ILLINOIS POLLUTION CONTROL BOARD

November 8,

1990

CITY OF AURORA,

Petitioner,

V.

)

PCB 90—131

(Variance)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

OPINION AND ORDER OF THE BOARD

(by R.C.

Flemal):

This matter comes before the Board upon filing by the City

of Aurora (“Aurora”)

on July 17,

1990 of a Petition for Variance

(“Pet.”).

Aurora 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 Aurora’s public

water supply of the

5 picocuries per liter

(“pCi/i”)

combined

radium-226 and radium-228 standard of

35 Ill.

Adin. Code.Subtitle

F1.

Variance is requested for two years, beginning July

1,

1990

and extending to July

1,

1992.

One of the two years requested

for variance is intended to allow for completion of compliance

facilities; the second year is intended to allow for a compliance

demonstration

(Pet.

¶23).

The Illinois Environmental Protection Agency

(“Agency”)

filed its Variance Recommendation

(“Rec.”)

on October

1,

1990.

The Agency recommends that variance be granted, subject to

conditions.

Hearing was waived and none has been held.

Based on the record before

it, the Board finds that Aurora

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.

1 The standard for combined radium was formerly found at 35

III. 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).

116—71

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—2—

BACKGROUND

Aurora,

Illinois’ sixth largest municipality,

is located in

Kane County.

Among other services, Aurora provides potable water

supply to approximately 35,375 residential and 2,000 industrial

and commercial utility customers representing approximately

92,000 residents and 43,250 employees

(Pet.

¶11).

Aurora’s water

supply system is basically a deep well supply system, which

includes eleven

(11) deep wells, four

(4) shallow wells, pumps,

and distribution facilities

(Pet.

¶13).

Total water production

in 1989 was 4,128 million gallons, averaging approximately 344

million gallons per month

(Pet.

¶15).

Aurora was first advised that its water supply was being

placed on restricted status by letter from. the Agency dated

October 29,

1984

(Pet.

¶19).

Combined radium concentrations have

subsequently been determined from various positions within the

water supply system,

including both the well-heads and within the

distribution system.

The most recent available analyses, which

are for samples collected March

6,

1990,

show the following

results in pCi/i:

Radium-226

Radium-228

Distribution System

9.5 ±0.3

6.7 ±0.8

Well No.

15

4.9 ±0.2

6.3 ±0.7

Well No.

16

4.6 ±0.2

6.5 ±0.7

Well No.

18

10.9 ±0.3

7.6 ±0.8

Well No.

19

4.6 ±0.2

3.7 ±0.6

Well No.

20

10.2 ±0.3

6.4 ±0.7

Well No.

22

10.0 ±0.3

3.7 ±0.6

Well No.

23

8.5 ±0.3

8.8 ±0.8

Well No. 25

3.6 ±0.2

3.6 ±0.6

Pet. ¶16

All the well samples are from the deep wells; radium

concentrations in the shallow wells have been found to be

negligible

(Pet.

¶19).

On July 19,

1985,

in Board Proceeding PCB 85-51

(65 PCB

101), Aurora was granted a five—year variance from the same

regulations at issue here.

That variance expired by its own

terms on July 1,

1990.

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/l of combined radium-226 and radiuin-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,

116— 72

---

—3—

ch.

111

~,

par. 1017.6), any revision of the

5 pCi/l standard by

the USEPA will automatically become the standard in Illinois.

The action that Aurora requests here

is ~

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 Aurora.

Rather, the action

Aurora requests

is the temporary lifting of prohibitions imposed

pursuant to

35 Ill.

Adin. 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.

1981,

ch.

111

~,

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 Aurora requests be

lifted.

Moreover, grant of the requested variance would not

absolve Aurora from compliance with the combined radium standard,

nor insulate Aurora from possible enforcement action brought for

violation of those standards, as Aurora itself notes

(Pet.

¶40).

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.

ill

~,

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.

116—73

---

—4—

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

Aurora intends to achieve compliance as a result of a major

waterworks improvement project which is currently in progress and

which is anticipated will be completed by July

1,

1991

(Pet.

¶23).

The program consists of development of the Fox River as a

source of supply, development of additional shallow wells,

and

continued use of deep wells.

Water from these three sources will

be blended and treated and then distributed to customers

(Pet.

¶21).

The total project cost is estimated to be $36,823,370

(Pet.

¶22).

The status of the various remaining major aspects of the

project,

as of the date of filing of the Petition, were as

follows:

1.

General Engineering

Complete

2.

Treatment Plant Facilities

Design

Complete

Construction/Operation

July

1,

1991

3.

Transmission Mains

Design

August

1,

1990

Construction

July

1,

1991

4.

Fox River Intake

Design

August

1,

1990

Construction

July

1,

1991

5.

Well Development

Design

Complete

Construction

September

1,

1990

6.

Well Collection Mains

Design

Complete

Construction

December 1990

7.

Distribution Piping

Design

September

1,

1990

Construction

July 1,

1991

Pet. ¶22

Aurora notes that,

among other matters,

it has already

completed and placed into operation three new shallow wells

during 1990

(Pet.

¶15,

¶26).

It has also during the pendency of

the previous variance undertaken the work preparatory to using

the Fox River as a major new water source

(Pet.

