ILLINOIS POLLUTION CONTROL BOARD
    May
    30, 1985
    VILLAGE OF HANOVER PARK,
    )
    Petitioner,
    v.
    )
    PCB 85—22
    )
    tLLIt’IOIS ENVIRONMENTAL
    PROTECTION AGENCY
    Respondent.
    OPINION AND ORDER OF THE BOARD
    (by J. Theodore Meyer):
    This matter comes before the Board on a variance petition
    filed by the Village of Hanover Park
    (Hanover Park)
    on February
    20, 1985.
    The Petitioner requests
    a variance from the combined
    radium standard of
    35
    Iii.
    Adin. Code 604.301(a)
    up
    to and
    including January
    1,
    1989.*
    The Illinois Environmental
    Protection Agency
    (Agency) filed
    its recommendation that variance
    be granted on May 9,
    1985.
    Hanover Park waived hearing and none
    has been held.
    The Village of Hanover Park
    is located
    in Cook and DuPage
    Counties, Illinois.
    The Village owns and operates its water
    distribution system which consists of four deep wells,
    two
    shallow wells, pumps and other distribution facilities.
    The
    system provides potable water
    to approximately 8,592
    residential
    and 120 industrial and commercial utility customers.
    Section 604.301(a) provides
    for
    a maximum allowable
    concentration for combined radium—226 and radium—228 activity in
    community water supplies of
    5 picoCuries/liter
    (pCi/i).
    An
    analysis of Hanover Park~swater performed by USEPA indicated
    a
    combined radium content of 6.8 pCi/i, while an analysis performed
    by Petitioner
    from samples taken on September 20,
    1984 indicated
    the level at 8.95 pCi/l.
    The Village states that
    it was
    subsequently placed on the Agency~sRestricted Status list for
    public water supplies.
    The Agency maintains, however, that its
    Public Water Supply Division has not yet informed the Village
    *Reference
    is also made
    in the petition to gross alpha particle
    activity in the Vi1iage~swater
    supply.
    The Agency states,
    however, that it has no analysis demonstrating that the Village
    is exceeding this standard.
    Accordingly,
    it is the Agency’s
    opinion and the Board concurs, that any references
    in the
    petition to gross alpha activity are inadvertent.
    64-141

    —2—
    that
    it
    will
    be placed on Restricted Status but that it will do
    so
    if variance
    is not granted.
    The variance is sought to allow
    for
    the continued operation of the Petitioner’s water supply and
    distribution system,
    the expansion or extension of the system as
    necessary,
    and the “removal of this facility from the Agency’s
    Restricted Status List”
    (Pet.
    at par. 1).
    The requested term of
    the variance is until January
    1, 1989 or until such time
    as the
    Village
    receives Lake Michigan water
    to combine with existing
    well source water and is no longer
    in violation of the Public
    water Supply Rules.
    (Pet. at par. 1,6).
    Under Section 35 of the Environmental Protection Act,
    Ill.
    Rev.
    Stat. i~83,ch.
    111—1/2, par.
    1035,
    a variance from the
    drinking water regulations can only be granted upon a showing of
    arbitrary or unreasonable hardship which outweighs any
    environmental detriment and if consistent with
    the Federal Safe
    Drinking Water Act (SDWA),
    42 U.S.C.
    300f et seq.,
    and
    regulations pursuant thereto.
    Hanover Park claims that
    it will suffer an arbitrary and
    unreasonable hardship
    if required to immediately reduce the
    combined radium level
    in
    its public drinking supply.
    The Village
    is currently pursuing
    a conforming water supply as
    a member
    of
    a
    regional public water supply agency known as the Northwest
    Suburban Municipal Joint Action Water Agency
    (JAWA). JAWA was
    created by seven contiguous municipalities for the purpose
    of
    securing Lake Michigan water
    for its members.
    JAWA’s system is
    scheduled to be completed and
    in operation with delivery of lake
    ~iaterto Petitioner by June 20~1985.
    Upon receipt of the lake
    water,
    the Village intends to blend not less than
    50 percent lake
    water with existing well water,
    Beginning after
    1985,
    the
    Village will increase the percentage of lake water used until
    1989 when lake water
    will
    be used exclusively. Hanover Park
    states that
    it has already
    issued $1.6 million in bonds for
    start—up costs associated with its membership in JA~A(Pet,
    at
    7).
    Hanover Park’s only other compliance alternative would be
    to
    construct new treatment facilities which would cost
    in excess
    of
    $1.5 million and take approximately two years to implement.
    In
    light of the substantial time and funds
    the Village has expended
    as
    a member of JAWA,
    requiring the construction of new treatment
    facilities would be unreasonable.
    Moreover,
    such facilities
    would become obsolete upon delivery of the anticipated lake
    supply.
    The Agency also notes
    increased health risks are
    associated with control methods such as ion exchange softeners
    because the necessary regeneration raises the sodium content of
    the water.
    This may result in
    a significant health risk to
    persons who are hypertensive or who have heart problems.
    Illinois has adopted state regulations which are no less
    stringent than the national primary drinking water
    regulations
    in
    effect and
    thus,
    it has been delegated primary enforcement
    responsibility for its public water systems under the SDWA.
    A
    64-142

