ILLINOIS POLLUTION CONTROL BOARD
March
22, 1990
CITY OF GENEVA,
)
Petitioner,
v.
)
PCB 89—107
(Variance)
ILLINOIS ENVIRONMENTAL,
PROTECTION AGENCY,
Respondent.
OPINION AND ORDER OF THE BOARD
(by
J. Marlin):
This matter comes before the Board upon a June
30, 1989
Petition for Variance Extension
filed by the City of Geneva
(Geneva).
Geneva seeks
a variance from the Board’s public water
supply regulations,
namely
35 Ill.Adm.Code 602.105(a),
(Standards
for
Issuance) and 35 Ill.Adm.Code 602.106(b)
(Restricted Status),
regarding combined radium-226 and radium-228.
Geneva
specifically requests that the Board:
a)
extend the variance for
five years from date
of issuance;
b) modify its compliance
schedule to reflect changes
in development of its lime—softening
proposal and alternatively its blending proposal;
c)
suggest
whether
the maximum or the average contamination levels should be
used to measure compliance with a new radium standard;
and d)
authorize use of existing deep water
wells as emergency sources
of water.
Based
on the record before
it, the Board finds that Geneva
has presented adequate proof
that
immediate compliance with Board
regulations and PCB Order 88—11 would impose an arbitrary or
unreasonable hardship.
Accordingly,
the variance extension will
be granted subject
to conditions consistent with this Opinion.
PROCEDURAL HISTORY
On July
1,
1985 Geneva filed
a Petition For Variance.
(PCB
85—93).
On September 20,1985
the Board granted Geneva
a
variance from the Restricted Status regulations
as they pertained
to combined radium and gross alpha particle activity.
This
variance was subject
to conditions and
was
effective from January
12,
1986 until March
30,
1987.
On December
30,
1986 Petitioner filed another Petition
for
Variance.
(PCB 86-225)
On October 1,1987,
the Board refused
to
grant the requested variance but granted
a limited variance.
The
Order allowed Geneva
to extend its
lines
to supply water
to
13
new developments
listed by Geneva but only until prior
to
December
15,
1988.
On January
8,
1988,
Geneva filed
a Motion
for
Modification
to allow Geneva
to extend
its lines generally which
11)9—507
2
was denied by the Board on February
4,
1988.
However, the Board
allowed two
(2) more developments
to be added
to the list
of
thirteen
(13)
new developments
to which the Agency could
issue
water main extension permits.
On January
7,
1988, Geneva
filed its third Petition for
Variance
(PCB 88—il) which was granted by the Board on May
5,
1988 subject
to conditions.
The variance was effective from May
5,
1988 until May
5,
1993.
However,
the Board Order also stated
that “the variance may also expire
4 years from the date of this
Order
for failure to comply with condition A...”.
Condition A
states as follows:
The Petitioner
shall apply
for all necessary
Agency construction permits
by
8/21/89.
All
such installations,
changes or additions must
be operational by 5/5/92.
(PCB 88—11)
Finally, on June
30,
1989, Geneva filed the Petition for
Variance Extension (“Pet.”) which
is now before
the Board.
Pursuant
to 35 Ill.Adm.Code 104.123, Geneva incorporates
by
reference Geneva’s Petition for Variance Extension filed
in PCB
88—11
(“PCB 88—11 petition”)
and the Board’s Opinion and Order
in
that matter dated May
5,
1988
(“PCB 88—11 Order”).
On September
8,
1989, The Illinois Environmental Protection
Agency
(Agency) filed a Variance Recommendation
(“Rec.”)
to grant
the relief requested “until September
30,
1993 or until two years
after the date on which USEPA amends
the MCL for radium,
whichever occurs first.”
On September
22,
1989, Geneva
filed a Motin for Extension of
Time
to file
its response
to the Agency’s recommendation.
The
Board granted
this motion on September
28,
1989, giving Geneva
until October
13,
1989
to file its response.
On October
13,
1989, Geneva
filed an Agreed Motion for
Extension of Time based on ongoing negotiations
between Geneva
and the Agency.
The Board granted this motion on October
18,
1989, allowing Geneva
to file its response through October
27,
1989.
On October
27,
1989, Geneva filed a Motion for Extension of
Time.
Geneva stated that
the Agency was
in the process of
reviewing
the Agency position as a result of ongoing discussions
between Geneva,
the Agency,
and representatives
of Region V of
the United States Environmental Protection Agency
(“USEPA”).
