ILLINOIS POLLUTION CONTROL BOARD
December 3, 1987
VILLAGE OF ROSELLE,
)
Petitioner,
)
)
v.
) FOB 87-39
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
OPINION AND ORDER OF THE BOARD (by J. Anderson):
This matter comes before the Board on the petition for
variance filed by the Village of Roselle (Village) on March 30,
1987 as amended May 11, 1987 and supplemented on September 21,
1987. The Village requests a five year variance from 35 Ill.
Adm. Code 602.105(a) (Standards for Issuance) and 35 Ill. Adm.
Code 602.106(b) (Restricted Status List) as they relate to
violations of the 5 pCi/i combined radium-226 and radium-228
standard of 35 Ill. Adm. Code 604.301(a). The Village seeks
variance to allow the Agency to issue permits for water main
extensions during the period of the Village’s non-compliance with
the radium standard.
On July 21, 1987, the Illinois Environmental Protection
Agency (Agency) filed a Recommendation that variance be granted,
despite its finding that the petition was deficient in various
respects. In response to the Board’s Order of August 20, 1987
identifying certain areas in which the Agency’s Recommendation as
well as the petition were unclear, on August 31, 1987 the Agency
filed a Supplement to its Recommendation. On October 22, 1987
the Agency filed an amended Recommendation addressing the
information contained in the Village’s September 21, 1987
Supplement to its petition. The Agency again recommended that
variance be granted subject to conditions, although again noting
that “better documentation” should have been provided in some
areas. Hearing was waived, and none has been held. This matter
is being given expedited consideration in response to the
Village’s motion of October 29, 1987.
The Village of Roselle, which is located in DuPage County,
Illinois, provides water to a population of approximately 6,000
residential industrial/commercial users representing some 19,000
residents and some 100 industries and businesses as of 1986.
84—2 1
-2-
The Water Supply System and the Village’s Radium Excursion
The Village public water supply and distribution system
includes one (1) deep well, six (6) shallow wells, pumps, storage
tanks, and distribution facilities. The system is provided to
all residential, commercial, and industrial users as needed and
charges, as established by ordinance, are made to all users.
The Village reports that it has the following wells (with
their depths and age):
Well No. 1 182 ft. deep 170 GPM placed in operation 1925
Well No. 2 183 ft. deep 320 GPM placed in operation 1954
Well No. 3 260 ft. deep 720 GPM placed in operation 1960
Well No. 4 195 ft. deep 900 GPM placed in operation 1972
Well No. 5 1423 ft. deep 900 GPM placed in operation 1980
Well No. 6 127 ft. deep 270 GPM placed in operation 1977
Well No. 7 2551 ft. deep 150 GPM placed in operation 1964
Although it is not clear from this record, the Board assumes that
deep Well No. 7 is not in service.
The question of whether the Village is in fact out of
compliance with the combined radium standard was a matter which
was not plainly presented until the last filings were made in
this case.
In its initial petition, the Petitioner asserted that it was
first advised of the excessive combined radium content of its
water by an Agency letter dated December 6, 1986, which reported
a radium-226 content of 3.5 pico Curies per liter (pCi/i) and a
radium-228 content of 2.0 pCi/l, for a combined total of 5.5
pCi/i. This total exceeds the 5 pCi/i combined radium standard
by 0.5 pCi/i. The water sample analysis of an annual composite
of
four consecutive quarterly samples (or the average
of
the
analyses of four samples obtained at quarterly intervals)
was
performed by the LJSEPA laboratory.
By letter dated January 8,
1987, the Agency notified
the Village that its public water
supply was being placed on restricted status because the
Petitioner’s water supply exceeded the maximum allowable
concentration for combined radium-226 and radium-228.
However, Petitioner went on to assert that, since receiving
the Agency’s report, the Village conducted its own analyses of
water in its distribution system. These analyses of Petitioner’s
water samples show the following results in pico curies per
liter:
Date
Results
Location
January, 1987
1.1
Well #4
January, 1987
6.1
±
.8
Well #5
January, 1987
1.7
Distribution System
September, 1985
2.1
Distribution System
84—22
—3—
In its amended petition, the Village presented additional data
which it claimed showed radium reduction through blending. The
Agency questioned this claim in its original Recommendation,
noting that:
The Amended Petition for various in paragraph 20
alleges that, “A comparison of the sampling data
taken from identical locations within the Village
of Roselle distribution system between October,
1985, and January, 1987, as seen in Exhibits E
and H attached hereto, shows that blending has
been successfully used to reduce contamination
levels throughout the Petitioner’s system.”
