Ii~LIi~3ISP(LLUT1ON CONTROL BOARD
August
20, 1987
CITY OF BATAVIA,
Petitioner,
v
)
PCB 87—79
ILLINOIS ENVIRONMENTAL
PROTECTION
AGENCY,
Respondent.
OPINION
A1’.O OE~DE~
OF THE BOARD
(by
3.
Anderson):
This matter comes
before the Board on the petition for
variance
filed
by the City
of
Batavia
(City) June
8,
1967
as
amended June 19,
1987.
In PCB 86—36
(May
22, 1986),
the City had
been grantea
a variance until January
1,
1990 from
35
Ill. Adm.
Code 602.105 and
35 Ill. Adm.
Code 602.106(b)
to the extent that
those
rules
involve violation
of the
5 pCi/i combined radium—226
and radiurri—228 standard of
35
Ill. Adm~Code 604.301(a).
In
this
proceeding,
the City does not seek extension of
trie January
1,
1990 deadline
for achieving compliance with the radium standard,
but instead seeks
a one year extension
of
an interim deadline
contained
in condition
6
of the PCB 86-36 Order;
this condition
would
have required the City
to apply
to the Agency,
on
or
before
June
22,
1987,
for “all permits necessary for construction
of
installations,
changes~ or
additions
to
its
public water supply
needed for achieving compliance with the
radium
standard”.
On
August
4,
1967,
the Illinois Environmental Protection Agency
(Agency)
filed
its Recommendation
that variance
be granted.
Hearing was waived and none has been held.
The Board will not reproduce
its Opinion and Order
in PCB
86—36
in
its entirety~but will incorporate them by reference
herein
as
if
fully set forth.
However, repetition
of the general
description
of the City’s system and situation
is
in order:
The
City
of
Batavia
is
located
in
Kane
County,
Illinois,
It
owns
and
operates
its
water
distribution system which provides potable water
to
approximately 13,000 people,
including residential,
commercial
and
industrial
users.
The
system
consists
of
four
deep
wells,
ground
level
and
elevated
storage
tanks,
pumps
and
distribution
facilities.
60—351
Sampling
conducted
by
USEPA
and
reported
to
the
Agency showed
a radium—226
count
of 6.6 pCi/i and a
radium—226 count
of
4.5 pCi/i
for
a combined
level
of
11.1
pCi/l
in
exceedance,
of
the
5
pCi/l
standard.
Batavia
was advised
of
these
violations
on
January
25,
1984
and was placed
on the Agency’s
restricted
status
list
for
public
water
supplies.
This
status
was)
lifted
by grant
of
the variance
in PCB 85—11
April
4,
l9653.*
In the present petition,
the City states that there
are
no
more recent radium sampling results currently available,
although
Argonne Laboratories
is presently engaged
in testing
the City’s
water.
Consistent with condition
4 of
the PCB 86—36 variance,
the City commissioned HDR Infrastructure
to prepare
a report
evaluating various compliance options.
The favored
compliance
option would
involve development of
a new supply source
to
be
blended with the existing well sources
in the ground storage
tanks
at Wells No.
2 and
4.
Some treatment
of the new sources
would be required for
iron.
Depending upon whether the City
chooses
a)
only
to remove iron at the new wells or
b)
to
soften
water
systemwide,
respective capital construction costs would be
either
a) $3,6~1,0uO or
b)
$5,5~l,0G0.
The City asserts
that,
while it continues
to be committed
to
achieving compliance
by January
1,
1990, the requirement that
it
presently
file permit applications imposes
an arbitrary or
unreasonable hardship.
The City essentially seeks another
year
in which
to finalize
its choice of compliance plans
and
to
prepare engineering reports,
and gives
four reasons
for
its
request.
First,
the compliance report
based
its evaluation
on
projected water demand through
2005 of 4,193,000 gpd average
daily demand, 5,236,000 gpd peak daily demand,
and 6,196,000
gpd
peak demand with fire needs;
the average daily demand projected
is nearly double
the current daily demand.
To properly blend to
meet
the radium standard,
three new wells must be developed which
are capable
of producing between 58
and 65
of the system’s
total
needs.
Thus, optimal placement of the new wells
is
important
to
the success of
the blending program.
Batavia has
a
contract with the University
of Illinois
for
a study
to determine
the maximum development
of shallow groundwater
resources for
Batavia and Geneva.
The study,
entitled
Shallow Groundwater
Resources Assessment
in Geneva
—
Batavia Township,~culminates
in
*
The PCB 85-li variance was from the
radium standard itself.
As discussed
in PCB 86—36,
the City had requested that
the
variance from the standard
be terminated
and superseded
by
a
variance only from restricted
status
in response
to certain
actions
by USEPA.
80—352
—3—
a joint final report
to
be made
to each city on
or
after June
30,
1988.
The City wishes
to have the results of this study
available for
its use
in filing permit applications.
