ILLINOIS POLLUTION CONTROL BOARD
January 5, 1989
CITY OF SPRING VALLEY,
)
Petitioner,
PCB 88—181
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 November 4, 1988 by the City of Spring Valley (“Spring Valley”). Spring
Valley seeks variance from 35 111. Adm. Code 602.105(a) “Standards For
Issuance” and 602.106(b) “Restricted Status” to the extent those rules relate
to violation by Spring Valley’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) and of the 15 pCi/i gross alpha particle activity standard of
35 Iii. Adm. Code 604.301(b). The variance is requested to extend for a
period of three and one-half years from the date variance is granted.
On December 1, 1988, the Illinois Environmental Protection Agency
(“Agency”) filed a Recommendation (“Rec.”) in support of grant of variance
subject to conditions. Hearing was waived and none was held.
Based on the record before it, the Board finds that Spring Valley would
incur an arbitrary or unreasonable hardship if variance was denied.
Accordingly, the variance will be granted, subject to conditions.
BAC KGROU ND
Spring Valley, which has a population of approximately 5000 residents, is
a non—home rule municipality located in Bureau County (Pet. para. 6). Among
other services, Spring Valley provides a potable public water supply derived
from deep wells and supplied through a distribution system which includes
watermains, fire hydrants, 100,000 gallons of elevated storage and 500,000
gallons of above ground storage (Id.). The system provides water to all
residential, commercial, industrial, and other users within Spring Valley.
Spring Valley currently draws water from two wells which have the
following characteristics (Pet. para. 9):
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Placed in
Gallons
Well No. Depth
Operation Per Minute
10
2696 feet
1967
825
11
2723 feet
1976
1536
Spring Valley was first advised of the high radium content
in its water supply by letter from the Agency dated December 8,
1986 (Pet. Attachment 2), and was first notified of placement on
restricted status by letter from the Agency dated January 8, 1987
(Pet. Attachment 3).
The Agency based its determination on a single composite
sample which showed a radium-226 content of 7.0 pCi/l and a
radium-228 content of 2.4 pCi/l
,
for a combined value of 9.4
pCi/l (Pet. Attachment 2). The record does not specifically
identify when this sample was collected, other than that it
obviously predates the Agency’s December 8, 1986 letter. No
samples collected later than this single composite sample (see
Footnote #2, p. 7) are available to either directly confirm or
directly refute the results reported in December 1986.
This sample record not withstanding, Spring Valley observes
that an earlier Agency report of analyses1 dated December 9, 1985
(Pet. Attachment 1) and a consulting report of October 10, 1988
(Pet. Attachment 4) both suggest a lower radium content than
indicated in the Agency’s December 8, 1986 letter. In the case
of the latter, analyses of Spring Valley’s raw water made in
connection with a pilot radium—removal program indicated a radium
content of 4.6 pCi/l (Id. at 1). Athough this result was not
derived from samples taken in full conformance with the sampling
procedures necessary to demonstrate compliance with the Board’s
combined radium standard, Spring Valley nevertheless contends
that it raises uncertainty as to whether radium concentrations in
the Spring Valley water supply actually exceed the 5.0 pCi/l
combined radium standard.
Spring Valley states that compliance with the combined
radium standard has not yet been achieved because of the
confusion relating to what it characterizes as the “conflicting
mandates” in the Agency’s letters of December 9, 1985 and
~ The Board notes that although the December 9, 1985 letter
states the radium-226 content is 5.2 pCi/l and the radium—228
content is less than 1.0 pCi/l, the letter nevertheless concludes
the “combined radium-226 and 228 is below the maximum allowable
concentration (MAC) of 5 pico Curies per liter” (Pet., Attachment
1 at 1) and advises Spring Valley that “no further action is
required at this time” (Id.).
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December 8, 1986 (Pet. para. 15) and because of questions raised
by the more recent radium analyses recorded in the pilot study
(Id.).
The Board observes that there is no indication in the record
of any sample results for gross alpha particle activity.
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/l of combined radium-226 and radium-
228. Illinois subsequently adopted the same limit as the maximum
allowable concentration under Illinois law.
The action that Spring Valley requests here is not variance
from these two maximum allowable concentrations. Regardless of
the action taken by the Board in the instant matter, these
standards will remain applicable to Spring Valley. Rather, the
action Spring Valley 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. 1111/2, 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 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
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initially placed on restricted status by the
Agency.
Illinois regulations 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 Spring Valley requests
be lifted.