(underlining in original)
This statement is confusing to the Agency because
said Exhibits E and H do not show any significant
reduction in the combined radium level. See
below:
Date
Radium 226 Radium 228
Exhibit H
10/04/85
1.1
1.0
Exhibit E
01/23/87
1.0
0.7
Areas near well number 5 would likely have
combined radium of 6.1 pCi/i. See Amended
Petition for Variance, Exhibit F. An analysis as
to the effect of blending s~hould have been made
by Petitioner.
In its Order of August 20, 1987, requesting supplemental
information on this and other points, the Board noted that:
The existing record does not adequately address
the threshold issue in a variance case: whether
there is in fact non-compliance requiring
variance relief. It is clear from the Village’s
sampling results that Well No. 5, with a combined
radium c~ontent of 6.1±0.8 pCi/l, itself does not
comply with the 5.0 pCi/i standard. The analysis
of the distribution system samples which the
Village had taken from locations at the
Waterbury, St. Walter, Medinah Middle and Spring
Hill Schools in 1985 and
1987 indicate combined
radium levels, respectively of 2.5 pCi/l; and
1.7 pCi/i. The relationship of these figures to
the Agency’s 5.5 pCi/i distribution sample
analysis is unclear; this record does not state
the location of the Agency’s sampling point.
In its Supplement, the Agency stated that the 5.5 pCi/I
combined radium reading resulted from a composite of the
84—23
—4—
following distribution samples: 07/09/84
-
215 Mulford; 09/18/84
-
213 Rush Street;
02/25/85
-
480 Ridgefield; and 02/03/86
-
composite from Medinah Middle School, 700 E. Granville; St.
Walter’s School, 139 W. Maple; Spring Hill School, 560 Pinecroft;
and Waterbury School, 345 Rodenbury Road.
The Agency further advised that it had reported to Roselle
on August 23, 1985 that a composite sample showed a radium 226
content of 3.1 pCi/l and radium 228 content of 3.7, for a
combined total of 6.8 pCi/i; sample locations are unavailable at
this time for this composite. The Agency noted that its records
do not show any more recent analysis for combined radium covering
four quarterly samples. The Agency believes that, as Roselle’s
analyses reported in its Petition for Variance do not cover four
quarters, until it demonstrates compliance over four quarters. it
remains in violation of the combined radium standard. See 35
Ill. Adm. Code 605.105(a).
In its Supplement, the Village does not contest the Agency
opinion that it remains in violation of the standard. The
Village explained that:
“the Agency has correctly opined that
distribution samples taken from areas near Well
No. 5 would show a violation oE~-the combined
radium standard in virtually every instance.
Petitioner is presently using all available
blending equipment, to its maximum capacity, to
reduce the amount of combined radium in its
distribution system. The blending system is not
adequate, even when used to its maximum capacity,
to reduce the combined radium present in the
water near Well No. 5 to a point below the
legally mandated combined radium standards.
The Petitioner must rely on Well No. 5 to meet
its water supply needs. The Petitioner cannot
improve its blending capabilities beyond that
which has already been achieved in its present
system.
Proposed Compliance Plan
The Village has identified two possible compliance
alternatives. The first would involve construction of treatment
facilities for radium removal, by either the ion exchange
(zeolite-sodium cycle) method or by the lime-soda ash softening
method. Capital costs and annual operation and maintenance costs
would be $250,000 and $239,700 for the ion exchange system, and
$500,000 and $100,700 for the lime softening system. The
estimated time for implementation of each system is twelve (12)
months.
84—24
-5-
The Village calculates that, based on a resident population
of 19,600, the cost of constructing the treatment facilities
would approximate S13.00-S27.0O per capita, a one-time expense,
without considering financing expenses. The increase in monthly
water bills per average residential customer to pay for
construction, including its financing, of just the improvements
required to achieve compliance with the combined radium standard
could be as high as $2.10 to $4.20/monthly over five (5) years.
The increase in monthly water bills per average residential
customer to pay for just the increase in costs for operation,
maintenance, and sludge removal required to achieve compliance
with the combined Radium 226 plus Radium 228 standard could be as
high as $3.55 to $8.47 per month over five (5) years.
The second compliance option is that preferred by the
Village: replacement of its well water by Lake Michigan water.
