ILLINOIS POLLUTION CONTROL BOARD

May 22, 1986

CITY OF BATAVIA,

Petitioner,

)

PCB 86—36

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,         

)

Respondent.

OPINION AND ORDER OF THE BOARD (by 3. Theodore Meyer):

This matter comes before the Board on the March 10, 1986

petition of the City of Batavia for variance from restricted

status until January 1, 1990. The City requests variance from 35

Ill. Adm. Code 602.105(a), Standards of Issuance, and 35 Iii.

Adm. Code 602.106(b), Restricted Status, but only to the extent

that those rules relate to 35 Ill. Adm. Code 604.301(a), combined

radium—226 and radium—228. On April 15, 1986, the Illinois

Environmental Protection Agency (Agency) filed a recommendation

that variance be granted subject to certain conditions. Hearing

was waived and none was held.

The City presently has a variance granted in PCB 85—li,

April 4, 1985, from the maximum allowable concentration (MAC) for

combined radium set in 35 Ill. Adm. Code 604.301(a) of 5 pico

Curies per liter (pci/i). The variance set a combined radium

level of 15 pCi/l and is to expire on January 1, 1990. Batavia

notes that the issuance of this variance is being contested as

improper by the United States Environmental Protection Agency.

Accordingly, the City is requesting the Board to amend the

variance granted from the radium standard in PCB 85—il to a

variance from restricted status only. The City has requested

incorporation of the opinion and record in PCB 85—li as proof of

an arbitrary or unreasonable hardship imposed by the conditions

of Restricted Status.

The City of Batavia is located in Kane County, Illinois. It

owns and operates its water distribution system which provides

portable 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.

Sampling conducted by USEPA and reported to the Agency

showed a radium—226 count of 6.6 pCi/i and a radium—228 count of

4.5 pCi/i for a combined level of li.i pCi/i in exceedance of the

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5 pCi/i 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 has been iifted by

grant of the variance in PCB 85—11.

Batavia has investigated various compliance alternatives

including treating its raw water by softening through ion

exchange, addition of calcium oxide or hydroxide, or by reverse

osmosis. As noted in PCB 85—il, however, each of these treatment

options would require large plant construction estimated at $5

million which expenditures would cause the City to exceed its

maximum bonding power. In addition, the ion exchange process

would create a waste disposal problem while softening processes

increase the sodium content of the water thereby posing a

significant risk to people who are hypertensive or have heart

problems.

Batavia has also investigated alternate water sources such

as the Fox River and Lake Michigan. However, the City does not

currently possess an allotment for lake water and does not

anticipate receipt of such an allotment for five years. Actual

hook—up and delivery of the water would require an additional

five years. The possibility of using the Fox River as a water

source was rejected as infeasible because it would require the

construction of a river water treatment plant estimated at over

$5 million.

In its current petition, Batavia states that it has

determined that the best compliance option is to blend the radium

tainted deep well water with shallow well water. To this end,

Batavia has already invested $6,325.00 as its share of a

cooperative study of the geophysical and hydrologic properties of

the shallow groundwater resources in Kane County. The study has

tentatively located a “very good” shallow aquifer in the buried

Newark Bedrock Valley about 1 1/2 miles west of the City’s

corporate limits on the west side of the Fox River. The study is

~cheduled for completion in 1987.

As to the environmental impact of granting the variance, the

Agency states that while radiation at any level creates some

risk, the risk associated with this level is very low. The

Agency states that the maximum allowable concentration for

combined radium is currently under review at the federal level

although no conclusions are expected before 1987 or early 1988.

The Agency also cites the testimony and exhibits presented by

Richard E. Toohey, Ph.D. of the Argonne National Laboratory in

R85—l4, Proposed Amendments to Public Water Supply Regulations,

35 Ill. Adm. Code 602.105 and 602.106 for the proposition that:

an incremental increase in the allowable

concentration for the contaminant in question

even up to a maximum of four times the level

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of the maximum allowable concentration (“MAC”)

for the contaminant in question, 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. at 6) (emphasis in original).

