ILLINOIS POLLUTION CONTROL BOARD
September 9, 1999
VILLAGE OF PRINCEVILLE,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 00-15
(Variance - Public Water Supply)
OPINION AND ORDER OF THE BOARD (by R.C. Flemal):
This matter is before the Board on the July 26, 1999 variance petition filed by the Village of
Princeville (Princeville), in Peoria County, Illinois. Princeville seeks relief for twenty-four months from
35 Ill. Adm. Code 602.105 “Standards for Issuance” and 35 Ill. Adm. Code 602.106 “Restricted
Status” for gross alpha particle activity. The maximum contaminant level (MCL) gross alpha particle
activity is 15 pCi/L. 35 Ill. Adm. Code 611.330(b). Princeville waived hearing and none was held.
The Board's responsibility in this matter arises from the Environmental Protection Act (Act).
415 ILCS 5/1
et seq
. (1998). The Board is responsible for granting variances from Board regulations
whenever it is found that compliance with the regulations would impose an arbitrary or unreasonable
hardship upon a petitioner. 415 ILCS 5/35(a) (1998). The Illinois Environmental Protection Agency
(Agency) is required to appear at hearings on variance petitions. 415 ILCS 5/4(f) (1998). The Agency
is also charged with the responsibility of investigating each variance petition and making a
recommendation to the Board for the disposition of the petition. 415 ILCS 5/37(a) (1998).
The Agency filed its variance recommendation on August 19, 1999.
1
The Agency recommends
that a variance from 35 Ill. Adm. Code 602.105(a) “Standards for Issuance” and 35 Ill. Adm. Code
602.106(b) “Restricted Status” be granted to Princeville, but only as they relate to the requirement for
gross alpha particle activity under 35 Ill. Adm. Code 611.330(b). The Agency recommends that the
variance be granted for twenty-four months subject to certain conditions discussed more fully below.
Ag. Rec. at 13. The statutory decision deadline is November 23, 1999.
For the following reasons, the Board finds that Princeville has presented adequate proof that to
require immediate compliance with the Board's regulations for “Standards for Issuance” and “Restricted
Status” would result in the imposition of an arbitrary or unreasonable hardship. Accordingly, the
1
Princeville’s petition for variance will hereinafter be referred to as “Pet. at .”; the Illinois
Environmental Protection Agency’s recommendation will be referred to as “Ag. Rec. at .”
2
variance is granted, subject to the conditions set forth below.
BACKGROUND
Princeville is located in Peoria County, Illinois. Princeville provides public services including
potable water supply and distribution to an estimated population of 656 residential and 85 industrial and
commercial utility customers. Pet. at 4. The total population served is estimated as 1,715 persons. Ag.
Rec. at 5. Princeville owns and operates its own water distribution system. The system is a deep well
water supply system including 3 deep wells, pumps, and distribution facilities. Pet. at 5. Water is
provided to residential, commercial, and industrial users, as needed. Charges, as established by
ordinance, are made to all users.
Id.
Princeville is not part of a regional public water supply. Pet. at 4.
The Agency first advised Princeville that it exceeded the MCLs for radium-226, radium-228,
and gross alpha particle activity on September 25, 1987. Pet. at 6. Princeville has previously sought
and obtained a variance from 35 Ill. Adm. Code 602.105(a), “Standards for Issuance” and 35 Ill. Adm.
Code 602.106(b), “Restricted Status,” but only to the extent those rules involve 35 Ill. Adm. Code
611.330(a) combined radium-226 and radium-228 and 35 Ill. Adm. Code 611.330(b) gross alpha
particle activity. Pet. at 2, Ag. Rec. at 5. The petition for variance was granted by the Board on
January 20, 1994, in PCB 93-227, and accepted by Princeville on January 25, 1994.
Id.
The variance
granted in PCB 93-227 expired on September 30, 1998. Pet. at 6, Ag. Rec. at 5. The most recent
analyses and results of Princeville’s water supply were completed on the following:
02/24/99, Tap 1, Gross-
α
of 33
±
5 pCi/L;
02/24/99, Tap 2, Gross-
α
of 42
±
6 pCi/L;
01/26/99, Tap 1, Gross-
α
of 16
±
5 pCi/L;
02/10/99, Tap 2, Gross-
α
of 42
±
5 pCi/L;
Princeville currently does not have any controls for radium and gross alpha particle activity
contaminants. Pet. at 6. On October 17, 1997, the Agency notified Princeville that the water supply
system had been placed on the Restricted Status list for exceeding the MCL for adjusted gross alpha
particle activity. Ag. Rec. at 6.
