ILLINOIS POLLUTION CONTROL BOARD
July 25,
1991
CITY OF ST.
CHARLES,
Petitioner,
v.
)
PCB 91—58
)
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
OPINION
AND
ORDER OF THE BOARD
(by R.C. Flemal):
This matter comes before the Board on the March 29,
1991
filing of a petition for variance
(“Pet.”) by the City of St.
Charles
(“St.
Charles”).
St. Charles 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 St.
Charles’ public water supply of the
5 picocuries
per liter
(“pCi/i”)
combined radiuin—226 and radium—228 and 15
pCi/l gross alpha particle activity standards of
35
Ill. Adm.
Code.Subtitle F1.
Variance
is requested for five years,
or two
years following the promulgation of a new radium standard by the
United States Environmental Protection Agency
(“USEPA”),
or wher~
analysis demonstrates compliance with the standards for radium
and gross alpha particle activity then in effect, whichever is
earlier.
The Illinois Environmental Protection Agency (“Agency”)
filed its Variance Recommendation
(“Rec.”) on May 6,
1991
accompanied by
a motion to file instanter.
On May 20,
1991,
St.
Charles filed a response to the Agency’s variance recommendation.
The Agency filed an Amended Variance Recommendation
(“Amend.
Rec.”)
on May 24,
1991,
also accompanied by a motion to file
instanter2.
The Agency recommends that variance be granted,
subject to conditions.
St. Charles waived hearing and no hearing
has been held.
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 motions to file the variance recommendation and
amended variance recommendation instanter were granted by the
Board on May 9,
1991 and June 6,
1991,
respectively.
12 4—203
—2—
Based on the record before it, the Board finds that St.
Charles 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.
BACKGROUND
St. Charles is
a municipality located in Kane and DuPage
Counties.
Among other services,
St. Charles provides potable
water supply and distribution to a population of 23,168 persons.
St. Charles’s water supply system is a combined deep— and
shallow—well system composed of fo~irdeep wells
(3,
4,
5, and 8),
three shallow wells
(9,
11, and
7)
,
and pumps, storage, and
distribution facilities.
The water distribution system consists
of 137 miles of water main,
which is differentiated by a high and
low pressure zone.
The low pressure system is primarily supplied
by wells
3,
4,
and 5, and represents 25
of total water
consumption.
The high pressure system is primarily supplied by
wells 7,
8,
9, and 11 and provides the remaining 75
of the water
consumed by the residents of St. Charles
(Pet. at
3)
St. Charles was first advised that its water supply exceeded
the maximum allowable concentration for combined radium and gross
alpha particle activity in a letter dated January 30,
1991
(Pet.
at 1).
The Agency reported that a January 1991 analyses of four
consecutive quarterly samples showed:
Well
#
Combined Radium
Gross Alpha
3
13.6 pCi/i
25.7 pCi/i
4
11.2 pCi/i
22.2 pCi/l
5
15.6 pCi/i
24.1 pCi/l
7
4.66
8
3.1 pCi/i
12.7 pCi/i
9
0.1 pCi/i
2.4 pCi/i
(Rec.
¶11; Pet. at Exh. A).
St. Charles was notified of being
placed on restricted status by letter from the Agency dated
February
6,
1991
(Rec.
¶10; Pet. at Exh.
B).
St. Charles has no prior history of noncompliance for
radium,
gross alpha particle activity or other contaminants
(Pet.
at 8-9).
The present petition for variance was filed within
sixty days of Agency notification of restricted status.
The record indicates that wells
1 and
2 are old wells that
have been sealed, and well 10 is a proposed new well
(Pet. at
Exh.
D).
124—
204
—3—
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
public water supply systems are prohibited from extending water
service, by virtue of not being able to obtain the requisite
permits,
unless and until their water meets all of the standards
for finished water supplies.
It
is St.
Charles’ request that it
be allowed to extend its water service while it pursues
compliance with the radium and gross alpha particle standards,
as
opposed to extending service only after attaining compliance.
In determining whether any variance request is to be
granted,
the Act requires that the Board determine whether the
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.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 276,
367
N.E.2d,
684); compliance is to be sought regardless of the
hardship which the task of eventual compliance presents an
individual polluter
(~.).
