ILLINOIS POLLUTION CONTROL BOARD
    June 30, 1988
    VILLAGE OF CHANNAHON
    Petitioner,
    v.
    )
    PCB 88—42
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
    OPINION AND ORDER OF THE BOARD (by
    3.
    Anderson):
    This matter is before the Board on petition for variance
    filed by the Village of Channahon (Village) on March 4, 1988 as
    amended May 5, 1988. The Village seeks variance until July 1,
    1991 from 35 Ill. Adm. Code 602.105(a) “Standards for Issuance”
    and from 35 Ill. Mm. Code 602.106(b) “Restricted Status’t, to the
    extent these rules relate to the 5.0 pCi/i standard for combined
    radiurn—226 and radium—228 (combined radium) contained in 35 Ill.
    Mm. Code 604.301(a) and the 15.0 pCi/i standard for gross alpha
    particle activity contained in 35 Ill. Adm. Code 604.301(b).
    On June 6, 1988, the Village filed a motion for expedited
    consideration in this matter, which gives, among other reasons
    for its request, the fact that the Village has received grant
    funds for extension of its water system to serve an industrial
    development. On June 10, 1988, the Illinois Environmental
    Protection Agency (Agency) filed its Recommendation in support of
    grant of variance. Hearing was waived and none has been held.
    Decision in this case has been expedited as requested by the
    Village.
    The System and History of Violation
    The Village of Channahon, whose 1980 population was 3788,
    supplies potable water to 80 customers, all of which are
    residential ones located within its corporate limits; the total
    population served by the water supply system is 280 residents.
    The Village’s water supply system consists of one deep well,
    placed into service in 1978, a 250,000 gallon elevated water
    storage tank, pumps and distribution facilities.
    The Village learned of exceedances of the gross alpha
    standard in 1984, and of the combined radium standard in 1986;
    this is its first petition for variance from either standard. As
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    to gross alpha, by letter of December 18, 1984, the Agency
    advised the Village of its violation of the standard. An
    analysis of an annual composite of four consecutive quarterly
    samples or the average of the analyses of four samples obtained
    at quarterly intervals showed gross alpha particle activity
    content of 17.4 pCi/i, 2.4 pCi/i over the standard of 15.0. By
    letter of January 9, 1985, the Agency placed the Village on
    restricted status for this contaminant. The Village asserts that
    compliance with gross alpha standard may or may not have been
    achieved to date. Single samples, rather than composite samples
    were analyzed in August 1986, and August 21, 1987 by the Agency
    with gross alpha particle activity with concentrations of 8 pCi/l
    and 7 pCi/i respectively.
    As to combined radium, by letter of August 5, 1986, the
    Agency advised the Village of its violation of the standard. An
    analysis of an annual composite of four consecutive quarterly
    samples or the average of the analyses of four samples obtained
    at quarterly intervals showed a radium—226 content of 6.2 pCi/l
    and a radium—228 content of 4.4 pCi/i. The combined radium
    content of 10.6 pCi/l is 5.6 pCi/l over the standard of 5.0
    pCi/i. By letter of August 14, 1986, the Agency placed the
    Village on restricted status for this contaminant. The Village
    continues to be on restricted status for gross alpha as well as
    combined radium.
    On January 22, 1988, as part of its “enhanced enforcement”
    program, the Agency sent the Village an Enforcement Notice Letter
    and Letter of Commitment. The enforcement notice letter advised
    the Village, as required by Section 31(d) of the Act, that the
    Agency intended to initiate formal enforcement proceedings. It
    went on to note the Village’s opportunity to meet with the Agency
    and to resolve the matter by signing a Letter of Commitment to a
    compliance program. The draft Letter of Commitment would require
    that compliance be obtained by January 22, 1992, and would
    require the Village to develop and implement a compliance
    program, consistent with interim compliance milestones/
    deadlines. The draft Letter of Commitment goes on to explain
    that the compliance plan would be incorporated into a Stipulation
    which, along with a Complaint, would be submitted to the Board.
