ILLINOIS POLLUTION CONTROL BOARD
May
24,
1990
UNITED CITY OF THE VILLAGE
OF YORKVILIJE,
Petitioner,
V.
)
PCB 90—21
(Variance)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
OPINION AND ORDER OF THE BOARD
(by R.
C.
Flemal):
This matter comes before the Board on a Petition for
Variance
(“Pet.”)
filed February
7,
1990 by
the United City of
the Village of
Yorkville (“Yorkville”).
~orkville
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 Yorkville’s 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).
Variance
is
requested for five years.
The Illinois Environmental Protection Agendy
(“Agency”)
filed
its Variance Recommendation
(“Recommendation”)
on March
13,
1990.
The Agency recommends
that variance be granted, subject
to
conditions.
On March
20,
1990 Yorkville filed a Response to
Agency Recommendation,
in which
it notes
that
it has no
disagreements with the facts as presented
by the Agency and finds
the conditions proposed by
the Agency
to be acceptable.
Yorkville waived hearing and none has been held.
Based
on the record before
it,
the Board
finds
that
Yorkville has presented adequate proof
that
immediate 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 forth
in this Opinion and
Order.
BACKGROUND
Yorkville,
a municipality located
in Kendall County,
provides
a potable public water supply
to
a population of 3,422
persons
(Pet.
at
p.
4).
The wa:er
is derived
from one shallow
well and two deep wells and supplied through
a system which
includes chlorination, fluoridation,
a:’~d
distribution facillzies
1 11—3’)
5
—2—
(Id.).
Characteristics of the three wells are respectively:
Well
#2
Well
#3
Well
#4
42
feet deep
1335
feet deep
1393
feet deep
placed
in operation
in 1954
placed
in operation
in 1960
placed
in operation
in 1976
Well
#2
is used only sparingly due
to
its low capacity
(Id.
at
p.
4—5).
An analysis of
a quarterly sample of the radium isotopes was
reported
to Yorkville on January
25,
1984;
this analysis showed
a
radium—226 content of
5.6 ~Ci/l
and a radiurn—228 content
of 2.2
pCi/i,
for
a combined value of 7.8 pCi/l
(Recommendation at
par.
10).
A second analysis,
reported to Yorkville on December
8,
1986,
showed a combined radium content
of
11.7 pCi/l
(Id.).
Based upon
the
initial result,
1ork.’ille was placed on restricted
status by the Agency on October
4,
1984
(Id.
at
par.
11).
The
restricted status pertains onv
to exceedance of
the combined
radium standard.
Yorkville
has
analyses.
Results
(Pet.
at
p.
6).
AVERAGE
COMBINED AVG.
subsequently obtained additional
radium
from 1989, measured
in pCi/i, are as follows
In recognition of
a variety
of possible health effects
occasioned
by exposure to radioactivity,
the JSEPA has
promulgated
a maximum concentration limit
for drinking water
of
5
pCi/i
of combined radium—226 and radium—228.
llhinois
subsequently adopted
this same
limit as
the maximum allowable
concentrations
under
Iliindll law.
Pursuant
to Section
17.6 of
the :llinois Environmental. ?rtteotion Act
(Ill.
Rev.
Stat.
1988
Supp.,
ch. lll~, par.
1017.6,
any revision of
the
5 pCi/i
standard by the USEPA will automatically become the standard
in
Well
#3
Well
#4
Month
Ra—226
Ra-228
Ra—226
Ra—228
February
7.1
4.5
6.0
3.2
March
6.7
2.4
4.0
1.4
April
6.1
2.6
6.1
4.4
May
7.3
3.0
7.0
3.4
June
6.4
1.5
4.7
1.4
July
7.2
2.8
6.6
2.9
August
6.6
2.5
5.8
2.2
September
5.6
3.9
4.9
2.8
October
6.1
2.4
5.5
2.4
November
7.5
1.5
5.7
0.9
6.7
2.7
9.4
REGULATORY FRAMEWORK
5.6
2.5
8.1
111—3q6
—3—
Illinois.
The action that Yorkville requests here
is not variance
from
the maximum allowable concentration or radium.
Regardless
of the
action taken by the Board
in
the instant matter,
this standard
will remain applicable
to Yorkville.
Rather,
the action
Yorkville 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 tssuance
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. lll~, pars.
1001 et
seq.)
(Act),
or
of
this Chapter.
