ILLINOIS POLLUTION CONTROL BOARD
September 20,
1985
CITY OF GENEVA,
)
)
Petitioner,
)
v.
)
PCB 85-93
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
OPINION AND ORDER OF THE BOARD
(by W.J. Nega):
This matter
comes
before the Board on a Petition for
Variance filed on July 1,
1985 by the City of Geneva.
The
Petitioner has requested a five-year variance from the public
water
supply rules concerning Illinois Environmental Protection
Agency
(Agency) issuance of construction or operating permits
delineated in 35
Ill.
Adin. Code 602.105(a) and Agency listing of
water supplies on restricted status set forth in
35 Ill.
Adm.
Code 602.106(b)
as these rules pertain to the maximum allowable
concentration of
5 picocuries per liter
(pCi/i) for combined
radium-226 and radium-228 of
35 Iii.
Adm. Code 604.301(a) and to
the
15 pCi/i
gross alpha particle activity limit specified in
35
Ill.
Adm.
Code 604.301(a).
The City of Geneva has also requested
a variance from 35
Iii. Adm. Code 602.106(a) defining restricted
status.
(Pet.
1—11).
The Petitioner waived its right to a hearing and no hearing
was held in this matter.
(Pet.
11).
On July 30, 1985,
the Agency filed its Recommendation which
recommended
that the Board
grant the Petitioner
a variance,
subject to certain conditions, for a time period not to exceed
five years from 35 Iii. Adm. Code 602.105(a)
and 602.106(b)
as
these rules relate to
35 Iii. Adm. Code 604.301(a) on combined
radium—226 and radium-228 only.
(Rec.
10).
However, the Agency
also recommended that variance from 35
Iii. Adm.
Code 602.105(a)
and 602.106(b)
as these rules apply to gross alpha particle
activity in 604.301(b), and variance from
35 Ill.
Adrn.
Code
602.106(a),
be denied
as unnecessary.
(Rec.
10).
On August
8,
1985, the City of Geneva filed
a Motion and
Request for Expedited Decision on its Request for Variance.
On August
15,
1985, the Board entered an Interim Order which
denied
the Petitioner’s motion for expedited decision,
as moot,
based on its action the same day adopting an emergency rule in
R85-14
In The Matter Of Proposed Amendments
to Public Water
Supply Regulations
(35 Iii. Adm.Code602.105 and 602.106).
This
65-513
-2-
emergency rule,
which is effective for 150 days
(i.e., until
January 12,
1986),
allows the Agency to issue permits for water
main extensions
to public water
supplies presently on restricted
status for delivering finished water containing levels
of
Fluoride, combined radium-226 and radiurn-228, or gross alpha
particle activity concentrations in excess
of those allowed by
Board regulations,
as long as those concentrations do not exceed
4.0 mg/i,
20 pCi/i, and 60 pCi/i respectively.
In
a letter to the Board dated September
10,
1985,
Mr.
Charles
A. Radovich, the City Attorney for the City of Geneva,
strongly objected to the possibility that the Board would deny or
dismiss as moot the variance petition in PCB 85-93 in light of
the Board’s adoption of the emergency rule in R85-14.
The
Board
finds that this matter is not moot.
The emergency rule will
expire in some four months.
The record in R85-14 will likely not
be completed by that date,
as
1)
an additional merit hearing will
be scheduled this November,
2)
the Department of Energy
& Natural
Resources is
in the process of determining the scope of
the
Economic Impact Study
(EelS) which it has determined should
be
made,
and hence cannot accurately project a completion date for
the EcIS and
3)
the Board must hold hearings on the EelS.
Thus,
upon the January 12 expiration of the emergency rule, Geneva will
once again be subject to the “no water main extension permits”
effects of restricted status.
Geneva has expended resources
in
preparation of the petition, as has the Agency in reviewing it,
and this record is now complete.
Therefore,
the Board sees no
reason not
to adjudicate the matter on its merits.
The City of Geneva,
which has
a population of about
10,500
people,
is located in Kane County.
