ILLINOIS POLLUTION CONTROL BOARD
June 20, 1991
CITY OF WEST CHICAGO,
)
)
Petitioner,
)
v.
)
PCB 91-41
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
OPINION AND ORDER OF THE BOARD (by M. Nardulli):
This matter comes before the Board on the March 6, 1991
filing by petitioner City of West Chicago (City) of a petition
for variance. The City 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 the
City’s public water supply of the 5 picocuries per liter
(“pCi/i”) combined radium—226 and radiuin—228 of 35 Iii. Adm. Code
Subtitle F.1 The City requests a five-year variance.
On May 3, 1991, the Illinois Environmental Protection Agency
(Agency) filed its variance recommendation. The Agency
recommends that the variance be granted subject to certain
conditions. The City waived hearing and none has been held.
For the following reasons, the Board finds that the City has
presented adequate proof that immediate compliance with the
Board’s regulations for “Standards for Issuance” and “Restricted
Status” would result in the imposition of an arbitrary or
unreasonable hardship. Accordingly, the variance is granted,
subject to conditions set forth in the attached order.
BACKGROUND
The City is a municipality located in DuPage County. (Pet.
1) The City provides public services including potable water
supply and distribution for 3,286 residential and 713 industrial
and commercial utility customers representing approximately
14,000 residents and 800 industries and businesses employing
12,000 persons as of 1991. (Pet. 5)
The City’s water system includes three deep wells, three
shallow wells, pumps and distribution facilities. (Pet. 5,6) If
the requested variance is granted, the City anticipates extending
1
The standard for combined radium was formerly found at
35 Ill.
Adm.
Code 604.301(a); effective September 20,
1990 it was recodified at 35 Ill. Adxn. Code 611.330(a).
2
service to the DuPage airport expansion, Meadow Wood subdivision,
Fermi Center II, Woodland Ridge subdivision, Hickory Lane
residential area and a proposed townhome development. (Pet. 6)
REGULATORY FRAMEWORK
In recognition of a variety of possible health effects
occasioned by exposure to radioactivity, the United States
Environmental Protection Agency (“USEPA”) has promulgated a
maximum
concentration limit for drinking water of 5 pCi/i of
combined radium-226 and radium-228 and 15 pCi/i of gross alpha
particle activity. Illinois subsequently adopted these same
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 ½, par. 1017.6),
any revision of the 5 pCi/l standard by the USEPA will
automatically become the standard in Illinois.
The action the City requests here is fl~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
the City. Rather, the action the City requests is the temporary
lifting of prohibitions imposed pursuant to 35 Ill. Athn. Code
602.105 and 602.106. In pertinent part these Sections provide:
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. 111 ½, 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 the City requests be
lifted. Moreover, grant of the requested variance would not
relieve the City from compliance with the combined radium or
3
gross alpha particle activity standards, nor insulate the City
from possible enforcement action brought for violation of those
standards.
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
½, 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, 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 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 o~variance, to commit to a
plan which is reasonably calculated to achieve compliance within
the term of the variance.
COMPLIANCE PLAN
The City first became aware that it was exceeding the
maximum allowable concentration level (MCL) for combined radium
in January of 1991 when the Agency advised the City that its
testing indicated a concentration of 7.3 pCI/i. (Pet. 7) The
City proposes two alternative methods for achieving compliance:
(1) using existing and new shallow wells for blending. Estimated
construction costs are $1,065,000 and estimated time for
implementation is two years; and (2) construction of treatment
facilities to treat all well water for a total cost of
$6,000,000. The estimated implementation time is five years.
(Pet. 8) The City estimates that the per capita costs for
constructing the treatment facilities would be a one—time expense
of $429, that the increase in monthly water bills for the average
residential consumer for construction costs would be $15 per
month for 15 years and that the increase for the average
residential consumer for the increased cost of operation,
maintenance and sludge removal would be $7 monthly for an
indefinite time period. (Pet. 8,9)
The City has hired a consultant to review and evaluate the
compliance alternatives. (Pet. 9) However, the City anticipates
implementation of the “blending alternative” which it believes
will yield an MCL below 5 pCi/l as the “short-term solution”.