Accordingly, except in certain
special circumstances, a variance petitioner is required, as a
124—20~5
—4—
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 of
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, as St. Charles itself
notes
(Pet. at 19).
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/l 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 USEPA4.
Over much of the fifteen years since their original
promulgation, the current radium and gross alpha particle
activity standards have been under review at the federal level.
The USEPA first proposed revision of the standards in October
1983 in an Advance Notice of Proposed Rulemaking
(48 FR 45502).
It later republished this advance notice in September 1986
(51 FR
34836).
Most recently,
on June 19,
1991, USEPA announced a
proposal to modify both standards5.
USEPA proposes to replace
the 5 pCi/i 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
adjusted gross alpha particle activity standard; the latter would
still have a 15 pCi/i value, but would no longer include alpha
particle activity associated with radium or uranium decay.
Under
the USEPA’s calendar, these standards are scheduled for
promulgation by April 1993 with an effective date of October
1994.
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.
~ Publication occurred at 56 FR 33050, July 18,
1991.
124—206
—5—
COMPLIANCE
PROGRAM
Since St. Charles has several shallow wells with sufficient
capacity for blending,
St. Charles is considering blending of
radiological-free shallow well water with its deep well water
that contains radium and show elevated gross alpha particle
activity.
In fact,
St. Charles has already begun blending of
some of the water from its wells,
as described below.
St.
Charles’ blending plan for each problematic well is outlined
below (Pet.
at 14, 4-6).
Wells
3 and
4
St.
Charles has initiated blending at the common reservoir
for wells
3 and
4 by the addition of radiological-free water from
shallow wells
9 and 11.
St. Charles claims that the results of
sampling conducted February 28 and March 12,
1991 are within
allowable concentrations:
Gross
Sample Description
Alpha
Concentration (pCi/L)
Ra-226
Ra—228
Two East State Avenue
9.9±1.3
13i7 East Main Street
6.7±1.1
3.3±0.2
2.6±0.2
1.5±6
2.1±7
fWater Samples Collected March 12,
1991
Gross
Sample Description
Alpha
Concentration
(pCi/L)
Ra—226
Ra—228
155 Illinois Street
8.6±1.2
1317 East Main Street
7.1±1.1
3.9±0.3
4.4±0.3
1.7±0.9
1.8±0.8
Water
Samples Collected February 28,
1991)
(Pet. at Exh.
F)
If future results do not demonstrate compliance,
St. Charles
states that it will adjust the amount of water blended until
compliance is fully achieved
(Pet.
at 14)6.
6
Pursuant to 6l1.Subpart Q, an analysis of an annual
composite of four consecutive quarterly samples or the average of
the analyses of four samples obtained at quarterly intervals is
necessary to demonstrate compliance.
124—20
7
—6—
Well 5
Following receipt of the notice of noncompliance, St.
Charles shut down well 5.
St.
Charles states that this is not a
viable long term alternative,
since St. Charles needs the water
from this well to ensure adequate flow to provide water for its
residents and for emergency situations.
Therefore,
St. Charles
is considering two compliance alternatives for well
5
(Pet. at
15).
The first alternative is to provide a dedicated water main
to interconnect well 5 with the low pressure distribution system
at the 10th Street water tower.
This would allow blending of the
water from wells
3,
4,
9, and 11 with water from well 5.
In
addition, this alternative would require St. Charles to
disconnect approximately 10 customers supplied water from well
5
and reconnect them to the system accommodating the dedicated
water main from well
5 to the elevated 10th Street water tower.
The estimated cost of this alternative is $10,000 to $15,000
(Pet.
at 15).
The second alternative is to use a blending valve at well
5
to allow for blending with shallow well water.
This alternative
would also require a water main extension.
The estimated cost is
between $45,000 and $55,000 with an estimated annual operating
cost in the range of $2,500 to $3,500
(Pet.
at 15).
In its Amended Recommendation, the Agency proposes a
condition which would require St. Charles to notify the Agency of
its intent to use well 5,
or in case of an emergency,
to notify
the Agency immediately after well
5
is put into operation (Amend.
Rec. ¶2-4)~. The Agency believes this condition is necessary
because well
5 exhibits high levels of the contaminants in
question.
The record shows levels of 20.7, 27.6,
21.8,
and 26.4
pci/i for gross alpha particle activity for the four quarters of
1990
(Pet. at Exh.
