ILLINOIS POLLUTION CONTROL BOARD
February 7,
1991
CITY OF TOLUCA,
)
)
Petitioner,
)
)
V.
)
PCB 90—226
)
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
OPINION
AND
ORDER OF THE BOARD
(by J.C. Marlin):
This matter comes before the Board upon a filing by the
Village of Toluca
(“Toluca”)
on December
4,
1990 of a Petition
for Variance (“Pet.”).
Toluca seeks relief from 35 Ill. Adm.
Code 602.105(a),
“Standards for Issuance”, and 602.106(b),
“Restricted Statust1, to the extent those rules relate to
violation by Toluca’s public water supply of the 5 picocuries per
liter (“pCi/L”) combined radium-226 and radium-228 standard and
15 picocuries per liter gross alpha particle activity standard of
35
Ill. Adm. Code Subtitle
F1.
Variance is requested for two
years.
The Illinois Environmental Protection Agency (“Agency”)
filed
its Variance Recommendation
(“Rec.”)
on December 17,
1990
and its Amended Recommendation
(“A.Rec.”)
on January
2,
1991.
The Agency Amended Recommendation is accompanied by its Motion to
File Recommendation Instanter (“Not.”).
That motion is hereby
granted.
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 Toluca
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.
BACKGROUND
~The standards for combined radium and gross alpha particle
activity were formerly found at 35 Iii.
Adia.
Code 604.301(a)
and
604.301(b)
respectively; effective September 20,
1990 they were
recodified to 35 Ill. Adm. Code 611.330(a) and 611.330(b)
respectively (see Illinois RegIster, Volume 14, Issue 40, October
5,
1990).
118—26 1
2
Toluca
is a municipality located in Marshall County.
Among
other services, Toluca provides potable water supply and
distribution to 591 residential, and 49 industrial and commercial
utility customers representing approximately 1400 residents
(Pet.~9). Toluca’s water supply system is a deep well system
drawn from two wells,
identified respectively as wells #2 and #3
(Pet.¶11; Pet.Attachinent,
p.3).
Toluca was first advised that its water supply was being
placed on restricted status by letter from the Agency dated
November 17,
1987
(Pet.~jl3).
The combined radium and gross alpha
particle activity concentrations which originally resulted in
Petitioner being placed on restricted status are not given in
either the petition or in the Agency Recommendation.
An April
27,
1990 analyses gave a result of 15.5 pCi/L for radium—226 and
radium—228 content.
Gross alpha particle activity was also
reported to be 15.5 pCi/L
(Rec.~(ll).
Toluca has neither sought nor received prior variance as
regards this matter.
REGULATORY
FRAMEWORK
The
U.S. Environmental Protection Agency (“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 combined
standard by the USEPA will automatically become the standard
in
Illinois.
Illinois’ adopted maximum concentration for gross
alpha particle activity is 15 pCi/L
(35 Ill. Adm. Code
611.330(b)).
The action that Toluca requests here is not variance from
the maximum allowable concentrations for radium or gross alpha
particle activity.
Regardless of the action taken by the Board
in the instant matter, these standards will remain applicable to
Toluca.
Rather, the action Toluca 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
118—262
3
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.
Illinois regulations thus provide that communities are
prohibited from extending water service, by virtue of not being
able to obtain the requisite construction 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 Toluca
requests be lifted.
Moreover, grant of the requested variance
would not absolve Toluca from compliance with the combined radium
and gross alpha particle activity standards,
nor insulate Toluca
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
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 (~,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.
COMPLIANCE PROGRAM
Toluca’s compliance plan was submitted to the Agency in the
form of a Letter of Commitment which described actions it would
take to achieve full compliance
(see Pet.Att.
No.2).
On March
16,
1989 Toluca submitted to the Agency a Compliance Report and
Compliance Plan which described alternative methods of control
118—263
4
which could be undertaken.
Toluca has elected to construct a
reverse osmosis treatment plant and has authorized the necessary
engineering designs to ensure project completion.
To partially
finance the project cost ($804,000), Toluca applied for and
received a grant of $350,000 from the Illinois Department of
Commerce and Community Affairs (Pet.~l4-l8).
In its Amended
Recommendation,
the Agency states that Toluca should come into
compliance under this plan, within one year, with an additional
year to prove compliance
(A. Rec.¶A).