(Pet. 9) The City estimates that 18 months is needed to fully
4
test and implement this alternative. (Pet. 9) If sampling
indicates that the “blending alternative” is ineffective in
achieving compliance, the City would implement the second
alternative which would take two and one-half years to fully
implement. (Pet. 9) Hence, the City requests a five-year
variance. (Pet. 9)
HARDSHIP
The City contends that the hardship resulting from denial of
the requested variance outweighs any injury to the public from
granting the variance. (Pet. 16) The City notes that the
promulgation of a new radium
standard by the United States
Environmental Protection Agency (USEPA) may significantly alter
the City’s compliance status and may even obviate the need for a
continued variance from Restricted Status.2 According to the
City, “the substantial expenditure of public funds for treatment
facilities which may become obsolescent in the near future is not
in the public interest and does not grant a corresponding benefit
to the public.” (Pet. 15) The City further argues that denial
of the requested variance results in an arbitrary and
unreasonable hardship because it halts construction and hurts
prospective home buyers as well as business developers and the
City’s tax base. Lastly, the City contends that there is a great
need for the expansion of its water distribution system to serve
the domestic and fire protection requirements of the area. (Pet.
16)
The Agency agrees that denial of the variance would impose
an arbitrary or unreasonable hardship on the City. (Rec. 8)
ENVIRONMENTAL IMPACT
Although the City has not undertaken a formal assessment of
the environmental effects of its requested variance, it contends
that there will be minimal or no adverse impact caused by the
granting of the variance. (Pet. 11) The Agency agrees with the
City’s assertion. (Rec. 4-5)
Both
the City and the Agency cite
the testimony presented by Richard E. Toohey, Ph.D., of Argonne
~National Laboratory, at the July 30 and August 2, 1985 hearings
for the Proposed Amendments to Public Water Supply Regulations
(R85—14), 35 Ill. Adm. Code 602.105 and 602.106 in support of the
assertion that the variance will not result in any adverse
environmental impact. (Pet. 11; Rec. 5) The Agency also refers
to updated testimony presented by Dr. Toohey in the Board’s
2
In a federal register notice published April 22, 1991,
USEPA states that it will publish a Notice of Proposed
Rulemaking (“NPRM”) in June, 1991, and expects to issue
final action on a new radium standard in April of 1993
(56 Fed. Reg. 18014, April 22, 1991).
5
hearing on a variance requested by the City of Braidwood in PCB
89—212. (Rec. 5)
While
the Agency believes that radiation at any level
creates some risk, the risk associated with the City’s water
supply is very low.
(Rec. 5) The Agency states that “an
incremental increase in the allowable concentration for the
contaminants in question even up to a maximum of two times the
!4CL for the contaminants in question should cause no significant
health risk for the limited population served by new water main
extensions for the time period of this recommended variance.”
(Rec. 5) In summary, the Agency states as follows:
The Agency believes that the hardship resulting
from denial of the recommended variance from the effect
of being on Restricted Status would outweigh the inji~ry
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. 8)
CONSISTENCY WITH FEDERAL
LAW
The Agency states that the requested variance may be granted
consistent with the Safe Drinking Water Act (42 U.S.C. 300(f))
and corresponding regulations (40 CFR Part 141) because the
variance does not grant relief from compliance with the federal
primary drinking regulations. (Rec. 7)
CONCLUS ION
Based upon the record, the Board finds that immediate
compliance with the “Standards for Issuance” and “Restricted
Status” regulations would impose an arbitrary or unreasonable
6
hardship on the City of West Chicago. The
Board also agrees with
the parties that granting this variance does not pose a
significant health risk to those persons served by any new water
main extensions, assuming that compliance is timely forthcoming.
This variance extends for a maximum period of five years subject
to certain conditions which could result in an earlier
termination of this variance.
The Board notes that timely compliance by the City 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 (“NPRM”) 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 the
City’s need for a variance or alternatives for achieving
compliance. In recognition of this situation, as recommended by
the Agency, the variance will contain suitable timefranies to
account for the effects of any TJSEPA alteration (or notice of
refusal to alter) of the radium or gross alpha standards.
