ILLINOIS POLLUTION CONTROL BOARD
February
8,
1990
VILLAGE OF MALTA,
)
Petitioner,
v.
)
PCB 89—130
(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 Malta
(“Malta”) of a Petition for Variance (“Pet”)
on
August
15,
1989 and an Amended Petition for Variance
(“Amended
Pet.”) on November
29,
1989.
Malta seeks variance from
35
Iii.
Mm.
Code 602.105(a)
“Standards For Issuance”
and 602.106(b)
“Restricted Status”
to the extent those
rules
relate
to violation
by Malta’s public water supply of the
5 picocuries per liter
(“pCi/l”) combined radium-226 and radium—228 standard of
35
Ill.
Mm.
Code 604.301(a).
The variance is requested
for a period of
five years from the date variance
is granted.
On January 16, 1990
the Illinois Environmental Protection
Agency (“Agency”)
filed
a Variance Recommendation
(“Rec.”)
in
support of grant of variance subject
to conditions.
The Agency’s
recommended conditions are similar
to those proposed by Malta
(Amended Pet.
at par.
30), with the principal exceptiàn that the
Agency recommends grant
for a period of
two years rather than
five.
Malta has waived hearing, and no hearing has been held.
Based on the record before
it, the Board
finds
that Malta
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.
Malta has neither sought nor received any prior variance
relating to public water supplies prior
to the instant action.
BACKGROUND
Malta is
a community located
in west—central
DeKalb
County~
Among other
services, Malta provides
a potable public
water supply derived from a one deep well and one shallow well.
Malta provides water
to a population of
350 residential and 7
—2—
industrial
and commercial utility customers representing some
1,000 residents and businesses and industries employing
approximately 30 people
(Amended Pet.
at par 10,
12).
Malta was first advised
of the high radium content
in its
water supply by letter from the Agency dated Novemb?,
30,
1987,
and was notified of placement on restricted status by letter from
the Agency
in January
1988
(Rec.
at par.
10,
11).
The Agency
based
its determination on sampling results which
showed
a
radium—226 content
of 3.4 pCi/l and a radium—228 content
of 4.9
pCi/i,
for a combined value of 8.1 pCi/i
(Id.
at
par.
10).
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 1itit
as the maximum
allowable concentration under Illinois
law.
The action Malta
requests here
is not variance from the
maximum allowable radium concentration.
Regardless
of the action
taken
by the Board
in the instant matter,
this standard will
remain applicable
to Malta.
Rather,
the action Malta 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. iliL
pars.
1001 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
Act and Section
602.105,
that
a public water
supply facility may no longer
he
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
I C~—4R
—3--
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 Malta requests
be
lifted.
Moreover,
as Malta properly notes
(Amended
Pet.
at par.
38), grant of the requested variance would not absolve Malta from
compliance with the combined radium standard,
nor insulate Malta
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. lllL
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.
—4—
HARDSHIP
Malta believes that a requirement
to come into immediate
compliance would impose an arbitrary or
unreasonable hardship.
Malta and the Agency both note that because of Malta’s
inability
to receive permits
for water main e~tensions, any economic growth
dependent on those water main extensions would not
be allowed.
Malta foresees the immediate need to extend water mains
to
serve
the Malta Community School District High School located
approximately one—half mile east
of the Malta Village limits;
the
extension would thus serve the 220 studenrs and employees
of
that
facility (Amended Pet.
at par.
13).
Malta contends that
inability
to make
this extension would
force
the Malta School
Board to undertake a more costly method
to secure
a viable source
of water,
thus hurting all residents of the Malta School District
(Id.
at par.
33).
Lastly, Malta contends that the hardship resulting
from
denial
of the requested variance would outweigh the injury
of the
public
(see below),
particularly
in light of Malta’s
intention
to
achieve compliance within
24 months
(Amended Pet.
at par.
31).
Malta thus believes that the hardship rises
to the level
of
arbitrary
or unreasonable hardship
(Id.
at par.
34).
The Agency
agrees
that denial of variance would constitute an arbitrary
or
unreasonable hardship
(Rec.
at par.
20).
PUBLIC INJURY
Although Malta 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.
at
par.
28,
31).
The Agency contends
likewise (Rec.mendation at par.
19).
In support of these
contentions, Malta and the Agency reference testimony presented
by Richard
E.
Toohey, Ph.D. and James Stebbins,
Ph.D., both of
Argonne National Laboratory,
at
the hearing held on July
30 and
August
2,
1985
in R85—l4, 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 Malta’s water
is low
(Rec.
