ILLINOIS POLLUTION CONTROL BOARD
March 24, 1988
VILLAGE OF LADD,
Petitioner,
v.
)
PCB 88—30
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 (“Petition”) filed on February 3, 1988 by the Village of
Ladd (“Ladd”). Ladd seeks 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 the exceedence by
Ladd’s public water supply of the 5 picocuries per liter
(“pCi/i”) combined radium—226 and radium—228 standard of 35 Iii.
Adm. Code 604.301(a). The requested term of the variance is five
years, “or until the Illinois Environmental Protection Agency
accepts data demonstrating that Petitioner is in compliance with
the Safe Drinking Water Act, whichever occurs first” (Petition,
para. 1).
On March 3, 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. Ladd
would incur an arbitrary or unreasonable hardship, not justified
by the environmental and health impact, if variance were to be
denied. Accordingly, the variance will be granted, subject to a
reduction in the requested term and other conditions as
discussed.
BACKGROUND
Ladd provides potable water supply and distribution for a
population of 530 residential and 30 industrial and commercial
customers representing a resident population of 1,316. Ladd
currently has two wells: a deep well which is used in day—to—day
operations and a shallow well “which has been used in
emergencies” (Petition, para. 12). The particulars of the wells
are:
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Placed in Gallons
Well No. Depth
Operation Per Minute Location
1
1864 feet
1909
600
E. Cleveland St
2
165 feet
1959
400
E. Cleveland St
Ladd was first advised of the high radium content in its
water supply by letter from the Agency dated October 4, 1985, and
was first notified of placement on restricted status by letter
from the Agency dated December 19, 1985. The Agency based its
determination on an annual composite of four consecutive
quarterly samples or the average of the analyses of four samples
obtained at quarterly intervals (Rec.., para. 10), which showed a
radium—226 content of 6.1 pCi/I and a radium—228 content of 1.4
pCi/I, for a combined value of 7.5 oCi/l; the record does not
indicate whether the samples were taken from the distribution
system or the well head. Ladd believes that the analyses upon
which the Agency’s determination was made were derived
exclusively from water from the deep well, Well #1 (Petition,
para. 17). A subsequent single analysis reported by Ladd on a
sample taken in December 1988 from Well #2 showed a radium—226
content of 0.5 pCi/l and radium—228 content of 1.4 pCi/l, for a
combined total of 1.9 pCi/l.
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 Ladd requests here is not variance from
these two maximum allowable concentrations. Irrespective of the
action taken by the Board in the instant matter, these standards
will remain applicable to Ladd. Rather, the action Ladd requests
is the temporary lifting of prohibitions imposed pursuant to 35
Ill. Mm. Code 602.105 and 602.106. In pertinent part these
sections read:
Section 602.105 Standards for Issuance
a)
The Agency shall riot 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. llI1/~ pars. 1001 et seq.) (Act), or of
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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.
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 Ladd herein requests
be lifted.
COMPLIANCE PROGRAM
Ladd proposes to achieve compliance through a program of
blending the waters from Wells #1 and #2. This is to be
accomplished by the installation of an additional storage tank
and blending devices at the common location of Wells #1 and #2.
Ladd is currently accepting bids for the necessary equipment and
construction (Petition, para. 20). It further commits to
achieving compliance no later than six months from the date of
filing of the instant variance request (Id. at 26).
During the period of the variance, Ladd proposes to mitigate
impact of excessive radium concentrations by “immediately
pumping solely from its conforming, shallow well, Well #2, and
taking all reasonable measures with its existing equipment
to minimize the impact during the period of variance” (Petition,
para. 29).
HARDSHIP
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Ladd believes that a requirement to come into immediate
compliance would impose an arbitrary or unreasonable hardship.
Ladd and the Agency both note that by virtue of Ladd’s inability
to receive permits for water main extensions, any economic growth
dependent on those water main extensions would not be allowd. As
specific examples of the development contemplated, Petitioner
currently foresees the need to extend water mains to serve the
following new users, four of the homes in which are anticipated
to be built in spring 1988 (Petition, para. 30).
A. Meadows Unit of Granfield Acres Addition to the
Village of Ladd, consisting of 11 possible
single—family residences, with an estimated
population of 44 persons. Each house would have
a separate hookup to the proposed water main.
B. Spring Creek Addition to the Village of Ladd,
consisting of 27 possible single—family
residences, with an estimated population of 112
persons. Each house would have a separate hookup
to the proposed water main.
ENVIRONMENTAL AND HEALTH EFFECTS
Due to the quick implementation of the blending proposal,
Ladd believes that “there will be no negative environmental
impact on human life in the affected area as a result of issuance
of this variance” (Petition, para. 26). Ladd further notes that
it is of the opinion that the variance it seeks is merely to
allow the extension of its water distribution system during the
four quarters required by law to establish that the changes in
its water treatment process have resulted in compliance (Id. at
25).