¶21—22,

¶26).

116—74

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—5—

HARDSHIP

Aurora contends that denial of variance would constitute an

arbitrary or unreasonable hardship.

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 occur.

This hurts prospective home

purchasers and business developers as well as

Petitioner’s tax base,

and, therefore, would make

ultimate compliance by Petitioner even more difficult.

there continues to be a great need for expansion of

the present water system in order to serve the

domestic,

as well as fire protection,

needs of the

rapidly expanding local population.

(Pet.

¶34-35).

Aurora foresees the need to extend water connections both to

projects which are currently under construction and to projects

which are planned

(Pet.

¶14).

Projects under construction

include:

1.

White Eagle Club,

a 350 acre,

933 unit housing

development.

2.

Roger Wolf subdivision,

a

152 housing development.

3.

Meadow Lakes Corporate Business Center,

a 295 acre

campus housing three office and warehouse buildings.

4.

Meridian Business Campus,

a 700 acre campus upon which

more than 600,000 square feet of building space

is

currently under construction.

5.

Golden Oaks,

a 125 acre,

420 unit housing development.

Pet.

¶14

Projects which are planned include:

1.

Orchard Valley,

a 480 mixed—use development including

approximately 1,000 housing units.

2.

Farnsworth International Development,

a 440 acre

business campus.

3.

White Oaks Business Park,

a 237 acre business park.

4.

Link Programs,

Inc.,

a $6 million downtown

redevelopment project.

5.

Diamond Bay,

a

32 acre,

329 unit townhouse development.

116—75

---

—6—

6.

Palomino Springs,

a 30 acre,

30 unit housing

development.

7.

Riemer Property, a 95 acre multiple use housing and

commercial development.

Pet. ¶14

The Agency also contends that denial of variance would

constitute an arbitrary or unreasonable hardship

(Rec.

¶20).

PUBLIC INTEREST

Although Aurora 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 the by

granting of variance

(Pet.

¶30).

The Agency contends likewise

(Rec.

¶16).

In support of their contention, the Agency and

Aurora reference 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 at 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 Aurora’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 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 the

MAC

standard due to

blending or a new deep well,

etc., 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.

Grant of

variance may also,

in the interim, lessen exposure for

that portion of the population which will be consuming

116—76

---

—7—

more effectively blended water.

In so saying, the

Agency emphasizes that it continues to place a high

priority on compliance with the standards.

(Rec. ¶27 and ¶28)

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 Aurora.

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 further finds that the conditions as recommended

by both the Agency

(Rec.

¶30)

and Aurora

(Pet.

¶29)

are

appropriate to this grant of variance.

The term of the variance

will be that requested by Aurora.

This Opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

Petitioner,

City of Aurora,

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

111.

Adin.

Code.Subtitle F,

subject

to the following conditions:

(1)

Compliance shall be achieved with any standards for

radium then in effect no later than July 1,

1992.

(2)

This variance shall terminate on July

1,

1992 or when

analysis pursuant to 35 Ill.

Adm. Code 611.720(d),

or

any compliance demonstration method then in effect,

shows compliance with any standards for radium in

drinking water then in effect.

(3)

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—

116—

77

---

—8—

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

(4)

By January

1,

1991,

Petitioner shall apply to the

Agency at the address below for any additional 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:

Illinois Environmental Protection Agency

Division of Public Water Supply

Permit Section

2200 Churchill Road

Springfield, Illinois 62794—9276.

(5)

By April

1,

1991, Petitioner shall advertise for bids,

to be submitted within 60 days,

from contractors to do

the necessary work described in the construction

permits.

Petitioner shall accept appropriate bids

within a reasonable time.

Petitioner shall notify the

Agency at the address in condition

(4)

of each of the

following actions:

1) advertisement for bids,

2)

names

of successful bidders,

and

3) whether Petitioner

accepted the bids.

(6)

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 July 1,

1991.

(7)

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 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.

Adin.

Code 602.106(b)

116—78

---

—9—

Restricted Status, as they relate to the radium

standard.

(8)

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 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.

(9)

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

radiuin-228

in its finished drinking

water.

Specifically, water from shallow well 101 and

other three new shallow wells, which are low in radium,

shall be blended with the deep well water to extent

possible in order to reduce radium concentrations in

the distribution system.

Also,

Petitioner shall

utilize the existing deep wells which have the lowest

radium concentrations,

and shall minimize use of the

existing deep wells which exhibit the higher

concentrations of radium.

(10) Petitioner shall provide written progress reports to

the Agency at the address below every six months

concerning steps taken to comply with paragraphs

1,

3—

9.

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

Council, 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:

116—79

---

—10—

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 90-131,

November 8,

1990.

Petitioner

Authorized Agent

Title

Date

Section 41 of the Environmental Protection Act,

Ill.

Rev.

Stat.

1989 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 Member Bill Forcade dissented.

I, Dorothy M.

Gunn, Clerk of the Illinois Pollution Control

Board, hereby cert,j4~ythat the above 0 inion and Order was

adopted on the

cr~1-~

day of

_____________________,

1990, by

a vote of

____________.

~

~

Dorothy M. ,~.inn, Clerk

Illinois P~’llutionControl Board

116—80