The Petitioner
owns and
operates a deep well water supply system which provides “potable
water supply and distribution for a population of
3,315
residential, 28 industrial
and 350 commercial utility
customers”.
(Pet.
4).
According to the Petitioner’s
1980
estimates, the 28 local industries
and businesses served by its
water facilities employ about
5,000 people.
The City of Geneva’s
public water distribution system includes
6 deep wells
(Wells
#2
to
#7)
ranging in depth from 1,350 feet to 2,300 feet which were
placed in operation at various times between 1924 and 1983
(Well
#1,
which was placed in operation in 1896 and was 850 feet deep,
was later abandoned in
1947);
two ground level storage
reservoirs;
two elevated storage tanks; and various
pumps,
appurtenances, and distribution facilities.
(Pet.
4-5).
The Illinois Environmental Protection Agency’s recent tests
on the Petitioner’s deep well water indicated a radium-226 count
of
4.4 pCi/i and a radium-228 content of
9.2 pCi/i, thereby
resulting in
a combined radium-226 and radium-228 level of 13.6
pCi/i which is
in excess of the applicable
5 pCi/i standard.
Water samples “of
an annual composite of four consecutive
quarterly
samples
or
the
average
of
the
analyses
of
four
samples
obtained
at
quarterly
intervals”
from
the
Petitioner’s
facilities
were
taken
by
the
Agency,
while
the
actual
water
sample
testing
65-514
—3-
was performed by the United States Environmental Protection
Agency’s
(USEPA) laboratory and the results were subsequently
reported to the Illinois Environmental Protection Agency.
(Rec.
5).
On September 14,
1984, the analysis was reported to the City
of Geneva and the Petitioner’s own recent water sampling analyses
have confirmed the Agency’s findings.
(Pet., Attachment
#3).
Samples
of well water taken on February 20,
1985 by the City
of
Geneva’s Public Works Department, when subsequently analyzed by
the
Argonne National Laboratory,
indicated combined radium levels
ranging from 8.45 pCi/i to 18.08 pCi/i in the various wells.
(Pet., Attachment
#3).
The preliminary results of this recent
test are
as follows:
Sample
Source
Radi~.nn-226
Radiun-228
-
Canbined
Well
No.
Two
5,47
÷/—0~82
4.49
+/—
0.98
9.96
Well No. Three
8.83
+/—
1.32
9.25
÷/- 1.85
18.08
Well No. Five
7.53
+1-
1.12
7.65
÷1—
1.53
15.18
Well No. Six
4.62
÷/-
0.69
5.09
÷/—
1.18
9.71
Well No. Seven
3.83
+/-
0.57
4.62
+1-
0.92
8.45
Distribution
5.85
÷1-
0.88
8.21
+1-
1.64
14.06
Note:
All results reported in picocuries
per Liter
(Pet,, Attachment
#3)
According to these water sampling tests,
the average combined
radium-226 and radium-228 level
is 12.57 pCi/i which is in excess
of
the present
5 pCi/i standard and in the same general range
as
the test results
(i.e.,
13.6 pCi/i) obtained in Agency testing.
Although the Agency’s letter dated June 14,
1979
(See:
Attachment
#1 to the variance petition) implied that the
radiological
(i.e., gross alpha particle) content of the
Petitioner’s water may have exceeded the
15 pCi/I limit at one
time, the Agency subsequently sent another letter to the City of
Geneva on October 16,
1980 which indicated that the Petitioner
was in compliance with applicable standards.
This October
16,
1980
letter
stated
that:
“Recently
we
sent
you
a
copy
of
the
radiological
analysis
report
for
the
composite
sample
made
up
from
the
four
samples
which
you
submitted
over
the
past
several
months.
The
gross
alpha
analysis
indicated
an
activity
of
12.2
pCi/i.
This
is
below
the
maximum
allowable
concentration
(MAC)
for
gross
alpha
activity,’
(Rec.
4).