Second,
the
City asserts that
it presently lack
funds
to pay
consultants
to prepare plans
and specifications
for construction
of facilities
to achieve compliance.
Batavia received estimates
from two consultants
of $30,000
to $65,000 and $250,000
to
$300,000,
respectively,
in consuJtants’
fees,
The Agency reports
that through House
Bill
451,,
as amended, the Illinois General
Assembly has reappropriated $250,000 from the Build
Illinois Bond
Fund to
the Agency
for
the fiscal year beginning July
1.
1987
for
the planning and construction of water wells
in Batavia.
House
Bill 451 was sent
to Gov.
James
R. Thompson’s Office
on July
10,
1987 and was signed by Governor Thompson on July
20,
1987.
While,
the Agency
is
uncertain
of the status
of Build
Illinois
projects at
this time,
an additional
12 months time would
allow
for
the City to make ap~1icationfor and possibly receive any
funds which become available.
Th~r~,
the City
wishes
to consider,
as
a compliance
alternative,
a new filtering system for radium removal which was
develo~ed
ty
ti-~e iso—Clear Systems Corporation
of Yorkville,
Illinois.
Batavia states
that the Iso—Clear System
is being
tested, with test results being expected
in about
6 months.
The
City wishes
to wait
for
those
test results
to determine
if Iso—
Clear
is
a feasible method of water
treatment,
given
the
$3
million price
tag
of
its currently favored compliance option.
Fourth,
the
City notes
that
in response to changes
in the
Safe Drinking Water Act,
the USEPA must revise existing drinking
water standards
and
set standards
for additional contaminants.
The City’s proposed water
source complies with all existing
and
proposed maximum contaminant
levels,
and the existing source
complies with
all save that
for radium.
However, postponement
of
the required filing
for permits would
allow the City
to take any
new regulatory requirements into consideration,
In recommending
grant of variance, the Agency does not
disagree with the City’s assertion that it can achieve compliance
by January
1,
1990 even if the extension of the date for permit
filing
is granted.
The Agency has
a minor disagreement with only
one
of the City’s various other assertions.
Conditions
10 and
11
of the PCB 86-36 variance require the City every three months to
notify
its users that variance has been granted and
of
the
results of recent sampling.
The City alleged that ~a notice
is
mailed every three
(3) months
to our customers and Mark
T.
Books
at IEPA
is copied with
a notice.
($525.00 per mailing for
an
annual postage bill of
$2,100.00.)”
However,
the Agency states that
“Agency files show that the
last
‘Public Notice’
regarding Batavia’s radium level was
80—353
—4—
received on
or about April 17,
1986.
That
‘Public Notic’
aid not
contain the language required by Conditions
10 and
11 of
Batavia’s variance but referred instead
to
a prior variance
granted
in PCB 85—il, which
is no longer in effect.”
Notwithstanding,
the Agency recommends that condition
6 of
the Order
in PCB 86—36 be modified as
requested.
The Agency does
suggest, however,
that
a specific provision
be included that the
June
22, 1988
compliance date
be met whether
or not tests prove
the Iso-Clear
system to be
a feasible compliance alternative.
The Board
finds
that denial
of variance would
impose an
arbitrary
or
unreasonable hardship.
Given
the City’s
commitment
to achieving compliance
by the original January
1,
1990
compliance date,
the Boarã
continues
to find,
as
it did
previously
in PCB 86—36
and PCB 85—11, that grant of the proposed
modification wo.~ldpose “minimal threat
to the public health”.
The City has generally made timely and good faith efforts
to
comply with
the
terms
of
its prior variance and
to bring
its
water supply into compliance with the standard.
In so stating,
the Board accepts
tne City’s assertion
that
the required
quarterly notices have been sent to its water users,
but cautions
the city
to timely update the content
of
the notices
to reflect
the grant of the current variance
as well
as the recent radium
sampling results wnen completed.
In the interests
of clarity, the Board will set forth below
the complete text of the variance Order
in PCB
86—36 as modified
pursuant
to the variance from condition
6 granted
today.
The
Agency has suggested that the only modification
to the Order
needed
is replacement
of its existing condition
6 with its
proposed condition.
However,
the Agency’s proposed condition
6
requires interim reports
in December,
1987 and March,
1968.
While
the Board agrees that such reports should
be filed,
the
requirement conflicts with and/or
is duplicative
of the
requirement
in existing conditions
4 and
5 that
a compliance
report
be prepared within
9 months and filed within
10 months.
The Board will
accordingly delete those conditions.
It
is possible that,
in so doing, the Board has misperceived
the intention of
the parties;
if
so,
the Board would invite the
parties to file appropriate motions for reconsideration.
This Opinion constitutes
the Board’s findings of fact and
conclusions
of law in this matter.
ORDER
A.
The City of Batavia
is hereby granted variance from condition
6
of the variance granted
in PCB 86—36, May 22,
1986.
