ILLINOIS POLLUTION CONTROL BOARD

January

24,

1991

VILLAGE

OF SENECA,

Petitioner,

V.

)

 PCB 90—194

(Variance)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

OPINION AND ORDER OF THE BOARD

 (by 3.C. Marlin):

This matter comes before the Board upon a filing by the

Village of Seneca

 (“Seneca’1)

 on October 25,

 1990 of a Petition

for Variance

 (“Pet.”).

 Seneca 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~.bySeneca’s public water supply of the 5 picocuries per

liter

 (“pCi/L”) combined radium-226 and radium-228 standard of 35

Ill. Adm. Code Subtitle F1.

 Variance is requested for five

years.

The Illinois Environmental Protection Agency (“Agency”)

filed its Variance Recommendation (“Rec.”) on November 26,

 19902.

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 Seneca

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, consistent with this Opinion and as set forth in the

Order.

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.

 Adin.

 Code 611.330(a)

 (see Illinois

Register, Volume 14, Issue 40, October

5,

 1990).

~

 The Agency Recommendation is accompanied by a motion to

file instanter.

 That motion is hereby granted.

118—161

BACKGROUND

Seneca

 is a municipality located in La Salle County.

 Among

other services, Seneca provides potable water supply and

distribution to 700 residential, and 12 industrial and commercial

utility customers representing approximately 2100 residents

 (Pet.

¶10).

 Seneca’s water supply system is a deep well system drawn

from two wells,

 identified respectively as wells #1 and #2

 (Pet.

¶14.

Seneca was first advised that its water supply was being

placed on restricted status by letter from the Agency dated

August 23,

1985

 (Pet.

 ¶16).

 Placement on restricted status was

based on a combined radium concentration of 9.1 pCi/i (~ Pet.,

Attachment No.1).

 A December 1986 analyses gave a result of 7.8

 pCi/L

 (Pet.

 Att.

 4)•3

Seneca has neither sought nor received prior variance as

regards this matter.

REGULATORY

 FRAMEWORK

recognition

variety

 of possible health effects

occasioned

exposure

radioactivity,

the

USEPA

has

promulgated a maximum concentration limit for drinking water of

5

pCi/l of combined radium-226 and radium-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,

ch.

 111 1/2, par. 1017.6),

 any revision of the 5 pCi/l standard

by the USEPA will automatically become the standard in Illinois.

The action that Seneca 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 Seneca.

 Rather, the action

Seneca 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

3me Agency’s Variance Recommendation uses the former figure

for analysis and not the latter.

 Seneca’s Petition also

mistakenly claims the August 23,

 1985 data as the latest figure.

See Petition, pp 1-2.

 The significance of the more recent

result,

 if any, was not discussed in the record.

118—162

supply

will

constructed,

modified

operated

not

cause

violation

the

Environmental

Protection

Act

(Ill.

Rev.

Stat.

1989,

ch.

111

1/2,

pars.

1001

seq.)

(Act),

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 Seneca requests be

lifted.

 Moreover, grant of the requested variance would not

absolve Seneca from compliance with the combined radium standard,

nor insulate Seneca from possible enforcement action brought for

violation of those standards,

 as Seneca itself notes

 (Pet.

 ¶33).

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

1/2, 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

 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

Seneca’s compliance plan was part of an approved grant

application submitted to the Illinois Department of Commerce and

Community Affairs.

 Seneca will drill a new 1,500 foot deep well

and construct a new storage tank near it.

 Seneca will then

provide new connections from the well to improve distribution and

118—163

4

rehabilitate

the

existing

well

house

use

backup

and

for

blending.

the

blended

water

shows

concentrations

which

exceed

maximum

allowable

concentrations,

the

well

will

logged

and

televised

determine

the

strata

where

radium

highest.

liner

will

then

 placed around the pipe that is

that

strata

to reduce the radium level in the water.

 Seneca states that this

method has worked successfully in other communities

 (Pet.

 ¶18).

The grant given Seneca for these improvements totals $300,000.

The Agency states that Seneca should come into compliance under

this plan by October 1991

 (Rec.

 ¶17).

HARDSHIP

Seneca 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 resume.

 This hurts prospective home

purchasers and business developers as well as

Petitioner’s tax base...

 The time involved for the

planning,

 financing, engineering and construction of

water treatment facilities prevents immediate

compliance...

 In the interim period,

 there is 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.

¶27—8)

Seneca further contends that continuation on restricted

status for failure to comply with a standard is arbitrary and

unreasonable.

 No significant risk of environmental harm exists

for the limited two year period requested at the current levels

 of radium 226 and 228.

 The hardship resulting from denial of the

requested variance would outweigh the injury to the public from

grant of the petition (Pet.

 ¶29).

 The Agency also contends that

denial of variance would constitute an arbitrary or unreasonable

hardship

 (Rec.

 ¶19).

 The Agency recommends,

 however,

 a variance

of

 3 years instead of two in order for Seneca to demonstrate

compliance

 (Rec.

 ¶29).

PUBLIC INTEREST

Although Seneca 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 by the

granting of variance

 (Pet.

 ¶26).

 The Agency contends likewise

(Rec.

 ¶16).

 In support of their contention,

 Seneca and the

Agency

 (Rec.

