ILLINOIS POLLUTION CONTROL BOARD
April 26, 1990
VILLAGE OF MUNDELEIN,
Petitioner,
V.
)
PCB 90-23
(Variance)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
OPINION AND ORDER OF THE BOARD (by J. Anderson):
This matter comes before the Board on a Petition for
Variance (“Petition”) filed by the Village of Mundelein
(“Mundelein”) on February 9, 1990. Mundelein seeks variance from
35 Ill. Adm. Code 602.105(a), “Standards For Issuance”, and
602.106(b), “Restricted Status”, to the extent that the rules
relate to the violation by Mundeleints public water supply of the
5 picocuries per liter (“pCi/i”) combined radium—226 and radium—
228 standard of 35 Ill. Adm. Code 604.301(a). Mundelein seeks a
five year variance to allow issuance of permits for water main
extension during the period of its non—compliance with the radium
standard rather than a variance from the radium standard
itself. The variance is requested for a period of five years
from the date variance is granted, or when analysis pursuant to
35 Ill. Adm. Code 605.104(a) shows compliance with the radium
standard, whichever occur first. The Environmental Protection
Agency (“Agency”) filed its Variance Recommendation on March 13,
1990. The Agency recommends that variance be granted, but only
until May 31, 1993. The recommendation
,
however, was subject to
conditions. Mundelein waived hearing and none was held.
Based on the record before it, the Board finds that
Mundelein has presented adequate proof that immediate compliance
with the Board regulations would impose an arbitrary or
unreasonable hardship. Accordingly, the variance will be granted
subject to the conditions set forth in this Opinion and Order.
BACKGROUND
This is Mundelein’s first variance request from the public
water supply regulations. The Village of Mundelein is located in
Lake County, Illinois. It owns and operates a potable water
supply and distribution system that serves 17,200 residents and
603 industries that, in turn, employ 11,600 individuals.
Mundelein also provides water service to certain areas in
11
—2—
unincorporated Lake County. The system is comprised of four deep
wells and four shallow wells, in addition to pumping, storage,
and distribution facilities.
The Agency first advised Mundelein of a potential violation
of the combined radium standard by letter dated February 4,
1988. The Agency based its determination on an analysis of a
single sample of Well No. 6. The analysis showed a radium—226
content of 5.5 pCi/i and a radium—228 content of 6.4 pCi/i, for a
combined value of 11.9 pCi/i. (Pet., p. 7, Attachment 1)
After it received the Agency’s letter, Mundelein instituted
a sampling program of its four deep wells. Specifically,
Mundelein collected samples from each well for four consecutive
quarters. The last samples were collected in October, 1989. An
analyses of composite samples yielded the following results,
measured in pCi/i:
No.
Raw or
Radium
Radium
Combined
Sample
Location Distribution 226
228
Radium
SPW—0089 Well #6
Raw
5.2+/—0.2 4.0+/—0.7
0.2
SPW—0090 Well #8
Raw
5.4+/—0.3
5.2-~-/—0.8 10.6
SPW—009l Well #8
Raw
5.9+/—0.3 5.7+/—0.7
11.6
SPW—0092 Well #9
Raw
4.8+/—0.2 5.9+/—0.7
9.8
SPW—0093 Well #10
Raw
5.5+,~’—0.2 5.0+/—0.7
10.5
(Pet., p. 8; Pet., Attachment 2)
Mundelein submitted the above results to the Agency on
November 29, 1989. In a letter dated December 18, 1989, the
Agency advised Mundelein that it exceeded the maximum combined
radiumn—226 and radium—228 level. (Pet., p. 8, Attachment 3). The
Agency, in a letter dated January 5, 1990, then notified
Mundelein of its placement on restricted status. (Pet., p. 8,
Attachment 3).
REGULATORY FRAMEWORK
In recognition of a variety of possible health effects
occasioned by exposure of radioactivity, the United States
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 the same limit as the maximum allowable concentration
under Illinois law. Moreover, pursuant to Section 17.6 of the
Illinois Environmental Protection Act (“Act”) (Ill. Rev. Stat.
ch. ill 1/2, par. 1017.6), any revision to the 5 pCi/l standard
by the USEPA will automatically become the standard in Illinois.
