ILLINOIS POLLUTION CONTROL BOARD
November 19, 1987
VILLAGE OF H1NC~LEY,
Petitioner,
v.
)
PCB 87—140
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
OPINION AND ORDER OF THE BOARD (by R. C. Flemal):
This matter comes before the Board on a petition for
variance filed on September 24, 1987, and an amended petition for
variance filed on October 14, 1987, by the Village of Hinckley
(“Hinckley”). Hinckley seeks variance until January 1, 1989,
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 Hinckley’s public water supply of the 5
picocuries per liter (pci/i”) combined radium—226 and radium—228’
standard of 35 Iii. Adm. Code 604.301(a).
On October 22, 1987, the Illinois Environmental Protection
Agency (“Agency”) filed a Recommendation in support of grant of
variance subject to conditions. Hearing was waived and none was
held.
BAC~GROFJND
Hinckley provides potable water supply and distribution for
a population of 1,600 residents and 60 industries and businesses
employing approximately 400 people. Hinckley owns and operates
the distribution system in question. Included in the
distribution system are two deep wells, a 60,000 gallon elevated
storage tank, pumps, and distribution facilities. An additional
300,000 gallon elevated storage tank is under construction, and
forms the basis by which Hinckley proposes to come into
compliance with the combined radium standard.
In its September 24 petition Rinckley incorrectly identifies
“combined radium” as synonomous with “gross alpha particle
activity” Correction was made in the amended petition of October
14.
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Hinckley’s two wells are as follows:
Placed in Gallons
Well No. Depth
Operation Per Minute Location
2
780 feet
1913
300
S. Garfield
3
605 feet
1963
280
E. Sandwicri Rd
Hinckley 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 snowing an average
radium—226 content of 3.5 pCi/i and an average radium—228 content
of 3.2 pCi/l, for a combined average of 6.7 pCi/l. Analyses of
water from the two wells, as provided by Petitioner, showed the
following results, in pCi/i:
RADIUM RADIUM
DATE
LOCATION
226
228
COMBINED
07—04—86
E. Sandwich
6.9
1.0
7.9
07—21—86
S. Garfield
1.0
3.0
4.0
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. Illinois subsequently adopted the same limits as the
maximum allowable concentrations under Illinois law.
However, the action that Hinckley requests here is not
variance from the combined radium maximum allowable
concentration. Irrespective of the action taken by the Board in
the instant matter, this standard will remain applicable to
Hinckiey. Rather, the action Hinckley 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.
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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
trie public, 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 pronibited 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 finisned water
supplies. This provisi~ is a feature of Illinois regulations
not found in federal law. It is this effective prohibition which
Hinckley herein requests be lifted.
COMPLIANCE PROGRAM
Hinckley has already embarked on a compliance program ~hicn
consists of constructing a new and larger elevated storage
tank. Hinckley asserts that the new tank will allow the Village
to take the E. Sandwich Road well out of service and to use only
the S. Garfield well, which has a combined radium concentration
below the allowable limit.
The estimated cost of the new tank is $442,500. Hinckley
has obtained a CDAP Grant to fund approximately 3/4 of this cost;
the remaining cost is expected to be covered by the Village from
funds on hand. Construction of the new tank was estimated to be
65 complete at the time of filing of the petition. With
favorable weather, Petitioner estimates that the tank may be
functional as soon as November 30, 1987. Otherwise, completion
will occur in spring and operation is expected before July, 1988.
Hinckley also asserts that it is aware of additional
compliance possibilities. It considers these as alternatives to
the elevated tank solution:
Constructing treatment facilities in order to properly
treat all water supplied by this system. The new
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treatment facilities needed, and their estimated
individual costs, have not been researched for exact
cost or time of implementation because of positive
feelings on the elevated tankj solution and new
treatment methods being invented regularly. (Petition
at 24).
Hinckley then discusses some of the general advantanges and
disadvantages of lime—soda softening and ion—exchange softening.
The Agency also discusses lime—soda softening and ion—
exchange softening, noting, among other matters, that it
“actively discourages the use of the ion exchange process for
radionuclide removal, unless that is the best treatment method
available for a particular supply” (Recommendation, p. 6).