 ¶15) 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

118—164

5

Public Water Supply Regulations,

 35 Ill.

 Adm. Code at 602.105 and

602.106, to the testimony of Dr. James Stebbings in the same

proceeding,

 and to updated testimony presented by Dr. Toohey in

the Board’s hearing on the Braidwood variance, PCB 89-212.

By Board Order of October 31,

 1990,

 incorporation was denied

unless Seneca supplied copies of the testimony.

 The Board noted,

however, that it may take notice of any discussion or conclusions

contained in its prior Opinions and Orders without actual

incorporation.

 Seneca has not provided copies of each of the

requested incorporations.

 Seneca’s request for incorporation is

hereby denied.

The Agency believes that while radiation at any level

creates some risk,

 the risk associated with Seneca’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 contaminant 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.

 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.

 ¶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

118—

165

arbitrary

unreasonable

hardship

upon

Seneca.

The

Board

also

agrees

with

the

parties

that

 significant health risk will be

incurred

persons

who

are

served

any

new

water

main

extensions,

assuming

that

compliance

timely

forthcoming.

The

Board

also

notes

that

promulgation

new

radium

standard

the

USEPA

might

significantly

alter

Seneca’s

compliance

circumstance,

even

perhaps

removing

the

need

for

variance.

While

well—established

that

speculative

change

the

law

not

grounds

for

establishing

arbitrary

unreasonable

hardship

(e.g.,

Citizens

 Utilities Com~anvof

Illinois

IPCB,

134

Ill.App.3d

111,115,

(1985)),

 the Board

believes

that

some

circumstances

prospective

change

law

may

appropriately

reflected

the

conditions

upon

which

variance

granted.

the

instant

case

the

Board

believes

that

it

appropriate

condition

the

 grant of variance in such

manner as to best assure that Seneca will achieve compliance with

 whatever standard is ultimately applicable and that Seneca will

not need to prematurely return to this Board to request

a

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; should Seneca

still need to take steps to come into compliance after USEPA

action, Seneca will have one year thereafter to make the

improvements necessary to achieve compliance and one additional

year for a compliance demonstration.

 Finally, should the USEPA

default or be tardy

 in taking action on the radium standard, the

variance will be conditioned so as to provide for achievement and

demonstration of compliance no later than three years hence.

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

grant of variance from standards of issuance and restricted

status.

 Seneca is not being granted variance from compliance

with the radium standard, nor does today’s action insulate Seneca

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,

Village

Seneca,

hereby

granted

variance

from

Ill.

Adm.

Code

602.105(a),

Standards

Issuance,

and

602.106(b), Restricted Status,

they

relate

the

standard

for

radium in drinking water of

 35 Ill. 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:

118—166

(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/L 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)

 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;

(2)

 Two years following the date of USEPA action; or

(3)

 January 24,

 1994.

(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 radiuin—226 and radium-

228.

 At the option of Petitioner the quarterly samples

may be analyzed when collected.

 The results of the

analysis 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

P.O. Box 19276

2200 Churchill Road

Springfield, Illinois 62794—9276

118—167

(E)

 Within six months of USEPA action or within 12 months

of this grant of variance, 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

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 begin no later than

12

 months after USEPA action.

 If there is no USEPA action

within one year of grant of this variance, Petitioner

shall complete construction no later than two years

after grant of this variance.

(H)

 Pursuant to 35 Ill. Adm. Code 611.851(b),

 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

Issuance

and

Ill.

Adm.

Code

602.106(b)

Restricted

Status,

they

relate

the

radium

 standard.

(I)

Pursuant

Ill.

Adm.

Code

611.

851(b),

its

first

set

 water bills or within three months after the

date

this

Order,

whichever

occurs

first,

and

every

118—168

9

three months thereafter, Petitioner shall send to each

user

its

public

water

supply

written

notice

the

effect that Petitioner is

not

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

minimize

the

level

combined

 radium,

radium-226,

 and radium-228 in its finished drinking

water.

(K)

 Petitioner shall provide written progress reports to

the

Agency

the

address

 below every six months

concerning steps taken to comply with paragraphs B—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

Field Operations Division

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

Counsel, Illinois Environmental Protection Agency,

 2200 Churchill

Road,

Post

Office

Box

19276,

Springfield,

Illinois

62794—9276,

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 as

shield

against

enforcement

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

the

Order

the

Pollution

Control

Board

PCB

90—194

January

24,

1991.

Petitioner

Authorized Agent

118—169

10

Title

Date

Section

the

Environmental

Protection

Act,

Ill.

Rev.

Stat. 1989 ch.

 111 1/2 par.

 1041, provides for appeal of final

Orders

the

Board

within

days.

The

Rules

the

Supreme

Court of Illinois establish filing requirements.

IT IS SO ORDERED.

J.

 D. Dumelle and B. Forcade dissented.

Dorothy

Gunn,

Clerk

the

Illinois

Pollution

Control

Board,

hereby

cer~if

that

the

above

nion

and

Order

was

adopted

the

ø(

 day of

_____________________,

 1991, by

vote

________________

~4~ç

Dorothy

G~4~tn,

Clerk

Illinois Pol’lution Control Board

118—17 0