    —3—
    state with primary enforcement responsibility may grant variances
    from those regulations pursuant to section 1415 of the SDWA, but
    only upon a finding that:
    a)
    Because of characteristics of
    the raw water
    sources
    which are reasonably available to the system,
    the system cannot
    rn~st
    the requirements respecting the maximum contaminant levels
    of the drinking water regulations despite application
    of the best
    technology,
    treatment techniques,
    or other means, which the
    USEPA
    Administrator finds
    are generally available
    (taking costs
    into consideration~and
    b)
    The
    grarLt.ing of
    a variance will not result
    in an
    unreasonable risk
    to the health of persons served by the
    system.
    Section 14i5
    of the SDWA,
    42 U.S.C.
    300g—4(a)(l)(A).
    The Agency maintains and the Board has previously determined
    that
    since the Administrator has issued no regulation respecting
    treatment technologies under Section l4l5(a)(l)’A)
    the Board has
    the authority to
    grac~i: individual variances under
    the SDWA to
    both small and large water systems provided that there
    is
    a
    demonstration of arbitrary or unreasonable hardship.
    City of
    Crystal Lake v.
    IEPA, PCB 84-2, May 29,
    1984.
    As noted by the
    the Agency, USEPA has published a “Manual
    of Treatment Techniques
    for Meeting the Interim Primary Drinking Water Regulations” which
    identifies some treatment technologies and serves as
    a helpful
    guidance.
    These suggested treatment techniques, however,
    do not
    fulfill the requirement that USEPA promulgate regulations.
    The Agency states,
    however, that it “recognizes that USEPA
    disagrees with
    this
    analysis”
    citing
    a notice
    of proposed
    amendment to the national interim primary drinking water
    regulations.
    45
    Fed. Reg~56633, July 31, 1980.
    The notice
    contained USEPA’S legal interpretation of the requirements of
    Section l415(a)(1)(A) for
    a federal variance from maximum
    contaminant levels
    (MCL),
    Specifically,
    the notice stated that
    “the determination of
    ‘best technology generally available’
    is
    made only by the Administrator when the MCL
    is established
    through rule—making~”
    In
    a footnote thereto
    it
    is
    stated that:
    “These techniques were described by EPA
    in the economic
    impact assessments prepared for the proposal and the promulgation
    of the National Interim Primary Drinking Water Regulations,
    as
    well as in USEPA~Spublication vManual of Treatment Techniques
    for Meeting the Interim Primary Drinking Water Regulations’.”
    Notably,
    the proposed rule was never promulgated.
    However,
    it appears to be USEPA’S interpretation that the Manual and any
    economic impact assessments prepared for the promulgation of MCLs
    address the requirement that the Administrator determine through
    “rulemaking”
    generally available treatment techniques taking
    costs
    into consideration.
    64-143

    —4—
    The Agency, while not retreating from its conclusion that
    the Board has authority to grant federal variances,
    recommends
    that the variance from combined radium be denied,
    Rather, “the
    Agency believes
    that the concerns of the public water supplies to
    no
    longer be under Restricted Status and the concerns of the
    USEPA that
    federal. variances not
    be granted without installation
    of specific control technology can both be met by the Board
    granting variance from the effect of being on Restricted Status,
    i.e.,
    from 35
    Ill. Adm.
    Code 602.105(a),
    Standards for Issuance,
    and not granting
    a variance from the combined radium
    standards.”
    (Agency Rec.
    at par.
    36),
    The Board notes
    that Hanover Park has specifically requested
    variance from the combined radium standard and that grant of
    a
    variance from Restricted Status would not afford
    the Village the
    full relief sought.
    First,
    as noted by the
    Agency,
    such a
    variance would not insulate the Village from the possibility of
    federal enforcement
    for violation
    of the combined radium
    standard.
    The Agency opines,
    however,
    that
    if the Board requires
    a compliance plan within appproximately three years and ultimate
    compliance w:Lthin five years,
    possibly (JSEPh may consider the
    variance order
    to be
    a “Compliance Order”
    and defer
    federal
    enforcement.
    The Board points out, however,
    that all variances
    in which
    the petitioner demonstrates
    a plan for ultimate
    compliance could be considered “compliance orders”.
    In any
    event, Hanover Park will shortly be in compliance by utilizing
    its allotment for Lake Michigan water,
    and thus a five year
    compliance plan is unnecessary.
    Secondly, even if
    a variance from “Restricted Status”
    could
    operate
    to deter federal enforcement
    it cannot prevent
    enforcement proceedings brought by third oarties against the
    Village for violations under
    the Illinois Environmental
    Protection Act and the applicable
    radiu
    regulat.ion.
    USEPA’s interpretation that the Manual suffices
    to identify
    applicable treatment technology has been before
    the Board
    previously.
    City of Crystal Lake v.
    IEPA, suDra at 3—4; Village
    of Altona
    V.
    IEPA, PCB 80—74,
    July 10, 1980 at
    3; Turnberry
    Utilities,
    Inc.
    v. IEPA~PCB 79—257, March
    20, 1980 at
    4.
    The
    Board has received no new information which would cause
    it
    to
    retreat from its finding in those cases that granting variances
    from the SDWA is within its authority.
    Accordingly,
    the Board
    can find no reason to deny the Viilage~srequest for
    a variance
    from the combined radium standard.
    The Board wishes
    to note,
    however,
    that in affirming that it does have the power
    to grant
    variances under
    the SDWA,
    it
    is not deciding whether variances
    from “Restricted Status” should or should not be granted.
    In the
    context of Hanover Park, which has
    riot requested such
    a variance,
    the issue
    is
    inappropriately presented.
    The Village has performed no formal assessment
    of the effect
    on the
    environment, should this variance be granted,
    The Agency
    states that although radiation at any level contains some risk,
    64-144

