ILLINOIS POLLUTION CONTROL BOARD

April 18, 1985

VILLAGE OF FIANNA CITY,

)

Petitioner,

)

PCB 85—40

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,        

)

Respondent.

VILLAGE OF GARDNER,        

)

Petitioner,

v.

)

PCB 85—42

)

ILLINOIS ENVIRONMENTAL      

)

PROTECTION AGENCY,        

)

)

Respondent.

ORDER OF THE BOARD (by J. Anderson):

The Vi1l~geof Hanna City filed its petition for variance on

April 8, 1985, The Village of Gardner filed its petition for

variance on April 9, 1985. Each petition seeks relief from the

radiological quality standards for drinking water. The date for

filing

the Agency Recommendation was extended in each case

until

June 1, 1985,* and the date for Board decision until

September 1, 1985. In each case, the Agency filed a motion to

join

additional parties, 

The

Board is addressing each petition

and

motion in this joint order for the purpose of administrative

convenience; the cases 

are not

hereby consolidated.

The Haniia

City Petition —Radium.

The Village of Hanna 

City

seeks variance from 

Ill. Adm.

Code

Section 604.301(a), establishing a maximum allowable

concentration of 

pCi/i 

(pico

Curies per liter) for combined

ca~ium-226 and radium—228.. The Village provided as Exhibit 1 a

‘984

report of the results of an Agency composite sample showing

*The Board notes that the deadline date for the filing of

the

Agency Recommendation 

set by Section 37(a) of the statute

~nd

cannot be extended by Petitioners. The Board ‘will construe

these nwaiversM as lack of objection.

63-501

—2—

a combined radium content of 13.6 pCi/i. However, Exhibit 1 goes

to say that “public notice will be required in addition to the

public notice for gross alpha content”. No request is made for

variance from the 15 pCi/i gross alpha particle activity

concentration limit of 35 Ill. Adm. Code 604.301(b).

Although this petition does not so indicate, the Board notes

that Hanna City had previously been granted a variance from the

gross alpha standard in PCB 80—206 (January 21, 1981 as

supplemented March 

1981). This variance, which is due to

expire January 1, 1986, also provided relief from the 2.0 maximum

fluoride concentration limit of 35 Iii. Adm. Code 604.203.

Testing for combined radium was a condition of that variance.

Based on the combined radium readings, and in the interests

of providing the Village with complete relief in one proceeding,

the Board questions whether continued relief will be necessary

from the gross alpha standard.

Clarification of the scope of the Village’s request will

facilitate handling of the petition. If an amended petition

curing this defect is not filed within 45 days ofthe date of

this Order this petition will be subject to dismissal, The Board

wishes to note that the filing of an amended petition will

restart the Board’s 90 day decision timeclock, which may by

statute extend the various dates contained in the Village’s

April 

1985 “Notice of Waiver” of the statutory due date for

Agency recommendation until June 1, 1985, and for Board decision

until September

1, 1985.

Finally, the Board also notes that it would be interested in

knowing whether compliance with 

the

fluoride standard has been

attained, and if not 

what

progress has been made in that area.

(tJsua:Lly,

treatment 

methods

which will insure compliance with

fluoride

standards will, also cure radioactive problems.)

The

Gardner Petition——Gross 

Aii~.

The

Village of Gardner clearly seeks variance from the

15 pCi,’l gross alpha particle activity level of 35 Ill. Adm. Code

604.301(b)

(see introductory paragraph and paragraph 4),

providing as Exhibit I 

a 1981

report of the results of an Agency

conposite sample showing gross alpha activity of 32.2 pCi/i.

However,~Exhibit 1 also notes that the sample would be analyzed

for radium content, and the results forwarded to the Village. No

radium results are included in the petition. While paragraph 3

of the petition requests variance from the radium limitations, it

refers

to 35 Iii. Adm.. Code 604.301(b), the gross alpha

liraitation.

The Board is therefore unsure whether, in fact,

variance from the 5 

pCi/I

combined radium—226 and radium—228

standard

has been requested or is necessary to give the Village

coraplete relief. 

Clarification

of the scope of the Village’s

63-502

—3—

request, and inclusion of any recent sampling results for

either/both gross alpha activity and the combined radium will

facilitate handling of the petition. If an amended petition

curing this defect is not filed within 45 days of the date of

this Order, this petition will be subject to dismissal. The

Board wishes to note that the filing of an amended petition will

restart the Board’s 90 day decision timeclock, which may by

statute extend the various dates contained in the Village’s

April 9, 1985 “Notice of Waiver” of the due date for Agency

recommendation until June 1, 1985, and for Board decision until

September 1., 1985.

