ILLINOIS POLLUTION CONTROL BOARD

February

8,

1990

VILLAGE OF NORTH AURORA,

Petitioner,

V.

)

PCB 89—66

(Variance)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

OPINION AND ORDER OF THE BOARD

(by R.

C.

Flertal):

This matter comes before the Board on

an Amended Petition

for Variance

(“Amended Pet.’)

filed June

30,

1989 by the Village

of North Aurora

(“North Aurora”).

North Aurora seeks extension

of variance 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 North Aurora’s put~icwater supply

of the

5 picocuries per

liter

(“pCi/l”)

combined radium—226 and

radium—228 standard of

35

Ill.

Adm.

Code 604.301(a).

The

variance

is

requested for a period of five years from the date

variance

is granted.

Based on the record before

it, the Board finds

that North

Aurora 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 conditions consistent with this Opinion.

PROCEDURAL HISTORY

On October

15,

1987

in PCB 87—83

the Board granted North

Aurora

a three-year variance from the same regulations

at

issue

herein1.

On April

14,

1989 North Aurora submitted

a Motion to

Modify Order

of the Board

(“Motion to Modify”),

in which

it

requested extension of

the PCB

87—83 variance.

On April

27, 1987

the Board characterized the Motion to Modify as

a Petition for

Variance

(“Pet.”),

and ordered North Aurora

to amend

the filing

to conform to the requirements

for

a petition.

The June

30

filing fulfilled this order.

North Aurora has waived hearing,

and none has been held.

1 Village of North Aurora

v.

IEPA,

PCB 87—83,

82 PCB 279.

IflS—2 5

---

—2—

On September

25,

1989

the Illinois Environmental Protection

Agency (“Agency”)

filed a Variance Recommendation

(“Recommendation”)

in support

of grant of variance subject

to

conditions.

On October

3,

1989 and again on October

13,

1989 and October

27,

1989 North Aurora filed Motions

for Extension of Time

to file

a response to the Agency Recommendation.

These motions were

granted by Board Orders

of October

5, October

18, and November

15, 1989,

respectively.

In each case the motion

for extension

was based on a

new U.S.

Environmental Protection Agency

(“USEPA”)

policy on radium variances and the

need for evaluation of the new

USEPA policy.

On November

29,

1989 the Agency filed an Addendum

to its

Recommendation wherein

it again recommends grant

of

variance,

but

with a different term of variance than originally recommended.

On December

14,

1989 North Aurora

filed

a Motion for Leave

to File Response

to the Agency’s Addendum

to

Recommendation.

That motion was granted by Board Order

of

December

20,

1989.

North Aurora’s response was filed on December

29,

1989.

BACKGROUND

North Aurora

is

a municipality

located

in Kane County.

Among other

services, North Aurora provides

a potable publlc

water

supply derived from four deep wells and supplied

through

a

distribution system which includes

two half—million gallon

reservoirs, pumps, and distribution

facilities;

only three of the

four well are generally

in service.

The system provides water

to

5,300 residents and 115 industries employing approximately 3,000

people.

North Aurora was first advised of the high radium content

in

its water supply, and notified of placement on restricted status,

by letter from the Agency dated January

8,

1987

(Pet.

Attachment

3).

The Agency based

its determination

on an annual composite

sample reported on December

8,

1986 which showed a radium—226

content of

4.8

pCi,/l and a

radium—228 content

of

7.6 pCi/i,

for

a

combined value of

12.4 pCi/i

(Id.

at par.

0).

North Aurora has undertaken several additional analyses.

Although these have

not been sufficient

to show compliance with

the radium standard,

they nevertheless have failed

to

confirm the

higher combined radium concentration identified

in the December

8,

1986 composite.

North Aurora reports the following more

recent radium analysis, measured

in pCi/i:

Distr ibution

---

~~1

Motion

to Modify,

Exhibit

2

REGULATORY FRAMEWORK

In recognition of

a variety of possible health effects

occasioned by exposure

to radioactivity,

the U.S.

