ILLINOIS POLLUTION CONTROL BOARD
November 29, 1990
VILLAGE
OF
PLAINFIELD,
)
Petitioner,
v.
)
PCB 90—162
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
OPINION AND ORDER OF THE BOARD
(by R.C. Flemal):
This matter comes before the Board upon the filing by the
Village of Plainfield
(“Plainfield”)
on August
15, 1990 of a
Petition for Extension of Variance
(“Pet.”)
as it relates to
modification of the variance granted by the Board on December 15,
1988
in PCB 88—134
(see 100 PCB 109 ~
~q.).
The regulations at
issue are 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 Plainfield’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.
The variance granted in PCB 88-134
is not due to expire by
its own terms until April
15,
1992.
However, Plainfield believes
that the compliance schedule established
in PCB 88-134,
including
both internal dates and the compliance deadline,
is unachievable.
The instant request is therefore to modify both the internal
dates and compliance date of the compliance schedule2.
The Illinois Environmental Protection Agency
(“Agency”)
filed its Variance Recommendation
(“Rec.”)
on November
5,
l990~.
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).
2
The variance granted in PCB 88-134 was for both combined
radium and gross alpha particle activity.
Plainfield’s current
request relates to combined radium only;
Plainfield contends that
it
is now in compliance with the standard for gross alpha
particle activity (see Pet.
at p.
1).
The Agency Recommendation
is accompanied by a motion to
file instanter.
That motion is hereby granted.
116—299
—2—
The Agency recommends that the variance request be granted,
subject to conditions.
Plainfield has waived hearing and none
has been held.
Based on the record before
it, the Board finds that
Plainfield has presented adequate proof that immediate compliance
with the Board regulations at issue would impose an arbitrary or
unreasonable hardship.
Accordingly,
the variance request will be
granted,
subject to conditions as set forth in this Opinion and
Order.
BACKGROUND
Plainfield
is a municipality located
in northwestern Will
County.
Among other services,
Plainfield provides drinking water
to a population of approximately 4,500 persons.
Plainfield’s
water supply system includes two deep wells, pumps, and
distribution facilities.
The wells are identified by number as
Wells No.
3 and No.
4.
Plainfield was initially notified of noncompliance with the
combined radium standard by letter from the Agency dated December
19,
1985.
Plainfield reports the following subsequent results of
analyses conducted on water from Wells No.
3 and No.
4
(in
pci/i):
Well No.
3
Well No.
4
Sample Date
Ra—226
Ra—228
Ra—226
Ra—228
09/16/86
8.0
4.2
7.7
3.5
06/03/87
8.1
3.7
7.7
4.8
09/04/87
8.3
1.4
6.9
1.9
10/14/87
8.7
2.4
7.6
3.8
02/10/88
8.2
2.7
7.1
3.6
05/23/88
2.7
4.0
2.6
1
08/05/88
8.7
3.1
7.6
3.2
10/28/88
7.1
4.0
7.1
4.5
01/19/89
6.7
2.7
6.0
3.7
04/17/89
6.6
2.5
6.3
2.7
07/19/89
2.1
2.1
1.1
1.1
10/06/89
7.8
2.8
6.4
1.6
01/11/90
2.0
3.0
3.0
6.0
04/06/90
5.6
5.3
6.8
5.9
Excluding the apparently aberrant results of Nay 1988, July 1989,
and January 1990, Plainfield calculates the average concentration
of combined radium for Wells No.
3 and No.
4 at 10.8 pCi/l and
10.7 pCi/l, respectively
(Pet.
at p.
6).
116—3 00
—3—
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/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. ill
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 Plainfield 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 Plainfield.
Rather,
the
action Plainfield 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.
1989,
ch. 111
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 Plainfield requests be
lifted.
Moreover, grant of the requested variance would not
absolve Plainfield
from compliance with the combined radium
standard, nor insulate Plainfield 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. 111
116—301
—4—
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.
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.2c1,
684),
and compliance is
to be sought regardless of the hardship which the task of
eventual compliance presents an individual polluter
(a.).
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 PROGRAN
Plainfield continues,
as
it does under the terms of the
current variance,
to seek compliance via blending of water from
a
new shallow well with its present deep—well water.
However,
Plainfield contends its has been not yet been able to locate an
adequate supply of shallow—well water due to circumstance beyond
its control
(Pet.
at p.
3).
Included in Plainfield’s efforts to
date has been the sampling of a local
sand and gravel unit
through drilling of four test wells,
from which it was concluded
that the unit was not suitable for construction of a municipal
well
(Pet. at
p.
15); and construction of a sand and gravel test
well,
testing of which showed that water production was not
adequate to justify the construction of a permanent well
(Pet.
at
p.
16).
As of the filing of its Petition, Plainfield was in the
process of completing and preparing to test yet another shallow
well
(Pet.
at p.
16).