    Paragraph 9 of the Letter states that the Board’s Order would not
    include civil penalties for past penalties, but would include
    provisions for contingent penalties for missed compliance
    milestones/dead lines.
    The Agency notes in its Recommendation that the Village has
    not executed a draft Letter of Commitment. The Board wishes to
    make clear at this juncture that there is no linkage between a
    petition for variance and any Agency pre—enforcement activity in
    this or any other case; the Board is required by Section 37 of
    the Act to determine on the basis of the pleadings before the
    Board whether denial of variance would impose an arbitrary or
    90—498

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    unreasonable hardship. The Board also wishes to note that the
    Letter of Commitment, particularly in paragraphs 9 and 10, could
    lead a reader to conclude, incorrectly, that the Board had
    predetermined that it would enter the Order described. The Board
    has made no such determination, and has not as yet been presented
    with any enforcement case in which the parties have sought to
    have such astipulation incorporated into a Board Order. The
    Board is required by Section 33 of the Act to base its decisions
    on enforcement cases solely on the record before it at that time;
    it is not appropriate for the Board to consider here the
    enforcement aspects of the draft Letter of Commitment.
    Proposed Compliance Plan
    The Village currently has no controls in place for treatment
    of the waters of its single deep well to achieve compliance with
    the radiological quality standards, and has made no past efforts
    to achieve compliance. The Village has not yet chosen a
    compliance option, and has stated its intention to retain a
    consulting engineer to review and evaluate its situation over the
    course of the next six months. At this juncture, the Village
    cannot provide accurate costs or time figures, but states that it
    presently envisions implementing one of three compliance options,
    with Option A being the currently preferred one:
    (A) Using shallows wells for blending and dilution
    purposes. The estimated construction cost for each
    shallow well is $80,000 and it is anticipated that one
    (1) such well would be necessary to reduce the combined
    Radium—226 and Radium—228 and gross alpha particle
    concentration presently found in the Petitioner’s water
    supply below the maximum allowable concentration.
    However, the exact number of wells required is unknown
    at this time since there is no guarantee of the pumping
    capacity of the wells.
    The estimated time for
    implementation is 24 months.
    (B) Connecting to the water distribution system currently
    being proposed by the City of Joliet which will be fed
    from the Kankakee River and treated near Elwood,
    Illinois. According to the City of Joliet, they are
    under order from the Illinois Pollution Control Board to
    deliver water to their customers from a source that is
    in compliance with all Federal and State regulations by
    1993.
    The City of Joliet has invited neighboring
    municipalities to join them in this endeavor and there
    are currently discussions being held concerning the
    possibility of the County of Will or the Will County
    Public Water Commission joining with the City to provide
    water to the surrounding municipalities. The Village of
    90—4 99

    —4—
    Channahon is interested in this alternative and is
    willing to participate in the cost of analyzing the
    existing and future needs of the Village in regard to
    potable water as well as the costs involved in the
    actual construction of the water transmission and
    distribution systems. However, the estimated costs have
    not been determined at this time.
    (C) Constructing treatment facilities in order to properly
    treat all water supplied by the Petitioner. The
    estimated construction cost of the new treatment
    facilities is $300,000 to $500,000 depending upon the
    method of treatment utilized. The estimated time for
    implementation of this alternative is 36 months.
    In conjunction with Option C, the Village notes that use of each
    of the two primary treatment methods——lime or lime soda softening
    and ion exchange softening——brings attendant problems of disposal
    of sludge containing concentrated radium. It also notes that the
    Agency is actively discouraging the use of the ion exchange
    method, which brings the additional problems of a) increased
    risks to persons with hypertension or heart problems as a result
    of increased sodium in the finished water if the softener is
    regenerated with salt, and b) increased risks to the supply
    operator in working with and disposing of the ion exchange
    material as a result of that materials’ retention of
    radioactivity.
