ILLINOIS POLLUTION CONIROL ECAFE
July 3, 1990
VILLAGE OF ELBURN,
Petitioner,
v.
)
PCE 90—4.
(Variance)
ILLINOIS ENVIRONNENTAL
PROTECTION AGENCY,
Respondent.
OPINION AND ORDER OF ThE EOARL (by R. C. Flerral):
This natter cones before the Board on a Petition for
Variance Extension (“Pet.”) filed Narch 27, 1990 by the Vi11~ge
of Elburn (“Elburn”). Elburn is requesting an extension of the
variance granted by the Board on April 6, 1989 in PCE 88—204.
Elburn seeks relief from 35 Iii. Adir. Code 602.105(a) “Standards
For Issuance” and 602.106(b) “Restricted Status” to the extent
those rules relate to violation by Elburn’s public water supply
of the 5 picocuries per liter (“pCi/i”) corrbined radiur~—226 and
radiwr—228 standard of 35 Ill. Adrr. Code 604.301(a). Variance is
requested for a period of five years or for a period of 29 months
following promulgation by the United States Environrrental
Protection Agency (“USEPA”) of revised radiurr standards.
The Illinois Environrrental Protection Agency (“Agency”)
filed its Variance Reccrrrrendation (“Rec.”) on Nay 14, 1990. The
Agency recommends that variance be granted, subject to
conditions. Elburn waived hearing and none has been held.
Based on the record before it, the Board finds that Elburn
has presented adequate proof that irunediate 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 fcrth in this Opinion and
Order.
BACKGFcCUND
Elburn, a irunicipality located in Kane County, provides a
potable public water supply to a population of 1,435 residents
(Pet. at 6). The water supply is derived frorr a system
consisting of one shallow well and two deep wells.
Elburn was first placed cn restricted status in January
1965, based on violation of the 5 pCi/i combined radium
113—47
standard. Representative test results have indicated the
following combined radium concentrations:
September 1984
12.1
December 1986
7.2
October 1988
9.7
December 1988
8.4
February 1989
April 1989
7.3
August 1989
7.1
(l9~8Pet. at 2; Pet. at 4)1
Elburn has been granted two prior varia~~es from R stricted
Status and Standards for Issuance regulations. In PCE ~—4, the
Board granted Elburn a 13—month variance to “allow Elb to
formally secure professional assistance, investigate—e~~liance
options and submit a compliance to which it is fully c~ itted.”
(PCB 88—4, April 21, 1988 and upon reconsideration, 3u:~ 16,
1988). In PCB 89—204, the Board granted Elburn a 4—year variance
extension, to allow Elburn “sufficient tine
. . .
to in lerrent
the thirty—eight month compliance plan approved by Elbu~non
December 5, 1988” (PCB 68—204, April 6, 1989).
REGULATORY FRANE~~OFK
In recognition of a variety of possible health effects
occasioned by exposure to radioactivity, the DEBRA has
promulgated a ifaxiniurn concentration limit for drinking water of 5
pCi/i of combined radiun—226 and radiurr—228. Illinois
subsequently adopted this same limit as the maximum allowable
concentrations under Illinois 1a~. Pursuant to Secticn 17.6 of
the Illinois Environmental Protection Act (Ill. Rev. Stat. 1989,
ch. lll~-/2, par. 1017.6), any revision of the 5 pCi/i standard by
the USEPA will automatically become the standard in Illinois.
The action that Elburn requests here is not variance from
the rraximuni allowable concentration for radium. Regard~ess of
the acticn taken by the Board in the instant matter, th:s
standard will remain applicable to Elburn. Rather, the action
~lburn recuests is the terrpcrary lifting of prohibitions imposed
Dursuant to 35 Ill. Adm. Code 602.105 and 602.106. In pertinent
part these Sections read:
Elburn incorporated parts of its original petition in its prior
variance, PCB 88—204, into the record in this proceedinq.and
appended the document to the instant petition. This docunent
will be cited as “1988 Pet, at
113—48
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. 1111/2, pars. 1001 et seq.) (Act), or of
this Chapter.
Section 602.106
Restricted Status
L) 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 Elburn requests be
lifted. Moreover, grant of the requested variance would not
absolve Elburn from compliance with the combined radium standard,
nor insulate Elburn 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.
1111/2, 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 !~r
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 (Id.).
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.
