ILLINOIS POLLUTION CONTROL BOARD

November

8,

1990

CITY OF OTTAWA,

)

Petitioner,

v.

)

 PCB 90—100

(Variance)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

MR. JOHN A. HAYNER APPEARED ON BEHALF OF PETITIONER;

MS. BOBELLA GLATZ APPEARED ON BEHALF OF RESPONDENT.

OPINION

AND

ORDER OF THE BOARD

 (by R.C.

 Flemal):

This matter comes before the Board upon the filing by the

City of Ottawa

 (“Ottawa”)

 on May 17,

 1990 of a Petition for

Extension of Variance

 (“Pet.”).

 Amended Petitions were filed on

June

6,

 1990,

 July

6,

 1990, and October 16,

 1990.

 Ottawa

requests extension of the two—year variance granted by the Board

on April 27, 1989

 in PCB 88—180.

 Ottawa 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 Ottawa’s public water supply of the

 5 picocuries

per liter

 (“pCi/i”)

 combined radium-226 and radium—228 standard

of

 35 Ill.

 Adm. Code.Subtitle F1.

 Variance is requested to

 extend until September

5,

 1992.

The Illinois Environmental Protection Agency (“Agency”)

filed its Variance Recommendation

 (“Rec.”)

 on July 30,

 1990.

The

Agency recommends that variance be granted,

 subject to

conditions.

Ottawa originally waived hearing.

 However,

 on June

8,

1990

an interested citizen, Mr. Michael

T.

 James,

 filed a request for

hearing.

 Hearing was held on August 13, 1990 in the Ottawa City

Council Chambers.

 Mr. James presented both oral and written

comments

(R.

 at 44—50).

 Ottawa filed a response to Mr. James’

comments on August 28,

1990

 (“Resp.”).

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).

116—29

—2—

Based on the record before it, the Board finds that Ottawa

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

Ottawa is a municipality located in LaSalle County.

 Among

other services, Ottawa provides drinking water to 6,000

residential and 500 industrial and commercial utility customers

representing a population of approximately 18,000 persons.

Ottawa’s water supply system includes four deep wells,

 storage

tanks,

 pumps, and distribution facilities.

 The wells are

identified by number as Wells 8,

10,

11,

 and 12.

Ottawa was initially notified of noncompliance with the

combined radium standard by letter from the Agency dated October

4,

 1985.

 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

subsequent to blending.

 The most recent distribution system

analyses show the blended concentration for the period from July

1,

 1989 to July

1,

 1990 to have been 6.6 pCi/i combined radium

(Resp.

 ¶3).

 For an earlier 12-month period reported on March 28,

1990 the distribution system concentration was 6.8 pCi/i

 (Rec.

¶10)

Well 12

 is a recently—constructed well developed as part of

Ottawa’s program to provide a low—radium source of water for

blending with water from the older wells.

 However,

 Ottawa

desires to conduct further work on the well with the intent of

 further lowering the radium concentration in the well.

 This

intent is to be achieved by casing those portions of the well

from which the highest radium water are produced.

As regards water from the individual wells, Well 11 appears

to have a concentration less than the 5 pCi/i standard, and Wells

8 and

10,

plus Well

 12 in its current configuration, appear to

have combined radium concentration in the range of

 10 to 12 pci/i

(R.

 at 36-7).

 Well

 12, when cased as intended,

 is expected to

produce waters with a combined radium concentration less than S

pci/i

(R.

 at 37).

REGULATORY

FRANEWORK

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 radium-226 and radium—228.

 Illinois

subsequently adopted this same limit as the maximum allowable

116—30

—3—

concentrations under Illinois law.

 Pursuant to Section 17.6 of

the Illinois Environmental Protection Act

 (Ill.

 Rev.

 Stat.

 1989,

ch.

lii

½,

par.

 1017.6), any revision of the

 5 pci/i standard by

the USEPA will automatically become the standard in Illinois.

The action that Ottawa 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 Ottawa.

 Rather, the action

Ottawa requests is the temporary lifting of prohibitions imposed

pursuant to 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.

 1981,

ch.

lii

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 Ottawa requests be

lifted.

 Moreover, grant of the requested variance would not

absolve Ottawa from compliance with the combined radium standard,

nor insulate Ottawa 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.

ill

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.

 IPCB

 (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.

116—3 1

—4—

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 of variance, to

commit to a plan which is reasonably calculated to achieve

compliance within the term of the variance.

PREVIOUS AND EXISTING VARIANCE

Ottawa has been granted two two-year variances from the same

regulations as issue here.

 The first variance was granted on

March 5,

 1987 in PCB 86-179

 (76 PCB 98 et seq.)

 and expired on

March

5,

 1989.

 The second variance was granted on March 9,

1989

in PCB ~8-180 (97 PCB 117 et seq.)

 and is set to expire on March

5,

1991

Ottawa contends, and the Agency does not contest, that it

has generally complied with conditions imposed in the previous

and existing variances,

 including sampling to determine radium

levels in the existing wells and finished water,

 applying for

necessary Agency permits,

 following required bidding procedures,

publishing public notice and maximizing the use of Well 11, all

as documented in the required bi—monthly progress reports

submitted to the Agency

 (Pet.

 ¶22).

A condition not met

 is timely completion of Well 12 and

subsequent demonstration of compliance.

 Pursuant to condition F

of the current variance, Well 12 was to have been “completed no

later than March 5,

 1990”

 (98 PCB 261).

 Drilling of the well was

in fact finished in July,

1989

 (Pet.

 ¶5).

 However, numerous

unforeseen difficulties and delays have prevented Ottawa from

achieving compliance via Well 12,

 and hence having “completed”

the well in this sense

 (Pet.

 ¶3-23).

