ILLINOIS POLLUTION CONTROL
BOARD
June 20,
1991
CITY OF
DEKALB,
)
Petitioner,
)
v.
)
PCB 91—34
)
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
RONALD G. MATEKAITIS,
ESQ.
APPEARED ON
BEHALF OF THE PETITIONER.
STEPHEN
C. EWART,
ESQ.
APPEARED
ON
BEHALF
OF THE RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by J. Theodore Meyer):
This matter comes before the Board on the February 26,
1991
filing of a petition for variance (“Pet.”)
by. the City of DeKaib
(“DeKaib”).
DeKaib 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
DeKalb’s public water supply of the
5 picocuries per liter
(“pCi/l”) combined radium-226 and radium-228 standard of 35 Iii.
Adm. Code.Subtitle F1.
Variance is requested for five years.
On March 21,
1991 and March 26,
1991,
the Board received
letters objecting to the request for variance.
The March 26,
1991 letter was signed by seventeen people.
Pursuant to 35 Ill.
Adm. Code 104.160(c) (2), which requires a hearing be held when a
timely objection is made to a petition for variance, the Board
accepted this matter for hearing on March 28,
1991.
Hearing was
held on May 13,
1991 at the Municipal Building, DeKalb,
Illinois.
Present at the hearing were the parties, members of the public,
the press,
and Board Member
Ronald
C.
Flemal and Board Attorney
Michelle Dresdow.
Dr.
Flemal, who lives and works
in DeKaib, has
recused himself from these proceedings.
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 Illinois Environmental Protection Agency
(“Agency”)
filed its variance recommendation (“Rec.”)
on April
1, 1991.2
The Agency recommends that variance be granted,
subject to
conditions.
On June 10,
1991,
the DeKaib Citizen’s Environmental
Committee requested that the Board withhold voting on the
petition for variance until June 20,
1991.
Since the Board must
take final action by that date anyway, the request is moot.
On June 19,
1991,
the Concerned Citizen’s of DeKaib filed a
“Request for Denial of Petition for Variance” with the Board.
Pursuant to 35
Ill. Adm. Code 101.181, the request has been filed
too late to be considered in the Board’s decision making process.
In addition, since the Concerned Citizen’s of DeKaib is not a
party to the proceeding,
the Board is not required to consider
the request.
The Board notes that many of the concerns in the
June 19,
1991 request were properly raised at hearing
anci have
been considered by the Board.
Based on the record before it, the Board finds that DeKaib
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 as set forth in this Opinion and
Order.
BACKGROUND
DeKaib is a municipality located in DeKalb County.
Among
other services, DeKalb provides potable water supply and
distribution to 6,075 residential,
625 commercial, and 50
industrial utility customers
(Pet. ¶10,
Tr. at 6).
DeKalb’s
water supply system is a deep well system composed of nine deep
wells,
four storage tanks and ninety miles of water distribution
system
(Pet. ¶10, Tr. at 7).
The wells range in depth from 949
feet to 1,328
feet, with the oldest well placed in operation in
1921 and the newest well in 1988
(Pet.
¶14).
DeKalb was first advised that its water supply exceeded the
maximum allowable concentration for combined radium in a letter
dated December 26,
1990
(Pet.
¶16, Tr.
at 8).
The Agency
reported that a December 1990 analyses of four samples showed a
combined radium content of 9.8 pCi/i
(Rec.
¶11).
DeKalb was
notified of being placed on restricted status by letter from the
Agency dated
January
4,
1991
(Pet. ¶16).
DeKalb has no prior history of noncompliance for radium,
gross alpha activity or other contaminants
(Pet.
¶26, Tr. at 9).
2 The Agency Recommendation was accompanied by a motion to
file instanter.
That motion was granted on April 11,
1991.
—3—
The present petition for variance was filed within sixty days of
Agency notification of restricted status.
REGULATORY
FRAMEWORK
In
recognition of a variety of possible health effects
occasioned by exposure to radioactivity, the USEPA has
promulgated
a maximum concentration limit for drinking water of
5
pCi/i of combined radiuni-226 and radium-228.
