ILLINOIS POLLUTION CONTROL BOARD
    July 25,
    1991
    VILLAGE OF
    MILAN,
    )
    )
    Petitioner,
    )
    v.
    )
    PCB 91-33
    )
    (Variance)
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    OPINION
    AND
    ORDER OF THE BOARD
    (by J. Anderson):
    This matter comes before the Board upon a petition for
    variance extension filed by the Village of Milan
    (“Milan”) on
    February
    25,
    1991.
    Milan seeks a variance from the Board’s
    public water supply regulations, namely from 35
    Ill. Adm. Code
    602.105(a)
    (Standards for Issuance)
    and 35 Ill.
    Adm.
    Code
    602.106(b)
    (Restricted Status) but only to the extent that those
    rules involve 35 Ill. Adm. Code 604.301(a)
    (combined Radium
    -
    226
    and Radium
    -
    228).1
    Milan requests variance until March
    1,
    1993.
    On April
    1,
    1991, Milan filed its Amended Petition for
    Variance
    (“Am. Pet.”).
    On April 17,
    1991, the Illinois
    Environmental Protection Agency (“Agency”)
    filed its
    Recommendation (“Rec.”) that the variance be granted.
    Hearing
    was waived and none has been held.
    Based on the record before
    it, the Board grants Milan’s variance request, subject to
    conditions.
    BACKGROUND
    Milan is a municipality located in Rock Island County,
    Illinois providing
    public
    services,
    including potable water
    supply and distribution for
    a
    total of 2400 residential,
    industrial and commercial customers.
    This includes 5800
    residents and some 176 industries and businesses employing
    approximately 3000 people.
    Petitioner is not a part of a
    regional public water supply
    (Am.
    Pet.
    8,9).
    The Petitioner owns and operates a distribution system which
    includes one deep well and three shallow wells, pumps and
    distribution facilities,
    as follows:
    1
    This standard was recodified at 611.330(a) effective
    September 20,
    1990.
    (See Illinois Register, Volume 14, Issue 40;
    October
    5,
    1990).
    124—193
    2
    Placed in
    Gallons
    Well No.
    Depth
    Operation
    Per Minute
    Location
    1
    200
    Standby
    100
    First Avenue and
    Fourth St. West
    2
    200
    Standby
    100
    First Avenue and
    Fourth St. West
    3
    450
    1955
    300
    12th Ave. and
    Third Street
    4
    1780
    1970
    1200
    Camden Park
    (Am.
    Pet, paragraph 12)
    Milan was first notified of noncompliance with the combined
    radium standard by letter from the Agency dated September 14,
    1984.
    The Agency report stated that testing revealed combined
    radium concentration levels of 7.3 pCi/L.2
    If the requested variance is granted, Petitioner will only
    extend its water mains to serve Milan Industrial Park,
    a 52 acre
    development with estimated development costs of $612,000.00.
    The
    Industrial Park will contain approximately 18 lots having an
    average size of 2.8 acres.
    When fully developed Milan estimates
    that the park will employ 200 people and that 18 hookups will be
    required
    (Am.
    Pet.
    11).
    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
    2
    Recent test result dated March 11,
    1991 prepared by Q.
    C.
    Metallurgical Laboratory,
    Inc. does not indicate a violation (Am.
    Pet. Exh.
    3A).
    This result is not a composite quarterly
    sampling, however.
    124—194
    3
    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
    (u.).
    Accordingly, except in certain
    special circumstances, a variance petitioner is required, as a
    condition to grant of variance, to commit to a plan which is
    reasonably calculated to achieve compliance within the term of
    the variance.
    It is to be noted that grant of variance from “Standards 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/i
    for the sum of the two isotopes of
    radium, radium-226 and radium-228
    (“combined radium”), and 15
    pCi/l for gross alpha particle activity.
    Shortly thereafter
    Illinois adopted the same limits.
    Although characterized as
    124—195
    4
    “interim” limits, these standards nevertheless are the maximum
    allowable concentrations under both federal and Illinois law, and
    will remain so unless modified by the USEPA.3
    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 of them.
    USEPA proposes to replace the
    5
    pCi/l combined radium standard by separate standards of 20 pCi/I
    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/l 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.
    HARDSHIP
    Milan states that the limited extension of water mains that
    it seeks will not cause any significant harm to the environment
    or to the people served by any extension of water mains.
    Continuation of restricted status would, however mean that Milan
    could not extend its water mains to the Milan Industrial Park,
    and, therefore, mean that Milan could not continue efforts to
    develop the park (Pet.
    31).
    Milan has obtained a grant from
    the Economic Development Administration totalling approximately
    $300,000
    for the development of Milan Industrial Park.
    Because
    of certain time constraints,
    failure to obtain variance would
    place the grant
    in jeopardy.
    Milan states that failure to
    complete the project would result in the loss of jobs and the
    increase in tax revenue, associated with the project
    (Am. Pet.
    32).
    Milan believes that as there is no significant risk of
    environmental harm or risk to public health associated with grant
    of the variance, continuation of Restricted Status would be a
    arbitrary or unreasonable hardship
    (Pet.
    33).
    PUBLIC INTEREST
    Although Milan 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
    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.
    124—196
    5
    of variance
    (Pet.
    21).
    The Agency contends likewise
    (Rec.
    14).
    In support of these contentions, 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 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 Milan’s water is 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 the grant of that variance.
    In light
    of the likelihood of no significant injury to the
    public from the 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 in so far 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)
    COMPLIANCE
    PROGRAM
    Milan does not now have any existing controls for the
    contaminant.
    Petitioner is in the final stages of constructing a
    blending/water main connection project that connects its water
    distribution system with that of the City of Rock Island
    (Am.