    —5—
    the risk associated with this level
    is very low.
    This conclusion
    reflects research demonstrating that much less radium is retained
    in the body than originally thought when the federal standard was
    established.
    See Village of Lemont
    v.
    IEPA, PCB 80—48,
    May
    1,
    1981.
    The current standard
    is now under
    review by
    USEPA.
    The Board
    finds that granting the variance will not
    create
    an “unreasonable risk
    to the health
    of the persons served
    by the system”
    at these concentrations.
    Balancing the great expense to immediately comply with the
    minimal threat to the public health,
    the Board finds
    that
    requiring immediate compliance with the radium standard would
    constitute an
    arbit~:’aryand unreasonable hardship.
    However,
    the
    Board ‘ill not gra~.. the variance for the requested term through
    January
    1,
    1989.
    The Village has stated that delivery of lake
    water
    is anticipated by June 20, 1985 at which
    time 50
    blending
    will begin.
    Using
    the Petitioner’s data of
    a combined radium
    level
    of 8.95 pCi/i,
    the initial blending program should result
    in
    a reduction in the level to below
    4.5 pCi/l.
    This reduced
    level falls below the 5.0 pCi/i standard.
    Nevertheless, the
    Board will grant variance to make provision for unexpected delays
    in delivery of lake water and start—up time in establishing the
    blending program as well as for adequate time
    to demonstrate
    compliance with the regulations which requires at least a year.
    Accordingly, variance
    is hereby granted
    to the Village of Hanover
    Park from the provisions of
    35 111.
    Adm. Code 604.301(a)
    for
    18
    months or until compliance is demonstrated
    in accordance with
    35
    Ill. ~dm. Code 605.105(a),
    whichever occurs first,
    subject to
    conditions.
    This Opinion constitutes the Board’s findings of fact and
    conclusions of
    law in this matter,
    ORDER
    The Village of Hanover Park is hereby granted
    a variance
    from 35
    Ill. Mm,
    Code 604.301(a)
    for
    18 months subject to the
    following conditionsr
    1,
    That this variance expires when analysis
    pursuant to
    35 Iii. Adm. Code
    605.105(a)
    demonstrates compliance with
    the combined radium standard or for
    18
    months from the grant of this variance,
    whichever occurs
    first.
    2.
    That Petitioner
    shall blend
    its well
    water with the maximum amount of Lake
    rlichigan water legally available to
    Petitioner
    so as
    to achieve compliance
    with
    35
    Iii. Mm, Code 604.301(a)
    in as
    timely a manner
    as possible.
    64-145

    —6—
    3,
    That pursuant
    to
    35
    Ill.
    Adra.
    Code
    606~201,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
    the radium—226 and radium—228 standard
    in the first
    set of water bills issued
    aft.er
    the grant
    of this variance and
    ~sry
    three months thereafter until
    time as the water supply
    is
    in
    r~~istratedcompliance with Section
    4,
    P~’!.~.ionershall take all reasonable
    ~reswith its existing equipment
    to
    i~
    ~
    the level of combined radium-
    2.~•. ~nd radium—228 in its finished
    ~
    but that at no time during the
    p:i~d of
    this variance shall the
    mr.~thum allowable combined
    cc~:.sntrationfor radium—226 and
    ra~i~m—228in Petitioner’s public water
    y he more than 9 pCi/l.
    5.
    Th~within forty—five days of the date
    of ~is
    order, Petitioner shall execute
    and :~orwardto Wayne Wiemerslage,
    Enforcement Programs, Illinois
    Environmental Protection Agency,
    2200
    Churchill Road,
    Springfield, Illinois,
    62706,
    a Certificate of Acceptance and
    Agreement to be bound
    to all terms and
    conditions of this variance.
    This
    forty—five day period shall
    be held
    in
    abeyance for any period this matter
    is
    being appealed.
    CERTIFICATION
    I,
    (c~e)
    ,
    hereby accept
    and agree
    to be bound
    by all terms and conditions of
    the Order
    of
    the Pollution Control Board in PCB
    85—22, May 30,
    1985.
    Petitioner
    84-148

    —7—
    Authorized Agent
    Date
    IT IS SO ORDERED.
    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
    _________________,
    1985,
    by
    a
    vote of
    (~,—o
    .
    Dorothy
    M.
    G nn, Clerk
    Illinois Pollution Control Board
    64-147

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