The action that Mundelein requests here is not variance from
this maximum allowable concentration. Regardless of the action
110—394
—3—
taken by the Board in the instant matter, this standard will
remain applicable to Mundelein. Rather, Mundelein requests
variance from the prohibitions imposed pursuant to 35 Ill. Adm.
Code 602.105(a) and 602.106(b) until it can achieve compliance.
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. 1981, 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 permits, if their water fails to
meet any of the several standards for finished water supplies.
This provision is a feature of the Illinois regulations and is
not found in federal law. It is from this prohibition which
Mundelein request a variance. However, we emphasize that,
because the duration of restricted status is linked to the length
of time it takes the water supply to come into compliance with
the underlying standards, the timeframes in the proposed
compliance plan itself are a concomitant, indeed an essential,
consideration in a restricted status variance determination,
whether or not variance is being requested from those
standards. Thus, grant of variance from restricted status will
be conditioned on a schedule of compliance with the 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. 1987, oh.
111 1/2, par. 1035(a). Further, the burden is not upon the Board
to show that the harm to the public outweighs petitioner’s
hardships; the burden is upon petitioner to show that its claimed
arbitrary or unreasonable hardship outweighs the public interest
in attaining compliance with regulations designed to protect
human health and the environment. Willowbrook Motel v. Illinois
I I0—3~)5
Pollution Control Board,
135
I11.App.3d 343, 481 N.E.2d 1032 (1st
Dist. 1985)
Lastly, a ~iariance by its nature is a temporary reprieve
from compliance with the Board’s regulations and compliance is to
be sought regardless of the hardship which the task of eventual
compliance presents an individual polluter. Monsanto co. v. IPCB
67 Ill. 2d 267, 367 N.E.2d 684 (1977). Accordingly; except in
certain special circumstances, a variance petitioner is required,
as a condition to grant of variance, to commit to a plan that is
reasonably calculated to achieve compliance with the term of the
variance.
COMPLIANCE PROGRAM
In order to achieve compliance, Mundelein proposes to
replace the water currently supplied by its deep wells with Lake
Michigan water. Prior to verifying its radium probler,Mundelein
had already taken several steps to achieve this goal in order to
assure an adequate water supply. (Pet., p. 10). In 1981,
Mundelein along with several municipalities in central Lake
County began plans to design, construct, and operate a Lake
Michigan water transmission system.* This group later formed the
Central Lake County Joint Action Water Agency (“JAWA”).** On
March 15, 1988, Mundelein passed an advisory referendum to
connect to a Lake Michigan water supply source. In April of that
same year, Mundelein entered into an agreement with an
engineering firm to identify the impact and costs that would
result from a Lake Michigan water connection. A second
referendum authorizing Mundelein to issue $12 million in bonds to
fund such a project was passed on November 8, 1988. Since that
time, the various members of JAWA have secured allocations from
the State to use Lake Michigan water, and have executed several
contracts to implement that goal. Moreover, Mundelein has
executed contracts for the design of internal improvements to its
water system. In October, 1989, Mundelein again contracted with
an engineering firm for the purpose of developing plans and
specifications for the construction of storage facilities,
pumping facilities, and connection points for the Lake Michigan
water.
Mundelein sets forth the following compliance schedule for
the internal im~rovements to its water system:
* The expected start-up date for JAW.;’s water treatment facility
is January, 1992.
* Mundelein officially joined JAWA in April, 1989.
1 10—3°~
—5—
Preliminary Design
December, 1989—March, 1990
Land Aquisition
January, 1990—July, 1990
Final Design
March, 1990—September, 1990
IEPA Permit Review
April, 1990—mid—October, 1990
Bidding and Award
mid-October, 1990—January, 1991
Construction
January, 1991—April, 1992
(Pet., Attachment 5—2).
ALTERNATIVE COMPLIANCE OPTIONS
Mundelein considered, but later rejected two alternate
methods of compliance; namely, blending and treatment
facilities. Mundelein provides three reasons why the blending of
its shallow and deep well water prior to distribution to reduce
the radium levels is an unacceptable alternative. First,
Mundelein contends that it cannot implement the blending option
due to the geographic location of the municipal well connections
and storage devices. (Pet., pp. 13,15). Second, Mundelein
contends that the shallow wells that would be used for blending
are of inferior quality because of their high mineral content.
