ILLINOIS POLLUTION CONTROL BOARD
~3une10, 1987
CITY OF LOCKPORT
)
Petitioner,
)
v.
)
PCB 87—16
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
OPINION AND ORDER OF THE BOARD (by R. C. Flenial):
This matter comes before the Board on the petition for
variance filed on February 17, 1987, by the City of Lockport
(“Lockport”). Lockport seeks a five year variance from 35 Ill.
Adm. Code 602.105(a) “Standards For Issuance” and 602.106(b)
“Restricted Status” to the extent those rules relate to the
exceedence by Lockport’s public water supply of the 5 picocuries
per liter (“pCi/i”) combined radium—226 and radium—228 standard
of 35 Ill. Adm. Code 604.301(a) and the 15 pCi/i gross alpha
particle activity standard of 35 Ill. Adm. Code 604.301(b).
On March 27, 1987, the Illinois Environmental Protection
Agency (“Agency”) filed a Recommendation in support of grant of
variance subject to conditions. On April 2, 1987, the Agency
filed a motion requesting that its Recommendation be accepted
instanter. That motion is granted. On April 8, 19&7, Lockport
filed a response to the Agency’s Recommendation, in which it
accepted each and every condition recommended by the Agency. On
June 9, the Board received additional Agency comments which
provided the USEPA perspective on variances of this type.
Hearing was waived and none was held.
Lockport provides potable water supply and distribution for
a population of 3,035 residential and 245 industrial,
governmental, and commercial customers representing a population
of 9,800. Lockport currently has four wells, as follows:
Placed in Gallons
Well No. Depth
Operation Per Minute Location
2
1550 feet
1927
750
Commerce St
3
1571 feet
1940
(not in use) E. 14th St
4
1572 feet
1954
950
S.. Madison St
5
330 feet
1973
400
Farrell Rd
7$~S8O
—2—
Lockport was first advised of the high radium content in its
water supply by letter from the Agency dated October 4, 1985, and
was first notified of placement on restricted status by letter
from the Agency dated December 19, 1985. The Agency based its
determination on four quarterly analyses showing an average
radium—226 content of 10.5 pCi/i and an average radium—228
content of 1.2 pCi/i, for a combined average of 11.7 pCi/i. A
subsequent single analysis, reported by the Agency in December
1986, showed that radium—226 was 13.1 pCi/i and radium—228 was
4.2 pCi/l, for a combined total of 17.3 pCi/i.
Lockport was first advised of the excess gross alpha
particle activity in its water by letter from the Agency dated
October 17, 1980. The letter indicated gross alpha particle
activity of 21.4 pCi/i. Subsequent analyses, as provided by
Petitioner, showed the following results, in pCi/i:
Bate
_____________
_________________
REGULATORY FRAMEWORK
In recognition of a variety of possible health effects
occasioned by exposure to radioactivity, the U.S. Environmental
Protection Agency has promulgated maximum concentration limits
for drinking water of 5 pCi/i of combined radium—226 and radium—
228 and 15 pCi/i gross alpha particle activity. Illinois
subsequently adopted the same limits as the maximum allowable
concentrations under Illinois law.
1 A second analysis on the sample taken this day, available to
the Agency but not reported to Petitioner, showed a gross alpha
activity level of 15 ±5 pCi/l (Agency Recommendation, p. 4).
Results
Address
07—01—81
23.0
±5.11 1134 State St.
09—15—81
25.3 * 4.59
unknown
03—12—82
25.8 ±5.22
103 W. 17th St.
06—14—82
15.4 ±4.89 1422 Sisson St.
09—01—82
13.2 ±5.17 718 Cove St.
02—17—83
14.4 ±4.17 1422 Sisson St.
04—05—83
9.1 ±5.55 1422 Sisson St.
07—19—83
11.4 ±3.59 1422 Sisson St.
09—29—83
7.8 ±3.55 1422 Sisson St.
12—06—83
29.7 * 5.87 1422 Sisson St.
04—25—84
23.8 ±5.36 718 Cove St.
07—31—84
20.7 ±5.04 718 Cove St.
10—02—84
19.7
±4.47 1422 Sisson St.
01—03—85
12.
±3.
555 E. 3rd St.
04—01—85
7. ±4.
1422 Sisson St.
10—29—85
03_ll_861
20.
12.
±
±4.
4.
1422 Sisson St.
555 E. 3rd St.
78-381
—3—
However, the action that Lockport requests here is not
variance from these two maximum allowable concentrations.