Accordingly,
the
Agency
emphasizes
that
it
does
not
have
any
records
demonstrating
that
the
City
of
Geneva
is
currently
exceeding
the
gross
alpha
particle
limit
of
15
pCi/i
of
35
Iii.
Adra.
Code
604,301(b).
Therefore,
the Agency has contended
that.
65-515
—4--
the City of Geneva
‘‘does not need, and should not receive,
a
variance from 35 Ill. Adm. Code 602.105 or 602.106(b), to the
extent. those rules involve
35 Iii. Adm,
Code
604.301(b)
(gross
alpha particle activity)”.
(Rec.
4).
The Board believes
that.
the Agency
is entirely correct in its viewpoint, and will
therefore deny the variance from 35 Ill. Adm. Code 602.105(a) and
602,106(b) as they involve
35 Ill. Adm. Code 604.301(b)
(gross
alpha particle activity) as unnecessary.
Because
it
was unaware of the excessive combined radium
content of its water until September 1984, the City of Geneva has
considered various control strategies in a general w~ybut has
not yet identified the compliance option that it wishes to
utilize,
(Pet.
6-8).
In the supplement to the City of Geneva’s variance petition,
the Petitioner notes three possible alternative water sources
which include:
(1) Lake Michigan water;
(2)
Fox River water;
and
(3) shallow wells.
(Pet.
Supp.
6—8).
The Petitioner notes that it does not presently have
an
allocation for Lake Michigan water and estimates that it would
take
about
5
years
to receive such an allocation by pursuing one
through
the
appropriate
agencies
and
would
take
10
years
to
physically receive Lake Michigan water,
(Pet.
Supp.
6).
Moreover,
the substantial costs entailed in such
a project are
estimated
to
require
water
rates
of
about
$5-$6
per
1,000
gallons
as
compared
to
the
existing
rate which is much lower
(i.e.,
$1.25
per 1,000 gallons).
If
the
City
of
Geneva
attempted
to
utilize
Fox
River
water
as a
portion
of
its
water
supply,
it
would
cost
an
estimated
$7,000,000 to construct
the
requisite
river
water treatment
plant;
require
an
increase
of
the
city’s
water
department
staff
from
3
to
8
people
(costing
about
$140,000
extra
per
year
in
wages);
and result in an estimate annual increase of S5O,000 in
chemical costs and $100,000 in energy costs.
Shallow wells, which are about
350
to
400
feet
deep,
are
another possible alternative water source,
Installation of
shallow blending wells
(to blend radium free shallow well water
with
deep well water
in
order
to
reduce
the
radium
levels
to
5
pCi/i
or less) would have an
estimated
time
for
implementation
of
5 years and would necessitate purchase of the requisite land
sites,
“water
main
easements,
well
drilling,
housing,
chlorination
and
fluoridation,
iron
removal
and
2
elevated
tanks
estimated to cost approximately $7,152,720.00
(see Exhibit
#9).’’
(Pet,
Supp.
7).
Although a single high capacity well
is
not currently available close to the Petitioner, the City of
Geneva has spent
$4,962.00 as its share of
a study made in
conjunction with the University of Illinois, Kane County,
and
various cities
‘‘for a cooperative investigation of the
geophysical and hydrologic properties
of the shallow groundwater
resources
in Kane County”
in order to help locate appropriate
85-516
groundwater
sour::es.
(Pet,
Supp.
6-8).
The installation of~
shallow blending
wells,
if feasible, would also require an
increase in the municipal water department staff
at
a cost of
about $140,000 annually in wages and would result in
proportionate increases in chemical, energy and maintenance
costs.
(Pet.
Supp.
7-8).
If such shallow well utilization were
implemented,
the City
of Geneva
has
indicated
that “when
the best
locations
are
determined,
shallow
wells
will
be
COnsr
rur~:e~iai.on~!
with
necessary
mains
and
appurtenances.”
(Pet,
6).