(Id. at p. 15). Third, Mundelein states that a centralized
distribution point for the blended water is unavailable. (Id.).
With regard to the treatment option, Mundelein states that
there are two treatment methods, but that both are
unacceptable. Mundelein contends that the first method, radium
removal by lime softening, is unacceptable because it produces
large quantities of sludge, concentrates the radium, and creates
a need for waste disposal that can be expensive and
problematic. (Id. at p. 14). Mundelein also cites several
reasons why the second.method, ion exchange water softening, is
unacceptable. Specifically, Mundelein argues that the sodium
content of the water will be increased if a softener that is
regenerated with salt is used and that this, in turn, may create
a risk to those persons who are hypertensive or who have heart
problems; it may be difficult to legally dispose of the waste
from routine softening because it is high in total dissolved
solids; the ion exchange process also concentrates radioactivity,
the majority of which is released in the water stream in a
concentrated form; and, because some of the radioactivity remains
in the ion exchange material, it may be hazardous for persons to
work on the softener, and it may be difficult to dispose of the
radioactive ion exchange material. (Id. at pp. 14—15).
1 l0—3~)7
—6—
It should be noted, however, that Mundelein has spent
$72,000 to rehabilitate several of its shallow wells in order to
maximize their usage and provide some reduction of the radium
level in the distribution system. Specifically, Mundelein has
installed new pumps in several of the shallow wells, has acidized
and cleaned one shallow well, and has increased pumping at
several of the wells in order to increase the proportion of
shallow well water in its distribution system and reduce the
radium levels. (Pet., p. 13)
HARDSHIP
Mundelein cites several reasons why it would experience an
arbitrary and unreasonable hardship if the Board denied its
variance request. First, Mundelein states that an expenditure of
significant sums of money on intermediary measures of compliance
before Lake Michigan water is obtained would be arbitrary or
unreasonable when there would be no significant injury to the
public or environment during the limited time period of the
variance. (Pet., p. 17). Second, Mundelein points to the time
and expense it already has spent to achieve its goal of obtaining
Lake Michigan water. (Id.). Third, Mundelein contends that,
given the anticipated change in the radium standards (see
following) and the fact that it may be able to comply with such
standards, a substantial expenditure of public monies for the
design and construction of treatment facilities at well sites
that may later become obsolete when the wells are abandoned is
not in the public interest and would not benefit the public. (Id.
at pp. 17—19). Fourth, Mundelein asserts that prospective home
purchasers and business developers would be hurt (to the tune of
approximately $111,000) if construction within the service area
requiring the extension of the water supply system could not
resume. (Id. at p. 19). Finally, Mundelein asserts that there is
a need for the expansion of its water distribution system to
serve the domestic and fire protection requirements of the local
population. (Id.).
The Agency supports Mundelein’s variance request and agrees
that denial of the variance would result in an arbitrary and
unreasonably hardship. The Agency specifically points to the
fact that it would be required to deny construction and operating
permits for the new water main extensions until compliance is
achieved (unless a variance from 35 11. Adm. Code 604.301 is
granted) and that, as a result, any economic arowth resulting
from those water main extensions would be stifled. (Rec., Par.
19). However, the Agency recommends that variance terminate on
May 31, 1993, because Mundelein’s compliance schedule shows that
construction •on its internal improvements will be completed by
April, 1992, and because an additional year is needed to
demonstrate compliance.
110—398
—7—
ENVIRONMENTAL IMPACT
Although Mundelein states that it has made no formal
assessment of the environmental effect of the requested variance,
it contends that extension of its watermains will not cause any
significant harm to the environment or to any potential customers
served by the extension for the limited time period of the
requested variance. (Pet., p. 12). In support of this
contention, Mundelein references the testimony of Richard C.
Toohey, Ph.D., and James Stebbins, Ph.D., both of Argonne
National Laboratory, that was presented at the July 30, 1985, and
the August 2, 1985, hearings in R85-l4, Proposed Amendments to
Public Water Supply Regulations, 35 Ill. Adm. Code at 602.105 and
602.106.