Irrespective of the action taken by the Board in the instant
matter, these standards will remain applicable to Lockport.
Rather, the action Lockport requests is the temporary lifting of
prohibitions imposed pursuant to 35 Ill. Adm. Code 602.105 and
602.106. In pertinent part these sections read:
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 (Ill. Rev. Stat.
1981, ch. 1111/2, pars. 1001 et seq.) (Act), or of
this Chapter.
Section 602.106
Restricted Status
a) Restricted status shall be defined by 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.
b) The Agency shall publish and make available to
the p~iblic,at intervals of not more than six
months, a comprehensive and up—to—date list of
supplies subject to restrictive status and the
reasons why.
c) The Agency shall notify the owners or official
custodians of supplies when the supply is
initially placed on restricted status by the
Agency.
Illinois regulations thus provide that communities are
effectively prohibited from extending water service, by virtue of
not being able to obtain the requisite permits, if their water
fails to meet any of the several standards for finished water
supplies. This provision is a feature of Illinois regulations
not found in federal law. It is this effective prohibition which
Lockport herein requests be lifted.
The Board has become increasingly reluctant to grant lengthy
variances from restricted status which provide time for the
development and actual implementation of a compliance plan. Some
communities have abused such variances by ignoring conditions and
failing to make progress toward compliance. The Board has
responded to this situation by occasionally granting short—term
-.4—
variances (without an ultimate compliance date) on the assumption
that a community will be more likely to make progress toward
actual compliance if it must come back for a variance extension
for time to complete the compliance plan. In the event that
progress was not being made, the extension could be denied by the
Board.
The Agency’s June 9 comment addressed several problems
inherent in current Agency, USEPA, and Board procedures and
suggests an alternative. As noted above, a variance from
restricted status does not constitute a variance from the
standards in question. As pointed out in the Agency comment:
A Petitioner with only a Restricted Status
variance is still subject to the possibility
of enforcement for violation of the national
primary drinking water standard. But if a
variance order does include enforceable
interim milestones and a fixed compliance
date, then the State has been deemed by U.S.
EPA to have “commenced appropriate
enforcement action”. Neither the State nor
U.S. EPA must take further enforcement action
against the supply for violating the national
primary drinking water standard for which the
supply obtained a Restricted Status variance
which includes those items.
It should be noted that both the U.S. EPA and
the IEPA will be closely tracking compliance
with the enforceable interim milestones and
the fixed compliance date of a variance
order. Any significant deviation from them
will result in an enforcement response from
either U.S. EPA or the IEPA to the supply.
The Agency comment states that it met several times with the
USEPA and has had several staff meetings (as late as June 5) to
discuss this matter. The Agency and USEPA have essentially
agreed to address this issue by using the Agency’s “enhanced
enforcement program”. According to the Agency comment~
Pursuant to this program, Enforcement Notice
Letters will be mailed periodically to
various groups of supplies which are in
violation of one or more national primary
drinking water standards. They will be asked
to sign Letters of Commitment, i.e.,
agreements to prepare engineering reports and
compliance plans. With the concurrence of
Illinois Attorney General’s Office, the
compliance plans approved by IEPA will then
be submitted to the Board for its approval
78-383
—5—
and for the entry of Board orders that
contain enforceable interim milestones and a
fixed compliance date.
Supplies that have variances or obtain
variances containing enforceable interim
milestones and a fixed compliance date and
which do not have other significant
violations need not be part of the Agency’s
enhanced enforcement program.
Hence, each supply violating any national
primary drinking water regulation will
eventually be under a Board approved
enforceable compliance order, either an
enforcement proceeding order or a variance
proceeding order. The State will have
“commenced appropriate enforcement action”
against all supplies consistent with the
requirements of the SDWA.
COMPLIANCE ALTERNATIVES
Lockport has not, as of this time, committed to a specific
compliance plan. Rather, it is considering four general options,
as follows:
(A) Using existing or new wells for blending
purposes;
(B) Utilizing Lake Michigan water, which would
replace water presently being supplied by wells;
(C) Constructing treatment facilities;
(B) Utilizing the Kankakee River as a new source of
water and developing it as a regional system with
other communities such as the City of Joliet.
Lockport asserts that it is its intention to retain an
outside consultant to assist in reviewing and evaluating the
compliance options and to prepare recommendations. The timetable
for this task has not yet been developed, and Petitioner does not
expand upon the possible alternatives other than to note the
negative aspects of lime—soda softening and ion exchange as
treatment alternatives. Both methods concentrate radium in the
sludge, causing waste disposal and handling difficulties and
expenses; the ion exchange method also concentrates sodium in the
finished water, which can pose health risks to persons with
hypertension or heart problems.