    Alleged Hardship
    The Village calculates that, if it chooses to implement
    Option C, the installation of a treatment system, the per capita
    construction costs to its water consumer population of 280 will
    range between $1,072 and $1,786. The Village has not estimated
    annual operation and maintenance costs for this option, and has
    not estimated economic effects on its population of
    implementation of Options A and B.
    In its petition, the Village generally states that denial of
    variance would impose an arbitrary or unreasonable hardship
    because the restricted status ban prevents new construction which
    would require extension of its water supply system which “hurts
    prospective home purchases as well as business developers and
    Petitioner’s tax base.” In its June 6, 1988 letter, the Village
    was a bit more specific, stating “we have a proposal and
    improvement plans submitted to the Village for a new single
    family development and it is important that Board action be taken
    as soon as possible to allow completion of this development in
    this construction season. Also the Village has received a grant
    to extend its water system to serve an industrial area and here
    too, it is important that work be completed in this construction
    season.
    90—500

    —5—
    Finally, the Village notes that USEPA has had the
    radiological quality standards under review since 1983. While
    admitting that it is unknown whether the standard will be more
    strict, less strict, or the same as current standards, the
    Village asserts that if the standard becomes less strict,
    construction of treatment facilities which could become obsolete
    would not be in the public interest.
    Environmental Effects
    The Village has made no formal assessment of the effects of
    grant of variance, although it is of the opinion that no
    significant adverse effects will occur.
    The Agency in its Recommendation states that while radiation
    at any level creates some risk, the risk associated with these
    levels are low. Based on the evidence presented in the R85—l4
    proceeding, the Agency believes that an incremental increase in
    the allowable concentrations for the radiological contaminants
    even up to a maximum of four times should cause no significant
    health risk for the limited population served by new water main
    extensions for the time period of the variance as recommended,
    that is, until July 1, 1991.
    Conclusion
    The Board finds that, after weighing the lack of significant
    health risks, denial of variance would impose an arbitrary or
    unreasonable hardship, but does not believe that this record
    justifies grant of the three year variance sought. The Village
    has been on restricted status since 1984 for gross alpha
    violations, and since 1986 for combined radium violations, but
    does not appear to have even yet formally contracted for
    professional engineering services. The Village has presented no
    explanation for its four year delay in initiating compliance
    activities of any sort, and has presented a very thin record on
    hardship. However, given the Village’s small size and the
    availability of grant funds to finance system enlargements, the
    Board feels that compliance would be better facilitated by grant
    of variance rather than by denial. However, given the Village’s
    track record, and its lack of a firm commitment to a specific
    compliance option, the Board believes that only a 13 month
    variance, until July 30, 1990, is appropriate. This will allow
    the Village nine months to formally secure professional
    assistance, investigate compliance options and develop a
    compliance plan to which it is firmly committed, and submit a new
    petition for variance and four months for processing of that
    petition by the Agency and the Board. Grant of variance for this
    term is consistent with the Board’s approach with other small
    public water supplies (See, e.g. Village of Elburn v. IEPA. PCB
    88—4, April 21 and June 16, 1988).
    90— 501

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    As to conditions, the variance will terminate automatically
    if interim deadlines are not met. The Board notes that the
    Agency, in its Recommendation, has suggested compliance
    milestones. The Board will retain these dates, but will extend
    the one which has passed. Finally, the Board will also retain
    the proposed ultimate compliance deadline of January 22, 1993.
    This Opinion constitutes the Board’s findings of fact and
    conclusions of law in this matter.
    ORDER
    The Village of Channahon (Village) is hereby granted a
    variance from 35 Ill. Adm. Code 602.105(a) “Standards for
    Issuance” and 602.106(b) “Restricted Status”, but only as they
    relate to the combined radium—226 and radium—228 standard of 35
    Ill. Adm. Code 604.301(a) and the gross alpha particle activity
    level standard of 35 Ill. Adm. Code 604.301(b). The variance is
    subject to the following conditions:
    1. This variance expires on July 30, 1990, or when analysis
    pursuant to 35 Ill. Mm. Code 605.105(a) shows
    compliance with the standard for combined radium, which
    ever occurs first.