Illinois
subsequently adopted this same limit 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
½.
par. 1017.6), any revision of the
5 pCi/i standard by
the USEPA will automatically become the standard in Illinois.
Two
features of Illinois regulations not found in federal
law and intended to promote compliance are “Standards for
Issuance” and “Restricted Status”.
These features are found at
35 Ill. Adm. Code 602.105 and 602.106.
In pertinent part these
sections read:
Section 602.105
Standards for Issuance
a)
The Agency shall not grant any construction or
operating permit required by this Part unless the
applicant submits adequate proof that the public water
supply
will
be constructed, modified or operated so as
not to cause a violation of the Environmental
Protection Act
(Ill. Rev.
Stat.
1989,
ch.
ill
~,
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.
It is this prohibition which DeKalb requests be lifted.
Grant of
the requested variance would not absolve DeKalb from compliance
with the combined radium standard, nor insulate DeKaib from
possible enforcement action brought for violation of those
standards,
as DeKalb itself notes
(Pet.
¶41).
The action that
DeKalb requests here is not variance from the maximum allowable
concentration for radium.
Regardless of the action taken by the
Board
in the instant matter, this standard will remain applicable
to DeKalb.
—4—
After a petition for variance is filed, the Act requires
that the Board determine whether a petitioner has presented
adequate procf that immediate compliance with the Board
regulations ~itissue 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
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.
Lastly,
a variance by its nature is a tein~oraryreprieve
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 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.
COMPLIANCE PROGRAM
DeKalb is considering two compliance options,
including
constructing treatment facilities for the deep well water,
and
searching for alternative sources of supply, such as the
construction of shallow wells
(Pet.
¶21).
DeKaib is considering
retaining the services of an outside consultant to assist with
reviewing and evaluating the alternatives and to prepare
recommendations for resolving the radium problem.
DeKalb has not
developed a detailed timetable for resolving the problem but
proposed a schedule of activities to be undertaken during the
variance period. (Pet.
¶22).
At hearing, Mr. Lawrence Thomas of Baxter
& Woodman
Environmental Engineers, testified about the alternatives
available to DeKalb.
Mr. Thomas estimated that treatment
facilities would cost approximately $700,000 to $800,000 per well
or approximately six or seven million dollars total
(Tr. at 17,
19).
Mr. Thomas did not seem to think one treatment facility
with connecting water mains from all wells would be significantly
cheaper
(Tr. at 20).
Shallow wells would cost approximately one
million dollars per well,
for a total of approximately ten
million dollars
(Tr. at 18).
HARDSHIP
DeKalb contends that denial of variance would constitute an
arbitrary or unreasonable hardship.
If the variance is not
granted, DeKalb lists eight developments, containing
—5—
approximately 19 apartment buildings and over three hundred
single family units, which will be denied water service (Pet
¶
13).
DeKalb also states that denial of the variance would stop
water system improvements for the city and for Northern Illinois
University
(Pet.
¶36).
DeKalb contends that loss of any of the
development or improvement projects creates a serious economic
impact upon the city (Pet ¶36).
It notes that:
Failure to obtain a variance means that all
construction within the Petitioner’s service area
requiring the extension of the water supply system,
could not resume.
This negatively impacts prospective
home purchasers as well as business developers and
Petitioner’s tax base...
The time involved for the
planning, financing, engineering and construction of
water treatment facilities prevents immediate
compliance...
In the interim period, there
is a great
need for expansion of the present water distribution
system in order to serve the domestic and fire
protection requirements of the local population.
(Pet.
¶35—36)
DeKalb further contends that the expenditure of public funds
for treatment facilities which may become obsolescent in the near
future due to revision of the radium standard is not in the
public interest and does not grant-a corresponding benefit to the
public
(Pet.
¶34).
The Agency also contends that denial of
variance would constitute an arbitrary or unreasonable hardship
(Rec.
¶19).
ENVIRONMENTAL EFFECTS
Although DeKaib 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.
¶25).