HARD S H IP
Hinckley 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 are hurt. As specific
examples, Petitioner currently foresees the need to extend water
mains to serve the following new users:
A. Bastian’s Unit 6 Development to be located on
Louise Drive, Hinckley, consisting of 29 single
family residences with an expected population of
115 persons. Each house would have a separate
hook—up to the proposed water main.
B. Highland Estates Unit 3 to be located on North
Donald Street, Hinckley, consisting of 10 single
family residences with an expected population of
40 persons. Each house would have a separate
hook—up to the proposed water main.
ENVIRONMENTAL AND HEALTH EFFECTS
As to the environmental and health affects of its request,
Hinckiey 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, Hinckley 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—l4, Proposed Amendments to Public dater Supply Regulations,
35 Iii. Adm. Code at 602.105 and 602.106.
83—116
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The Agencydoes not dispute Hinck?ey’s various assertions
regarding health affects. The Agency believes that wnile
radiation at any level creates some risk, the risk associated
with Hinckley’s water is low. Moreover, the Agency believes that
“an incremental increase in ttie 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”
(Recommendation, p. 5). 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 tne 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
more effectively blended water. In so saying, the
Agency emphasizes that it continues to place a high
priority on compliance with the radium standards.
Recommendation, p. 9.
CONCLUSION
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.
Accordingly, the Board will grant the relief requested, subject
to conditions.
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The remaining issue is the matter of the term ot the
variance. Hinckley requests that the variance expire on January
1, 1989, in spite of its belief that the facilities improvement
necessary to achieve compliance snould be functional no later
than mid—1988. Hinckley does not address the advisability of
extending the term of the variance beyond the latter date.
However, the Board is aware that before Hinckley can demonstrate
that it is in compliance it must show that the average of four
consecutive quarterly samples of combined radium is below the 5.0
pCi/l standard. Thus, the ability to demonstrate compliance may
require additional time beyond that time at which ability to
attain compliance exists. The Board will accordingly grant the
variance to January 1, 1989, with the proviso that the variance
terminate if compliance is achieved earlier.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
1. Petitioner, tne City of Hinckley, 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/i combined radium—226 and radium—228 standard of 35
Ill. Adm. Code 604.301(a), subject to the following
conditions:
(A) This variance expires on January 1, 1989, or wnen
compliance with 35 Ill. Adm. Code 604.301(a) 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 snali collect quarterly samples of its water
from its distribution system, composite them, 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 two parameters,
radium—226 and radium—228. 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.
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(C) Compliance snall be acnieved with the maximum allowable
concentrations of combined radium—226 and radium—228 no
later than January 1, 1989.
(D) Pursuant to 35 Ill. Adm. Code 606.201, in its first set
of water bills or within tnree 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
combined radium—226 and radium—228 standard.
(E) 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 combined
radium—226 and radium—228 standard. Tne notice shall
state the average content of the contaminants in
question in samples taken since the last notice period
during which samples were taken.
(F) Until full compliance is reached, Petitioner snall take
all reasonable measures with its existing equipment to
minimize the level combined radium—226 and radium—228 in
its finished water.
(G) Petitioner shall provide written progress reports to
IEPA, DPWS, FOS every tnree months concerning steps
taken to comply with paragraph F.
2. Within forty—five days of the date of this Order, Petitioner
shall execute and forward to Thomas Davis, 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. Failure to execute said
Certification within this forty-five days snail cause tnis
Order to be null and void. Tnis 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:
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CERTIFICATION
I, (We), ___________________________, having read the
Order of the Illinois Pollution Control Board, in PCB 87—140,
dated November 19, 1987, understand and accept the said Order,
realizing that such acceptance renders all terms and conditions
thereto binding and enforceable.
Petitioner
By: Authorized Agent
Title
Date
3. Section 41 of the Environmental Protection Act (Ill. Rev.
Stat. 1985, ch. 1111/2, par. 1041) provides for appeal of final
Orders of the Board within 35 days. The Rules of the Supreme
Court of Illinois estaoiish filing requirements.
IT IS SO ORDERED.
Board Members J.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 /~‘~idayof
~
,
1987, by a vote
of
-2
.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
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