The
80—354
—
Order,
as modified,
is set out
in
its entirety
in paragraph
B,
below.
B.
The City
of Batavia
is hereby granted
by
a variance from
35
Ill.
Adm. Code 602.105(a),
Standards
of Issuance,
and
602.106(b), Restricted
Status,
but only as they relate to the
5 pCi/i combined radium standard contained
in
35
Ill. Adm.
Code 604.301(a).
1.
That this variance expires when analysis pursuant
to
35
Ill. Code 605.105(a)
shows compliance with the radium
standard
or
on
or
before January
1,
1990, whichever
comes
first.
2.
In consultation with the Agency,
Petitioner
shall
continue
its sampling program
to determine as accurately
as possible
the level of radioactivity
in its wells
and
finished water.
Testing
for radium 226 and
228 shall be
continued.
3.
Petitioner
shall continue
to have professional
assistance
(either
from present
staff
or an outside
consultant)
in investigating compliance
options,
including
the possibility and feasibility
of achieving
compliance
by blending water
from
its shallow well(s)
with that of its deep well(s).
4.
By
June
22,
1988,
Petitioner
shall apply
to IEPA,
DPWS,
Permit Section for all permits necessary
for
construction of
installations,
changes or additions
to
the Petitioner’s public water supply needed for
achieving compliance with the maximum allowable
concentration for the standard
in question.
The
Petitioner
shall
report
to
the Agency by December
22,
1987 and March
22, 1988 what steps
it has taken and
which steps remain for
it
to meet
the above-referenced
compliance date.
By December
22,
1987 the Petitioner
shall secure professional assistance
(either from
present staff
or
an outside consultant)
to prepare plans
and specifications
for
a water
system improvements
project.
Whether
or not test results show that Iso—
Clear
is
a feasible alternative,
the Petitioner
shall
still comply with this June
22,
1988 compliance date.
5.
Within three months after each construction permit
is
issued by IEPA,
DPWS,
Petitioner shall advertise for
bids
for contractors
to do the necessary work described
in
the construction permit and
shall accept appropriate
bids within
a reasonable
time.
6.
Construction allowed
on said construction permits shall
begin within
a reasonable time of bids accepted,
but
in
80—355
any case,
construction
of all installations,
changes
or
additions
necessary
to achieve compliance with the
5
pci/i
combined
radium standard shall begin
no later
than
two and one—half years
from the grant of this variance
and shall
oe completed no later
than January
1,
1990.
7.
Compliance shall
be achieved with the
5 pCi/i combined
radium standard no
later
than January
1,
1990.
8.
Pursuant to
35
Ill.
Adm.
Code 606.201,
in its
first set
of water
oills or within~three months
after the date
of
this Variance Order,
whichever occurs first
and every
three months thereafter,
Petitioner
will
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 35 Ill.
Adm.
602.105(a)
Standards
of Issuance and
35
Ill.
Adrn.
Code 602.106(b)
Restricted
Status,
as
it relates
to the
5 pCi/l
combined
radium standard.
9.
Pursuant to
35
111.
Adrn.
Code 606.201,
in
its first
set
of water bills
or within three months after the date of
this Order, wnicnever occurs tirst,
and every
three
months thereafter,
Petitioner will send
to each user
of
its public water
supply a written notice
to the effect
that Petitioner
is not
in compliance with the
5 pCi/l
combined radium standard.
The notice shall state
the
average content
of the contaminant
in question
in
samples taken since
the last notice period during which
samples were
taken.
10
The Petitioner shall
take all reasonable measures with
its existing equipment
to minimize the level of
radium
in
its finished water.
C.
That within forty—five days
of
the date of
this Order,
Petitioner
shall
execute
and forward
to Jose
L. Gonzalez,
Jr.,
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.
The form of
the certification shall
be as
follows:
CERTIFICATION
I,
(We), ____________________________,
having
read the
Order
of
the Illinois Pollution Control Board,
in PCB
87—79,
dated August
20, 1987,
understand
and accept the said Order,
realizing that such acceptance renders all
terms and conditions
thereto binding and enforceable.
80—356
Petitioner
By:
Authorized Agent
Title
Date
D.
Sectjor~ 4~. of
tne Environmental Protection Act,
ill. Rev.
Stat.
1985
ch.
111 1/2 par.
1041,
provides for appeal
of
final Orders
of
tne Board within
35 days.
The Rules
of
the
Supreme Court of Illinois establish filing requirements.
IT IS
SO ORDL~ED.
J. Dumelle
and
B.
Lorcade dissented.
I,
Dorothy
14. Gunn, Clerk
of the Illinois Pollution Control
Boaro,
hereby certify
that
the
-bove Opinion and Order was
adopted
on the ~C~-
day of
_____________,
1987,
by
a vote
of
~/-~
.
~
/~
Dorothy
M. C~nn,Clerk
Illinois Pollution Control Board
80—357