The Village states that it has been a member of the DuPage Water
Commission (DWC) since 1981. Since that time, Petitioner and the
22 other member municipalities have secured allocations from the
State of Illinois to use Lake Michigan water. The DuPage Water
Commission has executed contracts with the City of Chicago, with
property owners (governmental and private) for rights-of-way, and
with several construction contractors. Together, DWC members
will be investing more than $350-million in a water transmission
system to deliver
Lake Michigan
water via the City of Chicago to
some 726,845 people in DuPage County. The system is designed and
being built to meet the members’ water needs into the 21st
Century. The Village notes that while its primary purpose in
entering into this program was and still is to cease using the
dwindling supply of ground water and assure its users of an
adequate supply of high quality Lake Michigan water, the effort
will also eliminate its radium problem. The Village asserts that
it expects that DWC will begin to deliver Lake Michigan water
beginning in 1991, and with its first full year of operation in
1992. When that occurs, the Village will cease using its ground
water supplies and will rely on Lake Michigan water for the
entire community, except when otherwise necessary and permitted
pursuant to the Village’s contract with the DWC.
As documentation of its commitment to DWC, the Village
submitted of An Ordinance Approving Water Purchase and Sale
Contract, dated as of June 11, 1986, by and between the Village
of Roselle, Illinois, the Du Page Water Commission and other
Charter Customers. The Agency points out that Section 8(a) of
the “Water Purchase and Sale Contract Between the DuPage Water
Commission and Charter Customers” states in relevant part that,
“The Commission will make a diligent effort to have its
facilities completed to the point of delivery so as to furnish
Lake Water to the Charter Customers by January 31, 1992, but the
Commission does not hereby guarantee delivery by such date.”
(Based on a review of that contract, Roselle appears to be a
“Charter Customer”.)
84—25
—6-
The Village asserts that denial of a five-year variance
would impose an arbitrary or unreasonable hardship. The Village
notes that the combined radium standard is under review by USEPA,
although it also notes that there has been no indication whether
any proposed revised standard will be more strict or less strict
than the current one. However, given its commitment to pursuit
of the Lake Michigan water source, the Village believes that:
“the substantial expenditure of public funds for
treatment facilities which may become obsolete in
the near future is not in the public interest and
does not grant a corresponding benefit to the
public.”
The Village next argues that, as a result of restricted
status, “failure to obtain a variance means that all construction
within Petitioner’s service area requiring the extension of the
water supply system would come to a halt.
This hurts prospective
home purchasers
as well as business developers and Petitioner’s
tax base.” The Village states that the following
projects/developments are being delayed by restricted status:
Roselle Commerce Center Development, Walnut Oaks Subdivision,
Candle Lyte Subdivision, Bryn Mawr Subdivision, Case
International Development, and Poretta Development. The Village
has provided no details conce-ning these projects, such as
valuations, projected tax revenues, or numbers of persons to be
served by new water mains constructed to service these projects.
After reviewing all of the Village’s filings, the Agency
concluded in its amended Recommendation that
Although better documentation should have been
provided as a blending and number of people to be
served by a new water mains, the Agency continues
to believe a variance should be granted, in light
of the cost of treatment, the likelihood of no
significant injury to the public, and the
probability of compliance with the radium
standard on obtaining Lake Michigan water. The
Agency continues to recommend that the variance
conditions stated in paragraph 37 of its Agency
Recommendation be imposed.
These conditions include the requirement that treatment
facilities be installed if it appears that Lake Michigan water
will not be available at the end of the variance period, and
notification of grant of variance to the Village’s water users.
Based on all of the facts and circumstances presented here,
the Board finds that denial of variance would impose an arbitrary
or unreasonable hardship. The Board notes that this petition
could have been handled more expeditiously if all relevant
information had been provided early on, and agrees with the
84—26
—7—
Agency that information in certain areas remains scanty.
However, the Board places weight on the facts that 1) the
Village has known of its radium problem for a relatively short
period of time; 2) the radium content of its finished water
based on the 1985/1986 composite sample is only slightly (0.5
pCi/i) over the standard; 3) the Village has already initiated a
blending program, with the result that many of its users receive
water which are in compliance with the standard; and 4) the
Village has adequately demonstrated a long standing commitment to
providing its water users with Lake Michigan water through the
DWC, and that delivery of such water is currently expected before
the end of the proposed variance period. For these reasons, as
well as the other factors referred to by the Agency, the Board
hereby grants a variance for five years, subject to conditions.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
OR D ER
1. The Petitioner, the Village of Roselle, is hereby granted
variance from 35 Ill. Mm. Code 602.105(a) and from 35 Ill.
Adm. Code 602.106(b) but only as they relate to the 5 pCi/i
combined radium-226 and radium-228 standard of 35 Ill. Adm.