The
Board granted
the motion on November
15,
1989, allowing Geneva
to
file its response through November
30,
1989.
On November
29,
1989,
the Agency filed
an Addendum to
Reconunendation.
(“Add.”)
The Agency again recommended grant of
109—508
3
variance extension,
but changed the suggested compliance date
to
“a five year period from any issuance of.variance”.
On December
14,
1989, Geneva filed a Motion for
Leave to
file Response.
Geneva stated that its Response was delayed
because the Agency did not file the Addendum to Agency
Recommendation until November 29, one day’ before the deadline for
Geneva
to file a Response.
In response,
the Agency filed an
Objection to Motion for Extension of Time on December
18,
1989.
The Agency pointed out that
it was not obligated
to file an
amended recommendation and asked the Board to deny Geneva’s
motion.
On December
20,
1989,
the Board granted Geneva’s
motion.
On the same day, Geneva waived
its right
to a decision
through and
including March
30,
1990.
Thereafter, on December
22,
1989,
Geneva filed a Response
to Variance Recommendation and
Addendum.
(“Resp.”)
Geneva waived hearing and none was held.
No
objections from the public have been
received.
BACKGROUND
The City of Geneva,
in Kane County,
Illinois owns and
operates a water treatment and distribution system for
approximately 4,100
residential,
30
industrial and 350 commercial
customers.
The water supply system consists
of
5 deep wells
(No.’s 2,3,5,6 and 7),
one shallow acquifer well(No.
8),
one
shallow well water treatment facility,
2
elevated storage tanks,
2 underground storage reservoirs;
and appurtenances and
distribution facilities.
Geneva was advised that its public water supply was
in
violation of the combined radium standard
in September,
1984.
The variance granted
in PCB 88—11 expires May
5,
1993
(eight
years and seven months later).
In this proceeding,
the Agency
initially recommended a September
30,
1993 deadline,
which
is
only six.months later
than the date on which the PCB 88-11
variance expires.
After discussions between Geneva,
the USEPA
and the Agency,
the Agency filed an Addendum to Recommendation
which suggested a deadline of five years
from date of
issuance.
This would extend Geneva’s period of potential noncompliance to
March,
1995.
This date
is almost
two years after
the current
variance
is set
to expire and over
10 years after Geneva was
advised that
its public water
supply was
in violation of the
combined radium standard.
REGULATORY FRAMEWORK
The
regulatory framework from which
this decision derives
has been amply set forth
in a prior decision regarding
a
radium
variance
for the Village of North Aurora
(PCB 89-66,
February
8,
1990).
This opinion borrows heavily from our review
there.
509
4
In recognition of
a variety of possible health effects
occasioned by exposure
to radioactivity, the USEPA 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 (Ill.Rev.Stat. ch.lll 1/2
§
17.6)
as expressed
in the Illinois Environmental Protection Act
(“Act”).
The action Geneva 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 Geneva.
Rather,
the City
of Geneva requests the
temporary lifting of prohibitions imposed pursuant
to
35
Ill.
Adm. Code 602.105 and 602.106 until
it can come into
compliance.
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.lll
1/2
pars.lOOl
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
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.
109—5 10
J
Illinois regulations thus provide that communities are
prohibited from extending water
service,
by virtue of not being
able to obtain the requisite permits, until
their water
fully
complies with any of
the several standards for finished water
supplies.
This provision is
a feature of Illinois regulations
not found
in federal
law.
It
is from this prohibition which
Geneva requests a variance.
In consideration of any variance,
the Board
is required
to
determine whether the petitioner would suffer an arbitrary or
unreasonable hardship
if
required to immediately comply with the
Board’s regulations at
issue
(Ill.Rev.Stat.
1987, ch.lll 1/2
par.l035(a)).
It
is normally not difficult
to make
a showing
that immediate 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 I11.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
achieve compliance within the term of the variance.
ANTICIPATED 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 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 Geneva apparently believe that the most
likely schedule
is USEPA proposal of a modified standard
in June
1990 and promulgation by December 1991.
Both
the Agency and
Geneva also apparently agree
that the modified standard will
consist
of
separate standards for
radium—226 and radiurn-228 at
5
pCi/l each.
These estimations are not drawn from definitive
statements made by the USEPA but rather are based on conclusions
drawn from various documents.