Environmental

Protection Agency has promulgated maximum concentration

limits

for drinking water

of

5 pCi/i

of combined radium-226 and radium—

228.

Illinois subsequently adopted the same limit as

the maximum

allowable concentration under

Illinois

law.

The action North Aurora requests here

is not variance from

this maximum allowable concentration.

Regardless

of

the action

taken by the Board

in the instant matter,

this standard will

remain applicable

to North Aurora.

Rather,

the action North

Aurora 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.

1981,

ch. ll1~

,

pars.

100:

et

seq.)

(Act),

or

of

this Chapter.

Section 602.106

Restricted

Status

a)

Restricted status shall

be defined by the Agency

determination pursuant

to Section

39(a)

of

the

Well

#3

Radium

226

228

Well

#4

226

228

Well

#5

226

228

Date

July

Oct.

Jan.

Apr.

May

May

July

Aug.

Oct.

Jan.

Feb.

!‘~ar.

System

226

228

1987

3.2

1.4

5.:

2.6

3.1

2.3

3.7

1.5

1987

‘.9

1.3

4.7

1.8

2.9

1.8

3.9

1.3

1988

3.7

1.9

3.7

1.8

1.5

0.8

2.3

1.1

1988

4.2

5.1

4.8

4.4

2.9

2.4

4.8

4.4

1988

2.7

5.1

3.4

5.2

1.7

3.2

2.0

4.0

1988

0.6

1.0

0.6

1.0

1.2

1.0

1988

4.0

3.2

4.6

4.5

2.6

2.6

3.5

3.5

1988

3,0

5.0

4.1

5.0

2.0

4.0

3.0

3.2

1988

4.3

2.1

6.0

2.8

2.2

0.8

3.3

1.8

1989

3.7

2.4

3.6

1.9

2.3

1.8

2.7

2.9

1989

3.7

1.9

4.3

2.2

3.0

2.3

3.4

2.3

1989

3.4

1.5

4.3

2.4

2.7

1.1

3.0

1.2

Average

3.36

2.65

4.12

2.96

2.15

2.00

3.23

2.47

152— 27

---

—4—

Act and Section 602.105,

that

a public water

supply

facility

may

no

longer

be

issued

a

construction permit without

causing

a violation

of the Act or this Chapter.

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.

c)

The Agency shall notify the owners or official

custodians

of supplies when the supply

is

initially placed on restricted status

by the

Agency.

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 North Aurora requests

be lifted.

Moreover,

as North Aurora properly notes

(Amended

Pet.,

Attachment A at par.

44), grant

of the requested variance

would not absolve North Aurora

from compliance with the combined

radium standard,

nor insulate North Aurora from possible

enforcement

action brought

for violation

of this standard.

In consideration of any variance,

the Board

is required

to

determine whether

the petitioner would suffer

an arbitrary

or

unreasonable hardship

if required to comply with the Board’s

regulations

at issue

(Ill.Rev.Stat.l987,

ch.

1114,

par.

1035(a)).

It

is normally not difficult

to make

a showing

that

compliance with regulations involves some hardship,

since

compliance with regulations usually requires some effort and

expenditure.

However, demonstration of such simple hardship

alone

is insufficient

to allow

the Board

to find for

a

petitioner.

A petitioner must go further

by demonstrating that

the hardship resulting from denial of variance would outweigh the

injury of

the public from a grant of

the petition

(Caterpillar

Tractor

Co.

v.

IPCB (1977),

48

Ill.

App.

3d

655,

363 N.E.

2d

419).

Only with such showing can hardship rise to the level of

arbitrary

or unreasonable hardship.

Moreover,

a variance by

its nature

is

a temporary reprieve

from compliance with the Board’s

regulations

(Monsanto Co.

v.

IPCB

(1977),

67

Ill.