The Agency refers the Board to the testimony presented by
Richard E. Toohey, Ph.D., 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. Adm. Code
at 602.105 and 602.106.
The Agency believes that while radiation at any level
creates some risk, the risk associated with Ladd’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:
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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
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 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. Grant of
variance may also, in the interim, lessen exposure for
that portion of the population which will be consuming
more effectively blended water. In so saying, the
Agency emphasizes that it continues to place a high
priority on compliance with the radium standards.
Rec., para. 27 and 28.
CONCLUS ION
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 Ladd and the Agency that no significant health
risk will be incurred by the persons who are served by any new
water main extensions, assuming that compliance is timely
forthcoming.
However, the Board does question the necessity and
advisability of the requested five—year term of the variance. By
Ladd’s own admission, it can achieve distribution system
concentrations of combined radium less than the 5 pCi/l standard
at the end of the six months required for installing the
necessary blending equipment, and in the meantime can
significantly reduce concentrations by switching principal water
pumpage from Well #1 to Well #2. It may require as much as an
additional year for Ladd to be removed from restricted status via
achieving compliance, since for this action it will be necessary
to maintain the lowered radium concentrations for a period
8 7—211
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sufficient to demonstrate that the average combined radium
concentration in an annual composite of consecutive quarters or
the average of the analyses of four sampjes obtained at quarterly
intervals is less than the 5 pCi/l level
.
Thus, the maximum
period that Ladd would seemingly require variance is eighteen
months, or perhaps slightly longer to allow for unforeseen
developments in implementing the blending option and/or for
obtaining results of laboratory analyses. For these reasons, the
Board will limit the variance to twenty months, with the
additional proviso that variance will terminate if compliance is
achieved earlier. Such other conditions as are recommended by
the Agency and are appropriate will also be imposed.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
1. Petitioner, the Village of Ladd, is hereby granted variance
from 35 Ill. Mm. Code 602.105(a), Standards of Issuance, and
602.106(b), Restricted Status, but only as they relate to the
5 pCi/l 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 November 24, 1990, or when
compliance with 35 Ill. Adm. Code 604.301(a) is
achieved, whichever is sooner.
(B) Compliance shall be achieved with the maximum allowable
The Agency notes that if Ladd
...takes a sample when it first begins full
implementation of its blending program (i.e., by no
later than six months from grant of the variance) and
three quarterly samples thereafter, the final sample
would be taken no later than 15 months after grant of
the variance. If three additional months are added to
the schedule to allow the Petitioner’s laboratory to
perform and report the analysis, compliance with the
MAC for the contaminant in question can be determined
within 18 months from the grant of the variance.
Rec.,, para. 29(B)
The Board believes that this outlines an uncomfortably tight
schedule, and believes that the twenty months here ordered
provides a more reasonable schedule..
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concentrations of combined radium—226 and radium—228 no
later than November 24, 1990.
(C) Petitioner shall fully implement its blending program no
later than six months from grant of this variance.
(D) In consultation with the Agency, Petitioner shall
continue its sampling program to determine as accurately
as possible the level of radioactivity in each of its
wells and finished water. Until this variance
terminates, Petitioner shall collect quarterly samples
of its water from its distribution system, at locations
approved by the Agency. Petitioner shall composite the
quarterly samples for each location separately and shall
have them analyzed annually by a laboratory certified by
the State of Illinois for radiological analysis so as to
determine the concentration of the two parameters,
radium—226 and radium—228. The results of the analyses
shall be reported to the Compliance Assurance Section,
Division of Public Water Supplies, IEPA, P.O. Box 19276,
2200 Churchill Road, 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.
(E) 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. Mm.
Code 602.105(a) Standards of Issuance and 35 Ill. Adin.
Code 602.106(b) Restricted Status, as they relate to the
combined radium—226 and radium—228 standard.
(F) Pursuant to 35 111. Mm. 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
radiurri—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.
(G) Petitioner shall immediately start pumping principally
from its shallow Well #2. Raw and finished water
originating from Well #2 must meet all applicable
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standards, and it is Petitioner’s responsibility to
assure that all standards are met.
(H) Petitioner shall take all reasonable measures with its
existing equipment to minimize the level of contaminants
in its finished water.
(I) Petitioner shall provide written progress reports to
IEPA, Division of Public Water Supplies, Field
Operations, every three months concerning steps taken to
comply with paragraphs C and H. 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) Wthin 45 days of the date of this Order, Petitioner shall
execute and forward to Wayne L. Wiemerslage, Enforcement
Programs, Illinois Environmental Protection Agency, 2200
Churchill Road, 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 88—30, March 24,
1988.
Petitioner
~tuthorized 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
87—214
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Court of Illinois establish filing requirements.
IT IS SO ORDERED.
Board Members Mr. Dumelle and Mr. 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
_________________,
1988, by a
vote of
~
Dorot y M. Gunn, Clerk
Illinois Pollution Control Board
87—215