~owev~ r,
the
City
of
Geneva
believes
that
the
abandonment
and
seaiirig—oI~F of
$2.5
million
do1~a:~worth
of
deep
wells
and
investment
ol
$7,452,720.00
L~
.~:~iowwells
is
not
economically
ju.~tified
at
the
present
t:j:
The City
~
:~scussedtreatment of
its current
water
source
by lime ~
i~ie-sodasoftening and
ion exchange
soften~Lng.
It
that
each
method
concentrates
radiu~
in
the
resulting
treatr~
3ludge
causing handling and disposal
problems
and ha~
The ion
exchange process also can increase
the sodium conte.~.
•~
the finished
water if salt is used to
regenerate
the
s
~::~er;
this
can
pose
a
health
risk
to persons
who
suffer
from
~ertension
or
heart
problems.
Ion
softenii~
~:r
reverse
osmosis also have other drawbacks
because
such
metli:;
mandate
large
plant
construction
and
are
estimated
to
cost
:~~er
$8
million
dollars.
(Pet.
Supp.
8)~
The City of (:~,ievahas contended that the denial
of
the
requested variance
iouid impose an arbitrary or unreasonable
hardship because:
,
1)
presently
“a~railable
methods
of
compliance
are so expensive
t±~at
they are practically prohibitive”;
(2)
future expansion o~:
th~
Petitioner’s municipal water dist:~ibu~ion
system
“will
inclur~e shallow
wells
that
are
radium
free”;
(3)
the
existing standards
for
radionuclides
are
currently
being
reviewed
and will probably be relaxed so
that. “any attempt at removing or
diluting
radium
during
the interim
period will,
for the
most
part, be wasted effort and money”;
(4)
the Petitioner has ~‘more
pressing
infrastructure
problems”
including
pending
water
and
sewer rehabilitation,
street rehabilitation, police and fire
projects,
etc.
which
are
estimated
to cost over
$8.8 million
dollars
(see:
Exhibits
#1—3);
(5) water and sewer rates must be
raised
41
to fund normal system maintenance programs,
and
(6)
the city is f±nanc:Laliystrapped for cash, having over
$3 million
dollars worth of outstanding Revenue
and General Obligation
bonds
and a maximum general obligation bonding capacity which is
at
its
limit
(without referendum).
(Pet.
Supp.
1—11;
see: Exhibits
1-17).
The City additionally
asserts
that~
“Geneva has four residential developers wishing to begin
construction
now
or in the ~
near future
.
,
~Those
projects livho~eworth on completion will
be
S4.978 million
are or will
~
~eiayed as
a result
of the withholding of
1:EPA
‘~5~517
-6-
watermain extension permits.
In addition to
these
developments,
the
City
presently
desires
to
construct
a
12’
arterial watermain along East Side Drive to reinforce our
existing
water
distribution
system
as
well
as
providing
adequate fire flow capacity to
a growing area of
the City.
The withholding of these watermain extension permits denies
the City of
the related tax revenues
as
well
as hindering the
City from fulfilling its public service respons-ibilities
(Pet.
Supp.
3)~
In
recommending
grant
of
varlan
~rorr
~
~O2.
)
Agency
stated
its belief that:
,Whiie
radiation
at
any
:Levei
crea es some
:3k,
the
risk associated with this level
is very low.
Origii11
estimates
were
that
5
pCi/i
could
result
in bone c~n:erto
somewhere between 0.7 and
3
persons per
million exposed~
More recent feeling is
that
this
is
prohab~y
a
high
es
timate
since much less radium is retained
In the body
than
what
was
previously
thought.
The
maximum
allowable
concentration
(~?MAC~)
for
radium
is
currently under review at
che federal
level.
However,
the
Agency
does
not expect any proposal,
to
change
the
standard
before
late
i985~..
The
Agency
bel:Leves
an
incremental increase in the
allowable
concentration
for
combined
radium--226
and
radium-228,
even
up
to
a
maximum
of
20
pCi/I,
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.
6-7).
In
support of
this
conclusion,
the
Agency
incorporated
by
reference
testimony
submitted
in
PCB 85—51, City of
Aurora
v,
IEPA,
July
1:1,
1985.