In particular,
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
109—511
6
compliance schedule applicable to the City of Geneva which is
premised upon June
30,
1990 proposal and December
1991
promulgation dates.
(See Exhibit
B to Geneva’s Response).
This certainly falls short of
a USEPA commitment
to propose
and promulgate new radium standards by these
dates.
Similarly,
the supposition
that the standard which will be proposed will be
5 pCi/i
for each of the two radium isotopes
is apparently based
on a statement made by Mr. Harrison
at the March
16, 1989 meeting
of the Illinois Ground Water Association to this effect and a
newsletter of the USEPA Office of Drinking Water of January 1989
which states that “For each isotope, MCLs under consideration
center on
5 pCi/l”.
This record certainly also falls short of
confirmation of USEPA intentions regarding the numeric values of
any new radium standards.
Based upon this record,
the Board concludes that
it remains
possible,
and perhaps even likely,
that USEPA will take action
which
will
cause the applicable radium standard
to change.
HARDSHIP
The Agency’s original Recommendation supports Geneva’s
Petition and states that denial of
the variance extension until
September
30,
1993 or until two years after
the date on which
USEPA amends the MCL for radium,
whichever occurs first,
would
result
in an arbitrary or unreasonable hardship.
The Agency
Addendum reaffirms the Agency position
in all respects except
for
the final compliance date.
The Addendum suggests that the Board
grant variance from restricted status regarding the combined
radium standard for a five year period from any issuance of
variance.
Geneva’s reason
for requesting a variance extension
is the
potential benefits of waiting for federal action concerning the
radium standards.
Geneva
refers
to indications by the USEPA that
it
will propose changing the radium concentration level standards
to a maximum contaminant level
(MCL)
of
5 pCi/l
for Radium—226
and Radium-228 individually
(“5/5 MCL standard”),
from the
current combined maximum of
5 pCi/I for both.
Such
a
relaxation
of the standard would enable Geneva to achieve compliance by
meeting the 5/5 MCL standard because the Act provides that any
new radium standard immediately supercedes the current
Illinois
standard.
In support
of Geneva’s position, Geneva states that
a
USEPA representative has indicated that USEPA would not force any
municipality to spend funds preparing
a final
design or
constructing a treatment system to comply with the interim
combined standard of
5 pCi/l.
(Resp.,
p.6)
Grant of the variance extension could also enable Geneva
to
save six
to eight million dollars
in the cost
of construction of
a water treatment and distribution system.
Geneva states that
the estimated cost of
the lime—softening option adopted by Geneva
109—512
7
in PCB 88—il
to meet the current
radium standard has increased by
fifty percent from $8 million
to $12.6 million
(in 1989
dollars).
An engineering study shows
that compliance with the
less stringent 5/5 MCL standard could be achieved through
blending systems at a cost of $6.7 or $4.4 million.
Additional evidence of Geneva’s potential hardship
is found
in its Petition for Variance Extension filed
in PCB 88—li which
states that:
Without
relief from restricted status, Geneva
will
be
unable
to
sustain
economic
growth,
will
be
unable
to
provide
for
long
term
control
over growth
in
the
area
immediately
surrounding
Geneva
and
will
not
be
able
to
afford
to
carry
out
the
compliance
program
necessary
to
comply
with
the
radium
standard.
(PCB 88—11, Petition,
p.4)
The Agency’s response
is that Geneva cannot demonstrate
specific hardship as
to the final compliance date because four
years still remain on the current variance, but that the costs
of
immediate compliance would nonetheless impose an arbitrary or
unreasonable hardship.
(Rec., p.8)
PUBLIC INJURY
The Agency also concludes that the hardship resulting from
continued Restricted Status would outweigh the injury to the
public from grant of
the variance and that no significant
risk of
public
injury would be caused by granting the Petition.
(Rec.,
p.10)
A 1984 analysis of four consecutive quarterly samples or
the average of the analyses of four samples obtained from
Geneva’s water supply showed a combined radium content
of 13.6
pCi/i.
The analytical results of quarterly sampling done
in 1988
&
1989,
attached to Geneva’s Petition as Attachment
C,
have not
yet been received, but in the Agency’s view, demonstrate radium
content
in excess of
the
5 pCi/i standard.