111-49
—4—
COMPLIANCE PRCGRA~
Elburn proposes to achieve compliance through the phased
construction of three deep wells and ion—exchange treatment
facilities. For Phase I, Elburn desires to initially ccnstruct a
single—unit ion—exchanger, with attendant appurtences. For Phase
II, Elburn anticipates the construction of deep well #5 and an
additional ion—exchange unit with appurtenances.
Elburn and the Agency anticipate IJSEPA will promulgate a
modified radium standard with final promulgation expected by
September 1992. Should the UEEPP alter t~eradium standard to 5
pCi/i for each of the two radium isotopes
,
Elburn observes that
existing levels ci radiuir—226 and radiurr—228 in its water nay
possibly lie within the acceptable range or at least would be
close to the proposed standard levels (Pet, at 7—b). Under this
scenario, Elburn believes that a lesser degree of treatment will
be required to obtain ccmpiiance which wculd impact the sizing of
the ion—exchange treatment facilities (Pet, at 8—9).
Given the uncertainties associated with USEPA action and the
differing size of treatment facilities which would be warranted
depending upon USEPA’s particular action, Elburn contends that it
would be premature to complete final design and construction of
the ion—exchange facilities at this time (Pet. at 10). Rather,
at this time Elburn agrees to commit to those sections of its
compliance plan short of final design and construction of its
ion—exchange equipment (through Phase 1B3) at a cost between
$2,018,300 and $2,731,413.00 (1988 Pet. at 5, Pet, at Exh. h).
Elburn further commits to complete final design and construction
upon prornulgaticn of
(or
the determination not to promulgate)
revised standards, dependent on the form cf those standards.
Elburn contends that it has aggressively pursued compliance
throughout the time of its various variance requests (Pet. at
5). As evidence thereto, Elburn submits a summary of its
activities respecting radium since 1988 (Pet, at 5-6):
1) On May 2, 1988 Elburn signed an Engineering
Contract with Pempe—Sharpe & Associates to
investigate ccmpiiance options.
2) On October 3, 1988 Elburn signed the .~gency’s
January 1968 Letter of Commitment.
2 As the Board has noted elsewhere (e.g., ~~~aoe of North Aurora
V.
IEPA, PCE 89—66, Feb. 8, 1990, Slip Op. at 7—8), this is one
of the options apparently under ccnsideration by the USEPA.
113—50
3) On December
5, 1988 Elburn approved the ion—
exchange radium removal technology.
4) On June 6, 1989
Elburn authorized the
expenditure
of $24,000 to permit Rerrpe—Sharpe &
Associates
to provide Engineering Services for
the North Street Sanitary Sewer interceptor
pursuant to phase IA. of the radium compliance
project.
5)
On June 22, 1989 Elburn entered into a contract
with Rem.pe—Sharpe & Associates
for the
Preliminary
Engineering Services for the Radium
Compliance Facility in the amount
of $35,350,
with regards to Phase lEl of the Compliance
Project.
6) On October 11, 1989 Elburn filed a Complaint For
Condemnation to condemn a 2.35 acre parcel
within the Village to serve as the location for
the Radium Treatment Facility. The original
offer was $61,000, the Village has made a
subsequent cffer of $87,103.67. Negotiations
are currently underway.
7) On November 4, 1989 Elburn purchased a 2.41 acre
parcel for $60,250 to serve as the location for
the hell #4 as required under Phase I of the
radium compliance project.
8) On January 11, 1990 Elburn cpened bids for the
construction of the North Street Sanitary Sewer
Interceptor which will channel the radiun~
backwash from the ~ater Treatment Facility to
the ~castewater Ireatrnent Facility. On February
5, 1990 the Village awarded the contract to
Dempsey Eng, inc. in the amount of $177,002.93.
9) On February 20, 1990 the Village approved an
ordinance authorizing the sale of $975,000 in
General Obligation Bonds for the purpose of
financing Phase IA, IP, prcperty acquisition,
legal fees, and administrative costs for the
Village’s Radium Coripliance Plan.
10) On March 5, 1990 the Village approved the
Preliminary Engineering Report frcrr Rempe—Sharpe
& Associates.
1 3—51
—6--
11) On March 5,
1990
the Village entered into a
contract with Rempe—Sharpe arid Associates for
engineering services reiateã to Phase 1E2 of the
Radium Compliance Project in the amount of
$57,900.
HAP DSHIP
Elburn believes that denial of
variance would constitute an
arbitrary or unreasonable hardship in that denial would preclude
significant develcpment in and around Elburn, and that such
hardship would outweight any injury to the public (Pet, at 10).
