ILLINOIS POLLUTION CONTROL BOARD
May 9, 1986
CITY OF YORKVILLE,
)
Petitioner,
v.
)
PCB 86-24
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
Respondent.
)
OPINION AND ORDER OF THE BOARD (by J. Marlin):
This matter comes before the Board upon-a February 20, 1986
filing by the City of Yorkville (“City”) of a petition for a five
year variance from the Board’s public water supply regulations,
namely 35 Ill. Adm. Code 602.105(a) (Standards For Issuance) and
602.106(b) (Restricted Status), but only as they relate to the 5
pico Curie per liter standard for combined radium-226 and radium—
228 set forth in Section 602.301(a). The Illinois Environmental
Protectin Agency (“Agency”) filed its recommendation on March 31,
1986 to grant the requested variance subject to conditions. The
City waived hearing and none was held. No objections from the
public have been received.
The City of Yorkville, Illinois owns and operates a potable
water supply and distribution system for a population of 3,422
people as well as for various commercial and industrial users.
It is a deep well system which includes two deep wells and a
shallow well, pumps and distribution facilities. The wells are
as follows:
Well No. 2
42 feet deep
placed in operation 1954
Well No. 3
1,335 feet deep
placed in operation 1960
Well No. 4
1,393 feet deep
placed in operation 1976
Analyses of well water samples by the City show the
following results in pico curies per liter (Pet. at 6):
DATE OF SAMPLE
RESULTS
LOCATION
Ra 226 Ra 228 Combined
Spring 1985
1.0
0.5
1.5
Well No. 2
Spring 1985
6.3
4.6
10.9
Well No. 3
Spring 1985
9.0
8.1
17.1
Well No. 4
Spring 1985
8.5
5.7
14.2
Dist. Sys.
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The Agency submitted data to a USEPA laboratory for
analysis. The analysis was of an annual composite of four
consecutive quarterly samples or the average of the analyses of
four samples obtained at quarterly intervals. The analysis as
reported to the Agency showed a radiuxn-226 count of 5.6 pC/i and
the radium—228 content was 2.2 pC/i. The combined radium—226 and
radium—228 content was therefore 7.8 pc/i, exceeding the 5 pC/l
standard. The analysis was reported to the City on January 25,
1984 (Agency Rec at 4).
The City learned of its exceedences from the combined radium
standard from an Agency letter dated January 25, 1984 (Attach. 1
to Pet.). On October 4, 1984, the Agency notified the City that
it would be placed on restricted status (Attach. 2 to Pet.).
Restricted status basically means that construction and operating
permits would be denied by the Agency for new or modified
developments in the City which require the extensions of the
water supply system.
The City identifies three different alternatives for
resolving the radium problem. They are (1) using other wells for
blending, (2) rehabilitating existing wells and using other wells
for blending purposes, and (3) constructing treatment facilities
to treat all water supplied by the existing deep wells. Two
primary treatment methods were discussed by the Agency and the
petitioner.
The first primary treatment method is lime or lime-soda
softening. Radium removal by lime softening can be related to
hardness removal and pH of treatment. Lime softening can remove
80—90 percent of the radium; therefore, it could be suitable for
raw waters containing up to 25 pCi/i. The problem with this
method is that it produces large quantities of sludge and
concentrates the radium. This causes additional problems and
expenses in proper waste disposal. (Pet. at 7; Agency Rec. at 6).
The second treatment method is ion exchange water
softening. This method is cheaper than lime softening, is
effective and will remove more than 90 of the radium. However,
if an ion exchange softener which is regenerated with salt is
used, the sodium content of the water will be increased
significantly. This may create a significant risk to persons who
are hypertensive or who have heart problems. In addition, the
waste from routine softening is high in total dissolved solids
and may be very difficult to dispose of legally. Also, the ion
exchange process will concentrate the radioactivity and release
the majority of the radioactivity in the waste stream in a
concentrated form, which may be more of a hazard at that point
than it is in the drinking water. In addition, some of the
radioactivity remains in the ion exchange material, so that it
may be a hazard to anyone subsequently working on the softener,
and disposal of the radioactive ion exchange material may be a
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3
problem. The Agency is actively discouraging the use of the ion
exchange process for radionuclide removal by the City (Pet. at 8;
Agency Rec. at 7).