(Rec.,
p.5)
The
Agency Recommendation states that the risk associated with this
radiation level
is low but notes that “The longer
the
noncompliance continues,
the greater
the
risk
to the population
now being served by the Petitioner”.
(Rec.,
pp.6-7)
The Agency
believes that no significant health
risk exists for
the limited
population served by new water main extensions, although
radiation at any level creates some risk.
(Rec.,
pp.6—7)
COMPLIANCE PROGRAM
The compliance program developed by the City of Geneva
in
response
to
the existing
5 pCi/l
standard involves
a
lime
softening treatment system.
Based on this plan,
the May 5th,
1988 Board Order
sets forth
the following conditions:
109—513
8
1.
By 8/2/89, Geneva shall have applied for
all
necessary
Agency
construction
permits.
2.
By
1/20/90,
Geneva
shall
award
all
construction
contracts,
and
“such
award
shall
not be contingent upon financing”.
3.
By 5/5/92, all installations, changes
or
additions shall be operational.
Other
conditions deal with a sampling program,
a notice
of
non—compliance to users, minimizing
the level of
radium until
compliance
is
reached, progress reports and executing the
Order.
As of
this date Geneva has not yet applied for the
necessary Agency permits and has therefore failed
to meet
condition number one.
Failure
to comply with this condition
causes the variance
to expire May
5,
1992,
one year earlier
than
otherwise.
Geneva states
in its petition that “while terminal deadline
for compliance can still be met,
the interim schedule
of
deadlines will have
to be pushed back.”
(Pet.,
p.5)
However,
Geneva also states
in its petition that “the City would like
to
have time
to await
federal action on the
radium standards.”
(Id.,
p.8)
Consequently, Geneva requests that the variance be extended
by the Board
for five years
from date of approval.
Geneva has
paid for a study which has recommended two alternative options
involving blending systems which would put Geneva into compliance
with the proposed relaxed radium standards.
Geneva’s Response to
the Agency Recommendation states that Geneva has not proceeded to
spend funds
for
final design of the project pending the ruling
in
this matter.
Instead Geneva has divided its compliance program
into two phases:
Phase One consists of those improvements to the
water supply system which are common to both the original lime—
softening compliance alternative and either
of the potential
blending alternatives and Phase Two consists of the non—common
elements of the chosen compliance alternative
(lime—softening or
blending).
(Pet., p.5)
Total Phase One costs are estimated
to equal
$4,063,043.25.
This
figure
is the result of property
acquisitions costing $170,000 and of
improvements to the existing
system costing $3,893,043.25 when 15
for contingencies
is added
to the costs of construction and another 15
for engineering,
legal and administrative fees is added to this figure.
Geneva
did not include the costs of developing Shallow Well
#8 and
its
treatment system or
the costs of other improvements to Geneva’s
water supply already completed.
(Pet., p.4)
109—514
9
Geneva has proceeded with Phase One.
Phase One was approved
by the City Council on October
16, 1989 and bids were then
solicited for the necessary engineering.
Geneva estimates that
Phase One will be completed by approximately December
31,
1992.
(Pet. p.5)
Geneva states that
it has either expended
or approved
a total of $5,520,000
in improvements
to its water supply system
to comply with the combined radium—226 and radium—228 standard.
Geneva would like to start implementing Phase Two when the USEPA
promulgates its revised radium standards, probably
in December
1991.
Geneva claims that it could implement either of the
blending options or the lime—softening option, whichever
is
chosen, under the following Phase Two timetables.
Lime softening option:
2
months
to
ascertain
the
appropriate
compliance
option
and
engage
professional
design
engineering
services;
8 months
for design engineering;
3 months for IEPA permit;
2
months
for
bidding
and
awarding
of
contracts; and
22 months for construction
Blending options:
2
months
to
ascertain
the
appropriate
compliance
option
and
engage
professional
design
engineering
services;
8 months for design engineering;
3 months for IEPA permit;
2
months
for
bidding
and
awarding
of
construction contracts; and
14—16 months
for construction.
An October,
1989 letter from USEPA to the Agency indicates
that USEPA may promulgate new standards in December 1991.
According to the above timetables,
If
~newradium standards are
proposed June 1990,
and promulgated iñ’December
1991,
the
construction involved for the blending options would be completed
in March
1994 and the construction for the lime softening option
would be completed by November 1994
(almost
5 years from the date
of this Order).