The Agency also notes that continuation of restricted status
would mean that no new water main extension permits could be
issued by the Agency, aria any economic growth dependent on those
water main extensions would not be allowed (Fec, at 7). The
Agency further notes that the possibility of reduced costs for
treatment due to a change in the standard for combined radium
should be considered (Eec. at 6).
Elburn cites several proposed developments including
annexation of various parcels of land which will provide the
village with 900 single family homes, 310 multi—family units, and
20 acres of ccnrrercial ãeveloprr.ents. Elburn anticipates that its
population and tax base will double as a result cf these
annexations, Elburn believes that the failure to obtain variance
would prohibit the extension of water supply to the annexed
areas.
In addition, as addressed in PCB 68—204, Elburn again
discusses other aspects of anticipated hardship should variance
be denied:
Imposition of restricted status has had a negative
impact on Elburn. Elburn has recently carried out a
number of public projects which it has been
struggling to pay for. In December 1980, Elburn
expanded its sewage treatment plant to service its
existing residential and commercial customers as
well as its expected growth. This required a
$430,000 General Cbligation Bond issue in 1978. In
addition Elburn, in Cctober 1986, completed the
necessary construction of a new water tower to
provide a safe and adequate system. Again, this
project was sized to serve the existing residents
and commercial customers, as well as anticipated
growth. The Agency’s Division of Public hater
Supply had informed Elburn that it needed to provide
additional storage and system pressure, The
construction of the new water tower cost
approximately $750,000. Elburn used $50,000 from
113—52
—
I—
existing operating funds, a $200,000 Community
Development Assistance Program grant and $500,000
General Obligation Bonds issued in 1986 to raise the
necessary funds.
Elburn has suffered a severe financial blow as its
principal
wastewater generator and employer closed
its facility on April 12, 1965. Kneip Company
announced the clcsing of its meat packaging
operations in February 1985 anã closed its facility
on April 12, 1985.
This resulted in a loss of 85 jobs and $133,904 in
wastewater treatment revenue to the Village of
Elburn which represents approximately 25 of
Elburn’s total revenue. In addition, Elburn was
left with a wastewater treatment systen~designed and
sized to accornrroaate waste from. the meat packing
company and upon which its rates were based.
without the waste from the meat packing plant, the
existing sewage treatment plant is operating at
approximately 25 of capacity with a resulting loss
in anticipated and needed revenue. As a result,
Elburn is struggling to pay off the approximately
$930,000 for General Obligation Bonds for the cost
of the new water tower and sewage treatment plant
expansion.
(PCB 68—204 at 3—4, Pet, at 8—9).
PUBLIC_INTEREST
Although Elburn 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. at 10). The Agency contends likewise
(Pee. at 5). In support of its contention, the Agency references
testimony presented by Fichard E. Toohey, Ph.D. of Argonne
National Laboratory at the hearing held on July 30 and August 2,
1985 in P85—14, Proposed Amendments to Public 1~ater Supply
Regulations, 35 Ill, Adrn. Code at 602,105 and 602.106, and to
updated testimony presented by Dr. Toohey in the Board’s hearing
on the Eraidwood variance, PCB 89—212 (Rec. at 5).
The Agency believes that while radiation at any level
creates some risk, the risk associated with Elburn’s water is
very low (Eec. at 5). 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 cf treatment
113—53
—8—
of
its
currEnt water supply, the likelihooc
of no
significant injury to the public from continuation
of the present level of the contaminants in question
in the Petiticner’s
water for the limited time
period of the variance, and the possibility of
compliance ~ith
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
cf Restricted
Etatus would impose an arbitrary
or
unreasonable hardship
upon Petitioner.
The Agency otserves that this grant of variance from
restricted
status should affect only those users who
consume water drawn from any newly extended water
un’
-.
This
v riance should not affect the status
of ~He rest of oetiticner’s population drawing water
from existing ter lines, except insofar as the
variance by 4- conditions may hasten compliance.
Grant of van e tray also, in the interim, lessen
exposure for at portion of the population which
will be consu:~ng more effectively blended water.
In so saying,
he Agency emphasizes that
it
continues to jz~ace a high priority on compliance
with the standards.
(Eec. at 8 and 9).
CONSISTENCY ~ITH_FEDERAL_LA’
The Agency bElieves that Elburn may be granted variance
consistent with tL? requirements of the Safe Drinking water Act
(42 U.S.C. 300(f)) and corresponding regulations because the
requested relief is not variance from a national primary drinking
water regulation (Fec. at par. 23).
