In contrast to the record of gross alpha particle activity,
the analytical record for radium in the Minonk water system is
relatively meager: only three results are reported (Pet.
Attachment 2; Rec. ¶11). These are:
Date
Ra—226 Ra-228 Total
10/85
6.4
2.0
8.4
11/84
7.2
6.9
14.1
7/89
7.1
3.3
10.4
REGULATORY FRANEWORI(
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 limits for drinking water of 5 pCi/l of
combined radium-226 and radium-228 and 15 pCi/i of gross alpha
particle activity. Illinois subsequently adopted these limits as
the maximum allowable concentrations under Illinois law.
Pursuant to Section 17.6 of the Illinois Environmental Protection
Act (Ill. Rev. Stat. 1989, ch. 111
~,
par. 1017.6), any revision
of the combined radium standard by the USEPA will automatically
become the standard in Illinois.
The action that Minonk requests here is ~ variance from
the maximum allowable concentrations for either radium or gross
alpha particle activity. Regardless of the action taken by the
Board in the instant matter, these standards will remain
applicable to Minonk. Rather, the action Minonk 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
The Agency reports the most recent gross alpha particle
activity analysis, that of July 11, 1989, as being 25.5 pCi/l
(Rec. ¶11). Minonk, however, reports that the sample of that
date was split and sent to two different labs for gross alpha
analysis. One of the labs (Illinois Department of Nuclear
Safety) reported gross alpha particle activity at 9.7 pCi/l; the
second lab (Radiation Measurements, Inc.) reported gross alpha
particle activity at 15.8 pCi/i (Pet. Attachment 2). It is
apparently the sum of these two analyses which the Agency
reports.
122—26 7
—4—
supply will be constructed, modified or operated so as
not to cause a violation of the Environmental
Protection Act (Ill. Rev. Stat. 1989, ch. 111
~,
pars.
1001 et seq.) ~Act), or of this Chapter.
Section 602.106
Restricted Status
b) The Agency shall publish and make available to the
public, at intervals of not more than six months, a
comprehensive and up—to—date list of supplies subject
to restrictive status and the reasons why.
Illinois regulations thus provide that communities are
prohibited from extending water service, by virtue of not being
able to obtain, the requisite permits, if their water fails to
meet any of the several standards for finished water supplies.
This provision is a feature of Illinois regulations not found in
federal law. It is this prohibition which Minonk requests be
lifted. Moreover, grant of the requested variance would not
absolve Ninonk from compliance with the combined radium or gross
alpha particle activity standards, nor insulate Ninonk from
possible enforcement action brought for violation of those
standards, as Ninonk itself notes (Pet. ¶33).
In consideration of any variance, the Board determines
whether a
petitioner has presented adequate proof that immediate
compliance with the Board regulations at issue would •impose an
arbitrary or unreasonable hardship (Ill. Rev. Stat. 1989, ch.
111~, par. 1035(a)). Furthermore, the burden is upon the
petitioner to show that its claimed hardship outweighs the public
interest in attaining
compliance with regulations designed to
protect the
public (Willowbrook Motel v. Pollution Control Board
(1977), 135 Iil.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.
COMPLIANCE PROGRAM
Ninonk proposes to achieve compliance by constructing a
treatment plant which will use the reverse osmosis procedure to
remove radium from its water supply (Pet. at ¶21). Ninonk has
taken several steps constructing such a plant. Those steps
include approval of a $300,000 General Bond Obligation referendum
122—268
—5—
and authorizing the sale of such bonds (Pet. at ¶24A).
The
proceeds from that sale are now on deposit and available to
Ninonk.
Ninonk applied to the Department of Commerce and
Community Affairs (DCCA) for a Community Development Assistance
Program Grant (“CDAP Grant”).
Minonk reports that DCCA approved
a $300,000 grant
for construction of their water treatment plant,
Grant No. 90-24215.
Minonk states that the engineering agreement
for the design and preparation of construction plans and
specifications
for the reverse osmosis water treatment plant was
approved by the City Council on January 7, 1991 (Pet. at ¶24A 6-
7). Minonk, in its petition, lists the following steps to be
taken during the variance period:
1.
Continue the quarterly sampling program and
testing for radium and gross alpha.
2.
Issuance of public notification
every three
months as required to comply with Board
rules.
3.
By June 1991, complete construction plans and
specifications, and apply for an Agency
construction permit.
4. By September 1991, expected approval of
Agency construction permit, and advertise for
bids from contractors and suppliers.
5. By November 1991, award the contract for
construction to a successful bidder.
6. By October 1992, complete construction and
begin operation of the water treatment plant.
7. By September 1993, complete one year
compliance sampling and testing program to
prove compliance with Board standards.
8. Submission of progress reports to the Agency
every six months during the variance period
concerning completion of each of the steps
listed in the paragraphs above. (Pet. at
¶24B)
The Board denied Ninonk’s previous variance request because
it found Minonk’s variance speculative. In general, the Board
found the variance request speculative because Minonk developed
its compliance plan relying on the receipt of grant funds from
DCCA, which it had no assurance of receiving. Now that the grant
funds are received, Minonk stands ready to embark upon
construction and operation of its water treatment plant. The
Board finds that the compliance plan submitted in the instant
proceeding is not speculative.