2d

276,

367 N.E.2d

684), and compliance

is

to

be

sought

regardless

of

the

hardship

which the task

of

eventual compliance presents

an individual polluter

(Id.).

Accordingly,

a variance petitioner

is required, as a condition

to

grant of variance,

to commit

to

a plan which

is reasonably

calculated

to achieved compliance within the term of the

variance.

---

—5—

HARDSHIP

North Aurora believes that

a requirement

to come

into

immediate compliance would impose an arbitrary

or unreasonable

hardship.

North Aurora and the Agency both note that because

of

North Aurora’s

inability

to

receive permits

for water main

extensions, any economic growth dependent

on those water main

extensions would

not be allowed.

North Aurora contends:

Failure

to obtain

a variance would mean that all

construction within Petitioner’s service area

requiring

the extension of the water

supply system

could

not

resume.

This hurts prospective home

purchasers

as well

as business developers and

Petitioner’s

tax base,

(Amended Pet.,

Attachment

A at par.

38).

North Aurora,

however, does not currently foresee extending

its

water mains to

serve any particular new users

in the immediate

future

(Id.

at par.

13).

North Aurora also asserts

that

there

is great need for

expansion of its water distribution system to serve

the domestic

and fire protection

requirements

of the local population

(Id.

at

par.

39).

North Aurora also contends that, given

an anticipated

change

in the radium standards

(see following),

with which North

Aurora might then be

in compliance,

substantial expenditure at

this time

for radium treatment equipment

or procurement

of water

from alternate sources

is not

in the public interest and does not

grant

a corresponding benefit

to the public

(Id.

at

par.

37;

Amended Pet.

at

5).

Lastly, North Aurora contends that

the

hardship resulting from denial of

the requested variance would

outweigh the injury of the public

(see bellw),

and thus

rises

to

the level

of arbitrary or unreasonable hardship

(Id.

at par.

40).

The Agency agrees

that denial of variance would constitute

an arbitrary or unreasonable hardship (Recommendation at

par.

19).

PUBLIC INJURY

Although North Aurora has

not undertaken

a

formal assessment

of

the environmental effect

of its requested variance,

it

contends that extension, of its watermains will not

cause any

significant harm

to the environment

or

to the people

served by

the potential watermain extensions

for

the limited time period of

the requested variance

(Amended Pet., Attachment A at

par.

28).

The Agency contends likewise (Recommendation at

par.

18).

In

support of

these contentions,

North Aurora and the Agency

reference testim:ny presented

by Richard

F.

Toohey,

Ph.D.

and

James Stebbins,

Ph.D.,

both of Argonne National Laboratory,

at

the hearing held on July

30 and August

2,

:985

in R85—l4,

158— 25

---

—6—

Proposed Amendments

to Public Water Supply Regulations,

35

Ill.

Adm.

Code at 602.105 and 602.106.

The Agency believes that while radiation at any level

creates some risk,

the risk

associated with North Aurora’s water

is low (Recommendation at par.

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 Pestricted Status would outweigh the injury

of

the publlc 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 contaminants

in question

in

the Petitioner’s water

for the limited

time period

of

the variance,

and the possibility of

compliance with

the MAC standard,

the Agency concludes

that denial of

a variance from the effects

of Restricted Status

would impnse 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

cf 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.

(Recommendation at par.

26 and 27).

COMPLIANCE PROGRAM

North Aurora proposes at

this time to continue

to explore

compliance alterna.ives.

Among

these are purchase

of water

from

the City of Aurora,

installation of treatment equipment,

and

blending.

Purcnase of

water from Aurora

is recommended by North

Aurora’s conslltant as preferable

to various treatment or

blending systems

(Amended Pet,

Attachment

D)

if the present

5

pCi/l combined radium standard remains

in effect.

However,

blending

is the preferred and least

costly method of

compliance

if the standard

is altered

to

5 pCi/l

for each of

the two radium

isotopes

(Id.