7g~384
—6—
The Agency is more expansive regarding compliance
possibilities, noting in particular several current and promising
developments in the area of treatment methods:
To provide help for small communities, a long—term,
USEPA—funded project has been undertaken to evaluate
the single contaminant removal processes (activated
alumina and ion exchange) versus the desalting
processes (electro—dialysis with reversal and reverse
osmosis). To accomplish this project, contaminated
water sources in a series of small U.S. communities are
being studied with the use of a mobil drinking water
treatment research facility.
The objectives of the pilot—scale studies conducted at
the Mobile Drinking Water Treatment Research Facility
in Lenient and the bench—scale research undertaken at
the University of Houston include the following:
1. To evaluate RO (reverse osmosis), IX (ion
exchange), EDR (electro—dialysis with reversal)
and specific adsorbents for the treatment of
Lemont and similar small—community water supplies
for the removal of radium, and to a lesser extent
barium.
2. To obtain valid design and cost information for
the scale—up of these processes.
3. To develop recommended means for the most
economical operation of each of these processes,
i.e. to establish: pretreatment requirements for
all processes, bypass water allowances for all
processes, types of adsorbents including Isoclear
beads, acid—regenerated filter sand (Valentine’s
method) and Dow radium selective adsorbent, type
of resins, optimum detention times and capacity
changes during cyclic operation, regenerant
dosage, concentration and flow direction
(cocurrent or countercurrent) and types of
membranes including polyamide, thin film
composite, and cellulose triacetate.
4. To evaluate radium removal efficiency of point—of—
use treatment systems consisting of cellulose
acetate and thin—film composite RO modules.
5. To make a techno—economic comparison of RO, IX,
EDR and specific adsorbents for central treatment.
This study began in January, 1987 and will end in mid—
March, 1988, according to Dr. Dennis Clifford Prof.
Eng.,, Associate Professor and Director, Environmental
,~..38S
—7—
Engineering Program of the Department of Civil
Engineering, The University of Houston—University Park,
Houston, TX 77004.
A second study may be done by Iso—Clear Systems
Corporation of Yorkville, Illinois which says it has
developed a product for the efficient removal of Radium
from drinking water. The material is used in packed
vertical columns, through which the drinking water is
passed. As the water passes through the column, Radium
is adsorbed into the resin and retained. Iso—Clear is
currently negotiating with the State of Illinois to
establish design parameters for full—scale usage. A
mobile trailer mounted pilot plant is proposed which
would allow testing water from various
municipalities. The Agency has been informed it would
take about six months to complete the study but the
starting date is uncertain as it is dependent on the
company getting a state grant for the study.
* ** * ** * ***
Since the Iso—Clear method may be a viable compliance
method, the Petitioner should not have to proceed with
more expensive alternatives but rather should wait for
the results of this method’s investigation, if finished
relatively soon.
Agency Recommendation, p. 6—8.
HARDSHIP
Lockport believes that a requirement to come into immediate
compliance would impose an arbitrary or unreasonable hardship.
It also notes that by virtue of its inability to receive permits
for water main extensions, needed expansion of the water system
to serve the domestic and fire protection requirements of the
local population are forestalled, and that prospective home
purchasers and business developers have been hurt. As specific
examples, Petitioner currently foresees the need to extend water
mains to serve the following new users:
A. Wilhelmi farm development to be located on 7th
Street in Lockport, consisting of 113 acres in
size. The owner contemplates building 283
residential units and 80 apartment units, and
plans on utilizing 10 acres for commercial
development. Each house would have a separate
hookup to the proposed water main.
B. Lutheran Unity Village, to be located on Briggs
Street in Lockport, encompassing 36 acres. It is
—8—
a ten year, $25 million project designed to meet
the residential and nursing care needs of 500 senior
citizens.
