ILLINOIS POLLUTION CONTROL BOARD
October 10,
1991
VILL1~GEOF OSWEGO
Petitioner,
v.
)
PCB 91—111
)
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
OPINION AND ORDER OF THE BOARD
(by J.
C. Marlin):
This matter is before the Board on the June 27,
1991 filing
by petitioner Village of Oswego (Village)
of a petition for
variance extension.
The Village seeks relief from 35
Ill.
Adm.
Code 602.105(a),
“Standards for Issuance”,
and 602.106(a),
“Restricted Status”, to the extent those rules relate to
violation by the Village’s public water supply of the
5
picocuries ~er liter
(“pCi/i”) combined radium-226 and
radium-228.
The Village requests variance up to and including
January
1,
1996.
On September 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 Village waived hearing and none has been held.
For the following reasons,
the Board
finds that the Village
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 Village
is a municipality operating in Kendall County.
The Village provides
a potable water supply and distribution for
a population of 1315 residential and 155 commercial utility
customers,
representing approximately 3843 residents and
businesses employing 1700 people.
(Pet.
10)
The water system
includes
2 deep wells,
storage tanks and pumps.
(Pet.
12)
The Village states that it was first advised that its water
supply exceeded the maximum allowable concentration for combined
1The 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.
Adm. Cod 611.330(a).
126—47 1
2
radium in a February 22,
1991 letter from the Agency.
That
analysis showed a combined radium content of 8.5 pCi/i.
(Pet.
15)
The Agency states that the Villag: was granted a prior
variance in PCB 85-106 which expired by its terms on January 1,
1990.
(Rec.
7)
The Village maintains that it was not previously
aware of its excessive combined radium levels
(Pet.
20) and that
no prior variance petitions had been filed with the Board.
(Pet.
32) This statement may be explained by the fact that the
Village was not in violation of the combined radium standard at
the time, its prior variance expired.
(Rec.7) Following that time,
apparently,
the Village’s levels came to exceed the standards
again.
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.
111 1/2,
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.
The Village requests that it be
allowed to extend its water service while
it pursues compliance
with the radium standards,
as opposed to extending service only
after attaining compliance.
In determining whether any variance is to be granted, the
Act requires the Board to determine 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.
ill 1/2, par. 1035(a)).
126—47 2
3
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
(Wjllowbrook Motel v. Pollution Control Board
(1977),
133
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.
Where,
as here, the petitioner seeks to
extend a variance, the petitioner must show satisfactory
progress.
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),
and compliance is to be sought regardless of the
hardship which the task of eventual compliance presents an
individual polluter
(j~.).
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 for
Issuance” and “Restricted Status” does ~gj,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.
The underlying
standards remain applicable to the petitioner regardless of
whether variance is granted or denied.
Standards for radium 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 radiuin-228
(combined radium).
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 USEPA.2
Over much of the fifteen years since their original
promulgation, the current radium 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 Fed.Reg.
45502).
It later republished this
advance notice in September 1986
(51 Fed.Reg.
34836).
Most
recently,
on June 19,
1991, USEPA announced a proposal to modify
21fl 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.
126—473
4
the radium standards.3
USEPA proposes to replace the
5 pCi/l
combined radium standard by separate standards of 20 pCi/l
each
for radium—226 and radium-228.
Under the USEPA’s calendar, these
standards are scheduled for promulgation by April
1993 with an
effective date of October 1994.
COMPLIANCE PLAN
The, Village intends to retain a consulting engineer to
assist it
in reviewing and evaluating compliance alternatives.
It anticipates a six month period to accomplish this task.
(Pet.
24)
Two alternatives are envisioned.
The first is the use of
shallow wells for blending and dilution.
The estimated
construction cost for drilling and .evelopment of each of three
shallow wells is $150,000.
Implementation of the new shallow
wells
is expected within 12 months.
(Pet.
22)
The second alternative is construction of treatment
facilities to treat all the water supplied by the Village.
Estimated construction costs of the new facilities is $800,000
—
$1,200,000 depending on method of treatment selected.
(Pet.
22)
Per capita construction costs are estimated at $180
-
$260 per
capita.