122—269
—6—
HARDSHIP
Minonk contends that denial of variance would constitute an
arbitrary or unreasonable hardship.
It notes that:
Failure to obtain a variance means that no construction
within Petitioner’s service area requiring the
extension of the water supply system could take place.
This hurts prospective home construction as well as
business developers and Petitioner’s tax base.
This
problem is especially acute at the present time because
new 1—39 is currently under construction along the west
side of the City.
Petitioner will be excluded from
growth opportunities that will occur in other
communities along this corridor if developers are
discouraged because the petitioner (sic) is on
restricted status.
The time involved f or the
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
and fire protection requirements of the local
population (Pet. at ¶27—~j28).
In its immediately previous variance request, Minonk also
claimed hardship citing the construction of 1-39 and Ninonk’s
inability to extend its water system to accommodate any new
construction.
The Board found that because Minonk had over eight
years to achieve compliance, any hardship which Minonk may
experience from the denial for variance was largely self—imposed.
In ~so finding, the Board related that Minonk knew it was on
restricted status and could have foreseen the result of economic
growth with the development of 1—39. Consequently, Minonk could
have better prepared its water treatment plant for that growth.
However, the Board also specifically noted that the record did
not indicate steps toward compliance beyond searching out
alternative water supplies and development of an engineering
report.
In the instant proceeding, Minonk has shown significant
progress toward compliance with the obtaining of funds committed
to the construction of the plant, approval of the engineering
agr~eement, and compliance schedule outlined above.
Therefore,
the Board finds no reason that any hardship should continue to be
considered self—imposed.
The Agency also contends that denial of variance would
constitute an arbitrary and unreasonable hardship (Rec. ¶19).
PUBLIC INTEREST
Although Minonk 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. ¶22).
The Agency contends likewise
12 2—2 70
—7—
(Rec. ¶16).
In support of their contention, Minonk (Pet. ¶22)
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 R85-14, 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 Minonk’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.
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 Minonk.
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.
Accordingly, the variance will be granted.
122—
27
1
—8—
However, the Board finds that the five—year term of variance
requested by Ninonk is neither necessary nor advisable.
By
Minonk’s own admission, it can likely complete construction of
its water treatment plant, begin operation of the plant, and
demonstrate compliance in a time period less than five years.
Thus, a reasonable time period would be three years, which is in
accord with the Agency’s recommendation.
However, the Board also recognizes that promulgation of a
new radium standard by the USEPA might significantly
alter
Minonk’s compliance circumstance, even perhaps removing the need
for continued variance from Restricted Status4.
Although it is
now uncertain whether USEPA will complete promulgation of a new
radium standard during the three—year variance period, 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.
Ninonk is to bear in mind that today’s action is solely a
grant of variance from standards of issuance and Restricted
Status. Minonk is not being granted variance from compliance
with either the radium or gross alpha particle standard, nor does
today’s action insulate Minonk 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 Minonk, is hereby granted variance for
its water system from 35 Ill. Adin. Code 602.105(a), Standards of
Issuance, and 602.106(b), Restricted Status, as they relate to
the standard for radium and gross alpha particle activity in
drinking water of 35 Ill. Adrri. 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 Board notes that in a Federal Register notice
published April 22, 1991, USEPA states that it will publish a
Notice of Proposed Rulemaking (“NPRN”) in June 1991, and expects
to issue final action on a new radium standard in April 1993 (56
Fed. Reg. 18014, April 22, 1991).
122—27
2
—9—
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) May 23, 1994; or
(2) When
analysis pursuant to 35 Ill. Adm. Code
61l.Subpart Q, or any compliance demonstration
method then in effect, shows compliance with any
standards for radium and gross alpha particle
activity in drinking water then in effect; or
(3) Two years following the date of USEPA action.
(C) Compliance shall be achieved with any standards for
radium and gross alpha particle activity 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
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 radiuiu—226, 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
P.O. Box 19276
2200 Churchill Road
Springfield, Illinois 62794—9276
(D) 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
12 2—2 73
—10—
public water supply needed for achieving compliance
with the maximum allowable concentration for combined
radium and gross alpha particle activity, 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
(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 condition (E) of each of the
following actions:
1) advertisement for bids, 2) names
of successful bidders, and 3) whether Petitioner
accepted the bids.
(F) 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 and
gross alpha particle activity, or with any standards
for radium and gross alpha particle activity in
drinking water then in effect, shall be completed no
later than one year following the date of USEPA action
or May 23, 1993, whichever is earlier.
(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. Adm. Code 602.105(a)
Standards of Issuance and 35 Ill. Adm. Code 602.106(b)
Restricted Status, as they relate to the radium and
gross alpha particle activity 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 and gross alpha particle activity.
The notice
122—274
—11—
shall state the average content of radium and gross
alpha particle activity 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,
radium-226, radium-228, and gross alpha particle
activity 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
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 91-22, May 23,
1991.
Petitioner
Authorized Agent
Title
Date
122—27 5
—12—
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 Member Bill Forcade dissented.
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was
adopted on the
~
day of
7~)~,
,
1991, by
a vote of
________________
~J
~7.
Dorothy M. G~4~n,Clerk
-
Illinois Pol~utionControl Board
122—2 76