CONCLUSION
The Eoard fincli that, in light of all the facts and
circumstances of this case, denial of variance would impose an
arbitrary or unreasonable hardship upon Petitioner. 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, assurrin~ that compliance is timely forthcoming.
It is the Board’s understanding that Elburn will be ready to
proceed with the final phases of their chosen plan immediately
upon the effective date of any regulation promulgated by USEPA
which amends the rra~jrrum 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.
113—54
The Board believes that the conditions as recommended by the
Agency are generally appropriate. However, the Board makes one
substantive insertion. That j.s the addition of condition A atd
the placement at appropriate
positions of the phrase “the date of
USEPA action”, as that phrase is defined in condition A, at
appropriate places in the Order. Since the term of the variance
tracks in part UEEI-A’s action, rather than repeat all possible
actions at each point, the Board will
use this phrase as so
defined.
This Opinion constitutes the Beard’s findings of fact and
conclusions of law in this matter.
ORDER
1. Petitioner, the Village of Elburn, is
hereby granted variance
from 35 Ill. Adrn.
Code 602.l05(a), Standards of Issuance, and
602.106(b), Restricted Status, but ~ as they relate to the
5 pCi/l combined radium—226 and radiuir—228 standard of 35
Ill. Adm. Cede 604.301(a), 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
arrendmen~s to the 5 pCi/i combined radium. standard
or the method for derncnstrating compliance with the
5 pCi/i standard will be promulgated.
(B) Variance shall term.inate on the earliest of the
following dates:
(1) Twenty—nine months following the date of UEEPA
action; or
(2) Five years from the date of grant of this variance;
or
(3) When analysis pursuant to 35 Ill. Adm. Code
605.104(a), or any compliance demonstration method
then in effect,
shows compliance with any standards
for radium in drinking water then in effect.
133-55
—10—
(C) Compliance shall be achieved with any standards for
radium then in effect no later than 29 months following
the date of USEPA action or five years from the grant of
this variance, whichever occurs first.
(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 its 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 radiolcoical analysis so as to determine
the concentration
of radium—226 and of radium—228.
At
the option of Petitioner the- quarterly samples tray be
analyzed when collected. The results of the analyses
shall be reported within 30 days of receipt of the most
recent analysis to:
Illinois Environmental Protection Agency
Compliance Assurance Section
Division of Public ~ater Supplies
2200 Churchill Road
Springfield, Illinois 62794—9276
(E) ~ithin eight months after the date of USEPA action,
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) ~ithin eleven months after the date of USEPA action,
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.
113- 5E~
—11--
(0) 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 thirteen
months after the date of USEPA
action. Construction
shall be
completed
29 months after the date of USEPA
action.
(H) Pursuant to 35 Ill.
Adn.
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.
Adir.
Code
6O2.lOS(a) Standards of Issuance and 35 Ill. Adm. Code
602.106(b) Restricted Status, as
they relate to
the
combined radium standard.
(I) Pursuant to 35 Ill. Adir. 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
combined radium.. The notice shall state the average
content of combined radium. in samples taken since the
last notice period during which samples were tak?-n.
(3) Until full compliance is achieved, Petitioner shall take
all reasonable measures with its existing equipment to
minimize the level of combined radium, radiurn—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 .4—3. Progress
repcrts 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.
2) Within 45 days of the date of this Order, Petitioner shall
execute and forward to Bohella Glatz, Enforcement Programs,
113- 57
—12—
Illinois Environmental Protection Agency, 2200
Churchill
Road, Post Office Box
19276, Springfield, lllinois 62794—
~276, a Certificaticn 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 ci said
Certification shall be as follows:
CER1 I Fl CATION
I (We),
______________
________
,
hereby
accept and agree to be ~Eou~d by all terms and conditions of the
Order of the Pollution Control Board in PCE 90—41, July 3, 1990.
Petitioner
Authorized Agent
Title
Date
Section 41 of
the Environmental Protection Act, Ill. Rev.
Stat. 1989 oh. 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 Members Jacob L. Cumelle and Bill Fcrcade dissented.
I, Dorothy M. Gum, Clerk of the Illinois Pollution Control
Bcard, hereby certify that the above~Opinion and Order was
adopted on the
‘~~-
day of
~
,
1990, by a
vote of
5~.
/
~/
I.
/
~—‘
‘ /
~—~ -—~..
.
.
~
.,~
Dorothy M. G~nn,Clerk
Illinois Poi’lution Control Board
113-58