Section 602.106
Restricted Status
b)
The Agency shall publish and make available
to
the public, at
intervals of not more
than six
months,
a comprehensive and up—to—date
list
of
supplies subject
to
restrictive status and the
reasons why.
Illinois regulations thus provide
that communities are
prohibited
from extending water service, by virtue of
not being
able to obtain the requisite permits,
if their water
fails
to
meet any of the several standards
for finished water supplies.
This provision
is
a feature of Illinois regulations not found
in
federal
law.
It
is
this prohibition which Yorkville
requests be
lifted.
Moreover,
as Yorkville correctly notes,
grant
of
the
requested variance would
not absolve Yorkville from compliance
with the combined radium standard, nor insulate Yorkville from
possible enforcement action brought
for violation of those
standards
(Pet.
at
p.
39).
In consideration of any variance,
the Board determines
whether
a petitioner
has present adequate proof
that
immediate
compliance with toe Board regulations
at
issue would
impose an
arbitrary or unreasonable hardship
(Ill.
Rev.
Stat.
1987,
oh.
l1l~, par.
1035(a)).
Furtnermore,
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
(Wiilowbrook 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.
ii
1—307
—4—
Lastly, a variance by
its nature
is
a temporary reprieve
from compliance with the Board’s
regulations
(Monsanto
Co.
v.
IPCB
(1977),
67
Ill.
2d
276,
367 N.E.2d,
684), and compliance
is
to be sought regardless of
the hardship which
the task of
eventual compliance presents an individual polluter
(Id.).
Accordingly,
excpet
is 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 achieved
compliance within the term of the variance.
COMPL:ANCE PROGRAM
Yorkville
intends
to achieve compliance with
a
5 pCi/i
combined radium standard
by developing
a new shallow well,
the
water from which would be blended with the water from Wells
#3
and
#4
to achieve
a distribution system radium concentration
in
comoliance with
the radium standard.
Yorkville’s choice
of
compliance programs
is based on consideration
of seven
alternatives presented
to Yorkviiie by
its consultants
(Pet.
Exh.
D).
In addition
to construction of the shallow well
itself,
Yorkville contends that compliance with the
5 pCi/l
combined
radium standard requires purchase,
construction, and/or
modification
of pumping equipment,
a new well house,
existing
Well
#4, transmission watermains,
additional water storage, and
standby softening equipment.
Yorkville estimates
the total
capital costs
of these improvements at $2,346,000
(Pet.
at
p.
11)
and the time necessary
to fully implement them at
30 months
(Id.
at
p.
12).
The Board questions whether
costs for compliance with the
5
pCi,/l standard are as large
as Yorkville contends.
The Board
notes,
for example,
that
two of
toe
most substantial cost items
in Yorkville’s total estimated cost are related
to providing
facilities
for iron filtration and filter residue disposal.
It
is not obvious
that either
is
required to achieve compliance with
the radium standard.
Should the USEPA alter the~radium standard
to
5 oCi/l
for
each of the two radium isotopes’
Y:orkville observes
that
it would
then be out
of compliance with only the standard
for Ra—226
(Pet.
at
p.
12)
.
Under
this scenario,
iorkviile contends that
compliance could be achieved at aoproximtely
56
of the cost of
I
As
the Board
has
noted elsewhere
(e.o.
,
Village
of North Aurora
v.
IEPA,
PCB 89—66,
Feb.
8,
1990,
Slip Op.
at
7—8),
this
is one
of the options apparently under consideration
by the USEPA.
11 1—308
—5—
compliance with the current
standard, and that compliance could
be achieved within a shorter 25-month period
(Id. at 14-15).
The
Board notes
that
the estimated costs of
this option again
include
iron
removal facilities.
Lastly, Yorkville considers
the circumstance should the
LJSEPA adopt
a
10 pCi/l standard for combined radium.
In this
case,
Yorkville contends
that
it would be
in compliance with
the
new standard and there would therefore
be no costs
for
compliance.
Given the uncertainties associated with USEPA action and the
substantially different compliance program which would be
warranted depending upon USEPA’s particular
action,
Yorkville
contends
that
it would be premature
to complete final design and
construction of any of
the compliance options at
this time (Pet.
at
p.
19).
Rather,
Yorkville agrees
to commit
to complete final
design and construction upon promulgation of
(or
the
determination not
to promulgate)
revised standards,
dependent on
the form of those standards.