ENVIRONMENTAL AND HEALTH EFFECTS
As to the environmental and health affects of its request,
Lockport asserts that it believes that grant of variance will
impose no significant health risk to persons who will receive
water from the new service connections during the term of this
variance. In support of this belief, Lockport refers the Board
to the testimony and exhibits presented by Richard E. Toohey,
Ph.D. and James Stebbings, Ph.D., both of Argonne National
Laboratory, at the hearing held on July 30 and August 2, 1985 in
R85—14, Proposed Amendments to Public Water Supply Regulations,
35 Ill. Adm. Code at 602.105 and 602.106.
The Agency does not dispute Lockport’s various assertions
regarding health affects. The Agency believes that while
radiation at any level creates some risk, the risk associated
with Lockport’s water is low. Moreover, the Agency believes that
“an incremental increase in the allowable concentration of the
contaminants in question even up to a maximum of four times the
level of the maximum allowable concentrations (“MAC”) for the
contaminants 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” (Id., p. 6).
In conclusion the Agency states:
The Agency believes that the hardship resulting from
denial of the recommended variance from the effect of
being on Restricted Status would outweigh the injury
of the public from grant of that variance. In light
of the cost to the Petitioner of treatment of its
current water supply, the likelihood of no significant
injury to the public from continuation of the present
level of the contaminant in question in the
Petitioner’s water for the limited time period of the
variance, and the possibility of compliance with the
MAC
standard due to blending or new shallow wells,
etc., the Agency concludes that denial of a variance
from the effects of Restricted Status would impose an
arbitrary or unreasonable hardship upon Petitioner.
The Agency observes that this grant of variance from
restricted status should affect only those users who
consume water drawn from any newly extended water
lines. This variance should not affect the status of
the rest of Petitioner’s population drawing water from
existing water lines, except insofar as the variance
by its conditions may hasten compliance. Grant of
variance may also, in the interim, lessen exposure for
that portion of the population which will be consuming
78-387
—9—
more effectively blended water. In so saying, the
Agency emphasizes that it continues to place a high
priority on compliance with the radium standards.
Id., p. 12.
CONCLUS ION
The Board finds that, in light of all the facts and
circumstances of this case, denial of variance would impose an
arbitrary or unreasonable hardship upon Petitioner. The Board
also agrees with the Agency that no significant health risk will
be incurred by the persons who are served by any new water main
extensions, assuming that compliance is timely forthcoming.
Nevertheless, the Board is concerned about Lockport’s
apparent lack of progress in bringing about compliance, and
therefore questions whether the assumption that compliance will
be timely is warranted. Lockport has known of its gross alpha
problem since October 1980, a period of over six years, and of
its combined radium problem since October, 1985, a period of a
year—and—a—half. This notwithstanding, all Lockport offers is
four general compliance possibilities, three of which it does
nothing more than list, and the fourth of which it discusses only
to the extent of apparently dismissing two options. The Board
would have liked to have seen a greater manifestation of
Lockport’s sincerity about achieving compliance than this meager
action to date implies.
Given these circumstances, the Board does not believe that
the full five—year variance, as requested, is justified at
present. Rather, the Board will grant variance until December
31, 1990, subject to those conditions proposed by Lockport and
the Agency which are germane to the development of and
committment to a compliance plan. In selecting this period, the
Board is taking into consideration the Agency’s recommendation
that eighteen months be allowed for investigation of compliance,
given the present activity in testing of new treatment options
(Agency Recommendation, p. 6—8).
In reviewing the Agency conunent, the Board notes that its
charge is to see that the Act and the Board’s rules and
regulations are complied with most efficaciously, whether this be
via enforcement action or via some other means. Thus, that a
Petitioner may be insulated from enforcement by grant of variance
is totally incidental to the overriding concern of having
Lockport commit to and achieve compliance. The Agency’s newly
established “enhanced enforcement program” should be adequate to
achieve this goal. Under this arrangement, the petition can
expand its water supply but must make steady progress toward
compliance or face enforcement. In addition, the petitioner
meets the requirements necessary to prevent federal enforcement
of the standards as long as progress is made toward compliance by
a date certain.
78-388
—10—
As a final matter, the Board also notes all analyses of
gross alpha particle activity have been conducted on samples
taken from the distribution system. Although no information has
been provided regarding where the combined radium samples were
collected, it is assumed that these also have been collected from
the distribution system. Since prior experience has shown that
distribution system concentrations of the radiological parameters
can vary widely, depending in part on the particular
mix of wells
serving any point at any given time, it is impossible from the
data presently available to evaluate the extremes of
concentration which may exist system—wide. Accordingly, the
Board will additionally order that, during the term of the
variance, Lockport conduct analyses of its water both at the well
head and within the distribution system.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
1. Petitioner, the City of Lockport, is hereby granted 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/l combined radium—226 and radiuxn—228 standard of 35
Ill. Adm. Code 604.301(a) and the 15 pCi/i gross alpha
particle activity standard of 35 Ill. Adm. Code 604.301(b),
subject to the following conditions:
(A) This variance expires on December 31, 1990, or when
compliance with 35 Ill. Adm. Code 604.301(a) and (b) is
achieved, whichever is sooner.