    2. In consultation with the Agency, by July 22, 1988, the
    Village shall continue its sampling program to determine
    as accurately as possible the level of radioactivity in
    its wells and finished water. Until this variance
    expires, the Village shall collect quarterly samples of
    its water from its distribution system, at locations
    approved by the Agency. The Village shall composite the
    quarterly samples from each location separately 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.
    3. By July 22, 1988, the Village shall secure professional
    assistance (either from present staff or an outside
    consultant) in investigating compliance options,
    including the possibility and feasibility of achieving
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    compliance by blending water from shallow well(s) with
    that of its deep well.
    4. By August 22, 1988, 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 62794—9276.
    5. By November 22, 1988, the Village shall submit to the
    Agency, DWPS (FOS) An Interim Compliance Report which
    shall briefly describe what compliance options the
    Village is investigating and a review of the financial
    resources being considered for use in achieving
    compliance.
    6. By May 22, 1989, the Village 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 submit to IEPA, DPWS, a detailed Compliance
    Report showing how compliance shall be achieved within
    the shortest practicable time, but no later than January
    22, 1993.
    7. Failure to meet the deadlines in paragraphs 3, 4, 5 and
    6 will result in the automatic termination of the
    variance.
    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 variance Order, whichever occurs first, and every
    three months thereafter, the Village shall send to each
    user of its public water supply a written notice to the
    effect that the Village has been granted by the
    Pollution Control Board a variance from 35 Ill. Adm.
    Code 602.105(a) Standards of Issuance and 35 Ill. Adm.
    Code 602.106(b) Restricted Status, as they relates to
    the standard the combined radium and gross alpha
    particle activity.
    9. Pursuant to 35 Ill.
    Adrn.
    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 Village shall send to each user
    of its public water supply a written notice to the
    effect that the Village is not in compliance with the
    standard for combined radium and gross alpha particle
    activity. The notice shall state the average content of
    combined radium and gross alpha particle activity in
    samples taken since the last notice period during which
    samples were taken.
    90—503

    —8-
    10 Until full compliance is reached, the Village of shall
    take all reasonable measures with its existing equipment
    to minimize the level of contaminant in question in its
    finished drinking water.
    11. Within 45 days after the date of this Opinion and Order
    the Village shall execute and send to:
    Attention: Scott 0. Phillips
    Enforcement Programs
    P. 0. Box 19276
    Illinois Environmental Protection Agency
    2200 Churchill Road
    Springfield, Illinois 62794—9276
    a certificate of acceptance of this variance by which it
    agrees to be bound by the terms and conditions contained
    herein. This variance will be void if the Village fails
    to execute and forward the certificate within the 45 day
    period. The 45 day period shall be in abeyance for any
    period during which the matter is appealed. The form of
    the certification shall be as follows:
    CERTI FICATION
    I, (We), _____________________________, having read the
    Order of the Illinois Pollution Control Board in PCB 88—42, dated
    June 30, 1988, understand and accept the said Opinion and Order,
    realizing that such acceptance renders all terms and conditions
    thereto binding and enforceable.
    Petitioner
    By: Authorized Agent
    Title
    Date
    12. Section 41 of the Environmental Protection Act (Ill.
    Rev. Stat. 1985, ch. 1fl14 par. 1041) provides for
    appeal of final Orders of the Board within 35 days. The
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    Rules of the Supreme Court of Illinois establish filing
    requirements.
    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 a ye Opinion and Order was
    adopted on the ~O~-’— day of
    __________________,
    1988, by a vote
    of~_.
    Dorothy
    ~~i2).
    M. ~1nn, Clerk
    ~
    Illinois Pol’lution Control Board
    90-505

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