The Agency contends likewise
(Rec.
¶16).
In support of their contention, DeKalb
(Pet.
¶
25)
and the Agency
(Rec. ¶15) reference testimony presented by
Richard E. Toohey, Ph.D.
of Argonne National Laboratory at
hearings held for PCB 85—54 and R85-l4 and to updated testimony
presented by Dr. Toohey in the Board’s hearing on the Braidwood
variance, PCB 89-212.
Dr. Toohey also appeared at hearing to testify on the health
risks associated with a 9.8 pC/l radium level.
Dr. Toohey stated
that, depending on the risk model used,
the risk to a population
of 2,025
in a five year period would be either 0.028 additional
cancers induced (current EPA risk model)
or 0.007 additional
cases of cancer
(Dr. Toohey’s risk model).
These figures assume
~
This is the estimated population which will be served by
new water connections after the variance is granted.
—6—
consumption of contaminated water begins immediately and
continuously for the entire five year period
(Tr. at 26).
As to the possibility of USEPA changing the standards for
radium in drinking water,
Dr. Toohey does not believe the
supposed change will increase the risk.
He stated that the
lifetime risk for a person will not change if the radium standard
is eased because USEPA used an inappropriate method of risk
assessment to calculate the present standard
(Tr. at 28—29).
In its recommendation, the Agency states that while
radiation at any level creates some risk, the risk associated
with DeKalb’ s water is very low
(Rec.
¶16).
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 contaminants 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.
In so saying,
the Agency emphasizes that it continues to place a high
priority on compliance with the standards.
(Rec. ¶27 and ¶28)
PUBLIC INTEREST
Approximately twenty members of the public attended the
hearing.
Eight people made statements on the record expressing
their concern about the radium in the DeKalb water.
Several
people asked questions concerning the effects of radium on
children, methods to treat tap water,
the potential for higher
radium levels in the area water, and the accuracy of the cost
estimates for the compliance alternatives.
Several people
supported the 5 pCi/l combined radium concentration standard;
several others saw little harm in the USEPA’s proposed change.
—7—
The Board again notes that the variance requested by DeKalb
is not from the effective radium standard.
That standard remains
applicable against DeKaib.
A variance is a temporary reprieve
from the Board’s regulations until compliance is acaleved.
DeKalb is not avoiding compliance and has in fact agreed to make
every effort to achieve compliance by the terms of the variance.
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) ~
~gg.), 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. ¶38—40).
Specifically,
grant of variance from restricted status means that only the
State’s criteria for variances are relevant.
The
Agency states that grant of variance leaves DeKalb
subject to the possibility of federal enforcement for violations
of the radium standards (Rec.
¶25).
The Agency believes that it
is unlikely that USEPA will object to the issuance of variance
because of the current review of radium standards.
CONCLUSION
The Board finds that,
in light of all the facts and
circumstances in this ease, denial of variance would impose an
arbitrary or unreasonable hardship upon DeKalb.
The Board also
agrees with the parties that no significant health risk will be
incurred by persons who are served by any new water main
extensions, assuming that compliance is timely forthcoming.
The Board notes that timely compliance by DeKalb may be
affected by pending USEPA action to promulgate new standards for
radionuclides in drinking water.
USEPA recently proposed to
publish its Notice of Proposed Rulemaking
(“NPRN”)
in June 1991,
and expects to issue final action on new radionuclide standards
in April,
1993
(56 Fed. Reg.
18014, April 22,
1991).
New
radionuclide standards from USEPA could significantly alter
DeKalb’s need for a variance or DeKalb’s alternatives for
achieving compliance.
In recognition of this situation, the
Board’s variance will contain suitable tiinefraines to account for
the effects of any USEPA alteration
(or notice of refusal to
alter)
of the radium standard.
DeKalb is to bear in mind that today’s action is solely a
grant of variance from standards of issuance and restricted
status.
DeKalb is not being granted variance from compliance
with the radium standard, nor does today’s action insulate DeKaib
in any manner against enforcement for violation of that standard.
