ILLINOIS POLLUTION CONTROL BOARD
December 20,
1990
CITY OF GENOA,
)
Petitioner,
v.
j
PCB 90—166
(Variance)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
OPINION
AND
ORDER OF THE BOARD (by R.C. Flemal):
This matter comes before the Board upon filings by the City
of Genoa
(“Genoa”)
on August 30,
1990 of a Petition for Variance
(“Pet.”).
Genoa 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 Genoa’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 for five years.
The Illinois Environmental Protection Agency (“Agency”)
filed its Variance Recommendation (“Rec.”) on November 7,
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 Genoa
has presented adequate proof that imumuediate 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
Genoa is a municipality located in DeKalb County.
Among
other services, Genoa provides potable water supply and
1
The standard for combined radium was formerly found at 35
Ill.
Admn. Code 604.301(a); effective September 20,
1990 it was
recodified to 35 Iii. Adm. Code 611.330(a)
(see Illinois
Register, Volume 14, Issue 40, October 5,
1990).
2
The Agency Recommendation is accompanied by a motion to
file instanter.
That motion
is hereby granted.
117—135
—2—
distribution to 1,100 residential, commercial,
and industrial
utility customers representing approximately 3,500 residents
(Pet.
¶10).
Genoa’s water supply system is a deep well system
drawn from three wells,
identified respectively as wells #2,
#3,
and #4
(Pet.
¶13); well #4, the newest well, was completed in
1970
(Ia.).
Genoa was first advised that its water supply was being
placed on restricted status by letter from the Agency dated
October 4,
1985
(Pet.
¶15).
Placement on restricted status was
based on a combined radium concentration of 6.9 pCi/i
(fl.).
More recent analyses gave the following results
(Pet.
¶18):
Date
Location
Concentration
1—19—89
117 Einmet
5.2
pCi/i
12—20—88
730 Park
6.8
pCi/i
9—12—88
System
4.4
pCi/i
6—23—88
Wells #3 and #4
2.65 pCi/i
3—15—88
System
2.45 pCi/l
Genoa has neither sought nor received prior variance as
regards this matter.
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/i 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.
11.
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 Genoa requests here is not 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 Genoa.
Rather, the action Genoa
requests is the temporary lifting of prohibitions imposed
pursuant to 35 Ill.
Admn. 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.
1989,
ch.
111 ½, pars.
1001 et seq.)
(Act), or of this Chapter.
117— 136
—3—
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 Genoa requests be
lifted.
Moreover, grant of the requested variance would not
absolve Genoa from compliance with the combined radium standard,
nor insulate Genoa from possible enforcement action brought for
violation of those standards,
as Genoa itself notes
(Pet.
¶42).
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. 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 tem~orarvreprieve
from compliance with the Board’s regulations (Monsanto Co.
v.
IPCB (1977),
67 I1l.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
Genoa
is considering various compliance options, including
treatment and either converting to or augmenting/blending with
shallow, low-radium groundwaters
(Pet.
¶20).
At this time Genoa
has not yet selected a particular compliance plan.
Rather,
it
has retained the services of an outside consultant to assist it
with reviewing and evaluating the problem and to prepare
recommendations for compliance.
Genoa commits to defining its
compliance method and carrying it through to compliance during
the term of the requested variance (Pet.
¶30).
117—137
—4—
The Agency has no objection to Genoa’s consideration of the
compliance methods suggested (Rec.
¶19).
HARDSHI P
Genoa 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.
¶36—7).
Genoa further contends that the expenditure of public funds
for treatment facilities which may become obsolescent in the near
future due to revision of the radium standard is not in the
public interest and does not grant a corresponding benefit to the
public
(Pet.
¶35).
The Agency also contends that denial of
variance would constitute an arbitrary or unreasonable hardship
(Rec.
¶22)
PUBLIC INTEREST
Although Genoa 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.
¶27).
The Agency contends likewise
(Rec.
¶16).
In support of their contention, Genoa 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 R85-143, 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
Genoa requests via motion filed on October 25,
1990 that
the following elements of the record developed in R85—14 be
incorporated into the instant record: extracted testimony of Dr.
Richard E. Toohey as given on July 30,
1985 and August 30,
1985,
extracted testimony of Dr. James Stebbings as given on August 2,
1985,
and revised testimony of Dr. Richard E. Toohey as marked as
Agency Exhibit 13.
Genoa has provided copies of each of the
requested incorporations.
Genoa’s motion for incorporation is
hereby granted.
117—
138
—5—
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 Genoa’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.
In so saying,
the Agency emphasizes that it continues to place a high
priority on compliance with the standards.
(Rec.
¶29
and
¶30)
NEED
FOR
VARIANCE
Examination
of
the
record
of
radium
analyses
presented
to
the Board raises the question whether Genoa needs the variance it
requests.
While we recognize that the samples come from four
different locations, the four most recent4 samples reported by
Genoa average to slightly less than the 5.0 pCi/i standard.
On
the
other
hand,
Genoa
has not been able to consistently provide
water
that
averages
less than 5.0
pCi/i
at
all
points
in
its
distribution system.