109—515
10
The Board agrees with the Agency that denial of
a
variance
from the effects of restricted status would impose an arbitrary
or
unreasonable hardship and that no significant
risk of public
injury would be caused by granting the Petition.
The Board also
accepts Geneva’s failure to meet the conditions provided for
in
PCB 88-11 as reasonable and will excuse
it provided that Geneva
agrees to meet the provisions of this Order.
The Board grants
Geneva a variance subject
to the conditions stated
in this Order.
CONSISTENCY WITH FEDERAL
LAW
Granting the variance leaves Geneva subject
to the
possibility of federal enforcement for violations of the radium
standards.
The Agency,
however, believes that
if the state
variance requires compliance by the end
of the Agency’s
recommended variance period,
it
is probable
that the USEPA would
consider
the variance order
to
be a
“Compliance Order” and defer
federal enforcement.
(Rec.,
p.9)
The Agency originally recommended
a
final compliance date of
September
30,
1993.
The Agency had established this date
in this
and other variance requests
because Region V of the USEPA had
indicated that such a date would be acceptable.
Region V of the
USEPA has since indicated that USEPA would support
a final
compliance date extending beyond September
30,
1993,
if “the
IEPA” can demonstrate
that
a community
is making
“good faith,
expedient efforts towards compliance,
and the city’s construction
schedule
is
the most appropriate considering expected
promulgation of the new standards.”
(See Exhibit
B attached
to
Geneva’s Response).
The Addendum to Recommendation states that
Geneva’s proposed construction schedule “is expeditious” and
suggests that variance be granted for
5 years from date of
issuance.
TERM OF VARIANCE
Both Geneva and the Agency agree
that the Board should grant
a variance for
a five year period from the date of issuance.
Geneva has formulated specific timetables and goals
(“Phase One”)
which allow Geneva to progress
towards compliance while waiting
a
short while
for
federal action.
Geneva has also proposed
specific and reasonable milestones
that could be
fixed once USEPA
acts.
Geneva’s “Phase Two” compliance schedule
is set forth
in
paragraph eight of
the Petition
for Variance Extension and
in the
Compliance Program section of this Order, and the Agency has
found
it
“expeditious”.
Therefore,
the Board believes that
a
five year variance expiring March,
1995 would be reasonable
——
if
certain conditions are imposed.
The conditions
recommended by
the Agency and certain others are imposed.
In particular,
the Board accepts
the characterization of
Geneva’s compliance plan as “expeditious” and requires Geneva
to
109—516
11
adhere
to the time tables and deadlines specified therein in
order
to ensure timely compliance with the radium standard.
This
condition also satisfies
the Board’s concern that Geneva minimize
the
time during which
those people served by existing water mains
-iill continue
to receive water which does not meet the radium
standard.
The Board notes
that grant of variance from restricted
status will affect only those users who consume water drawn from
any newly extended water lines,
it will
not affect
the status of
the rest of the City’s population drawing water
from existing
water
lines, except insofar
as the variance by its conditions may
hasten compliance.
The Board
finds no reason why Geneva should not continue
with “Phase One” and complete Phase One by December,
1992.
As
a
condition to this variance,
the Board will require that Phase Two
construction begin by May
22, 1993.
Given Geneva’s Phase Two
timetable,
this means
that Geneva must
either proceed with a plan
to meet the current radium standards or
seek another variance
if
the
federal government has
not, acted by February
22,
1992.
Furthermore,
to comply with this Variance, Geneva must begin
implementing Phase Two within 30 days of promulgation of any new
federal standard or publication of
a notice
in the Federal
Register indicating that the federal government does not intend
to change current standards whichever occurs
first.
Absent this
condition,
the Board believes a five year variance is
inappropriate since Geneva would be able to delay the full five
years regardless of the date a federal decision was reached.
For
example,
if relaxed federal standards are promulgated in December
1991, Geneva could comply with the radium standards by July 1994
according to Geneva’s timetable for
the blending compliance plan.
Accordingly, the Board grants variance
to March
1995 or
attainment of compliance by Geneva of any radium standard then in
effect, whichever comes
first.
EMERGENCY USE OF THE EXISTING DEEP WELLS
As an additional matter, Geneva asks
for Board approval
to
utilize the existing deep wells as
back up water systems
in the
event
of an emergency situation which precludes Geneva’s ability
to utilize the shallow wells under
either
the lime—softening or
blending compliance
alternative.