)

,

as North Aurora speculates may be the case

(see

following)

102—31)

---

—7—

In anticipation

of having to choose among these

alternatives, North Aurora has been pursuing contract

negotiations with Aurora

(North Aurora December

30, 1989 Response

at

3), as well as revision

of the design and engineering of

its

water treatment system

(Id.).

CONSISTENCY WITH FEDERAL LAW

The Agency believes that North Aurora may be granted

variance consistent with the 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

(Recommendation at par.

23).

The Agency further notes

that until recently

it believed

that USEPA might well object

to any variance extending beyond

September

30,

1993

(Addendum

to Recommendation

at par.

1).

However, USEPA policy,

in part occasioned by

the anticipated

change in the federal combined radium standard

(see below),

apparently

is now such that USEPA does not propose to object

to

longer variances

if

a community can demonstrate that

it

is making

good faith, expedient efforts towards compliance and that

the

community’s construction schedule

is the most appropriate

considering expected promulgation

of the new standards

(Id.).

ANT:CIPATED FEDERAL STANDARD REVISION

The federal standard for radium has been under

review for

some time.

Additionally,

in anticipation

of

a federal revision

of the radium standard,

the Illinois Environmental Protection Act

has been amended

at Section 17.6

to provide

that any new federal

radium standard immediately supersedes

the current Illinois

standard.

Nevertheless,

it remains uncertain as to when and how

the radium standard will actually be modified.

Both the Agency and North Aurora apparently believe

that the

most likely schedule isUSEPA proposal

of

a modified standard

in

July 1990 and promulgation

by December

:991.

Both the Agency and

North Aurora also apparently agree that

the modified standard

will consist

of

separate standards

for radium-226 and radium—288

at

5 pCi/i

each.

These suppositions regarding dates and numeric

values for the standards are nowhere

in the instant

record based

on definitive statements

to this

end made by the USEPA.

Rather,

they are based on conclusions drawn from various documents.

In

particular, North Aurora points out

that

in

a

letter from Joseph

F. Harrison,

Chief

of the USEPA Region

5 Safe Drinking Water

Branch,

to the Agency,

Mr. Harrison found acceptable

a compliance

schedule applicable

to the City of Geneva which

is premised on

the June

30, 1990 proposal and December l99

promulgation dates

(see Attachment A to North Aurora Response

of December

30,

11)8—31

---

—8—

1989).

‘This certainly falls short of a USEPA comrnittment

to

propose and promulgate new radium standards

by these dates.

Similarly,

the supposition

that the standard which will

be

proposed will be

5 pCi/l

for each of

the two radium isotopes

is

apparently based

a statement made by Mr. Harrison at the March

16,

1989 meeting

of the Illinois Ground Water Association

to this

effect

(North Aurora Motion

to Modify,

filed April

14,

1989 at

3), and a newletter

of the USEPA Office

of Drinking Water of

Janaury 1989 which states that

“For each

isotope, MCL5 under

consideration center on

5 pCi/i”

(Amended Pet., Attachment C).

This record certainly also falls

short

of

confirmation o~USEPA

intentions regarding the numeric values

of the any new radium

standards.

Based upon this record,

the Board can only conclude that

it

remains possible,

and perhaps even likely,

that the USEPA will

take action which will cause

the applicable radium standard to

change.

DETERMINING COMPLIANCE WITH THE RADIUM STANDARD

North Aurora

requests that

the Board address the satellite

issue of whether

the radium standard must be met on an average or

maximum basis

(Response at

5).

The

issue arises because

~iorth

Aurora believes,

based on its past sampling record,

that

it may

be

in compliance with the expected federal radium standards as

long

as those standards must

be met only

in the average.

The Board declines,

as unjustifiably speculative,

to

determine whether

North Aurora would be

in future compliance with

the expected federal standards.