This testimony presented by Dr. Richard
E.
Toohey, measurements group leader for the Center
for Radiobiology
of
Argonne
National
Laboratory,
was summarized by the Board
in
PCB
85—51.
The
Agency
suggests
that,
in
determining
whether
the
costs
of
compliance
are
an
unreasonable
or
arbitrary
hardship
upon
the
Petitioner, the Board should evaluate “whether significant
adverse health effects are likely if the variance is
granted as
well
as whether there is
a reasonable possibility of compliance
with the
radium standard
in
the foreseeable future.”
(Rec.
8).
The Agency has concluded that
“t:he
grant
of
the
requested
variance
would
impose
no
significant
injury
on
the public or on
the
environment
for
the
limited time period of the requested
variance
and
that denial
of
the r
nrnmended~’ar::~.
anc:e
~o.ol
I
be
an
arbitrary
and
unreasonable
hardship
to
Petitioner.”
(~t&ec
6).
~18
—7-
As to the request for variance from the rule requiring the
Agency to list communities on restricted status, the Agency
states that:
If the Board grants Petitioner a variance
from
35
Ill.
Adm. Code 602.105(a)
(Standards for Issuance) so that the
Agency
legally
may
not
deny
permits
to
Petitioner
due
to
Petitioner
violating
the
combined
radium-226
and
radium-228
standard,
then
the
Agency
should
not
be
required
to
publish
that
Petitioner
is
on
the
Agency’s
Restrictive
Status
List
for violating those standards, because that would mislead
developers and other persons who check the Restricted Status
List.
Hence, a variance should also be granted
from
35
IlL.
Adm. Code 602.106(b), but only to
the
extent it
i’iv’~1ves the
combined radium-226 and -228 standard.N
(Rec.
8-9).
However, the Agency recommends that the Board deny the
Petitioner’s request for a variance from 35
Iii.. Adm. Code
602.1.06(a) because this provision merely defines restricted
status.
(Rec.
9).
The Board finds
that
denLal
of
variance
would
impose
an
arbitrary or unreasonable hardship on Geneva, given its economic
situation and need to increase its fire—fighting capabilitten.
Variance to allow continued issuance of water main extension
permits will be granted for
the
period beginning January 12,
1986
and ending March 30, 1987, subject to conditiona.
A variance
term of approximately 15 months rather than 5 years has been
chosen because, due to the fact that Geneva has known of its
radium problem for just a year, it has only begun its exploration
of compliance options and has made no commitment to achieve
compliance
by a date certain as has, for instance, the City of
Aurora.
Variance for this time period will allow the City to
develop a plan and timetable to achieve and finance compliance
with applicable radium standards, as well aa allowing the Board
adequate time to complete the R85-l4 rulemaking.
Geneva may then
apply
for
any necessary extension of variance.
The Board agrees with the Agency
that
the risk of adverse
health effects to the limited population consuming water
delivered by the new water main extensions permitted pursuant to
this 15 month variance will not be significant.
In summary, the Board will grant the Petitioner a variance
from 35 Ill. Ada. Code 602.105(a)
(Standards for Issuance) and
from 35 Ill. Ada. Code 602.106(b)
(Restricted Status) but only as
they relate to 35 Ill. Ada. Code 604.301(s)
(combined radun-226
and radium-228), subject to various specified conditions.
The
requested variance from 35 In. Adm. Code 602.105(a) and
602.106(b) as they relate to 604,301(b) is hereby denied and
variance from 35 Ill. Ada. Code 602.106(a) is also denied.
85-519
-8-
This
Opinion
constitutes
the
Board’s
findings
oti’
t~act and
conclusions
of
law
‘in this matter.
ORDER
1.
The Petitioner, the City of Geneva,
is granted variance
from 35 111.
Adrn. Code 602.105(a) and from 35
Iii.
Adm. Code
602,106(b) but only as they relate to the 5 pCi/i combined radium
standard of
35
I’Ll.