(B) In consultation with the Agency, Petitioner shall
continue its sampling program to determine as accurately
as possible the level of radioactivity in each of its
wells and finished water. Until this variance expires,
Petitioner shall collect quarterly samples of its water
from its distribution system and from each of its two
operating deep wells, composite them separately, and
have them analyzed annually by a laboratory certified by
the State of Illinois for radiological analysis so as to
determine the concentration of the three parameters,
radium—226, radium—228, and gross alpha particle
activity. The results of the analyses shall be reported
to the Compliance Assurance Section, Division of Public
Water Supplies, 2200 Churchill Road, IEPA, Springfield,
Illinois 62794—9276, within 30 days of receipt of each
analysis. At the option of Petitioner, the quarterly
samples may be analyzed when collected. The running
average of the most recent four quarterly sample results
shall be reported to the above address within 30 days of
receipt of the most recent quarterly sample.
78-389
—11—
(C) Compliance shall be achieved with the maximum allowable
concentrations of combined radiuxn—226 and radium—228 and
with gross alpha particle activity no later than
December 31, 1990.
(B) Within three months of the grant of this variance,
Petitioner shall secure professional assistance (either
from present staff or an outside consultant) in
investigating compliance options.
(E) Within four months of the grant of this variance,
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.
(F) Within 18 months of the grant of this variance,
Petitioner shall complete its investigation of
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 submit to IEPA,
DPWS, a detailed Compliance Report showing how
compliance shall be achieved within the shortest
practicable time, but no later than December 31, 1990.
(G) Within 22 months of the grant of the variance Petit.ioner
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 contaminants in
question.
(H) Within three months after each construction permit is
issued by IEPA, DPWS, the Petitioner shall advertise for
bids, to be submitted within 60 days, from contractors
to do the necessary work described in the construction
permit. The Petitioner shall accept appropriate bids
within a reasonable time. Petitioner shall notify IEPA,
DP~S,within 30 days of each action, of: 1)
advertisements for bids, 2) names of successful bidders,
and 3) whether Petitioner accepted the bids.
(I) Construction allowed on said construction permits shall
begin within a reasonable time of bids being accepted,
but in any
case construction of all installations,
changes or
additions necessary to achieve compliance
with the maximum allowable concentrations in question
shall begin not later than thirty months from grant of
this variance and shall be completed no later than three
years from the grant of this variance.
78~390
—12—
(.J) Pursuant to 35 Ill. Adni. 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 Ill. Adin. Code
602.105(a) Standards of Issuance and 35 Iii. Mm. Code
602.106(b) Restricted Status, as it relates to the
MAC
standards in question.
(K) Pursuant to 35 Ill. Adni. 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 standards
in question. The notice shall state the average content
of the contaminants in question in samples taken since
the last notice period during which samples were taken.
(L) Petitioner shall take all reasonable measures with its
existing equipment to minimize the level of contaminants
in question in its finished water.
(M) Petitioner shall provide written progress reports to
IEPA, DPWS, FOS every six months concerning steps taken
to comply with paragraphs F, G, H, I and L. Progress
reports shall quote each of the above paragraphs and
immediately below each paragraph shall state what steps
have been taken to comply with each paragraph.
2. Within forty—five days of the date of this Order, Petitioner
shall execute and forward to Wayne L. Wiexnerslage,
Enforcement Programs, Illinois Environmental Protection
Agency, 2200 Churchill Road, Springfield, Illinois 62706, a
Certificate of Acceptance and Agreement to be bound by 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 said Certification shall be
as follows:
CERTIFICATION
I, (We),
____________________________,
having read the
Order of the Illinois Pollution Control Board, in PCB 87—16,
dated June 10, 1987, understand and accept the said Order,
realizing that such acceptance renders all terms and conditions
thereto binding and enforceable.
78-391
—13—
Petitioner
By: Authorized Agent
Title
Date
IT IS SO ORDERED.
Board Members Jacob D. Dumelle and Bill Forcade dissented,
and Joan Anderson concurred.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the a ove Opinion and Order was
adopted on the /,~-~Z7day of
~
,
1987, by a vote
of .~1—~?
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
78.392