Plainfield notes that
it
is willing to continue its search
for a shallow-well water supply by extending its investigations
to areas that are further from the existing developed portions of
the village
(Pet. at
p.
18).
HARDSHIP
Plainfield contends that,
despite its continuing efforts at
compliance,
it will not be able to comply with the compliance
schedule set forth in its current variance.
In particular,
Plainfield notes that it was not able to comply with the August
15,
1990 date for application for construction permits found at
Paragraph
(D), and contends that it will not be able to comply
with the date of April
15,
1991 set for beginning of construction
and the date of April
15, 1992 set for completion of
116—302
—5—
construction,
as found at Paragraph
(F)
(Pet. at p. 2-3)~.
This
failure has occurred in spite of an expenditure of over $200,000~
to date on various aspects of its compliance program,
including
the various failed well tests noted above
(Pet. at p.
14—7).
Therefore,
Plainfield would presumably again be placed on
restricted status following expiration of its current variance.
When on restricted status,
Plainfield 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.
Plainfield lists housing,
retail, and industrial
developments which are
in various stages of planning within the
Plainfield community,
and which will require water service when
completed
(Pet.
at p.
19).
Plainfieid contends that the loss of
any of these developments would have
a serious economic impact
upon Plainfield
(Pet.
at p.
19).
Moreover, Piainfield contends that should the USEPA revise
the radium standard
in such manner as to make it less stringent,
compliance could be achieved at a much lower cost than required
for compliance with the current standard
(Pet.
at p.
9).
It
would thus constitute a hardship for Plainfield to expend monies
now that in the near future might otherwise not be required to be
spent.
PUBLIC
INTEREST
Although Plainfield 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
grant of variance
(Pet.
p.
13).
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).
The Agency believes that while radiation at any level
creates some risk, the risk associated with Plainfield’s water is
low
(Rec.
¶14).
In summary, the Agency states:
‘~
Plainfield contends that it has otherwise complied with
all aspects of its current variance
(Pet. at p.
3).
~ Plainfield notes that its entire general revenue funds
projection for 1989—90 is approximately $2.5 million
(Pet. at
p.
20)
116—303
—6—
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
MAC
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 Plainfield.
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 Plainfield’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 Company 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 Plainfield will achieve compliance
with whatever standard is ultimately applicable and that
Plainfield will not need to prematurely return to this Board to
116—304
—7—
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.
The Board notes that Plainfield requests that it be allowed
up to one year after USEPA action before applying to the Agency
for the permits necessary to achieve compliance,
and up to three
years thereafter to actually achieve compliance
(Pet.
at p.
1—
2).
The Agency recommends a substantially tighter timeframe
(Rec.
¶29).
In light of the time that Plainfield has already had
to study and prepare solutions to its radium problem, the Board
finds the Agency’s recommended compliance schedule to be
appropriate and Plainfield’s requested schedule to be
unjustifiably long.
The Board accordingly conditions the grant
of variance in accordance with the compliance schedule
recommended by the Agency.
Under this schedule,
should
Plainfield still need to take steps to come into compliance after
USEPA action, Plainfield will have one year thereafter to make
the improvements necessary to achieve compliance and one
additional year for a compliance demonstration.
Plainfield is to bear in mind that today’s action is
a grant
of variance solely from Standards of Issuance and Restricted
Status.
Plainfield
is not being granted variance from compliance
with the radium standard, nor does today’s action insulate
Plainfield in any manner against enforcement for violation of
that
standard.
DETERMINING COMPLIANCE WITH THE RADIUM STANDARD
Plainfield requests that the Board address the satellite
issue of whether the radium standard must be met on an average or
maximum basis
(Pet.
at p.
9-12).
The Board notes that this
question was asked and answered in Village of North Aurora v.
IEPA,
PCB 89-66.
Plainfield is directed to the North Aurora
Opinion of February 8,
1990 at pages 8-10 for a full exposition
of this matter.
Briefly,
the Board there found that compliance
with the combined radium standard under current regulations
requires a showing based on samples averaged over a year.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Petitioner, Village of Plainfield,
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:
116—305
—8—
(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. 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)
November 29,
1995.
(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
116—306
—9—
Springfield, Illinois 62794—9276
(E)
Within three months of USEPA action or within 27 months
of grant of this variance, whichever occurs first,
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
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.
(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 of Issuance and 35 111.
Admn.
Code 602.106(b) Restricted Status, as they relate to
the radium standard.
116—307
—10—
(I)
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.
(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 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
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
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:
116—308
—11—
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 90-162
November 29,
1990.
Petitioner
Authorized Agent
Title
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
B.
Forcade and J.D.
Duinelle dissent.
I,
Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify~thatthe above.~Qinion and Order was
adopted
on the
~
~-~-‘
day of
/
,
1990,
by
a vote of
______________.
I
Dorothy
N.
,4ünn,
Clerk
Illinois P6~lutionControl Board
116—309