—8—
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Petitioner,
City of DeKaib,
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:
(1)
Effective date on any regulation promulgated by
the U.S. Environmental Protection Agency (“USEPA”)
which amends the maximum concentration 1ev-el 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/l combined radium standard
or the method for demonstrating compliance with
the 5 pCi/i standard will be promulgated.
(B)
Variance shall terminate on the earliest of the
following dates:
(1)
When analysis pursuant to 35 Ill. Adm. Code
611.731(a),
or any compliance demonstration method
then in effect,
shows compliance with any
standards for radium in drinking water then in
effect;
(2)
Two years following the date of USEPA action; or
(3)
June 20,
1996.
(C)
Compliance shall be achieved with any standards for
radium then in effect no later than the date on which
this variance terminates.
(0)
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
—9—
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.
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)
Within three months of this grant of variance,
Petitioner shall secure professional assistance
(either
from present staff or an outside consultant)
ir~
investigating compliance options, including the
possibility and feasibility of achieving compliance by
blending water from its shallow well(s) with that of
its deep well(s).
(F)
Within four months of this grant of variance, evidence
that such professional assistance has been secured
shall be submitted to the Agency at the following
address:
Illinois Environmental Protection Agency
Division of Public Water Supply
Field Operations Section
2200 Churchill Road
Springfield, Illinois 62794—9276.
(G)
Within ten months of this grant of variance, or three
months after revision of the USEPA standard for
combined radium or publication that the standard will
be unchanged,
Petitioner shall complete investigating
compliance methods and prepare a detailed Compliance
Report showing how compliance will be achieved within
the shortest practicable time, but not later than five
years from the date of grant of this variance.
(H)
Within twelve months of this grant of variance, or four
months after revision of the USEPA standard for
combined radium or publication that the standard will
be unchanged,
Petitioner shall submit such Compliance
Report to the Agency at the address identified in
Condition D.
(I)
Within eighteen months of this grant of variance, or
six months after revision of the USEPA standard for
combined radium or publication that the standard will
—10—
be unchanged, 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.
(J)
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
(D)
of each of the
following actions:
1)
advertisement for bids,
2)
names
of successful bidders, and 3) whether Petitioner
accepted the bids.
(K)
Construction allowed on said construction permits shall
begin within a reasonable time of bids being accepted,
but in any case,
construction of all installations,
changes or additions necessary to achieve compliance
with the maximum allowable concentration of combined
radium, or with any standards for radium in drinking
water then in effect,
shall begin no later than
eighteen months after USEPA action.
If there is no
USEPA action within two years of grant of this
variance, Petitioner shall begin construction no later
than three years after grant of this variance.
Construction shall be completed no later than four
years from the grant of this variance, one year will be
necessary to prove compliance.
(L)
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. Adm.
Code 602.105(a) Standards of Issuance and 35 Ill. Adm.
Code 602.106(b) Restricted Status, as they relate to
the radium standard.
(N)
Pursuant to 35 Ill. Adm. Code 611.851(b),
in its first
set of water bills or within three months after the
—11—
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.
(N)
Until full compliance is achieved, Petitioner shall
take all reasonable measures with its existing
equipment to minimize the level of combined radium,
radiuin-226, and
radium-228 in its finished drinking
water.
(0)
Petitioner shall provide written progress reports to
the Agency at the address in Condition D every six
months concerning steps taken to comply with paragraphs
B—U.
Progress reports shall quote each of sai4
paragraphs and immediately below each paragraph state
what steps have been taken to comply with each
paragraph.
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 91-34,
June
20,
1991.
Petitioner
Authorized Agent
Title
Date
—12—
Section 41 of the Environmental Protection Act,
Ill.
Rev.
Stat.
l’i89 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 J.
D. Dumelle and B. Forcade dissented.
Board
Member
R.
Flemal abstained.
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the abov
Opinion and Order was
adopted on the
-
~
day of
____________________,
1991,
by
avoteof
_________.
7
~
Dorothy M. G~n, Clerk
Illinois Po1~utionControl Board