F).
As noted above, the Agency reports a
combined radium level for 4 quarters of 1990 of 15.6 pCi/i for
well
5.
Well
8
St. Charles believes that as a result of the configuration
of St. Charles waster distribution system,
a significant amount
of inline blending is occurring in the distribution system served
by well 8.
St. Charles reports that this inline blending is also
demonstrated by the fact that test results from the well head of
The Board notes that the Agency,
in its Amended
Recommendation,
changed the recommended condition as it pertained
to the emergency use of well 8.
The Agency now intends that this
emergency use refer to well 5 rather than well 8, and amended its
recommended condition accordingly.
124—208
—7—
well
8 exhibits radiological levels above the Board’s standards,
and water from the distribution system ser~edby well
8
demonstrates compliance with the standards
.
St. Charles
believes that a few residential customers may occasionally
receive water from well
B prior to the inline blending.
Hence,
St. Charles has also investigated compliance options for well 8.
St. Charles previously investigated the alternative of
sleeving well
8 to isolate the sources of radium and gross alpha
particle activity, but this was rejected due to an unacceptable
reduction in yield
(Pet.
at
16,
12—13).
St. Charles has retained
the services of Layne—Western to further explore compliance
options for well 8.
Since none of St.
Charles’ existing shallow
wells are in the vicinity of well 8, Layne—Western has proposed
test drilling to locate a shallow well suitable for blending,
near well
8.
St. Charles also intends to explore the possibility
of transmission main changes to further any incidental blending
within the distribution system served by well 8.
In addition,
St. Charles anticipates participating in a
joint study with the City of Geneva and Kane County to evaluate
shallow aquifers, and has budgeted funds for fiscal year 1991—92
to share
in the funding for the study.
Through its participation
in this study,
St. Charles anticipates that identification of
shallow aquifers on the east side of the city which it
potentially can use as sources for blending with well
8 water
(Pet. at 16).
Other Related Measures
As mentioned above, and during the course of the variance,
St. Charles states that it will continue to develop its blending
program for wells
3 and 4.
St. Charles states it will also
conduct the necessary engineering studies to determine the most
cost effective and technically feasible alternatives for wells 5
and 8.
St. Charles explains that it will keep well 5 shut down,
except for emergency purposes such as a large fire, water main
break, or severe drought.
Once it selects compliance
alternatives,
St. Charles states that it will proceed with all
actions short of final design and construction of compliance
equipment (Pet.
at 17).
HARDSHIP
St. Charles contends that denial of variance would
constitute an arbitrary or unreasonable hardship.
If the
variance is not granted,
St. Charles alleges that loss of
proposed and actual development would result which would cause
The Board notes that the January 1991 Agency letter shows
compliant levels of radium and gross alpha for 1990 well
8
samples
(Pet.
at Exh. A).
124~’209
—8—
serious adverse economic impact upon St. Charles
(Pet. at 17—
18).
St. Charles lists 44 new and potential developments,
consisting of single and multi—family units,
as well as
commercial,
office, and industrial site developments
(Pet.
at
Exh.
I).
St. Charles also states that denial of the variance
could stop water system improvements for the city,
including the
downtown area and older section of the city (Pet. at 18;
Exh.
I).
The Agency states that denial of variance would require the
Agency to continue to deny construction and operating permits
until compliance is achieved, allowing no grants of permits for
new water main extensions,
thereby halting economic growth
dependent on any new mains
(Rec.
¶20).
The Agency believes that
denial of variance would constitute an arbitrary or unreasonable
hardship
(Rec.
¶19).
ENVIRONMENTAL IMPACT
Although St. Charles 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.
at 6-7).
The Agency contends
likewise
(Rec.
¶16).
In support of their contention,
St. Charles
(Pet. at
6)
and the Agency
(Rec.
¶15)
reference testimony
presented by Richard E. Toohey,
Ph.D. of Argonne National
Laboratory at hearings held for R85—14 and to updated testimony
presented by Dr. Toohey in the Board’s hearing on the Braidwood
variance, PCB 89-212.