However,

the general

issue of

averaging as

it applies

to radium analyses

is

a matter which does

warrant

consideration.

The “average”

at issue

is that

found at

35

Ill. Adm. Code

605.105(a):

Compliance with

35

Ill.

Adm.

Code 604.301

combined

radium standard

shall

be based on the analysis

of an

annual composite of

four consecutive quarterly

samples or

the average of

the analyses of

four

samples obtained at quarterly intervals.

This averaging

rule

is

identical

in substance

to the averaging

rule found

in current federal

regulations at

40 CFR l41.26(a)(l)

(1988)

Section 605.105(a)

clearly specifies

that compliance with

the combined radium standdrd requires

a showing based on samples

averaged over

a year.

The question North Aurora raises

is

whether

a showing

of violation similarly

requires samples

averaged over

a year.

11)8—32

---

—9—

Where averaging

is provided

for

by

law,

and where there

is

no standard which applies

to a single sample,

a violation cannot

be found unless

it

is the appropriate average

(not

a single

sample result)

which

is exceeded.

That

is the circumstance

here.

Thus,

a showing

of violation of

the combined radium

standard of

35

Ill. Adm.

Code

604.301(a)

must

be based on

the

analysis of an annual composite of four consecutive quarterly

samples

or

the average of the analyses of

four samples obtained

at quarterly intervals.

A similar conclusion

also applies

to the

standard for gross alpha particle activity at

35

Ill.

Adm. Code

604.301(b),

which

is also subject

to the averaging

rule

of

35

Ill. Adm.

Code 605.105(a).

This

finding was articulated with

respect

to

the radium,/gross alpha standards at

least

as

long ago

as Village of Wheeling

v.

IEPA, PCB 80—59,

39

PCB

53 and City of

Rolling Meadows

v.

IEPA,

PCB 80-70,

39 PCE 62.

In part

the instant question has arisen based

on

a statement

in the Board’s March

24,

1988 Opinion

in Citizens Utilities

Company

of Illinois

v.

IEPA (“Citizens Utilities

II”),

PCB 86—

185,

87 PCB 155

.

The Board has long held that

it does

not grant

variance where variance

is not necessary, and variance

is

normally not necessary where there

is no showing

of

violatior.

of

the standard from which variance

is sought

(e.g., City of White

Hall

v.

IEPA,

PCB 34—126,

61

PCB 203;

The Village of Elk Grove

Village

IEPA,

PCB 84—158,

62 PCB

295; City of West Chicago

v.

IEPA,

PCB 85—2

64 PCB 249; Village of Minooka

v.

IEPA,

PCB 85—

100,

65 PCB 527; City of

Spring Valley

v.

:EPA,

PCB 88—181,

Slip

op., January

5,

1989).

However,

the Board has

in a number of circumstances granted

variance, particularly

in the radium,/gross alpha situation, where

results

from single samples or

fewer

than

the number of samples

required pursuant

to 35

Ill.

Adm.

Code 605.105(a)

showed excess

readings.

Such circumstance might be,

for example, where there

are insufficient

samples

to confirm a violation under

the

averaging

rule,

but where:

(1)

there

is reasonable grounds

to

expect that

further sampling would confirm the violation, and

(2)

immediate grant of variance would expedite correction of

the

expected violation

(e.g., City of Chenoa

v.

IEPA,

PCB 89—139,

Slip Op.,

January

11,

1990).

Moreover,

the Board early

in

its

history of review of

radium/gross alpha variance petitions

granted certain variances

from the radium/gross alpha standards

(as opposed to the Restricted Status and Standards For Issuance

matters of the instant

case)

where:

(1) violation pursuant

to the

averaging rule had not been shown, and

(2) petitioner had

demonstrated a need

for variance before

the Agency would

issue

constr otion permits

(e.g., Village

of Wheeling,

supra;

City of

Rolling Meadows,

supra; Village of Lemont

V.