(Pet.
23)
HARDSHIP
The Village contends that the hardship resulting from denial
of the requested variance outweighs any injury to the public from
granting the variance.
(Pet.
35)
The Village argues that denial
of the requested variance would result in an arbitrary or
unreasonable hardship because construction requiring the
extension of the water supply system could not resume.
The
Village states that such a halt in construction hurts prospective
home buyers as well as business developers and the Village’s tax
base.
(Pet.
40)
The Village also contends that it has a need
for expansion of the water distribution system in order to
reinforce and upgrade the existing system and to provide water to
new areas within the Village’s service area.
(Pet.
42)
The Agency agrees that denial of the variance would impose
an arbitrary or unreasonable hardship on the Village.
(Rec.
19,
20)
ENVIRONMENTAL IMPACT
3publication occurred at 56 Fed.Reg.
33050, July 18,
1991.
126—4 74
5
Although the Village 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 cause by
the granting of the variance.
(Pet.
30)
The Agency agrees with
the Village’s assertion.
(Rec.
14,
18)
The Agency cites 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
35
Ill.
Adin. Code 602.105 and 602.106
(R85—14)
in support of the
assertioy~that the variance will not result in any adverse
environmental impact.
(Rec.
15)
The Agency also refers to
updated testimony presented by Dr. Toohey in the Board’s hearing
on a variance requested by the City of Braidwood in PCB 89-212.
(Rec.
15)
While the Agency believes that radiation at any level
creates some risk, the risk associated with the Village’s water
supply
is very low.
(Rec.
14)
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 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 period of the variance, 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.
28)
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.
22)
126—475
6
CONCLUSION
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
hardship on the Village of Oswego.
Oswego has committed to a
schedule which will result in compliance at the end of the
variance term.
The Board will grant this variance for a maximum
period of three years.
Today’s action is solely a grant of variance from Standards
of Issuance and Restricted Status.
The Village is not granted
variance from compliance with the combined radium standard, nor
does today’s action insulate the Village in any manner against
enforeement for violation of these standards.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Village of Oswego 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 radiuni-226 and radium-228
in drinking water as set
forth in 35 Ill. Adm. Code 611.330(a),
for
a period of three
years 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)
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,
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
5 pCi/i combined radium standard
or the method for demonstrating compliance with
the standard will be promulgated.
(B)
Variance shall terminate on the earliest of the
following dates:
(I)
Two years following the date of USEPA action; or
(2)
October 10,
1995; or
(3)
When analysis pursuant to
35
Ill.
Adin.
Code 611
Subpart
Q,
or any compliance with standards then
126—476
7
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 locations 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 combined 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)
Petitioner shall submit a written report to the Agency
6 months
from the date of this variance as to the
selection of a compliance alternative.
The Village
shall provide the Agency with a copy of the
consultant’s report prepared pursuant to this
paragraph.
(F)
Petitioner shall apply for all necessary permits for
the construction of any required facilities no later
than two years prior to the expiration of this
variance, and shall install and have operational said
facilities no later than one year prior to the
expiration of this variance.
(G)
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 paragraph
(D) within 30 days
of each of the following:
(1)
advertisement for bids;
126—477
8
(2)
names of successful bidders;
and
(3)
whether
petitioner accepted said bids.
(H)
Construction allowedon 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 the
standards in question shall begin no later than two
years prior to the expiration of the variance and shall
be completed no later than one year prior to the
expiration of this variance, with the final year being
solely for the purposes of testing to demonstrate
compliance.
(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 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(a)
Restricted Status,
as they relate to the radium
standard.
(J)
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.
(K)
Until full compliance
is achieved, Petitioner shall
take all reasonable measures with its existing
equipment to minimize the level of combined radium-226
and radium-228 and gross alpha particle activity,
in
its finished drinking water.
(L)
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:
126—4 78
9
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 91-111,
October 10,
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.
126—479
10
J.D. Dumelle and B. Forcade dissented.
I, Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above ~
adopted on the
/ô~
day of ___________________________
1991 by a vote of
_______________.
~o~Nnn,C
~
le~rk
Illinois PØ~utionControl Board
126—480