Inconsideration 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.1987, ch. 1111/2, 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
van ance.
HARDSHI P
Spring Valley believes that a requirement to come into
immediate compliance would impose an arbitrary or unreasonable
hardship. Spring Valley and the Agency both note that by virtue
of Spring Valley’s inability to receive permits for water main
extensions, any economic growth dependent on those water main
extensions would not be allowed. Spring Valley notes:
The City of Spring Valley has experienced minimal
growth in the past ten years, but has expanded its
industrial base somewhat by the development of an
industrial park located at the Northwest portion of
the City. There has been interest in expansion of
that industrial park, which would result in creation
of additional jobs and increasing the tax base for the
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City of Spring Valley. There has also been recent
interest in developing a new residential subdivision
in the eastern portion of the City. Both of these
expansion activities will require the extension of
waterinains. Without a variance from the restricted
status, growth of the City of Spring Valley is
stifled.
(Pet. para. 14)
Spring Valley adds that restricted status adversely affects
prospective home purchasers as well as commercial and industrial
developers and, consequently, Spring Valley’s tax base (Pet.
para. 32). Lastly, Spring Valley asserts that there is
significant need for expansion of its water distribution system
to serve the domestic and fire protection requirements of the
local population, including expansion of proposed subdivisions
(Pet. para. 33).
PUBLIC INJURY
Al though Spring Valley has not undertaken a formal
assessment of the environmental effect of its variance request,
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 (Pet. para. 26,
29). The
Agency contends likewise (Rec. para. 16). In support of these
contentions, Spring Valley 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—14, Proposed Amendments to Public
Water Supply Regulations, 35 Ill. Adrn. Code at 602.105 and
602. 106.
The Agency believes that while radiation at any level
creates some risk, the risk associated with Spring Valley’s water
is low. Moreover, the Agency believes that “an incremental
increase in the allowable concentration of the contaminants in
question even up to a maximum of four times the MAC for the
contaminant in question, should cause no significant health risk
for the limited population served by new water main, extensions
for the time period of this recommended variance” (Rec. para. 16;
emphasis in original). In conclusion, 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
current water supply, the likelihood of no significant
injury to the public from continuation of the present
level of the contaminant in question in the
Petitioner’s water for the limited time period of the
variance, and the possibility of compliance with the
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MAC standard due to use of a manganese greensand
potassium permanganate filter, 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 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 radium
standards.
(Rec. para. 26 and 27).
COMPLIANCE PROGRAM
Spring Valley proposes initially to resolve the uncertainty
regarding radium concentrations in its water supply by conducting
additional testing in accordance with Agency procedures (Pet.
para. 16). In the event that this testing shows combined radium
concentrations in the water supply exceed 5.0 pCi/i, Spring
Valley intends to install a manganese greensand potassium
permanganate filter on its water supply (Id.). A pilot study on
the use and utility of such filter has already been undertaken by
Spring Valley (Pet. Attachment 4). This study suggests that the
filter is capable of an 85 radium removal efficiency (Id. at 1),
which, if achieved under day-to-day operation, would reduce
observed combined radium to well below the 5.0 pCi/i standard.
Spring Valley estimates that full implementation of the filter
system would require 12 to 24 months (Pet. para. 20).
The Agency believes that a properly designed manganese
greensand potassium permanganate filtration system should
effectively reduce existing radium concentrations by at least
50, which thereby suggests that it is a suitable technology for
achieving compliance (Rec. para. 17).
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.
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The Board notes that thoughout this record there is little
reference to gross alpha particle activity in the Spring Valley
water system. Moreover, the record contains no indication that
the gross alpha particle activity standard has ever been exceeded
within the Spring Valley water
system. The Board further notes
that, whereas Spring Valley at
places in its Petition
specifically requests variance from restricted status based upon
both the
combined radium and gross
alpha particle parameters
(e.g., Pet. Introduction), at other places
in its Petition it
appears to be requesting variance related only to combined radium
(e.g., Pet. para. 2). The Agency itself recommends variance
related to both parameters (Rec. p. 1; para. 29), but likewise
provides no citation to any violations of the gross alpha
particle standard. The Board normally does not grant variance
where there has been no demonstration of violation (Willowbrook
Motel Partnership v. IEPA, PCB 81—149, 45 PCB 55; The Village of
Elk Grove v. IEPA, PCB 84-158, 62 PCB 296; City of West Chicago
v. IEPA, PCB 85-2, 64 PCB 251; Village of Minooka v. IEPA, PCB
85—100, 65 PCB 529), and neither Spring Valley nor the Agency
have demonstrated that special circumstances in the instant
matter warrant departure from this precedent. Accordingly, the
grant of variance will be with respect only to the combined
radium standard. It should be noted by the parties that if
subsequent developments indicate a need for variance related to
gross alpha particle activity, such matter may be considered in a
future action before this Board.