The Agency recommends that
the variance expire on December 1,
1991 (A.Rec.~B). Given the
Agency’s explanation that an extra year be afforded for proof of
compliance, the Board reasons that the Agency intended to
recommend the variance expire December 1,
1992
(A.Rec.~A).
HARDSHIP
Toluca contends that denial of variance would constitute an
arbitrary or unreasonable hardship.
It notes that:
a)
The variance will allow the system to
continue to operate until compliance is
achieved;
b)
Continued presence on Restricted Status would
have an adverse effect on prospective
developers and industries which may be
considering locating in the City of Toluca;
C)
Without the variance the Petitioner is not
eligible to issue general obligation bonds
and it would be forced to issue
revenue bonds
in lieu thereof, at a
significantly higher interest rate (Pet.~19).
The Agency also contends that denial of variance would
constitute an arbitrary or unreasonable hardship (Rec.~27). The
Agency’s revised recommendation, however, revises certain
“internal” compliance dates.
The Agency states that it conferred
with Petitioner and determined that these dates were “more
realistic.”
As stated above, ultimate compliance was to be
achieved by December 1,
1992
(see Mot., p.1; A.Rec.~A).
P~LICINTEREST
Although Toluca 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.~l8).
The Agency contends likewise
(Rec.~16). In support of its contention, the Agency (Rec.~l5)
references testimony presented by Richard E. Toohey,
Ph.D.
of
Argonne National Laboratory at the hearing held on July 30 and
118—264
5
August 2,
1985 in R85-l4, Proposed Amendments to 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.
The Agency believes that while radiation at any level
creates some risk, the risk associated with Toluca’s water is
very low (Rec.~l4).
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
arbitrary or unreasonable hardship upon Toluca.
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 has slightly altered the proposed compliance dates
contained in the Agency’s Amended Recommendation in order to
provide the full two years of variance, as requested by Toluca
118—265
6
and as intended by the Agency.
The variance, therefore,
will
begin on the date of this Board Order and terminate February
7,
1993.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Petitioner, Village of Toluca,
is hereby granted variance
from 35
Iii.
Adni.
Code 602.105(a), Standards of Issuance, and
602.106(b), Restricted Status,
as they relate to the standards
for radium and gross alpha particle activity in drinking water of
35 Ill. Adm. Code.Subtitle F,
subject to the following
conditions:
(A)
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 and gross alpha particle
activity in drinking water then in effect;
or
(2)
February 7,
1993.
(B)
Compliance shall be achieved with any standards for
radium and gross alpha particle activity then in effect
no later than the date on which this variance
terminates.
(C)
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 concentrations of radium—226,
radium-228
and gross alpha particle activity.
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
118—266
7
Compliance Assurance Section
Division of Public Water Supplies
P.O. Box 19276
2200 Churchill Road
Springfield, Illinois 62794—9276
(D)
Within
3 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 and gross
alpha particle, 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.
(E)
Within one month 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.
(F)
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 and gross alpha particle activity, or with any
standards for radium and gross alpha particle activity
in drinking water then in effect,
shall begin no later
than
6 months of this grant of variance.
Petitioner
shall complete construction no later than one year
after grant of this variance.
(G)
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 of Issuance and 35 Ill.
Adm.
118—267
8
Code 602.106(b) Restricted Status, as they relate to
the radium and gross alpha particle activity standards.
(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 is not in compliance with
standards for radium and gross alpha particle activity.
The notice shall state the average content of radium
and gross alpha particle activity in samples taken
since the last notice period during which samples were
taken.
(I)
Until
full compliance is achieved, Petitioner shall
take all reasonable measures with its existing
equipment to minimize the level of combined radium,
radium-226,
radiuin-228 and gross alpha particle
activity in its finished drinking water.
(J)
Petitioner shall provide written progress reports to
the Agency at the address below every six months
concerning steps taken to comply with paragraphs B—I.
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
This Order is issued by the Board to abate a violation of
the Act, and constitutes an order for such purposes, pursuant to
Section 46 of the Act.
Ill.
Rev.
Stat.
1989,
ch.
111
1/2,
par.
1046.
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,
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:
118—268
9
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 90-226,
February
7,
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.
Board Member B. Forcade dissented.
I, Dorothy N. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby cert~y~thatthe above 0p
ion and Order was
adopted on the
T~
day of ______________________,
1991,
by
a vote of
_____________
Dorothy M. änn,
C~erk
Illinois Pdtlution Control Board
118—269