HARDSHIP
Yorkville believes
that denial of variance would constitute
an arbitrary or unreasonable hardship
in
that denial would delay
or preclude significant development
in and around Yorkville,
whereas
the granting of variance would cause little or
no adverse
environmental impact
(Pet.
at
p.
31).
The Agency also notes
that
by virtue of Yorkville’s
inability
to receive permits
for water
main extensions,
any economic growth dependent on those water
main extensions would not be allowed (Recommendation at par.
19).
Yorkville cites
several proposed developments,
the loss of
which it contends could
have
a serious economic impact upon
Yorkville which would
far outweigh any health effects associated
with
the consumption of Yorkville’s water
for the limited period
of time covered by ther requested variance
(Pet.
at
p.
31—2).
These proposed developments
are:
1)
County buildings:
a Kendall County building complex
located west of
?orkville.
Kendall County has a permit
for the
first one—half mile of
the water main
to serve
the complex,
but will
need
a permit for the additional
mile during
1990.
The County has already purchased
the
land
for these buildings which includes
a county
jail
which
the County
is required by law to build.
2)
Wildwood:
a single family
residential subdivision
in six
phases.
Only phase
I
is currently permitted.
Phases
2—6 will
include
103 units.
Final plat approval
is
presently being sought
for
these units and approval
is
Ii 1—3~0
—6—
anticipated.
Construction could commence as early as
the summer
of
1990.
3)
Prairie Lands,
Phase
3:
a permit application
for the
construction and operation of this 31-unit development
was filed with the Agency
in mid—December and is
presently pending.
Prairie Lands hopes
to commence
construction
in the spring of
1990.
4)
Woodworth,
Phase
3:
a single family development
of
18
units.
Phases
1,
2, and
4 are already permitted,
and
Yorkville anticipates
a permit application
for phase
3
during
1990.
5)
Commercial
development:
a commercial development
is
proposed near the intersection of
Ill.
Rtes.
47 and
71.
The developer
is currently negotiating with
Yorkville
for annexation and use of city services.
Construction may commence during 1990.
PUBL:c INTEREST
Although Yorkville oas not undertaken
a
formal assessment
of
the environmental effect
of
its requested variance,
it contends
that there will
be little or
nc adverse
impact caused
by the
granting of variance
(Pet.
at
~.
19).
The Agency contends
likewise
(Recommendation at par.
18).
In support
of
these
contentions,
Yorkville and the Agency
reference testimony
presented by Richard
E.
Toohet’,
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—13,
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 Yor:~ville’swater
is
low (Recommendation at
par.
14).
in summary,
the Aaency states:
The Agency believes
that the hardship resulting from
denial
of the recommended variance from :he effect
of
being on Restricted Status would outweigh the injury
of the public from grant
of that variance.
In light
of the cost
to the Petitioner
of treatment of
its
current~~~ater
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 cossinility of
compliance with
the MAC standard due
to blending
or
new shallow
wells,
etc.,
the Agency concludes that denial
of
a
variance from the effects
of Restricted Status would
111—400
—7—
impose an arbitrary or unreasonable hardship upon
Petitioner.
The Agency observes that this grant of variance from
restricted status should affect only those users who
consume water drawn from any newly extended water
lines.
This
variance should not affect the status of
the rest of Petitioner’s population drawing water
from existing water
lines, except insofar
as the
variance by
its conditions may hasten compliance.
In
so saying,
the Agency emphasizes
that
it continues
to
place
a high priority on compliance with the
standards.
(Recommendation at
par.
25 and
26).
PRIOR VARIANCES
The matter
of Yorkville’s requests
for variance from
restricted status has a rather complex history.
The matter
originally came before
the Board
in PCB 86—24, within which on
May
9,
1986 the Board granted Yorkville variance until May
9,
1989.
Among
the conditions of this variance was that Yorkville
develop a workable compliance plan.
By Order of April
16,
1987
the Board modified certain internal dates
in the PCB 86—24
variance
in response to Yorkville’s desire
to allow
its then
leading compliance candidate,
the
Iso—Clear filtering system,
further trial.
There then followed two abortive petitions
for further
modification
of the PCB 86—24 variance.
In
the first, docketed
as PCB 87—158,
the Board on January
21,
1988 dismissed
the
petition
for failure
to correct certain deficiencies.
In the
second,
docketed as PCB 89—7,
the Board on March
27,
1989
dismissed the petition
for failure
to pay the required filing
fee.
On May
5,
1989 Yorkville again petitioned
for variance
in
PCB 89—84,
with request that variance be granted until May
9,
1992.