In its recommendation, the Agency states that while
radiation at any level creates some risk, the risk associated
with St. Charles’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 likelihood of no significant injury to the public
from continuation of the present level of the
contaminants in question in the Petitioner’s water for
the limited time of the variance, and the possibility
of compliance with a new NCL standard by less expensive
means if the standard is revised upward, the Agency
concludes that denial of 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
124—210
—9—
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 and ¶28)
CONSISTENCY WITH FEDERAL LAW
The Board can grant variance from restricted status
consistent with the requirements of the Safe Drinking Water Act
(42 U.S.C.
300(f) ~
~g.),
as amended by the Safe Drinking Water
Act Amendments of 1986
(Pub. Law 99—339,
100 Stat.
642
(1986)),
and the USEPA National Interim Primary Drinking Water Regulations
(40 CFR Part 141) because such relief would not constitute a
variance from national primary drinking water regulations nor a
federal variance
(Rec. ¶~22-24;Pet. at 19).
Specifically, grant
of variance from restricted status means that only the State’s
criteria for variances are relevant.
The Agency and St.
Charles agree that grant of variance
leaves St. Charles subject to the possibility of federal
enforcement for vioiations of the radium standards
(Rec.
¶25,
Pet.
at 19).
The Agency believes that it is unlikely that USEPA
will object to the issuance of variance because of the current
review of radium standards
(Rec.
¶ 26).
CONCLUSION
The Board finds that,
in light of all the facts and
circumstances in this case,
denial of variance would impose an
arbitrary or unreasonable hardship upon St.
Charles.
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.
Therefore,
the Board grants the variance as requested, with
conditions.
The Board notes that timely compliance by St.
Charles may be
affected by pending USEPA action to promulgate new standards for
radionuclides in drinking water.
New radionuclide standards from
USEPA could significantly alter St. Charles’s need for a variance
or St. Charles’s alternatives for achieving compliance.
In
recognition of this situation, the Board’s variance will contain
suitable timeframes to account for the effects of any USEPA
alteration
(or notice of refusal to alter)
of the radium
standard.
St. Charles is to bear in mind that today’s action is solely
a grant of variance from standards of issuance and restricted
status.
St. Charles is not being granted variance from
compiiance with the radium and gross alpha particle activity
124—211
—10—
standards, nor does today’s action insulate St. Charles in any
manner against enforcement for violation of those standards.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Petitioner,
City of St. Charles,
is hereby granted variance
from 35 Iii. Adm. 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. 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)
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,
gross alpha particle activity, or the method by
which compliance with either the radium or gross
alpha particle activity 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, the 15 pCi/I gross alpha particle
activity standard, or the methods for
demonstrating compliance with either standard will
be promulgated.
(B)
Variance shall terminate on the earliest of the
following dates:
(1)
When analysis pursuant to 35
Ill.
Adm. Code
6l1.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;
(2)
Two
years following the date of USEPA action;
or
(3)
July 25,
1996.
(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.
12
4—2
12
—11—
(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 so as to
determine the concentration of radium—226 and radium—
228 and gross alpha particle activity.
At the option
of Petitioner the quarterly samples may be analyzed
when collected.
The results of the analyses shall be
reported within 30 days of receipt of the most recent
result to:
Illinois Environmental Protection Agency
Compliance Assurance Section
Division of Public Water Supplies
2200 Churchill Road
Springfield, Illinois 62794—9276
(E)
Construction of all installations,
changes or additions
necessary to achieve compliance with the standards for
radium and gross alpha particle activity shall be
completed no later than four years from grant of the
variance, one year will be necessary to prove
compliance.
(F)
Prior to or in case of emergency,
immediately after
well #5 is put into operation, Petitioner shall notify
Leonard Lindstrom,
Regional Manager of the Agency’s
Regional Office at 708/741—7771, of the intention to
utilize well #5, and the projected duration of such
use.
(G)
Pursuant to 35
Ill. Adm. Code 611.851(b),
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 and gross alpha particle activity standards.
(H)
Pursuant to 35 Iii. Adm. Code 611.851(b),
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
124—2 13
—12—
user of its public water supply a written notice to the
effect that Petitioner is not in compliance with
standards for radium and gross alpha particle activity.
The notice 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 paragraphs C-I.
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—58, July
25,
199i.
Petitioner
Authorized Agent
124—214
—13—
Title
Date
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 Member J.
D. Dumelie dissented.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above Oi~inionand Order was
adopted on the
~
day of
a vote of
2
1991,
by
Illinois
Control Board
124—2 15