The Agency does not recommend granting
this authorization
because the Petition does not specify the
types of emergency
which would trigger deep well use.
The Agency states:
“Lessening
levels
of water
due
to drought
or
generally declining water
levels
in
the
area
would
not,
in
the Agency’s
opinion,
warrant
blanket
authorization
for
deep well
use,
as
this
would
leave
Geneva
sufficient
time
to
109—517
12
petition
the Board for
an emergency variance
and/or
a provisional
variance.
Further,
the
blanket
authorization
could
not
be
tailored
to
fit
the
length
of
the
emergency.
Petitioner
should
be required
to come to the
Board
for
a
provisional
variance
for
any
emergency requiring use of the deep wells for
more
than
three
days.
Further,
Petitioner
should
be
required to
report
to the Agency’s
field
office
each
and
every
such
emergency
use,
state
the
cause
of
the
emergency,
the
amount
of
water
pumped,
and
the
time period
during
which
the
emergency
pumpage
occurred.”
(Rec., p.12)
In response, Geneva notes
that:
“The Agency, while
it indicated that
it could
not support
the requested emergency provision
as
written,
has
set
forth
conditions
under
which
it
apparently
could
support
the
requested relief.
Geneva has no objection to
the
majority
of
the
conditions.
Specifically,
Geneva
has
no
objection
to
a
condition requiring
it
either
to correct
the
underlying
problem
or,
after
a
reasonable
period
of
time,
to
apply for an emergency or
provisional
variance.
The
three
days
suggested
by
the
Agency
are
acceptable
to
Geneva
if
the
Board
concludes
that
such
a
short period
is appropriate.
However,
Geneva
also notes
that while
routine
breakage
could
often
be
found
and
replaced
or
repaired
within three
days,
there are other
potential
mechanical
problems
which
could
require
slightly
more
of
time
to
correct.
These
include
a catastrophic failure of the shallow
well
shaft
or
the
pumps
associated with
the
shallow wells.
While these problems could be
corrected
in
a
reasonable
time,
this period
would
exceed
three
days,
thereby
requiring
Geneva
to
file
for
a
provisional
variance.
Yet,
in
all
probability
such failures
would
be
corrected
prior
to Board
action
upon
the
provisional variance request.
Accordingly,
Geneva
suggests
that
a
more
reasoned
approach
would
be
to
require
a
report
to the Agency field office whenever an
emergency
arises
requiring
the
use
of
the
deep
wells.
Such
report
would
include
the
cause
of
the emergency,
the estimated amount
of water
to
be pumped,
and an estimated time
for
correcting
the
problem.
This
report
109—5 18
13
should
take
the
form
of
a
verbal
report
followed
by
a
letter
within
five
working
days.
As
soon
as
it
becomes
apparent
that
the problem will
not be
resolved within five
days,
Geneva
would
be
willing
to
commit
to
submitting
a
request
for
a
provisional
variance.”
(Resp. pp.13—14)
Although the Board has addressed the issue of emergency use
of deep wells
in prior
cases
(See Village of Round Lake Beach
v.
IEPA,
PCB 86—59,
September
11, 1986; Village of Romeoville
v.
IEPA, PCB 87—68,
June
2,
1988;
Village of Coal City v.
IEPA,
PCB
88—93,
June
30,
1988; City of Elmhurst
v.
IEPA, PCB 86—157,
February
19,
1987)
it
notes that
in none of these proceedings did
the emergency use granted extend beyond the expiration of
the
variance.
Indeed the Board
is prevented by Section 36(b)
of the
Act from a “blanket authorization” regarding such a use.
I.R.S.
ch.lll
~,
par.36(b).
That section expressly limits any single
variance to a term of
five years and
requires
that
a compliance
plan be developed as
a precondition.
Therefore,
the Board
declines
to authorize deep well use as requested by Geneva.
The Board notes
that Geneva does not object
to
a majority of
the conditions for deep well use the Agency wishes imposed.
An
accomodation between the Agency and Geneva seems reasonable
to
anticipate, perhaps along
the lines suggested by Geneva in their
Response.
(Resp.,pp.13—l4)
The Board notes
that continued use
of the deep wells beyond any de minirnis time period would require
relief by the Board,
as
a matter
of
law,
not of negotiation.
This may take the form of a provisional variance, adjusted
standard or site—specific rulemaking.