The City expects to use both alternatives (1) and (2) to
come into compliance (Pet. at 7). While the City has presented
no economic data, as of February 20, 1986, it anticipated that
within three months (May 20, 1986) its consultant would furnish a
recommendation (Pet. at 6).
The City did not formally assess the effect on the
environment of a grant of variance. It did, however, incorporate
by reference in its petition (Pet. at 8) the testimony and
exhibits of Drs. Richard E. Toohey and James Stebbings on July 30
and August 2, 1985 in R85—i4 (Proposed Amendments to Public Water
Supply Regulations, 35 Ill. Adm. Code 602.105, 602.106). The
Agency incorporates by reference in its Recommendation (Agency
Rec. at 6) the testimony of Dr. Toohey in R85—14 as well as PCB
85-54. The Board will allow the R85-14 testimony of Drs. Toohey
and Stebbings only, which will include the cross examination of
these two witnesses as well to minimize selective incorporation
assertions.
The City cites the Toohey testimony for the proposition that
the granting of relief for the limited time of the requested
variance would not cause any significant harm to the environment
or to the people served by the water supply system.
The Agency agrees with the City and states:
while radiation at any level creates some
risks, the risk associated with this level is very
low... .The Agency believes 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. Agency Rec. at 6, emphasis in original.
The Board notes that the TJSEPA has challenged several Board
variances from the radiological standards as being inconsistent
with the Safe Drinking Water Act and regulations thereunder. 42
U.S.C. 300f et ~
40 C.F.R. Parts 141, 142 (subparts E, F)
(1985).
The Board recently has decided that instead of issuing what
amounted to federal variances from the primary drinking water
standards in Section 604.301(a), it will now issue state
variances from Sections 602.105(a) and 602.105(b) as they relate
to the primary drinking water quality standard. The grant of
variance would be from the state regulations establishing the
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restricted status mechanism, and not the national primary
drinking water regulations. This would allow construction
permits to issue while at the same time would not insulate the
petitioner from the possibility of enforcement for violations of
the drinking water standards.
The City alleges that an arbitrary or unreasonable hardship
would exist if it had to immediately comply with the applicable
regulations for many reasons (Pet. at 10-12). First, because
there is no significant risk of environmental harm during the
variance period, there would be an expenditure of money with rio
significant benefits. Second, because of a USEPA notice of
intent to propose amended rules (48 Fed. Reg. 45502, October 5,
1983) and the Agency’s rule amendments in R85-l4, that
expenditure of money would not be justified where the standard
becomes obsolete. Third, a compliance option, such as ion
exchange whereby hazardous sludge is a process by product, may do
more harm than good. Fourth, to deny relief from the
construction ban in light of the uncertainty of the radium
standard would also be a hardship. In addition, the City
contends that denial of variance will harm prospective home
buyers as well as business developers and the petitioner’s tax
base
-
The Board agrees with the City that immediate compliance
with regulations would impose an arbitrary or unreasonable
hardship. It is difficult to argue economic hardship when there
is no economic data in the record, however, it is within the
Board’s expertise to notice generally that capital costs are high
for these treatment technologies. The Board notes that some
treatment technologies such as ion exchange may indeed treat one
problem yet cause another. The Board will grant a three year
variance to allow both a firm compliance plan to be submitted
based on the City’s consultant’s recommendation and for that plan
to be implemented within the variance period. The City has
provided no reason why five years are required to achieve
compliance. For the short term of the variance, any adverse risk
to the environment would be minimal. The Board by its action
will allow new construction and water system extensions. The
Board does not rely on a potential change of the Federal standard
as a reason for granting the variance. The USEPA has not
proposed rules since publishing its intent to do so in 1983 and
the Agency, although it proposed rules to the Board, is now
awaiting USEPA action.