The Agency agrees with Mundelein’s assertions and notes that
while radiation at any level creates some risk, the risk
associated with Mundelein’s radiation levels is low. (Rec., pars.
14,18). In addition to the above testimony, the Agency also
cites the testimony given by Dr. Toohey on June 25, 1985, in PCB
85—54, to support its views regarding public health effects.
(Rec., par. 15).
CONSISTENCY WITH FEDERAL LAW
Both Mundelein and the Agency state that Mundelein may be
granted variance consistent with the requirements of the Safe
Drinking Water Act (42 U.S.C. 300(f) et.
~
as amended by the
Safe Drinking Water Act Amendments of 1986 (Pub. Law 99—339, 100
Stat. 642 (1986)), and the LJSEPA National Interim Primary
Drinking Water Regulations (40 CFR Part 141) because the
requested relief would not be a variance from national primary
drinking water regulations nor a federal variance. Specifically,
granting a variance from the effects of restricted status means
that only the State’s criteria for variances are relevant. (Pet.,
pp. 20, 21; Rec., pars. 21,22).
The Agency states that grant of variance leaves Mundelein
subject to the ~ossibi1ity of federal enforcement for violations
off the radium standards. The Agency notes, however, that if the
state variance requires compliance by the end of the Agency’s
recommended variance period, USEPA would probably consider the
variance order to be a “Compliance Order” and defer federal
enforcement. (Rec., par. 24).
ANTICIPATED FEDERAL STANDARD REVISION
The federal standard for radium has been under review for
some time. Additionally, the Act hasbeen amended at Section
17.6 to provide that any new federal radium standard immediately
supersedes the currently Illinois standard. While it remains
uncertain as to when and how the radium standard will actually be
1 l(~—3c”)
—8—
modified, we conclude that it remains possible, even probable,
that USEPA will propose a change in the radium standard in the
near future.*
TERMS OF VARIANCE
Mundelein requests that the term of variance be five years
from the date variance is granted, or when analysis pursuant to
35 Ill. Adm. Code 605.104(a) shows compliance with the radium
standard, whichever occurs first. The Agency, however,
recommends that variance end on May 1, 1993, or when analysis
shows compliance, whichever occurs first. The Agency reasons
that no further time beyond the May 1, 1993, date is needed
because Mundelein will complete construction on its internal
improvements in April, 1992, and will only need one year to
conduct quarterly sampling to prove compliance. (Rec., par. 27).
CONCLUSION
The Board finds that, in light of all the facts and
circumstances of this case, Mundelein has presented adequate
proof that immediate compliance with 35 Ill. Adm. Code 602.105(a)
and 602.106(b) would impose an arbitrary or unreasonable hardship
upon Mundelein. We particularly hote that Mundelein’s
commitment, both financially and otherwise, towards getting Lake
Michigan water is firm and well on its way to fruition. We also
note that, at this juncture, the time to implement the options of
lime treatment or ion exchange could take longer than the time to
complete the connection to obtain Lake Michigan water (2
years). The Board, however, agrees with the Agency’s reasoning
regarding the termination date of the variance. The Board will
therefore allow Mundelein until April 1, 1992, to complete
construction on its internal improvements in order to obtain Lake
Michigan water and until May 1, 1993, to demonstrate compliance.
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 will accordingly grant variance
consistent with this Opinion.
As a final note, the Board believes that the conditions as
recommended by the Agency are generally appropriate. The Board,
however, makes one substantive insertion; the placement
appropriate positions of the phrase, “or with any standard for
radium in drinking water then in effect”, or like phrases, at
* For a further discussion, see Village of North Aurora v.
:llinois Environmental Protection Agency (PCB 89—66, February 8,
1990) and City of Geneva v. Illinois Environmental Protection
Agency (PCB 89—107, March 22, 1990).
