ILLINOIS POLLUTION CONTROL BOARD
May 15, 1997
CITY OF JOLIET,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 97-137
(Variance - Public Water Supply)
ORDER OF THE BOARD (by K.M. Hennessey):
This matter is before the Board on the City of Joliet’s (Joliet) petition for variance filed
on February 14, 1997. Joliet is seeking an extension of variance from the requirements of 35
Ill. Adm. Code 602.105(a), “Standards for Issuance,” and 35 Ill. Adm. Code 611.106(b),
“Restricted Status,” to the extent these requirements involve 35 Ill. Adm. Code 611.330(a).
The latter section establishes the maximum contaminant level (MCL) for combined radium-226
and radium-228 of 5.0 picocuries per liter (pCi/L). Joliet waived hearing in this matter and
requests that the record of its prior variance be incorporated in this matter, which the Board
grants. (Pet. at 19.)
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On February 14, 1997, Joliet filed a motion for expedited review. Due
to the unique issue presented in this case, as described below, the Board is unable to grant
Joliet’s motion for expedited decision.
On March 19, 1997 the Illinois Environmental Protection Agency (Agency) filed its
recommendation. The Agency recommends that an extension of variance be granted for two
years following USEPA action or five years from the date of this order subject to certain
conditions. (Rec. at 1, 15.)
For the reasons set forth below, the Board believes that the opinion in In the Matter of
Amendments to 35 Ill. Adm. Code Subtitle F (May 1, 1997) R96-18, effective May 8, 1997
may render Joliet’s petition for variance unnecessary. By today’s order, the Board directs the
parties to file briefs on whether R96-18 alleviates the rules’ arbitrary or unreasonable hardship
on Joliet, and thereby gives Joliet the relief it requests.
The Board’s responsibility in this matter arises from the Illinois Environmental
Protection Act (Act). (415 ILCS 5/1
et seq.
(1994).) The Board is charged with the
responsibility of granting variance from Board regulations whenever it is found that immediate
compliance with the regulations would impose an arbitrary or unreasonable hardship upon the
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Joliet’s Petition for Extension of Variance will be cited as (Pet. at __); the Agency’s
Recommendation will be cited as (Rec. at __.).
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petitioner. (415 ILCS 5/35(a).) The Agency is required to appear at hearings on variance
petitions (415 ILCS 5/4(f)), and is charged, among other things, with the responsibility of
investigating each variance petition and making a recommendation to the Board as to the
disposition of the petition. (415 ILCS 5/37(a).)
BACKGROUND
The City of Joliet is a municipality located in Will County, Illinois. (Rec. at 3.) Joliet
provides a potable water supply and distribution system to a population of approximately
111,000 people, representing approximately 21,376 residential customers, and 4,400
commercial and industrial utility customers, as estimated in 1996. Joliet also provides water to
a portion of the Village of Channahon, and additional connections with other surrounding
communities exist to provide standby water service. (Pet. at 5.) Joliet’s water supply and
distribution system consists of 11 deep wells, six shallow wells, pumps and distribution
facilities. (Pet. at 6.)
Joliet’s most recent analyses of its water supply was completed at the following
locations:
June 1996: A sample was taken from the distribution system that receives blended
water from Warren - Gavel 1, Route 6 - Gravel 2, Hahney - Gravel 3, E.
Buck - Gravel 4, W. Buck - Gravel 5, Warren - Rock 1, Hahney - Rock 2,
and Briick - Rock 3. Result: 7.3 pCi/L;
June 1995: Williamson well result: combined radium content of 23.0 pCi/L;
June 1996: Washington well result: combined radium content of 11.8 pCi/L;
June 1996: Campbell well result: combined radium content of 19.3 pCi/L;
June 1996: Well 10-D result: combined radium content of 14.8 pCi/L;
June 1996: Well 11-D result: combined radium content of 13.5 pCi/L;
June 1995: Well 12-D result: combined radium content of 16.9 pCi/L;
Ottawa Well: no longer in operation;
Jasper Well: no data provided. (Pet. at 8.)
Joliet states it has proceeded with actions to develop a new water source that would
accommodate a required capacity of 15 million gallons per day average daily flow. The
Agency states that Joliet is not listed on restricted status for exceeding any other contaminant
standard. (Rec. at 6.)