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 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
l1)~—~n
—5—
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 due to blending, 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~statusshould 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 effeLtively blended water.
In
so saying,
the Agency emphasizes that
it continues
to
place a high priority on compliance with the
standards.
(Rec.
at par.
26 and 27).
COMPLIANCE PROGRAM
Malta proposes
to achieve compliance by blending the low—
radium waters of its shallow well with the higher—radium waters
of
its deep well; blending will occur in Malta’s existing ground
storage tank at a ratio of approximately one to one
(Amended Pet.
at par. 22—24).
Malta has already undertaken a portion of the
improvement necessary
to effectuate the blending,
including
construction of
a water
line between the shallow well and the
storage reservoir and installation of timers on the two wells
to
control the blending
ratio
(Id. at par.
24).
Completion of
the
blending system will apparently require approximately an
additional year
(Rec. at par.
28).
CONSISTENCY WITH FEDERAL LAW
The Agency believes that Malta 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
(Rec.
at par.
22).
The Agency further
notes that
if the state variance requires
an appropriate compliance plan and compliance with the
radium
10S~51
—6--
standard
is ordered
to be achieved by the end of
the variance
period,
it
is probable that the United States Environmental
Protection Agency would consider the variance
to be
a compliance
order and defer federal enforcement
(Rec.
at par.
25).
CONCLUSION
The Board concludes
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 wno are served by any new water main
extensions, given
the reasonable assurance
that compliance
is
forthcoming via Malta’s blending program.
However,
the Board
finds
that the
five—year term of variance
requested
by Malta
is neither necessary nor advisable.
By
Malta’s own admission,
it can likely achieve distribution system
concentrations of combined radium less
than the
5 pCi/i standard
within
a
time period substantially less than five years.
Malta
may require as much as an additional
year after attainment
of
the
sub—5 pCi/l
level
in order, to be
removed from restricted status,
since,
for
this action,
it will
be necessary to maintain the
lower
radium concentrations for
a period sufficient
to
demonstrate
that
the average
combined radium concentration
in an
annual composite of consecutive quarters or
the average of
the
analyses of
four samples obtained
at quarterly intervals
is less
than
the
5 pCi/l
level.
Thus,
a reasonable
time period
for the
instant variance
is two years, which is
in accord with
the
Agency’s
recommendation.
This Opinion constitutes
the Board’s findings of
fact and
conclusiors of law in this matter.
ORDER
Petitioner,
the Village of Malta,
is hereby granted variance from
35 Iii. Mm.
Code 602.105(a),
Standards of Issuance,
and
602.106(b), Restricted Status,
hut only as they relate to the
5
pCi/l
combined radiurn-226. and radium-228 standard of
35
Iii. Adm.
Code 604.301(a), subject
to the following conditions:
(A)
Compliance shall
be achieved with
the
combined radium
standard of
35
Ill.
Adm. Code 604.301(a)
no later than
two years
from grant of
this variance.
(B)
This variance shall
terminate two years after
this grant
tf variance or when analyses pursuant
to
35
Ill. Mm.
Code 605.104(a)
shows compliance with
the combined
radium standard,
whichever occurs first.
1fl:~ ~2
—7—
(C)
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,
radiurn—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
(D)
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
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
Iii.
Adm. Code
602.106(b)
Restricted Status, as they relate
to the
combined radium-226 and radium—228
standard.
(B)
Pursuant to
35
Ill.
Adrn.
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.
(F)
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.
I0S—53
—8—
(G)
Petitioner
shall
provide written progress
reports
to the
Agency at
the address below 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.
Illinois Environmental Protection Agency
Division
of Public Water Supplies
Field Operations Section
2200 Churchill Road
Springfield,
Illinois 62708
r,.~ithir.i
45 days
of
the date of
this Order, Petitioner
shall
execute and forward
to Bobella
c-latz,
Enforcement Programs,
Illinois Environmental Protection Agency,
2200 Churchill
Road,
Post Office Box 19276, Springfield,
:llinois 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 hound by all terms and conditions
of
the
Order of
the Pollution Control Board
in
PCE 89—130,
February
8,
1990.
Petitioner
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.
I
OS—
54
—9—
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 certify that the above..Opinion and Order was
adopted on the
~
day of
~
,
1990,
by
a
vote of
~-3
.
-7
4
~
,~2,
,~
~
~Dorothy
M.
G,unn,
Clerk
Illinois Pollution Control Board
108—55