On September
13,
1989 the Board granted
this variance,
but
only until December
31, 1989.
Yorkville contends that
it has diligently and reasonably
pursued compliance throughout
the time of
these various variance
requests
(Pet.
at
26).
As evidence thereto, Yorkville submits
a
summary of
its activities respecting
radium since
1984
(Id.
at
21—6),
as well
as
interim measures
it has taken
(Id.
at 28—31).
Yorkville also contends that
it has encountered unanticipated
delays due
to the desire
to
fully consider the once—promising
Iso—Clear System,
difficulties
in
finding an acceptable shallow
well
for blending,
and others
(Id.
at
25).
I 11-401
—8—
CONSISTENCY WITH FEDERAL LAW
The Agency believes that Yorkville 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.
21).
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.
It
is the Board’s understanding that Yorkville will
he 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 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.
The Board believes that the conditions
as recommended by the
Agency and agreed
to by Yorkville are generally appropriate.
However,
the Board makes one substantive
insertion.
That
is
the
placement at appropriate positions
of the phrase
“or with any
standards for radium in drinking water
then
in effect”,
or like
phrases,
at 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 correspondinc operation of
Section
17.6 of the Act,
the compliance target
for Yorkville then becomes
the revised radium standard or standards 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
1.
Petitioner,
the United City of the Village cf iorkvilie,
is
hereby granted variance from 35
Iii.
Adm.
Code 602.105(a),
Standards
of Issuance,
and 602.106(b), Restricted Status,
but only as
they relate
to
the
5
pCi, I combined radium—226
and radium—228 standard of
35
111.
Adm.
Code 604.301(a),
subject
to the following conditions:
111—402
—9—
(A) Compliance shall
be achieved with the maximum allowable
concentration of combined radium,
or with any standards
for radium in drinking water then
in effect,
no later
than five years from the date of this Order.
(B) Variance shall terminate on the earliest of the
following dates:
(1)
Four years following
the effective date
of 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)
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;
or
(3)
Five years from the date of grant of this variance.
(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 radium—226 and of radium-28.
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 analysis
to:
Illinois Environmental Protection Agency
Compliance Assurance Section
Division of Public Water Supplies
2200 Churchill Road
Springfield,
Illinois 62794-9276
(D) Within
6
1/2 months after
the effective date
of any
revision
in the USEPA’s regulations governing radium
in
drinking water,
Petitioner shall apply
to the Agency at
the address below
for all permits necessary
for
construction of installations,
changes,
or additions
to
Ii 1—403
—10—
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.
(E) Within three months after each construction permit
is
issued by the Agency,
Petitioner
shall advertise
for
bids,
to be submitted within 60 days,
from contractors
to do the necessary work described
in the construction
permit.
Petitioner
shall accept appropriate bids within
a
reasonable
time.
Petitioner
shall notify the Agency
at the address
in condition
(D)
of each
of the following
actions:
1)
advertisement for bids,
2)
names
of
successful bidders,
and
3) whether
Petitioner accepted
the bids.
(F) 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 three
years from the effective date of any regulations
promulgated
by
the USEPA and shall be completed
ten
months prior
to expiration
of this variance.
(G) 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
Ill.
Adm.
Code
602.106(b)
Restricted
Status,
as they
relate to the
combined radium standard.
(H) Pursuant
to
35
Iii.
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 standard
for
combined radium.
The notice shall state
the average
111—404
—11—
content
of combined radium in samples taken since
the
last notice period during which samples were
taken.
(I)
Until
full compliance
is achieved,
Petitioner shall take
all reasonable measures with its existing equipment
to
minimize the level
of combined radium,
radium—226, and
radium—228
in
its finished drinking water.
(J) Petitioner
shall provide written progress reports
to the
Agency at the address below every six months concerning
steps
taken
to comply with paragraphs A-I.
Progress
reports
shall quote each of said paragraphs and
immediately below each paragraph
state what steps have
been taken
to comply with each paragraph.
Illinois Environmental Protection Agency
Division of Public Water Supply
Field Operations Section
2200 Churchill Road
Springfield,
Illinois 62794—9276.
2)
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 90—21,
May 24,
1990.
Petitioner
Authorized Agent
Title
Date
ii 1—405
-12—
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.D.
Dumelle
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
-
.
Oorothy
M. Gunn,
Clerk
Illinois Pollution Control Board
1?1—40~i