Joliet is requesting a variance to allow for extension of its water supply and distribution
system to serve new home construction, which was at an all-time high in 1996, and new
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industrial and commercial development. Joliet states that restrictions on extensions of its water
supply would harm land developers, home purchasers and the city’s tax base because
construction is an important part of a community’s economy. (Pet. at 15-16.) Joliet lists the
following active construction projects requiring public water supply for domestic and fire
protections needs:
1. Pheasant Landing Subdivision;
2. Cumberland Subdivision;
3. Mirage Subdivision;
4. Lakewood on Caton;
5. Mayfair Subdivision;
6. Black Road Site;
7. Wesmere Subdivision;
8. Wesmere West Subdivision;
9. Riverbrook Subdivision;
10. Northfield Subdivision;
11. Louis Joliet Mall area (commercial development);
12. The Oaks Subdivision;
13. Kendall Ridge Subdivision;
14. Sunset Ridge;
15. Stonegate Subdivision;
16. Fieldbrook Subdivision;
17. Broodside Subdivision; and,
18. Fairway Estates Subdivision.
(Pet. at Attachment 5.)
The Board previously granted Joliet two variances from “Standards of Issuance,”
“Restricted Status,” and gross alpha particle activity, the last of which expired February 27,
1997. (Pet. at 8; City of Joliet v. IEPA, (November 6, 1986) PCB 86-121; City of Joliet v.
IEPA, (February 27, 1992) PCB 91-246.) Joliet states that sampling in 1995 indicated
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compliance with the gross alpha particle activity standard; therefore, it requests an extension of
its prior variance as to “Standards of Issuance” and “Restricted Status” for five years after the
date the variance request is granted. (Pet. at 2.)
REGULATORY FRAMEWORK
Applicable Regulations
In determining whether any variance is to be granted, the Act requires the Board to
ascertain 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) (1994).) Furthermore, the burden is upon 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. 1977).) The petitioner must establish this burden in order for the claimed
hardship to rise to the level of arbitrary or unreasonable hardship.
A variance, by its very nature, is a temporary reprieve from compliance with the
Board’s regulations, and compliance is to be pursued regardless of the hardship which eventual
compliance presents an individual petitioner. (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 designed to achieve
compliance within the term of the variance, unless certain special circumstances exist. A
request for extension of a variance can be granted on a year to year basis, but only upon a
showing of substantial progress towards achieving compliance. (415 ILCS 36(b) (1994).)
The instant variance request concerns two features of the Board’s public water supply
regulations: Standards for Issuance and Restricted Status. These features are found at 35 Ill.
Adm. Code 602.105 and 602.106, and until May 8, 1997, read as follows:
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.
(35 Ill. Adm. Code 602.105.)
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.
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b)
The Agency shall publish and make available to the public, at intervals of nor
more than six months, a comprehensive and up-to-date list of supplies subject to
restrictive status and the reasons why.
(35 Ill. Adm. Code 602.106.)
Under these regulations, restricted status was imposed whenever a public water supply
was in violation of one or more drinking water standards. Thus, being on restricted status
constituted a determination that a public water supply could no longer be issued a construction
permit without causing a violation of the Act. (35 Ill. Adm. Code 602.106.)
History of Radium Standard
Standards for combined radium in drinking water were first adopted as National Interim
Primary Drinking Water Regulations by the United States Environmental Protection Agency
(USEPA) in 1976. The standard adopted was 5.0 pCi/L for the sum of two isotopes of
radium: radium-226 and radium-228 (“combined radium”). Shortly thereafter Illinois adopted
the same limits. Although characterized as “interim” limits, these standards are the MCLs
under both federal and Illinois law, and will remain so unless modified by the USEPA. In
anticipation of USEPA’s revision of the radium standard, the Illinois legislature amended the
Act at Section 17.6 in 1988 to provide that any new federal radium standard will immediately
supersede the current Illinois standard. The state standard is therefore inexorably tied to the
federal standard, and cannot be greater or less than the federal limit.
Since their original promulgation, the current radium standards have been under review
at the federal level. The USEPA has been evaluating the interim radium standards pursuant to
Sections 1412(b)(1)(B) and 1412(b)(2) of the Safe Drinking Water Act, which require USEPA
to propose and promulgate the National Revised Primary Drinking Water Regulations. On
October 5, 1983, USEPA announced its intention to revise the interim radionuclides standards
in an Advanced Notice of Proposed Rulemaking (ANPR). (48 Fed. Reg. 45502). In that
notice, USEPA stated that it would perform a comprehensive reassessment of the interim
standards in order to optimize public health protection without imposing unnecessary economic
burdens on states and communities. It later republished this ANPR in September 1986,
establishing MCL goals for radionuclides and providing information related to establishing
MCLs for radionuclides. (51 Fed. Reg. 34836).