Code 604.301(a), subject to the following conditions:
(a) This variance terminates on December 3, 1992, or when
analysis pursuant to 35 Ill. Adm. Code 605.105(a) shows
compliance with the combined radium standard, whichever
comes first;
(b) In consultation
with the Agency, Petitioner
shall
continue its sampling program to determine as accurately
as possible the level of radioactivity in its finished
water. Until this variance expires, Petitioner shall
collect quarterly samples of its water from its
distribution system, shall composite and shall analyze
them annually by a laboratory certified by the State of
Illinois for radiological analysis so as to determine
the concentration of combined radium. 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;
(c) Compliance shall be achieved no later than December 3,
1992;
84—27
-8-
(d) The Petitioner shall continue to make every reasonable
effort to replace its well water supply with Lake
Michigan water in conformance with its contract with the
DuPage Water Commission. Beginning December 3, 1988,
Petitioner shall report to the Agency yearly on each
December 3 prior to the expiration of this variance as
well as on September 3, 1991 as to the
feasibility/status of obtaining Lake Michigan water
before this variance expires. If it reasonably appears
to the Petitioner, or if the Agency notifies Petitioner
that it reasonably appears to the Agency, that
Petitioner will not obtain Lake Michigan water prior to
December 3, 1992, Petitioner shall apply to IEPA for all
necessary permits for the construction of treatment
facilities on or before December 3, 1991 and shall
install said facilities and have them operational prior
to December 3, 1992. The deadline for applying for said
permits for treatment facilities and starting said
construction of treatment facilities may be extended by
the Agency in writing for good cause shown.
Notwithstanding this provision Petitioner must comply in
full with paragraph (h), below.
Ce) On or before March 3, 1988, the Petitioner shall secure
professional assistance (either from present staff or an
outside consultant) to investigate compliance options,
including the possibility and feasibility of achieving
compliance by obtaining an alternate water source,
building treatment facilities
or blending water from
shallow wells with that of its deep wells;
CE) On or before April 3, 1988, the Petitioner shall submit
evidence that such professional assistance has been
secured to the Agency’s Division of Public Water
Supplies, FOS, at 2200 Churchill Road, Springfield,
Illinois 62794—9276;
(g) Within two 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,
DPWS, within 30 days of each action, of: 1)
advertisements for bids, 2) names of successful bidders,
and 3) whether Petitioner accepted the bids;
(h) Construction pursuant to 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 concentration in question
84—28
—9—
shall begin no later than June 3, 1992; and shall be
completed no later than December 3, 1992;
Ci)
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. Code
602.105(a) Standards of Issuance and 35 Ill. Adm. Code
602.106(b) Restricted Status, as they relate to the 5
pCi/i combined radium standard;
(j)
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 as written notice to the effect
that Petitioner is not in compliance with the combined
radium standard. The notice shall state the average
combined radium content in samples taken since the last
notice period during which samples were taken;
(k) That Petitioner shall take all reasonable measures with
its existing equipment to minimize the level of combined
radium in question in its finished water; and
(1) The Petitioner shall provide written progress reports to
IEPA, DPWS, FOS every six months
concerning steps taken
to comply with paragraphs (k) and every three months
after December 3, 1991 concerning steps taken to comply
with paragraphs g and h. Progress reports shall quote
each of said paragraphs and immediately below each
paragraph state what steps have been taken to comply
with each paragraph.
2. Within 45 days of the date of this Order, Petitioner shall
execute and forward to Wayne L. Wiemerslage, Enforcement
Programs, Illinois Environmental Protection Agency, 2200
churchill Road, Springfield, Illinois 62794-9276, a
Certification of Acceptance and Agreement to be bound to all
terms and conditions of this variance. The 45-day period
shall be held in abeyance during any period that this matter
is being appealed. Failure to execute and forward the
Certificate within 45 days renders this variance void and of
no force and effect as a shield against enforcement of rules
from which variance was granted. The form of said
Certification shall be as follows:
84—2 9
-10-
CERTIFICATION
I, (We)
,
hereby
accept and agree to be bound by all terms and conditions of the
Order of the Pollution Control Board in FOB 87-39, December 3,
1987.
Petit ioner
Authorized Agent
Title
Date
Section 41 of the Environmental Protection Act, Ill. Rev.
Stat. 1985 ch. 111 1/2 par. 1041, provides for appeal of final
Orders of the Board within 35 days. The Rules of the Supreme
Court of Illinois establish filing requirements.
IT IS SO ORDERED.
J. D. Durnelle 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
3~t~~(
day of
42~~a..,.,i4-s
,
1987, by a
vote of
.5~2.
Dorothy M. Gunn, Clerk
Illinois
Pollution Control Board
84—30