Should the Agency and
Geneva fail
to agree on
a plan for deep well use, the matter
should be brought before
the Board
for resolution
in one of
the
three forms outlined above.
DETERMINING COMPLIANCE WITH THE RADIUM STANDARD
Geneva requests
that the Board address the satellite issue
of whether the radium standard must
be met on an average or
maximum basis.
(Resp., p.5)
The Board hereby reaffirms
its
position
in North Aurora which
is essentially restated below.
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.
109—519
14
This averaging rule is identical in substance
to the averaging
rule found in current federal regulations at
40 CFR 14l.26(a)(l)
(1988).
Section 605.105(a) clearly specifies that compliance with
the combined radium standard requires
a showing
based on samples
averaged over a year.
The questions Geneva raises is whether
a
showing of
violation similarly requires samples averaged over
a
year.
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).
In the past, the instant question has arisen based on
a
statement
in the Board’s March
24, 1988 Opinion
in Citizens
Utilities v.
IEPA, PCB 86_185.1
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
violation of
the standard from which variance
is sought
(e.g.,
City of White Hall
v.
IEPA,
PCB 84-126,
61 PCB 203; The Village
of Elk Grove
v.
IEPA,
PCB 84-158,
62 PCB 295; City of West
Chicago v.
IEPA, PCB 85—2,
64
P03
249; Village
of Minooka
V.
IEPA, PCB 85—100,
65 PCB 527;
City of Spring Valley
v.
IEPA, PCB
88—181,
95 PCB
57,
January
5, 1989).
The Board has held,
however,
that under special circumstances variance may be granted
even where
no demonstration
of violation has been made by results
from four quarterly samples.
Such a circumstance might
be,
for
example, where
there are insufficient samples
to confirm a
violation under
an averaging rule,
but where:
(1)
there are
reasonable grounds
to expect that further sampling would confirm
the violation, and
(2)
immediate grant of variance would expedite
correction
of the expected violation.
It was against this backdrop that the Board earlier found
in
Citizens Utilities
(PCB 82-63)
that variance was warranted and
ordered Citizens Utilities
to commence radium sampling
to confirm
the violation;
even though no violation of the gross alpha radium
standard had been shown.
Citizens Utilities was thus not
1 Although variance was granted
to Citizens Utilities,
that
variance was subsequently vacated on grounds unrelated to the
averaging issue
(see Citizens Utilities
v.
IEPA,
PCB 86—185,
89
PCB 233).
10°—520
15
intended
to stand
for the proposition that combined radium
violations may be proved based on less 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
regulations.
As has also been noted,
the federal regulations are
currently under
review.
Moreover, pursuant
to Section
17.6 of
the Act,
the federal regulation will automatically become
enforceable in Illinois upon federal adoption.
Thus,
the above
analysis may have
to be modified
to conform
to changes
at the
federal level.
This Opinion constitutes
the Board’s findings of
fact and
conclusions of
law in this matter.
ORDER
1.
The Petitioner,
the City of Geneva,
is hereby granted
variance from 35 Ill.Adm.Code 602.105(a),
(Standards
for
Issuance) and from 35 Ill.Adm.Code 602.106(b)
(Restricted Status), but only as they relate to the
5
pCi/i combined radium-226 and radium—228 standard of
35
Ill.Adm.Code 604.301(a), subject
to the following
conditions:
(a)
This variance shall terminate on March
22, 1995 or
upon attainment
of compliance by Geneva of any
radium standard then in effect, whichever occurs
first.
(b)
Geneva must complete Phase One of
its proposed
schedule by December
22,
1992.
(c)
Geneva must begin implementing Phase Two of its
compliance plan within
30 days of promulgation of
any new federal standard or publication of
a notice
in The Federal Register indicating
that the federal
government does not intend
to change
the current
standard, but no later than February 1992.
(d)
Geneva’s implementation of Phase Two must comply
with the following timetables:
Lime softening option:
2
months
to
ascertain
the
appropriate
compliance
option
and
engage
professional
design
engineering services;
8 months
for design engineering;
109—52 1
16
3 months for
IEPA permit;
2
months
for
bidding
and
awarding
of contracts; and
22 months for construction.
Blending options:
2
months
to
ascertain
the
appropriate
compliance
option
and
engage
professional
design
engineering services;
8 months for design engineering;
3 months
for IEPA permit;
2
months
for
bidding
and
awarding
of construction contracts;
and
14—16 months
for construction.