Princeville has begun construction of a new water treatment plant utilizing a reverse osmosis
system to remove radium and other contaminants to achieve compliance with the radiological MCLs.
Pet. at 6. Actual construction for the new water treatment plant began on November 2, 1998. Pet. at
7. Construction is expected to be completed by December 31, 1999.
Id.
The new treatment plant is
expected to be fully operational in the year 2000. Pet. at 6. Once construction is completed, it is
expected that an additional three months will be required to bring the system on-line and achieve full
compliance with MCL regulations. Pet. at 7. Princeville estimates that the total cost to improve its
water system to achieve compliance is $2,845,832.
Id.
The water treatment plant and the new water
tower are being funded through the Agency’s revolving loan fund. Ag. Rec. at 7. Princeville states that
it will proceed with diligence in the construction and operation of the new treatment plant. Pet. at 8.
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Princeville requests this variance to allow construction of a water main extension to serve two
parcels recently annexed to Princeville. Pet. at 1. The extension is presently expected to serve one
existing home and one new construction. Pet. at 4. Princeville is not presently on restricted status for
exceeding any other contaminant. Ag. Rec. at 6.
Because recent measurements of gross alpha particle activity level minus the radium-226 level in
the water supply exceed 15 pCi/L, Princeville does not fall within the exceptions provided in Sections
602.105(d)(3) and 611.106(d)(3). 35 Ill. Adm. Code 602.105(d)(3) and 602.106(d)(3); Pet. at 2. If
the gross alpha particle activity level minus the radium-226 level is less than or equal to 15 pCi/L, then
the Agency may not place a public water supply on restricted status or deny a construction permit, and
Princeville would therefore not need to petition for a variance in order to proceed with construction of
water main extensions.
REGULATORY FRAMEWORK
Princeville’s variance request involves two of the Board's public water supply regulations:
“Standards for Issuance” and “Restricted Status,” which are found at 35 Ill. Adm. Code 602.105 and
602.106. In pertinent part the regulations read:
Section 602.105
Standards for Issuance
(a)
The Agency shall not grant any construction or operating permit required by this
Part, except as otherwise provided in subsection (d) of this Section, 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 [415 ILCS 5].
Section 602.106
Restricted Status
(a)
Restricted status shall be defined as 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.
The cumulative effect of these regulations is that community water supply systems are prohibited
from extending water service unless and until their water meets all of the standards for finished water
supplies. A community water supply not meeting the MCLs will also be placed on the Agency’s
“Restricted Status” list. A grant of variance from “Standards for Issuance” and “Restricted Status”
neither absolves a petitioner from compliance with the drinking water standards at issue, nor insulates a
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petitioner from a possible enforcement action brought for violation of those standards. The underlying
standards remain applicable to the petitioner regardless of whether a variance is granted or denied. City
of Altamont v. IEPA (December 7, 1995), PCB 96-65. Princeville requests this variance in order to
extend its water service while it continues to pursue compliance with the gross alpha particle activity
standard, as opposed to extending service only after attaining compliance.
In determining whether a variance is to be granted, the Act requires the Board to determine
whether a petitioner has presented adequate proof that immediate compliance with the Board
regulations at issue would impose an arbitrary or unreasonable hardship. 415 ILCS 5/35(a) (1998).
Furthermore, the burden is on the petitioner to show that its claimed hardship outweighs the public
interest in attaining compliance with regulations designed to protect the public. Willowbrook Motel v.
Pollution Control Board, 135 Ill. App. 3d 343, 481 N.E.2d 1032 (1st Dist. 1985). Only with such a
showing can the claimed hardship rise to the level of arbitrary or unreasonable hardship.
A variance is only a temporary reprieve from compliance with the Board's regulations.