IEPA,

PCB 80—48,

41

PCB

315;

Citizens Utilities Company of

Illinois

v.

IEPA

(“Citizens Utilities

I”),

PCB 82—63,

47 PCB 501).

11)8—33

---

—10—

It was

in the latter circumstance

that the Board

found

in

Citizens Utilities

I

that variance was warranted,

even though no

violation of

the radium standard had been shown.

In Citizens

Utilities

II the Board was recapitulating

the earlier history

associated with Citizens Utilities

I.

Citizens Utilities

II was

never

intended to stand

for

the proposition

that combined radium

violations may be enforced based on les~than the sampling

requirements of

35

Ill.

Code 604.105(a)

As

a

last matter,

the Board notes

that the above analysis

is

based on

the averaging

rule

for combined radium and gross alpha

particle activity found

in present

Illinois and federal

law.

As

has also been noted,

the federal law

is currently under

review

and any new federal law will automatically become Illinois law

upon federal adoption.

Thus,

the above analysis may have

to be

modified

to conform to changes at

the federal

level.

TERM

OF VARIANCE

The only matter contested between North Aurora and the

Agency

is the term of variance.

North Aurora requests that the

term be

five years.

The Agency recommends

a short—term variance

that

expires

in March

1991.

The Agency notes:

Because North Aurora

is

very uncertain

of

its mode of

compliance, whether purchase of water,

treatment,

or

whether compliance will

be achieved immediately upon

passage of the new standards,

the Agency believes

that

the compliance method should

be more

specifically stated

in

a future Petition

for

Variance.

(Addendum

to Recommendation at

par.

3).

The Board

is

in agreement with the Agency to the extent

that

the Board believes that North Aurora’s compliance circumstances

should be reevaluated

in the future.

However,

the Board finds

no

merit

in

requiring this reevaluation

prior

to there being clearer

indication of the direction of the expected new federal

radium

regulations.

In light of North Aurora’s recent sampling record

(see above),

there

is

reasonable grounds

to believe that North

Aurora’s most suitable compliance program

(or arguably whether

any compliance program at

all will be necessary)

hinges

on the

exact nature of the federal action.

Thus,

reevaluation

following

federal promulgation

is appropriate.

Moreover,

given USEPA’s

poor

track record

for prumuigating regulations

on the date they

2 Although variance was granted

in Citizens Utilities

II,

that

variance was subsequent_-.; vacated

on grounds unrelated

to the

averaging issue

(see citizens Utilities

of Illinois

v.

IEPA,

PCB

86—185,

89 PCB 233).

---

—11—

are “anticipated”,

the Board

is reluctant

to specify

a date

certain upon which North Aurora’s reevaluation must be made.

The

Board does not want to be placed,

nor

to place North Aurora or

the Agency,

in a position where

the instant action has to be

repeated ~o1o1y because dates outside of any of our control have

not been met.

The Board believes

that the proper resolution of

this

issue

is

to have the termination date of the variance be

conditional based on the actual date of

federal promulgation of

revised radium standards.

Moreover,

the Board believes that a

one—year period following federal promulgation provides an

sufficient time period within which North Aurora can determine

its appropriate course of action,

including any necessary

compliance program, and present that course

of action

to the

Board for

review,

if necessary.

Similarly,

the Board does not believe that a full five years

of variance

is warranted.

Should there be no federal action

within the next two-and—a—half to three years,

the Board believes

that reevaluation

is necessary in light of that circumstance.

Accordingly,

the Board will grant variance to the earlier

of:

(a)

September

30,

1993,

(b)

one year following promulgation of any

federal radium regulations which supersede the Board’s current

radium regulations, and

(C)

attainment of compliance by North

Aurora of any radium standard then in force.

The September

30,

1993 date

is based upon North Aurora knowing whether USEPA will

or will not proceed with promulgation of

a new radium standard by

September

30,

1992, and the allowance of

a year

thereafter

for

CONCLUSION

The Board

finds

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,

assuming that compliance

is timely forthcoming.