The Agency has recommended that variance be granted for a
period of five years from 35 111. Adm. Code 602.105(a) and
602.106(b) as they relate to the radiological standards subject
to conditions which would require continued sampling, the
procurement of professional assistance to investigate compliance
options, the preparation of a compliance plan, the procurement of
necessary permits for carrying out that plan, and appropriate
69-444
5
notice to the public. The Board will grant variance until May 9,
1989 subject to conditions. The City stated that its consultants
would be ready by the end of May with a recommendation. The City
then will have to implement a compliance alternative and come
into compliance by the end of the variance period.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The City of Yorkville is hereby granted a variance from 35
Ill. Adrn. Code 602.105(a) and 602.106(b) as they relate to the
combined radium standard of Section 604.301(a), subject to the
following conditions:
1. This variance expires on May 9, 1989.
2. In consultation with the Agency, the City shall continue
testing for radium 226 and 228 to determine as
accurately as possible the level of radioactivity in its
wells and finished water.
3. One month after the grant of variance, evidence that the
City has secured professional assistance in
investigating compliance options shall be submitted to
the Agency’s Division of Public Water Supplies, FOS,
2200 Churchill Road, Springfield, Illinois 62706.
4. Six months after the grant of variance, the City shall
complete investigating compliance methods, including
those treatment techniques described in the Manual of
Treatment Techniques for Meeting the Interim Primary
Drinking Water Regulations, USEPA, May 1977, EPA—600/8—
77-005, and shall prepare a detailed Compliance Report
demonstrating how and when compliance will be achieved,
but no later than May 9, 1989.
5. This Compliance Report shall be submitted to the
Agency’s Division of Public Water Supplies nine months
after the grant of variance.
6. Three months after the date the Compliance Report is due
in the Agency’s office or after a written extension of
time by the Agency, provided that this additional
extension is no longer than three months, the City shall
apply to the Agency’s Division of Public Water Supplies,
Permit Section, for all permits necessary for
construction of installations, changes or additions to
the City’s public water supply needed for achieving
compliance with 35 Ill. Adm. Code 604.301(a).
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7. Construction shall begin at a time which will bring the
City into compliance by May 9, 1989.
8. Pursuant to 35 Ill. Adm. Code 606.201, 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, the City shall send each user of its
public water supply a written notice stating that the
C i ty:
a) has been granted a variance from 35 Ill. Mm. Code
602.105(a) (Standards of Issuance) and Section
602.106(b) (Restricted Status) as they relate to
Section 604.301(a), and
b) is not in compliance with the public water supply
radiological standard of 5 picoCuries per liter for
combined radium 226 and 228. The City shall also
state in the notice the average content of radium
226 and 228 in samples taken since the last notice
period.
9. The City shall take all reasonable measures with its
existing equipment to minimize the level of radium 226
and 228 in its finished water.
10. Within forty—five (45) days of the date of this Order,
the City shall execute a Certification of Acceptance and
Agreement to be bound by all terms and conditions of the
exception granted. This Certification shall be
submitted to the Agency at 2200 Churchill Road,
Springfield, Illinois 62706. The form of said
Certification shall be 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 86—24, dated
Petitioner
—
Authorized Agent
69-446
7
Title
Date
IT IS SO ORDERED.
J.D. Dumelle and B. Forcade dissented.
I, Dorothy M. Cunn, Clerk of the Illinois Pollution Control
Board, hereby cert)..fj~that the above Opinion and Order was
adopted on the
~7~-~4
day of
________________,
1986, by a vote
of
~,L
Dorothy M. unn, Clerk
Illinois Pollution Control Board
69.447