Compliance is to be sought regardless of the hardship which the task of eventual compliance presents to
an individual polluter. Monsanto Co. v. Pollution Control Board, 67 Ill. 2d 276, 367 N.E.2d 684
(1977). Accordingly, as a condition to the granting of variance, a variance petitioner is required to
commit to a plan which is reasonably calculated to achieve compliance within the term of the variance,
unless certain special circumstances exist.
COMPLIANCE PLAN
Princeville is proceeding with construction of a new water tower and a new water treatment
facility utilizing reverse osmosis to eliminate contaminants including radium and other sources of gross
alpha particle activity. Pet. at 7. The reverse osmosis system was selected to eliminate contaminants
including radium and gross alpha particle activity to achieve compliance with MCL regulations. Ag.
Rec. at 7. Actual construction began on November 2, 1998. Pet. at 7. Construction is expected to be
completed by December 31, 1999.
Id.
Once construction is complete, it is expected that an additional
three months will be required to bring the system on-line and achieve full compliance with MCL
regulations.
Id.
The total estimated cost to achieve compliance is $2,845,832.
Id.
Princeville intends to continue its sampling program to monitor the level of radioactivity in its
wells and finished water. Pet. at 9. Princeville intends to collect quarterly samples of its water from its
distribution system and will composite and analyze them annually by a laboratory certified by the State
of Illinois for radiological analysis so as to determine the concentration of the contaminants.
Id.
Princeville also intends to take all reasonable measures with its existing equipment to minimize the level
of gross alpha particle activity in its finished water.
Id.
The Agency states that Princeville has previously sought a variance from regulations pertaining
to radium and gross alpha particle activity. Ag. Rec. at 5. Additionally, Princeville is not presently on
restricted status for exceeding any other contaminant. Ag. Rec. at 6.
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HARDSHIP
Princeville contends that failure to obtain a variance would cause arbitrary and unreasonable
hardship. Pet. at 11. A denial of a variance will bar new construction in Princeville during the
construction of the new water treatment plant, where construction has been allowed in the past, and will
be allowed once the new water supply system is completed.
Id.
Currently, one of the existing homes to
be served by the proposed extension relies upon well water likely to be inferior to water to be provided
by Princeville. Pet. at 10. Princeville also asserts that failure to obtain a variance would mean that all
construction within its service area requiring new water main extensions must await completion of the
new water treatment plant and operational testing.
Id.
Princeville alleges that this hurts prospective
home purchasers, business developers, and Princeville’s tax base.
Id.
The Agency agrees that denial of a variance would result in an arbitrary or unreasonable
hardship because denial of that variance would require the Agency to continue to deny construction and
operating permits for new water main extensions until compliance is achieved. Ag. Rec. at 10.
Imposition of restricted status means that no new water main extensions could be issued permits by the
Agency, and economic growth dependent on those water main extensions could not occur.
Id.
ENVIRONMENTAL IMPACT
Princeville opines that granting this variance will not cause harm to the environment or to the
people served by the water supply system, as it does not consider the radiological quality of the
community water supply to be a significant health risk. Pet. at 8. The Agency believes that any
incremental increase in the concentration for radium and gross alpha particle activity allowed by the
grant of the requested variance should cause no significant health risk for the limited population served
by new water main extensions for the time period of the recommended variance. Ag. Rec. at 8-9. The
Agency further agrees that granting the requested variance would not impose any significant injury to the
public or to the environment for the limited time period of the recommended variance. Ag. Rec. at 9.
CONSISTENCY WITH FEDERAL LAW
The Agency states that Princeville may be granted a variance consistent with the requirements of
the Safe Drinking Water Act (42 U.S.C. § 300(f)), and the United States Environmental Protection
Agency (USEPA) Drinking Water Regulations (40 C.F.R. Part 141 (1998)) because the requested
relief would not represent a variance from national primary drinking water regulations. Ag. Rec. at 11.
Specifically, granting a variance from the effects of restricted status means that only the State's criteria
for variances are relevant.
Id.
The Agency states that Princeville remains subject to the possibility of federal enforcement for
violations of the MCL for radium and gross alpha particle activity. Ag. Rec. at 12. The Agency notes
that because of continuing progress being made toward compliance, the Agency does not believe “that
USEPA will object to the issuance of the variance, should the Board so decide.”
Id.