Today’s action is solely a grant of variance from standards
of issuance and restricted status. The City is not granted
variance from compliance with the combined radium standard, nor
does today’s action insulate the City in any manner against
enforcement for violation of these standards.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The City of West Chicago is hereby granted a variance from
35 Ill. Adm. Code 602•105(a), “Standards for Issuance”, and
602 . 106 (b), “Restricted Status”, as they relate to the standards
for combined radium-226 and radium-228 in drinking water as set
forth in 35 Ill. Adm. Code 611.330(a), subject to the following
conditions:
(A) For purposes of this Order, the date of USEPA action
shall consist of the earlier date of the:
(1) Effective date or a regulation promulgated by the
U.S. Environmental Protection Agency (“USEPA”)
which amends the maximum contaminant level for
combined radium, either of the isotopes of radium,
or the method by which compliance with a radium
maximum contaminant level is demonstrated; or
(2) Date of publication of notice by the USEPA that no
amendments to the 5pCi/l combined radium standard
or the method for demonstrating compliance with
7
the 5pCi/l standard will be promulgated.
(B) Variance shall terminate on the earliest of the
following dates:
(1) Two
years following the
date of USEPA action; or
(2) June 20, 1996; or
(3) When analysis pursuant to 35 Ill. Adm.
Code
611.720 (d), or any compliance with standards then
in effect, shows compliance with standards for
radium in drinking water then in effect.
(C) Compliance shall be achieved with any standards for
radium then in effect no later than the date on ~which
this variance terminates.
(D) In consultation with the Illinois Environmental
Protection Agency (“Agency”), Petitioner shall continue
its sampling level of radioactivity in its wells and
finished water. Until this variance terminates,
Petitioner shall collect quarterly samples of its water
from its distribution system at a location approved by
the Agency. Petitioner shall composite the quarterly
samples from each location separately and shall analyze
them annually by a laboratory certified by the State of
Illinois 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 analyzes
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 USEPA action or 24 months after
this grant of 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 the 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
8
Permit Section
2200 Churchill Road
Springfield, ILlinois 62794—9276
(F) Within three months after each construction permit is
issued by IEPA, 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
as addressed in condition (E) within 30 days of each of
the following actions:
1) advertisements for bibs, 2)
names of successful bidders, and
3) whether Petitioner
accepted the bids.
(G) 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 for
radium in drinking water then in effect, shall be
completed no later than one year following the date of
USEPA action on June 20, 1996, whichever is earlier.
(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 will 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. Adni. Code 602.105(a)
Standards of Issuance and 35 Ill. Adni. Code 602.106(a)
Restricted Status, as they relate to the radium
standard.
(I) 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 will send to each user of its
public water supply a written notice to the effect that
Petitioner is not in compliance with the standard in
question. The notice shall state the average content
of the contaminants in question in samples taken since
the last notice period during which samples were taken.
(J) Until full compliance is achieved, Petitioner shall
take all reasonable measures with its existing
9
equipment to minimize the level combined radium,
radium-266 and radium-228, in its finished drinking
water.
(K) 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 forty-five days of the date of this Order, Petitioner
shall execute and forward to:
Stephen C. Ewart
Division of Legal Counsel
Illinois Environmental Protection Agency
P.O. Box 19276
2200 Churchill Road
Springfield, Illinois 62794—9276
a Certificate of Acceptance and agreement to be bound to all
terms and conditions of the granted variance. The 45—day period
shall be held in abeyance during any period that this matter is
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 this variance is
granted. The form of Certificate is as follows.
I (We),
hereby accept and agree to be bound by all terms and conditions
of the Order of the Pollution Control Board in PCB 91-41, June
20, 1991.
Petitioner
Authorized Agent
10
Title
Date
Section 41 of the Environmental Protection act, Ill. Rev.
Stat. 1989 ch. 111 1/2 par. 1041, provides for appeal of final
order of the Board within 35 days. The Rules of the Supreme
Court of Illinois establish filing requirements.
IT IS TO ORDERED.
J. D. Dunielle and B. Forcade dissent.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was
adopte~ on the
t~ day of
____________________,
1991, by a vote of
~
.~
Dorothy M~/Gunn, Clerk
Illinois ollution Control Board