The

Agency Motions

On April 12, 1985, in the Banns City radium variance (PCB

85—40), the Agency moved the Board to join as additional parties

46 public water supplies listed on Attachment A to the motion,

alleging that each was or would soon be “placed on restricted

status for exceeding the combined radium standard or for

exceeding that standard and another standard”. On April 11,

1985, in the Gardner gross alpha variance (PCB 85—42), the Agency

moved the Board to join as additional parties 36 public water

supplies listed on Attachment A to the motion, alleging that each

was or would soon be “placed on restricted status for exceeding

the gross alpha particle activity or for exceeding that standard

and another standard”. In each case, attached to the motion was

cover letter sent

by

the Agency to the public water supplies

containing certain procedural advice concerning this motion.

These motions are not yet ripe as the respective Villages’

response times have not yet run; the Board will not rule on these

motions toda~’ for this reason, as well as for reasons expressed

below. The Board is addressing these motions today to minimize

confusion on the part of the

82 communities and water supply

operators who have received the Agency’s motion, (The Board will

provide a copy of this Order to each of these listed supplies via

first class mail.)

The rationale of 

the

Agency’s motion can be briefly

summarized as folicws~, 

The

USEPA has, under the Safe Drinking

~‘?aterAct (SDWA), 42 U.S.C. 300(f) et seq., established National

Revised Primary Drinking Water Regulations (40 CFR 141) which set

radiological quality limits of 5 pCi/I for radium—226 and

radiurn—228 combined, and 15 pCi/i for gross alpha particle

activity.

Since

October, 

1983, the USEPA has been in the process

of reviewing these standards (48 Fed, Reg. 45502), but has not as

yet

proposed revised standards,

The aquifer 

underLyinq m~:h

of northern Illinois naturally

has a radium 

level in

cass of this standard.

The

Agency

believes 

that the standards are too stringent~ and believes the

..,dium

standard 

shculdb~ ~

~t 20—30 pCi/i, and the gross alpha

~33-5O3

—4—

standard at 60—80 pCi/i. The Board’s drinking water standards

are set at the same levels as those established by USEPA;

Illinois can retain SDWA enforcement primacy only if its

regulations are no less stringent than those of USEPA. Thus, the

Agency cannot propose a rulemaking to revise Illinois’ standards,

without risking primacy.

To void imposition of bans on extension 

of water service,

the

Agency has asked the Board to 

consider the problems of

the

water 

supplies who exceed the

standards in two groups: those

with radium levels under 30 pCi/i, and those with gross alpha

levels under 80 pCi/i. The Agency apparently requests that all

these communities be joined as parties, but that the Board allow

individual communities to “opt Out”, It would appear,that~he

Agency does not anticipate that these communities would actively

participate in the proceeding, but would instead rely on

assertions by the Agency and/or the lead petitioner that:

compliance is costly and many compliance methods create

additional problems, compliance would be unnecessary if the

standard is changed, and compliance is unnecessary for the

protection of human health.

As precedent for this approach, the Agency reminds the Board

of the variance granted to 287 sewage treatment plants in village

of Bloomingdale 

IEPA, PCB 78—124, 32 ?CB 23 (November 2,

1978) 

The Board is appreciative of the Agency’s desire to

“take

the lead” in assisting communities who do not

comply with

existing radiological

quality standards, and has 

no objection to

considering group variances if they can be properly managed

consistent with statutory requirements and administrative

capabilities. However, the Board does not believe the Agency has

fully considered the ramifications of its request. The Board

will therefore make some observations concerning management of

these actions, to which the Agency is requested to reply.

*Bloomingdale involved sewage treatment effluent discharges

in a six county area seeking variance to discharge beyond

regulatory limits where: a model had predicted that a water

quality standard would be violated in the six county area; absent

variance hundreds of dischargers would have had to provide

conclusive proof as to whether they were causing or contributing

to violations of the standard in order to even qualify, for

variance relief; the Board was in the midst of a regulatory

proceeding proposing the regulatory limit be changed; and the

model was a part of a review designed to develop an

implementation plan under the federal Clean Water Act which would

be binding on all dischargers. One hearing was held in this

matter.

83-504

—5—

First, the various filings appear to contemplate that the

group variances can proceed to judgment on the pleadings, without

hearirlg8, as indicated in

part by the shortness of the waiver of

the decision deadline in each case. Hearing has been waived by

each of the individual petitioners here, and no Section 37(a)

objections have as yet been filed. As each individual petitioner

has presented a complete variance petition and requests relief

from radioactivity levels within ranges which the Board has

previously considered, it is possible that the individual cases

could be decided upon the petition and Agency Recommendation.

The Board does not believe that the group variances could be

decided without hearings and within the deadline even as

extended, for several reasons.

Were the Board to join each of the listed communities, each

would have a right to hearing unless it was waived. In addition,

the Agency would be required to give notice of the petition to

the public pursuant to Section 37(a), as was done in the other

group variance granted by the Board in recent years, Mercy

Hospital, et ~l. v. IEPA, PCB 80—218 (December 19, 1980, as

iiipplemented June 10, 1981) (variance granted to 286 hospitals

from landfill disposal ban), In that case, hearings were held in

five counties pursuant to objections concerning various

individual hospitals, with each presenting evidence to support

its individual hardship. Based on the Board’s experience with

radiological quality variances, the Board notes that public

interest is high, and objections are often filed, e.g. Village of

1~emontv. IEPA, PCB 80—48, May 1, 1981. The Board would

anti&ipate that a certain number of objections would be filed in

these cases as well, which would trigger hearings even if such

were waived by the petitioners.