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CONCLUSION
Based on the record, the Board finds that immediate compliance with 35 Ill. Adm. Code
602.105(a) “Standards for Issuance” and 35 Ill. Adm. Code 602.106(b) “Restricted Status” regulations
would impose an arbitrary or unreasonable hardship on Princeville. The Board also finds that granting
this variance does not pose a significant health risk to those persons served by any new water main
extension.
Consistent with the Agency’s recommendation, we will grant Princeville a variance which will
expire September 9, 2001. This will give Princeville time to complete construction of the new water
treatment plant, monitor its water and have adjustments made if necessary, and give Princeville four
quarters for testing its samples to see if it is in compliance.
The Board's action is solely a grant of variance from “Standards for Issuance” and “Restricted
Status” as they relate to gross alpha particle activity. Princeville is not granted variance from compliance
with the gross alpha particle activity standard and Princeville is not insulated from enforcement for
violation of this standard.
This opinion constitutes the Board's findings of fact and conclusions of law in this matter.
ORDER
The Village of Princeville (Princeville) is hereby granted a variance from 35 Ill. Adm. Code
602.105(a) “Standards for Issuance” and 602.106(b) “Restricted Status” as they relate to the maximum
contaminant level (MCL) for gross alpha particle activity in drinking water as set forth in 35 Ill. Adm.
Code 611.330(b), subject to the following conditions:
1.
The variance terminates on September 9, 2001.
2.
In consultation with the Agency, Princeville shall continue its sampling program to
determine as accurately as possible the level of radioactivity in its wells and furnished
water supply. Until this variance expires, Princeville shall collect quarterly samples of
water from its distribution system at locations approved by the Agency. Princeville shall
composite the quarterly samples from 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 gross alpha particle activity. The results of the
analyses shall be reported within 30 days of receipt of the most recent result to:
Illinois Environmental Protection Agency
Division of Public Water Supplies
Compliance Assurance Section
1021 North Grand Avenue East
P.O. Box 19276
7
Springfield, Illinois 62794-9276
At the option of Princeville, 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.
3.
Pursuant to 35 Ill. Adm. Code 611.851(b), 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, Princeville will send to each user of its public water supply a written notice to
the effect that Princeville is not in compliance with the MCL for gross alpha particle
activity and has been granted by the Pollution Control Board a variance from 35 Ill.
Adm. Code 602.105(a) “Standards for Issuance” and 35 Ill. Adm. Code 602.106(a)
“Restricted Status,” as they relate to the MCL for gross alpha particle activity. The
notice shall state the average content of the contaminant in samples taken since the last
notice period during which samples were taken.
4.
Until full compliance is reached, Princeville shall take all reasonable measures with its
existing equipment to minimize the level of gross alpha particle activity in its finished
drinking water.
5.
Princeville shall provide written progress reports to the Agency at the address below
every six months concerning steps taken to comply with this order. Progress reports
shall quote each paragraph and immediately below each paragraph state what steps
have been taken to comply with that paragraph:
Illinois Environmental Protection Agency
Division of Public Water Supplies
Field Operations Section
1021 North Grand Avenue East
P.0. Box 19276
Springfield, Illinois 62794-9276
If Princeville chooses to accept this variance, within 45 days of the grant of the variance,
Princeville must execute and forward the attached certificate of acceptance and agreement to:
Stephen C. Ewart
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
IT IS SO ORDERED.
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Once executed and received, that certificate of acceptance and agreement shall bind Princeville
to all terms and conditions of the granted variance. The 45-day period shall be held in abeyance during
any period that this matter is appealed. Failure to execute and forward the certificate within 45 days
renders this variance void. The form of the certificate is 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
00-15, dated September 9, 1999.
_________________________________
Petitioner
_________________________________
Authorized Agent
_________________________________
Title
_________________________________
Date
Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1998)), provides for the
appeal of final Board orders to the Illinois Appellate Court within 35 days of the date of service of the
order. Illinois Supreme Court Rule 35 establishes such filing requirements. See 172 Ill. 2d R 335; see
also 35 Ill. Adm. Code 101.246, Motions for Reconsideration.
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, do hereby certify that the
above opinion and order was adopted on the 9th day of September 1999 by a vote of
6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