Moreover,
the
most
recent
quarterly
samples
are among the worst of the available results.
Given the
likelihood that this trend would continue, and under the facts of
this proceeding, the Board believes that the prudent course of
Pursuant to 35 Ill. Adm. Code 611.731(a) compliance
with
the combined radium standard is based on an analysis of a
composite of four consecutive quarterly samples or the average of
the analyses of four samples obtained at quarterly intervals.
117— 139
—6—
action is to allow that variance is necessary5.
If Genoa can at
any time during the term of the variance demonstrate compliance,
the variance by its own terms will terminate.
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 Genoa.
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 also notes that promulgation of a new radium
standard by the USEPA might significantly alter Genoa’s
compliance circumstance, even perhaps removing the need for
variance.
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 ComDanv of
Illinois v. IPCB (1985),
134 Ill.App.3d,
111,115), the Board
believes that in some circumstances 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 Genoa will achieve compliance with
whatever standard is ultimately applicable and that Genoa will
not need to prematurely return to this Board to request a
variance extension.
With these ends in mind, the Board will require that Genoa
timely proceed with analyzing and identifying compliance options
so that it will be prepared to implement an appropriate option as
needed.
Similarly, 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 Genoa still
need to take steps to come into compliance after USEPA action,
Genoa 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 in
taking action on the radium standard, the variance will be
The Board does not grant variance where variance is not
necessary, and variance is generally not necessary where there is
no showing of violation of the standard from which variance is
sought
(e.g., Village g~North Aurora y~IEPA, PCB 89-66,
slip.
op.
p.
9; City ~
Spring Valley y~IEPA, PCB 88—181,
95 PCB 57;
Village ~
Ninook y~IEPA, PCB 85—100,
65 PCB 527; City ~
West
Chicago y~IEPA,
PCB 85-2,
64 PCB 249; The Village
~
~JJçGrove
Village v.
IEPA, PCB 84-158,
62 PCB 295; City of White Hall y~
IEPA, PCB 84-126,
61 PCB 203; City of Rolling Meadows ~
IEPA,
PCB 80—70,
39 PCB 63).
117— 140
—7—
conditioned so as to provide for achievement and demonstration of
compliance no later than five years hence.
Genoa is to bear in mind that today’s action is solely
a
grant of variance from standards of issuance and restricted
status.
Genoa
is not being granted variance from compliance with
the radium standard, nor does today’s action insulate Genoa 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 of Genoa,
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 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:
(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)
When analysis pursuant to 35 Ill.
Admu. Code
611.731(a), 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)
December 20,
1995.
(C)
Compliance shall be achieved with any standards for
radium then in effect no later than the date on which
this
variance
terminates.
117—
141
—8—
(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)
Within three months of this grant of variance,
Petitioner shall secure professional assistance (either
from present staff or an outside consultant)
in
investigating compliance options, including the
possibility and feasibility of achieving compliance by
blending water from its shallow well(s) with that of
its deep well(s).
(F)
Within four months of this grant of variance, evidence
that such professional assistance has been secured
shall be submitted to the Agency at the following
address:
Illinois Environmental Protection Agency
Division of Public Water Supply
Field Operations Section
2200 Churchill Road
Springfield, Illinois 62794—9276.
(G)
Within one year of this grant of variance, Petitioner
shall complete investigating compliance methods,
including those treatment techniques described in the
Manual of Treatment Techniaues for Meeting the Interim
Primary Drinking Water Regulations, USEPA, May 1977,
EPA—600/8-77-005,
and prepare a detailed Compliance
Report showing how compliance will be achieved within
the shortest practicable time, but not later than five
years from the date of grant of this variance.
117—
142
—9—
(H)
Within ten months of this grant of variance, Petitioner
shall submit such Compliance Report to the Agency at
the address identified in Condition D.
(I)
Within three months of USEPA action or within 27 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.
(J)
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.
(K)
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
6
months after USEPA action.
If there is no USEPA action
within two years of grant of this variance, Petitioner
shall begin construction no later than three years
after grant of this variance.
(L)
Pursuant to 35
Il..
Admn.
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.
Admu.
Code 602.105(a) Standards of Issuance and 35 Ill. Adm.
Code 602.106(b)
Restricted Status, as they relate to
the radium standard.
117—143
—10—
(M)
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
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.
(N)
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.
(0)
Petitioner shall provide written progress reports to
the Agency at the address in Condition D every six
months concerning steps taken to comply with paragraphs
B—N.
Progress reports shall quote each of said
paragraphs and immediately below each paragraph state
what steps have been taken to comply with each
paragraph.
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:
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 90-166
December 20,
1990.
Petitioner
Authorized Agent
Title
117—
144
—11—
Date
Section 41 of the Environmental Protection Act, Ill. Rev.
Stat.
1989 ch.
111
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 J.D. Dumelle and B. Forcade dissented.
I,
Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board,
hereby certify that the above
inion and Order was
adopted on the
~
day of
____________________,
1990, by
a vote of
..5~-cR
76~I~1
IlL.
Dorothy M. ~‘unn, Clark
Illinois Pollution Control Board
117—145