The Agency also agrees with the City’s assessment of

compliance alternatives and their costs and recommends that

variance be granted. (Rec. at 6—7). The Board previously found

in PCB 85—11 that compliance with the MAC for combined radium

would impose an arbitrary or unreasonable hardship “considering

the great expense to comply and the minimal threat to the public

health.” PCB 85—11, 63 PCB 323, 325, April 4, 1985. There is no

evidence to contravene this finding today. In fact, Batavia is

now seeking a variance only from restricted status which is more

limited in scope than the variance currently in operation under

PCB 85—Il. This request is apparently precipitated by USEPA’S

proposal to revoke several variances, including Batavia’s, as

published at 51 Fed. Reg. 3253, January 24, 1986. The Agency

states that the uncertainty caused by USEPA’s proposed revocation

has jeopardized future construction and caused confusion among

developers.

Batavia’s requested variance here is from the state

regulations establishing the restricted status mechanism and not

from the national primary drinking water regulations. Thus, the

variance will not insulate the City from the possibility of

enforcement actions for violations of the underlying radiological

standards.

The Board concludes that in light of the minimal

environmental impact for the time period of this variance, the

cost to the City of treating its current water supply and the

likelihood of confusion over potential USEPA variance revocations

that denial of variance from the effects of Restricted Status

would impose an arbitrary or unreasonable hardship upon

Petitioner. Thus, the Board will grant the requested variance,

subject to conditions. However, as Petitioner has previously

been granted relief from the underlying radiological standard in

PCB 85—11 by presenting adequate proof under state law, the Board

sees no reason to revoke this relief. Rather, the Board will

treat Batavia’s request as a petition to terminate the previous

variance effective as of the effective date of this variance.

That petition is hereby granted. The Board points out that this

termination means that any conditions imposed in PCB 85—il are

superseded by those imposed here.

This Opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

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ORDER

The variance granted to the City of Batavia in PCB 85—11,

April 4, 1985 is hereby terminated. The City of Batavia is

hereby granted 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 contaminant in question, subject to

the following conditions:

1.  That this variance expires when analysis pursuant to 35

Ill. Code 605.105(a) shows compliance with the MAC in

question or on 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.  Within nine months of the grant of the variance, the

Petitioner 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 prepare a detailed

Compliance Report showing how compliance shall be

achieved with the shortest practicable time, but not

later than January 1, 1990.

5.  This Compliance Report shall be submitted within ten

months of the grant of this variance to IEPA, DPWS.

6.  Within three months of its submission, or within any

written extension of approval time made by IEPA, then

within three months after said time 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.

7.  Within three months after each construction permit is

issued by IEPA, DPWS, Petitioner shall advertise for

bids from contractors to do the necessary work described

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in the construction permit and shall accept appropriate

bids within a reasonable time.

8.  Construction allowed on said construction permits shall

begin within a reasonable time of bids accepted, but in

any case, construction of all installations, changes or

additions necessary to achieve compliance with the

maximum allowable concentratIon in question shall begin

no later than two and one—half years from the grant of

this variance and shall be completed no later than

January 1, 1990.

9.  Compliance shall be achieved with the maximum allowable

concentration in question no later than January 1, 1990.

10. Pursuant to 35 Ill. Adm. Code 606.201, in its first set

of water bills 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 Iii. Adm. 602.105(a)

Standards of Issuance and 35 Iii. Adm. Code 602.106(b)

Restricted Status, as it relates to the MAC standard in

question.

11.  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, 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 standard

in question.

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.

12.  The Petitioner shall take all reasonable measures with

its existing equipment to 

minimize

the level of

contaminant in question in its 

finished water.

13. That within forty—five days of the date of this Order,

Petitioner shall execute and forward to Wayne

Wiemerslage, 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:

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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—36, May 22,

1986.

Petitioner

Authorized Agent

Title

Date

IT IS SO ORDERED.

3. D. Dumelle and B. Forcade dissented.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above Opinion and Order was

adopted on the ~

day of

1986, by a vote

of

6~-~ .

7’

~?-~-~

~i,’

Dorothy M/Gunn, Clerk

Illinois Pollution Control Board

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