(e)
After each constru.ction permit
is issued by the
Agency,
Petitioner
shall advertise for bids from
contractors to do ~he 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
(h)
of each of the following
actions:
1)
advertisement
for bids,
2)
names
of
successful bidders, and
3) whether Petitioner
accepted the bids.
(f)
Phase Two construction 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 May
22,
1993.
(g)
Any and all construction necessary to implement
a
blending alternative must be completed by September
22,
1994.
Any and all construction necessary to
implement
a
lime—softening plan must
be completed
by March 22,
1995.
Any and all construction
necessary to
implement any other type of compliance
plan must be completed as soon as
feasible and
no
later than March
22,
1995.
(h)
In consultation with the Agency, Petitioner shall
continue its sampling program
to determine as
109—522
17
accurately as possible the level of radioactivity
in its wells and finished water.
Until
this
variance expires, Petitioner shall sample
its water
from its distribution system at locations approved
by the Agency.
The Petitioner shall composite the
quarterly samples for each location separately and
shall analyze them annually by a laboratory
certified
by
the State of
Illinois for
radiological analysis
so as
to determine the
concentration of the contaminants
in question.
The
results of
the analyses shall
be reported to the
Compliance Assurance Section, Division of Public
Water Supplies,
2200 Churchill Road, Post Office
Box 19276,
IEPA,
Springfield,
Illinois 62794—9276,
within 30 days of receipt
of each analysis.
At the
option of Petitioner,
the quarterly samples may be
analyzed when collected.
The running average of
the most recent four quarterly sample results shall
be reported to the above address within
30 days of
receipt of
the most
recent quarterly sample.
(i)
Pursuant to 35 Ill.Adm.Code 606.201, Geneva shall
send to each user of its public water
supply
a
written notice of the variance in the first set of
water bills issued after the grant of this variance
and every three months thereafter.
The notice
shall inform the public that Geneva has been
granted a variance from Illinois regulations
(35
Ill.Adm.Code 602.105(a),
Standards of Issuance and
602.106(b), Restricted Status) despite
the fact
that Geneva’s water supply
is not
in compliance
with the
5 picocuries per liter standard for
combined radium—226 and radiuni-228
(35
111.
Adm.
Code 604.301(a)).
The notice shall also state
the
average content of combined radium-226
and radium—
228 of the most recent samples taken from the water
supply.
Furthermore, each notice must be
conspicuous and must not contain unduly
technical
language or unduly small
print.
Each notice shall
include the telephone number of
the public water
system as
a source of additional information
concerning
the notice.
(j)
Until
full compliance
is reached,
Petitioner
shall
take all reasonable measures with
its existing
equipment to minimize the level of
radium
in its
finished drinking water.
(k)
The Petitioner
shall provide written progress
reports
to
IEPA,
DPWS,
FOS every six months
concerning steps
taken
to comply with paragraphs
(b),
(c),
(d),
(g), and
(j).
Progress reports
shall quote each of said paragraphs and immediately
below each paragraph state what steps have been
100-523
18
taken to comply with each paragraph.
Progress
reports shall also identify each task set forth
in
the Petition for Variance that must be completed
under this Order by the date
of the written
progress
report.
The Petitioner
shall specify the
date that each such task was completed.
(1)
Within forty—five days
(45)
of the grant of the
variance,
Petitioner
shall execute and forward to
Scott 0.
Phillips, Enforcement Programs,
Illinois
Environmental Protection Agency,
2200 Churchill
Road,
P.O.
Box 19276,
Springfield, Illinois 62794—
9276,
a Certificate of Acceptance and Agreement to
be bound to all terms and conditions of the granted
variance.
This forty—five
(45) day period shall
be
held in abeyance
for any period during which this
matter
is being appealed.
If the Petitioner fails
to execute and forward the agreement within
a
forty—five
(45) day period,
the variance shall be
void.
The form of 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—107, March
22,
1990.
Petitioner
Authorized Agent
Title
Date
Section 41
of the Environmental Protection Act,
Ill.Rev.Stat.
1985 ch.lll 1/2 par.l041, 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.
109—524
19
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 were
adopted on the~2~,’~1__day
of
~7i~—t_~.’
,
1990, by a vote
of
~
-.
Control Board
109-525