 Principal among these has

been that the upper portion of the production zone in Well 12

provides waters which raises the average concentration of the

well water to above

 5 pCi/l.

COMPLIANCE

PROGRAM

Ottawa’s continues,

 as it did under the terms of the prior

variances, to seek compliance via blending.

 Initially,

 however,

it will be necessary do additional work on Well 12 and perhaps to

also do some rehabilitation to Well

 8 and/or Well

10.

 In each

2 Shortly after grant of the PCB 88—180 variance, Ottawa

moved for modification of one of the conditions imposed upon the

variance.

 Ottawa’s motion was granted by Board Order April 27,

1989

 (98 PCB 259 et ~q.).

 The term of the variance was not

altered by this action.

116—32

—5—

case the work is premised on the observation that the high-

concentration waters are entering the wells near the top of the

 production zone.

 Thus,

 Ottawa believes that it can lower the

overall radium concentration of the waters as produced by casing

off the high-radium zone in Well 12 and increasing production

from the lower portion of the producing zone in Wells

 8 and/or

10.

 Blending of the waters from Wells 8,

 11, and 12~is then

expected to provide distribution system waters of less than 5

pCi/l

(R.

 at 29).

Ottawa anticipates that the casing of Well 12 will be

completed within approximately one year,

 and requests that the

variance extend a year thereafter to allow for a compliance

demonstration

 (July

 6 Amend.

 Pet. ¶2).

 Ottawa further requests

that rehabilitation work on Wells

 8 and

 10 be deferred

until

USEPA decides what,

if

any, revised radium standards will be

promulgated.

 Ottawa observes that rehabilitation of Wells

 8 and

10 would not be necessary if the standards are to be set at 10

pci/i or above

 (Oct.

 16 Amend. Pet.,

 ¶8).

HARDSHIP

Despite its continuing efforts at providing an alternative

water supply via Well

 12, rehabilitation of Wells

 8 and 10, and

blending, Ottawa

 is not yet able to provide a water supply which

consistently achieves a standard of

 5 pCi/i of combined radium.

Therefore,

 Ottawa would presumably again be placed on restricted

 status following expiration of its current variance in March

1991.

 When on restricted status, Ottawa would be unable to

extend service to new customers.

 This would act to the detriment

of customers who need public water supply for functional use of

property.

PUBLIC INTEREST

Although Ottawa 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.

 ¶10).

 The Agency contends likewise

(Rec.

 ¶16).

 In support of its contention,

 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 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).

Well 10 is currently scheduled for stand-by use only

(R.

at 29).

116—33

—6—

The Agency believes that while radiation at any level

creates some risk, the risk associated with Ottawa’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 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

more effectively blended water.

 In so saying, the

Agency emphasizes that it continues to place a high

priority on compliance with the standards.

(Rec.

 ¶26 and ¶27)

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 Ottawa.

 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.

In

reaching these conclusions, the Board notes that it gives weight

to Ottawa’s compliance efforts to date and to the small amount of

the radium exceedance.

The Board also notes that promulgation of a new radium

standard by the USEPA might significantly alter Ottawa’s

compliance circumstance, even perhaps removing the need for a

variance from restricted status.

 While

 it is well-established

that a speculative change in the law is not grounds for

establishing arbitrary or unreasonable hardship (e.g.,

 Citizens

Utilities Company of Illinois v.

 IPCB

 (1985)

,

134

Ill.App.3d,

116—34

—7—

111,115),

 the Board believes that

 in some situations a

prospective change in law may appropriately be reflected in the

conditions upon which a variance is granted.

 In the instant case

the Board believes that it is appropriate to condition the grant

 of variance in such manner as to best assure that Ottawa will

achieve compliance with whatever standard is ultimately

applicable and that Ottawa will not need to prematurely return to

this Board to request another variance extension.

 With these

ends in mind, the Board will make expiration of the variance

dependent upon the date of USEPA alteration

 (or notice of refusal

to alter)

 of the radium standard.

 Ottawa will have one year

thereafter to make the improvements

 (if any) necessary to achieve

compliance and one additional year for a compliance

demonstration.

Ottawa is to bear in mind that today’s action is solely a

grant of variance from restricted status.

 Ottawa is not being

granted variance from compliance with the combined radium

standard,

 nor does

today’s

 action insulate Ottawa in any manner

against enforcement for violation of that standard.

This Opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

Petitioner,

 City of Ottawa,

 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 Iii.

 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 level 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/i combined radium standard

or the method for demonstrating compliance with

the

 5 pCi/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)

 November 8,

 1995; or

116— 35

—8—

(3)

 When analysis pursuant to

 35 Iii. 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.

(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 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—

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)

 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.

(F)

 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

116—36

—9—

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.

(G)

Construction

allowed

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 be completed no later than

one year following the date of USEPA action or November

8,

 1994, whichever is earlier.

(H)

Pursuant

Ill.

Adm.

Code

611.851(b)

(formerly

Ill.

 Adm. Code 606.201),

 in its first set of water

bills

within

three

months

after

the

date

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

variance

from

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.

(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 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.

(J)

 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 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 paragraphs A-J.

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

116—37

—10—

Division

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

days

renders

this

variance

void

and

force

and

effect

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 90-100,

November

1990.

Petitioner

Authorized Agent

Title

Date

Section 41 of the Environmental Protection Act,

 Ill. Rev.

Stat.

 1989 ch.

lii

½

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

Jacob

Dumelie

and

Bill

Forcade

dissented.

116—38

—11—

Dorothy

Gunn,

Clerk

the

Illinois

Pollution

Control

Board,

hereby

certf

that

the

abov

inion

and

Order

was

adopted

the

________

day

_____________________,

1990,

a vote

of

______________.

Illinois

llution

Control

Board

116—39