    Pet.
    18; Exh.
    4).
    The City of Rock Island is a municipality
    that has a present population of 43,000 and its source of water
    supply is the Mississippi River.
    The Mississippi River water has
    no significant and detectable radium.
    124—197
    6
    Blending of waters produced by Petitioner’s system with
    water purchased from the City of Rock Island requires significant
    construction, including:
    A.
    The laying of 6500 lineal feet of 12 inch water main
    along 92nd Avenue in the City of Rock Island to
    Petitioner’s well No.
    4 located in Camden Park.
    This
    phase of construction has been fully completed at a
    cost to Milan of $192,000.00
    B.
    The construction of improvements to the pumping station
    and pumping equipment owned by the City of Rock Island
    and located on Ridgewood Road.
    Milan states that this
    phase of construction is approximately 30
    completed
    and when completed the total cost will be $71,000.00.
    C.
    The construction of blending facilities at well No.
    4
    at Camden Park including control value,
    flow meter,
    pump,
    motor,
    signal transmitters, all to be housed in a
    newly constructed control building, and the
    construction of a blending tank.
    This phase of
    construction is 98
    completed.
    The total cost of this
    phase is $473,000.00
    (Am.
    Pet.
    19).
    The total cost of the improvements referred to is estimated
    by Milan at $736,000.00
    (Am. Pet.
    20).
    Once construction is
    completed,
    Milan will have achieved compliance with the
    applicable standards.
    CONSISTENCY WITH FEDERAL
    LAW
    The Agency believes that Milan may be granted variance
    consistent with the requirements of the Safe Drinking Water Act
    (42 U.S.C.
    §300
    (f)) and corresponding regulations because the
    requested relief is not a variance from a national primary
    drinking water regulation
    (Am. Rec.,
    par.
    22).
    PROPOSED FEDERAL STANDARD REVISION
    The federal standard for radium has been under review for
    some time.
    In anticipation of the federal 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.
    On April 22,
    1991 USEPA published its
    “Unified Agenda” concerning its proposed maximum contaminant
    levels goals and primary drinking water standards for
    radionuclides in drinking water. (56 Fed. Reg.
    18014)
    Then, on
    June 19,
    1991 USEPA proposed a drinking water standard for
    radium-226 and radium-228 set at 20 pCi/l respectively.
    Final
    124—198
    7
    action is due April
    1993 according to the proposal and would
    become effective October l994.~
    CONCLUSION
    The Board finds that,
    in light of all the facts and
    circumstances of this case, Milan has presented adequate proof
    that immediate
    compliance would impose an arbitrary or
    unreasonable hardship on Milan.
    Milan expects to complete all
    components of its compliance plan before August 1991.
    Given
    Milan’s imminent completion of improvements necessary to assure
    compliance, the Board also finds that a short period of variance
    is both warranted and appropriate.
    Finally, Milan’s construction
    schedule means that any change in the standard promulgated by
    U.S. EPA will not require an alteration of the compliance
    schedule adopted here.
    Therefore,
    the Board grants variance
    consistent with this Opinion and Order to July 25,
    1992.
    ORDER
    1.
    Petitioner, Village of Milan,
    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)
    Variance shall terminate on the earliest of the
    following dates:
    (1)
    July 25,
    1992; or
    (2)
    When analysis pursuant to 35
    Ill.
    Adju. Code
    605.104(a),
    or any compliance demonstration method
    then in effect, shows compliance with any
    standards for radium in drinking water then in
    effect.
    (B)
    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.
    (C)
    In consultation with the Illinois Environmental
    Protection Agency (“Agency”), Petitioner shall continue
    its sampling program to determine as accurately as
    ~ Public hearings are scheduled for September 6, 1991 in
    Washington,
    D.C. and September 12,
    1991 in Chicago,
    Illinois.
    A
    ninety day comment period began with publication.
    124—199
    8
    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
    228.
    At the option of Petitioner the quarterly samples
    may be analyzed when collected.
    The results of the
    analyses shall be reported within 30 days of receipt of
    the most recent result to:
    Illinois Environmental Protection Agency
    Compliance Assurance Section
    Division of Public Water Supplies
    2200 Churchill Road
    Springfield, Illinois 62794—9276
    (D)
    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
    August
    1,
    1991.
    (E)
    Pursuant to 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.
    This
    notice
    shall
    state
    the
    average content of radium in samples taken since the
    last
    notice
    period
    during
    which
    samples
    were
    taken.
    (F)
    Until
    full
    compliance
    is
    achieved,
    Petitioner
    shall
    take
    all
    reasonable
    measures
    with
    its
    existing
    equipment to minimize the level of combined radium,
    radium-226, and radium-228,
    and gross alpha particle
    activity in its finished drinking water.
    (G)
    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.
    124—200
    9
    Illinois
    Environmental
    Protection
    Agency
    Division of Public Water Supply
    Field
    Operations
    Section
    2200 Churchill Road
    Springfield, Illinois 62794—9276
    2.
    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
    91-33,
    July
    25,
    1991.
    Petitioner
    Authorized
    Agent
    Title
    Date
    Section 41 of the Environmental Protection Act, Ill.
    Rev.
    Stat. 1989,
    ch.
    111 1/2, 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
    Jacob
    D.
    Dumelle
    concurred.
    124—201
    10
    I, Dorothy M. Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereby certj.fy that the ab
    0 inion and Order was
    adopted on the!~~ day of _______________________,
    1991,
    by a vote of
    _________________.
    /
    ,7
    2.
    Dorothy M. p~nn,Clerk
    Illinois Pd~1utionControl Board
    124—202

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