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
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 be completed no later than
one year following the date of USEPA action or November
8,
1994, 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 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.
(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
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:
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
8,
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
D.
Dumelie
and
Bill
Forcade
dissented.
116—38
—11—
I,
Dorothy
M.
Gunn,
Clerk
of
the
Illinois
Pollution
Control
Board,
hereby
certf
that
the
abov
inion
and
Order
was
adopted
on
the
________
day
of
_____________________,
1990,
by
a vote
of
______________.
Illinois
llution
Control
Board
116—39