More importantly, the Board would question the wisdom or

propriety of its acceptance, without hearings, of an Agency

assertion that any specified, raised numerical limits are the

proper ones for every water supply on an Agency—generated list.

After all, were this a regulatory proposal under Title VII of the

Act, a hearing would be required in at least two areas of the

state. The Board questions whether hearings may 

desirable,

even if not statutorily required, in every county in which an

affected water supply is located.

To justify variance for a group, particularly for those at

the upper end of the limits proposed by the Agency, the Board

would expect the Agency to “take the lead” in presenting

scientific testimony and any necessary related exhibits to

support its opinion concerning the health effects of its

recommended limits, the general costs and infeasibility of

various compliance options, etc.

Secondly, prior to proceeding with a group variance, the

Board believes that supplies should “opt in,” rather than “opt

83-505

out” as suggested by the Agency, as hearing must be waived or

requested and participation in a hearing might be required many

event. The Board would require certain basic data concerning

each water supply. The first item would be a specification of

the radiological quality standard or standards from which

variance is necessary; it is again the experience of the Board

(as born out by the individual villages’ petitions here) that

petitioners need guidance in determining whether reiief is

requested from one or both of the standards, As to public water

supplies with gross alpha readings in excess of 5 pci/i but which

have not analyzed for the radium, the Board also queries whether

relief is also being requested from that requirement, contained

in 35 Ill. Adm. Code 605.105, The second item would be sample

results for the parameters for which variance is requested for as

many sampling periods as are available, excluding any periods in

which data may be suspect, ef, Hanna City, ~pra, Supp. Op. p.

1. Such data would be important in determining whether the

radioactivity level in any community is becoming elevated,

possibly due to contamination by man—made sources of

radioactivity, which would require further scrutiny, A third

item would be a brief description of the supply’s water source,

and whether and when that source would be replaced by’ a regional

source. A fourth would be a listing of any previous drinking

water variances granted by the Board and a listing of any other

parauiet~r (e.g. barium, fluoride) for which the supply is now, or

will soon b~placed on restricted status. ‘The~fifth item would

be a request for hearing and waiver thereof (accompanied by

affidavit), as well as an open waiver of the decision period.

The Board assumes that the Agency has much, if not al~i,of this

information in its possession, and would have no objection to an

Agency—filed group petition containing this information. (In the

event this is the course taken, a listing of the supplies by

county would be helpfuL)

Finally, the Board would request an assessment by the~Agency

as to what effect. if any, the granting of group, as opposed to

individual, variances would have on Illinois’ retention of SDWA

enforcement primacy. More particularly, each of the Villages’

petitions (paragraphs 34--40) discusses the fact that the Board

has taken the position~most recently restated in City ~f Crystal

Lake v~IEPA, PCB 84—2, May 29, 1984, that it ‘~hasthe authority

to grant individual 

variances

consistent with a federal 

variance

under Section 1415 

of the SDWA,

as opposed 

Section 1416

exemptions having strict time deadlines to both small and large

water supply sytems~ (p. 3, emphasis added). In granting each of

the many individual variances from the radiological quality

standards, as well as those from barium and fluoride, the Board

has required economic information not only regarding the costs of

treatment methods to 

achieve

compliance, but also information

concerning the effect Df imposition of such costs on the

particular community involved. The Agency wold appear to be

suggesting that the Board interpret the “taking 

costs into

63-508

—7—

consideration” language of Section 1415 of the SD~Aas meaning

that “any cost is ,per se too high as long as a particular,

to—be—determined level is not reached”. Were the Board to grant

group variances on this basis, and USEPA to reject this

interpretation, in addition

to jeopardizing primacy, the Board

would have issued state variances to numerous communities 

which

w9uld be “not worth the paper they were written on” in defending

against enforcement suits by USEPA. Such a result, after

expenditure of considerable time and

effort in pursuit 

of group

variances, should, of course, be avoided.

In light of the above observations, the Agency may wish to

consider whether it wishes to request the Villages to provide the

Board with an indefinite waiver of the decision periods, 

whether the Agency would prefer to withdraw its motions in these

cases, prepare and assemble data as necessary, and make fresh

group variance filings with new lead petitioners.

The Board requests that the Agency supplement its motions in

these cases with a filing responding to the points raised in this

discussion on or before April 26, 1985 if the Agency wishes the

Board to consider these motions at its May 2 meeting.

IT IS SO ORDERED,

I, Dorothy M. Gunn, Clerk of the Illinois Pollution 

Control

Board hereby certify that the abgve Order was adopted on

the

/Y’~

day of   

1985 by a vote

I

Pollution Control Board

83-507