As a final matter, the Board notes the Agency recommends
certain adjustments in the internal dates as requested by Spring
Valley (Rec. at para. 28). The internal dates in question
concern the times allotted for obtaining sampling results,
selection of a method of compliance, and demonstrating
compliance. Included among them is the recommendation that the
final full year of the variance be reserved for demonstration of
compliance2 and the variance terminate one-year early if Spring
Valley is not in position to began the compliance demonstration
at that time. The Board
finds the Agency’s recommendations on
these issues to be well founded, and therefore will condition the
grant of
variance
in accordance with these
conditions, as well as
with other conditions consistent with this Opinion and with the
Illinois Environmental Protection Act.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
2 The Board notes that demonstration of compliance sufficient to
be removed from restricted status requires collection of samples
over a period of at least four consecutive calendar quarters.
Thus, demonstration of compliance may significantly postdate
attainment of contaminant concentrations at below—standard values.
95—63
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ORDER
1. Petitioner, the City of Spring Valley, 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/i combined radium-226 and radium-228
standard of 35 Ill. Adm. Code 604.301(a), subject to the
following conditions:
(A) This variance expires on June 15, 1992, or when analysis
pursuant to 35 Ill. Adm. Code 601.104(a) shows
compliance with 35 Ill. Adm. Code 604.301(a), whichever
is sooner; except that if Petitioner fails to begin
operating all installations, changes, or additions
necessary to achieve compliance by June 16, 1991, this
variance shall expire on that date.
(B) Compliance with the maximum allowable concentrations of
combined radium—226 and radium-228 shall be demonstrated
no later than June 15, 1992.
(C) On or before Flay 15, 1989, Petitioner shall submit to
the Agency an Interim Compliance Report, which shall
briefly describe what compliance options are being
investigated and review what financial resources are
being considered for use in achieving compliance. Such
report shall be submitted to:
Illinois Environmental Protection Agency
Division of Public Water Supply
Field Operations Section
2200 Churchill Road
Springfield, Illinois 62708
(D) On or before August 15, 1989, Petitioner shall submit to
the Agency at the address in condition (C), a detailed
Compliance Plan which shall show how compliance will be
achieved within the shortest practicable time.
(E) On or before January 1, 1990, unless there has been a
written extension by the Agency, Petitioner shall apply
to the Agency 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 to:
Illinois Environmental Protection Agency
Division of Public Water Supply
Permit Section
2200 Churchill Road
Springfield, Illinois 62708
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(F) Within one month 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 (C) of each of the following
actions: 1) advertisement for bids, 2) names of
successful bidders, and 3) whether Petitioner accepted
the bids.
(G) 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 July 15, 1990 and shall
be completed on later than July 15, 1991.
(H) In consultation with the 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 sample 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 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. Within 30 days
of the receipt of each analysis results of the analyses
shall be reported to:
Illinois Environmental Protection Agency
Compliance Assurance Section
Division of Public Water Supplies
P.O. Box 19276
2200 Churchill Road
Springfield, Illinois 62794—9276
(I) 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-226 and radium-228 standard.
95—65
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(3) 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 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.
(K) Until full compliance is reached, Petitioner shall take
all reasonable measures with its existing equipment to
minimize the level of combined radium in its finished
drinking water.
(I) Petitioner shall provide written progress reports to the
Agency at the address in condition (C) every three
months concerning steps taken to comply with the Order
of the Pollution Control Board in this matter. Progress
reports shall quote each of said paragraphs and
immediately below each paragraph state what steps have
been taken to comply with each paragraph.
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:
95—66
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CER TI F ICATI 0N
I (We),
,
hereby
accept and agree to be bound by all terms and conditions of the
Order of the Pollution Control Board in PCB 88—181, January 5,
1989.
Petit i oner
Authorized Agent
Title
—
Date
Section 41 of the Environmental Protection Act, Ill. Rev.
Stat. 1985 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 0. Dumelle and Bill Forcade dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certif that the abov Opinion and Order was
adopted on the
.~
day of ______________________, 1989, by a
vote of
.5—2
~
~.
___
Dorothy M.~unn, Clerk
Illinois Pollution Control Board
. 5—67