110—400
—9—
appropriate places in the Order. The purpose is to assure that
if the radium standard is altered during the term of variance by
USEPA action and corresponding operation of Section 17.6 of the
Act, the compliance target for Mundelein then becomes the revised
radium standard rather than the presently applicable 5 pCi/l
combined standard.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Petitioner, the Village of Mundelein, is hereby granted
variance from 35 Ill. Adm. Code 602.105(a), Standards of
Issuance, and 602.106(b), Restricted Status, but only as they
relate to the 5 pCi/l combined radium—226 and radium—228 standard
of 35 Ill. Adm. Code 604.301(a), subject to the following
conditions:
(1) This variance shall terminate on the earliest of the
following dates:
(a) May 1, 1993; or
(b) When analyses pursuant to 35 Ill. Adm. Code
605.104(a), or any compliance demonstration then in
effect, show compliance with the combined radium
standard or any standard for radium in drinking
water then in effect.
(2) Compliance shall be achieved with the maximum allowable
concentration of radium, or with any revised standard
for radium in drinking water then in effect, no later
than May 1, 1993.
(3) In consultation with the Agency, Mundelein 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,
Mundelein shall collect quarterly samples of its water
from its distribution system at locations approved by
the Agency. Mundelein 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 the two parameters, radium—226 and
radium—228. Ar the option of Mundel~in, the quarterly
samples may be analyzed when collected. The running
average of the most recent fOur quarterly sample results
of the analyses shall be reported within 30 days of
receipt of the most recent quarterly sample to:
110—401
—10—
Illinois Environmental Protection Agency
Division of Public Water Supply
Compliance Assurance Section
2200 Churchill Road
Springfield, Illinois 62794—9276
(4) By August 1, 1990, Mundelein shall apply for all permits
necessary for construction of installations, changes or
additions to Mundelein’s public water supply needed for
achieving compliance with the maximum allowable
concentration for the combined radium standard or with
any standard for radium in drinking water then in
effect. Such applications shall be made to:
Illinois Environmental Protection Agency
Division of Public Water Supply
Permit Section
2200 Churchill Road
Springfield, Illinois 62794—9276
(5) By August 1, 1990, Mundelein shall advertise for bids,
to be submitted within 60 days, from contractors to do
the necessary work described in the construction
permit. Mundelein shall accept appropriate bids within
a reasonable time. Petitioner shall notify the Agency
at the address in condition of (4) of each of the
following actions: 1) advertisement for bids, (2) names
of successful bidders, and 3) whether Mundelein accepted
the bids.
(6) 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 standard for radium in drining
water then in effect, shall begin no later than March 1,
1991, and shall be completed not later than May 1, 1992.
(7) Pursuant to 35 Ill. Adm. 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, Mundelein shall send to each user of
its public water supply a written notice to the effect
that Mundelein 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. Code 602.106(b),
Restricted Status, as they relate to the combined
radium-226 and radium—228 standard.
110— 4 02
—11—
(8) Pursuant to 35 Ill. Adm. 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, Mundelein shall send to each user of
its public water supply a written notice to the effect
that Mundelein is not in compliance with the combined
radium—226 and radium-228 standard. The notice shall
state the average content of the contaminant in question
in samples taken since the last notice period during
which samples were taken.
(9) Until full compliance is achieved, Mundelein 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. In
particular, Mundelein shall continue to maintain, to the
degree reasonably practicable, the increased proportion
of shallow well water in its distribution system in
order to reduce the radium level.
(10) Mundelein shall provide written progress reports to the
Agency every six months concerning steps taken to comply
with conditions I through 9 of this Order. Progress
reports shall quote each of said conditions and
immediately below each condition state what steps have
been taken to comply with each condition. Such written
progress reports shall be submitted to:
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 Bobella Glatz, Enforcement Programs,
Illinois Environmental Protection Agency, 2200 Churchill Road,
Post Office Box 19276, Springfield, Illinois 62794—9276, a
Certification of Acceptance ~nd 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 the bound by all terms and conditions of the Order of
11
0—401
—12—
the Illinois Pollution Control Board, in PCB 90—23, April 26,
1990.
Petitioner
By: Authorized Agent
Title
Date
Section 41 of the Environmental Protection Act, Ill. Rev.
Stat. 1987, 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 Members J. Dumelle and B. Forcade dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was
adopted on the
~
day of
‘ ,,
,~
,
1990, by a
vote of
_____________
.
j~~_ ~
~_/~
-
)
~
1~.
~Dorothy M. G~nn, Clerk
Illinois PoYlution Control Board
110—404