On July 18, 1991 the USEPA published a rulemaking proposal which included a
revision of the interim standards for radium-226 and radium-228. (56 Fed. Reg. 33050).
USEPA proposes to replace the 5.0 pCi/L combined radium standard with separate MCLs of
20.0 pCi/L each for radium-226 and radium-228. Public hearings on the proposed federal
standard began on September 6, 1991. In an amended consent order in Miller v. Browner,
(No. 89-6328HO, slip op. (D. Or., Feb. 22, 1994)), the federal district court for Oregon
ordered the USEPA to take final action on the radiological rule with respect to the radium-226
and radium-228 standards no later than April 30, 1995. However, Congress prohibited
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funding necessary for the promulgation of a radon standard during 1994 and 1995. Since
radon was a part of the radionuclide proposal, no new standards for radium-226 and radium-
228 were adopted. USEPA has proposed a modification to the Miller v. Browner consent
order; however, it has not yet committed to a new promulgation schedule.
Since 1991, when the USEPA proposed increasing the radium and gross alpha particle
standards, the Agency placed those public water supplies that exceed the 5.0 pCi/L combined
level or 15.0 pCi/L gross alpha particle MCL on restricted status pursuant to Section 601.106
of the Board regulations. (35 Ill. Adm. Code 602.106.) As previously stated, placement on
restricted status prevents the Agency from granting permits. However, a public water supply
may petition the Board for a variance from restricted status. (415 ILCS 5/35 (1994).)
The variance process is costly to communities and expends Agency and Board
resources. (
See
In the Matter of Amendments to 35 Ill. Adm. Code Subtitle F (May 1, 1997)
R96-18 at p.7.) As of October 1996, the Board had issued 134 variances from restricted status
for 83 public water supplies that exceeded the 5.0 pCi/L combined radium standard. Thirty-
five of these public water supplies (or 26%) have received more than one variance. (Id.)
Amendment to Sections “Standards for Issuance” and “Restricted Status”
To resolve the problems that arose because the radium standard is in flux, the Agency
proposed amendments to the Board’s regulations that would allow the Agency to issue
construction permits notwithstanding the fact that a public water supply is on the restricted
status list for a violation of the radium MCL. On May 1, 1997 the Board adopted the
Agency’s proposal. (In the Matter of Amendments to 35 Ill. Adm. Code Subtitle F (May 1,
1997) R96-18.) This rulemaking adds a new subsection (d) to Sections 602.105 and 602.106
which precludes the Agency from enforcing the restricted status regulations against those
facilities that currently exceed the current radium or gross alpha activity MCLs, but that are in
compliance with the proposed federal radium MCLs.
This exemption will be in effect for a limited time and will alleviate some of the
regulatory burden placed upon public water supplies that are waiting for federal action on the
proposed radium MCL. As stated in the Board’s opinion, “[e]xemption of certain public water
supplies from the provisions of 35 Ill. Adm. Code 602.105 and 602.106 provides a common
sense approach to alleviating the financial and regulatory burden placed upon public water
supplies due to the failure of the USEPA to adopt the proposed radium and gross alpha particle
standards in a timely fashion.” (In the Matter of Amendments to 35 Ill. Adm. Code Subtitle F
(May 1, 1997) R96-18 at 8.)
ANALYSIS
As noted, R96-18 is now effective and amends the rules from which Joliet seeks a
variance extension. These amendments may preclude the Agency from enforcing against Joliet
the Standards for Issuance and Restricted Status regulations from which Joliet seeks a variance.
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If so, the regulations as amended may no longer impose an arbitrary or unreasonable hardship
on Joliet.
As a result, the Board believes it prudent to allow the parties to address this issue.
Because the due date in this matter is June 15, 1997, the Board must render its decision at its
next Board meeting, June 5, 1997. Therefore, the Board directs the parties to file briefs on or
before May 29, 1997.
IT IS SO ORDERED.
Board Member R. C. Flemal dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above order was adopted on the 15th day of May, 1997, by a vote of 5-1.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