Adm. Code 604,301(a), subject
to the
following
conditions.
(a)
Th:is
vsr~nce begins on January
12,
‘~ii~6and
i”~:~on
March
3~.
1987,
or
when
analysis
pur~:;uant
to
35
1L11
Adm. Cou
605.105(a) shows compliance with
the combined
radium s~,~ndard,whichever comes first.
(b)
By
January
1,
1986~, the Petitioner
shall
secure
professional assistance
(either from present staff or
an
outside
consultant)
in
investigating
compliance
options,
including
a
review
of
the
possibility and feasibility of
achieving compliance by blending water from shallow
wells
with
that
of
its deep wells.
By February
1, 1986,
evidence
that
such
professional
assistance
has
been
secured shall be submitted to
the
Agency’s
Division
of
Public Water Supplies, FOS,
at 2200 Churchill Road,
Springfield,
Illinois
62706.
(c)
As expeditiously after identification of
a feasible
compliance
method
as
is
practicable,
but
no
later
than
January
1,
1987,
the
Petitioner
shall
submit
a
program
(with
increments
of
progress)
for
bringing
its
system
into
compliance with
radiological quality standards
to
the Agency’s Division of Public Water Supplies,
Permit
Section,
at
2200
Churchill
Road,
Springfield,
Illinois
62706.
The City of Geneva shall adhere to aLl
timetables contained in
this
compliance
program.
(d)
Pursuant to
35 Iii,
Adin. Code
606.201,
the Petitioner
shall
send
to
each
user
of
its
public
water
supply
a
written notice to the effect that the Petitioner has
been
granted
by
the Illinois Pollution Control Board
a
variance from
35
Ill..
Adm, Code 602,105(a)
(Standards
for Issuance) and from 602.106(b)
(Restricted Status) as
they relate to combined radium—226 and radium-228
in the
first set of water bills issued after the grant
of this
variance and every three months thereafter.
The notice
shall state the average concentration of radium-226 and
radium—228 in samples taken since the last notice period
in which samples were taken,
Ce)
Until full compliance
is reached,
the Petitioner shall
take
all ‘reasonable measures with its existing equipment
to
minimine the level
of combined radium-226 and
rad±um-2~i~
in
its
finished
drinking
water,
65-520
_0~
2.
Variance
‘from
35
Ill.
Adm.
Code
602.105(a)
and
35
Iii,
Adm.
Code
602,1(36(b)
as
they
relate
to
35
Ill.
Adm.
Code
604.301(b) and variance from 35
Iii,
Adm, Code 602.106(a) are
hereby
denied
as
unnecessary.
3.
Within
forty-five
days
of
the
date
of
this
Order,
the
City
shall
execute
and
forward
to
Mr..
Wayne
WiemerslrlRe,
Enforcement
Programs,
Illinois Environmental Protect ~on
Agon~y,
2200 Churchill Road,
Springfield, Illinois
62706,
a Certi,i,cate
of Acceptance
~‘i
A~:eementto be bound to all terms and
conditions
ot
~:l-...‘ariance,
This forty—five
clays
period
shal
be
held in
~
for any period this matter
is being
appealed.
T’~:e f:
‘.
of
this
certificate
shall
be
as foLlows:
CERTIFICATION
The
Cit.:
of
.
~neva
hereby
accepts
and
agrees
to
he
bound by
all
terms anc co~):~tjonsof the Order of the Pollution Control
Board in PCB U5--~:., dated September 20,
1985.
The City of Geneva
By:
Authorized Agent
Title
Date
IT
IS SO
ORDERED.
Chairman
Dumelle and Board Members
B.
Forcade and R.
Flemal
dissented,
I, Dorothy M. Gunn, Clerk of
the Illinois Pollution Control
Board hereby certify that the above Opinion and Order was adopted
on
the~o-~
day
of
_____________________,
1985 by a vote
Dorothy
M/
Gunn,
Clerk
Illinois Pollution Control Board
65-521