The

Board will accordingly grant variance consistent with this

Opinion.

This Opinion constitutes the Board’s findings of

fact and

ORDER

Petitioner,

the Village of North Aurora,

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

radiurn—226 and radium—228 standard

of

35

Ill.

Adm. Code 604.301(a),

subject

to the following

10’~-35

---

—12—

(1)

This variance shall terminate on the earliest of the

following dates:

(a)

September

30,

1993;

(b)

One year

following the effective date

of any

regulation promulgated by

the United States

Environmental Protection Agency (“USEPA”) which

amends the maximum concentration level

(“MCL”)

for

combined radium,

either

of the isotopes of

radium,

or

the method by which compliance with

a radium MCL

is demonstrated;

or

(c)

When analyses pursuant

to

35 Ill.

Adm.

Code

605.104(a)

show compliance with

the combined radium

standard.

(2)

Compliance shall

be achieved with

the maximum allowable

concentration of

radium then

in force

no later than

September

30,

1993

or

no later

than one year after

the

date on which USEPA amends the MCL for

radium,

whichever

occurs first.

(3)

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 radiological analysis so as

to determine

the concentration of

the two parameters,

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 sample to:

Illinois Environmental Protection Agency

Compliance Assurance Section

Division of Public Water Supplies

P.O.

Box 19276

2200 Churchill Road

Springfield,

Illinois 62794—9276

(4)

Within three months after USEPA amends the MCL

for

radium or

no later

than September

30,

1992 Petitioner

shall submit

to the Agency

a detailed Compliance Report

showing how compliance will

be achieved

by September

30,

1

n2—

~•~(-i

---

—13—

1993 or

one year after

the date on which USEPA amends

the MCL for

radium, whichever occurs first.

The

Compliance Report shall

be submitted

Illinois Environmental Protection Agency

Field Operations Section

Springfield,

Illinois 62708

(5)

Within three months of the submission

of the Compliance

Report,

unless there has been a written extension by the

Agency, Petitioner shall submit applications

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 the combined radium

standard.

Such applications shall be made

Illinois Environmental Protection Agency

Permit Section

2200 Churchill Road

Springfield, Illinois 6~708

(6)

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

(5)

of each of the following

actions:

1) advertisement

for bids,

2)

names of

successful bidders, and

3) whether Petitioner accepted

the bids.

(7)

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 shall begin no later than eighteen months prior

to the date of termination of the variance and shall end

not later

than ten months prior

to the date of

termination of the variance.

(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,

Petitioner shall send

to each user of

its public water

supply

a written notice

to the effect

108—3 7

---

—14—

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.

This

notice

shall comport with the notice schedule followed

pursuant

to the va:iance granted

in PCB 87—83.

(9)

Pursuant

to

35

111. 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,

Petitioner shall

send

to

each user

of

its public water

supply

a written notice

to

the effect

that Petitioner

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.

(10)

Until

full compliance

is achieved,

Petitioner

shall

take

all reasonable measures with

its existing equipment

to

minimize the

level of combined radium

in its finished

drinking water.

(11) Petitioner

shall provide written progress reports

to the

Agency at

the address

in condition

(3)

every six months

concerning steps

taken

to comply with this Order.

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 Bobella Glatz,

Enforcement Programs,

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 89—66, February

8,

1990.

Petitioner

---

—15—

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 Jacob

D.

Dumelle, Bill

S.

Forcade, and Michael

L. Nardulli dissented.

I,

Dorothy M.

Gunn,

Clerk of

the Illinois Pollution Control

Board, hereby cert~ifythat the above~Opinion and Order was

adopted on the

r’~

day of

~

,

1990, by a

vote of

‘~/~~\J~’

.

7/

/

/1

Dorothy

M. Gunn, Clerk

Illinois Pollution Control Board

102—39