ILLINOIS POLLUTION CONTROL BOARD

June 30, 1988

VILLAGE OF COAL CITY,

Petitioner,

v.

)

PCB 88—83

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

JOHN M. TIRA APPEARED ON BEHALF OF THE PETITIONER.

BOBELLA GLATZ APPEARED ON BEHALF OF THE RESPONDENT.

OPINION AND ORDER OF THE BOARD (by J. Marlin):

This matter comes before the Board on a Petition for

Variance filed by the Village of Coal City (Coal City) on May 5,

1988. Coal City is seeking variance from 35 Ill. Adm. Code

602.105(a) Standards for Issuance, and Section 602.106(b),

Restricted Status, only to the extent that those Sections relate

to Sections 604.301(a) (Combined Radium 226 and 228) and

604.301(b) (Gross alpha particle activity). On June 8, 1988, the

Agency filed its Recommendation in which it recommended that Coal

City be granted the requested variance subject to conditions.

Since Coal City waived its right to a hearing and no members of

the public filed a timely objection to Coal City’s Petition, no

hearing was held in this matter.

Coal City has a population of 3,700 and is located in Grundy

County. It serves this population with a public water supply

system that includes shallow and deep wells, 500,000 gallons of

water in above ground storage, pumps and distribution

facilities. Relevant data concerning the wells are listed below:

Placed In    

Gallons Per

nell No.    

Depth    

Operation    

Minute

1,785     

1979

625

The Agency placed Coal City on the Restricted Status list on

April 5, 1983. Agency analyses indicated in 1983 that the gross

alpha particle activity of Coal City’s water was 25.7 picocuries

per liter (pCi/i). Section 604.301(b) imposes a 15 pCi/i limit

for gross alpha particle activity. In addition, in 1984, the

Agency data indicated that the water of Coal City had a combined

90—519

2

radium content of 22.6 pCi/I. The combined radium standard, as

imposed by Section 604.301(a), is 5 pCi/i. (Ag. Rec., p. 3).

Coal City is seeking a variance so that it may be allowed to

extend its public water supply to new developments even though

the water exceeds standards for combined radium and gross alpha

particle activity. Coal City requests that it be granted a

variance for three years.

According to Coal City, it has experienced only minimal

growth since 1984. Coal City claims that further developments

may only be accomplished through the expansion of the existing

water supply system. Coal City’s Petition states:

There are several proposals for additional

subdivision development that have been made

in the past and are currently pending. All

of the projects as proposed are contingent on

water main extensions and as built will

generate substantial increases in assessed

valuation and income to the community. With

the increased income, the Village will be

able to implement other alternatives in

developing feasible compliance methods.

In addition, the Village has had to forgo

substantial commercial development in the way

of retail shopping for residents and

surrounding communities.  

~1so, existing

retail establishments have had difficulty

with their current operations due in part to

a declining population. This is due in part

to the aging of the residential population

residing in existing structures and the fact

that new residents cannot be attracted to

move to the Village because of the lack of

new subdivision development directly related

to the inability to extend watermains.

The Village was unable to effectively compete

for a new residential retirement home with

other communities due to inadequate building

sites because of the water problem. The

Village’s property tax base and retail sales

tax base used to fund growth in the Village

has been significantly affected by the

watermain extension prohibition.   

This

accompanied with the general economic

hardships experienced by rural communities

has placed an undue burden on the Village of

Coal City and its residents.

(Pet., p. 6—7)

90—520

3

On June 10, 1988, Coal City filed a Motion for Expedited

Decision in this matter based upon the fact that a developer is

currently interested in developing a new subdivision in Coal

City. In a Response to the Board’s Order of June 16, 1988, which

in part granted Coal City’s motion, Coal City states that the

proposed development would include 23 lots for single family

dwellings with a maximum capacity for the subdivision of 66 lots.

Although Petitioner cites a number of alternative methods by

which Coal City might achieve compliance, Coal City has not yet

selected a compliance method. Coal City states that it has

engaged an engineer to study the various compliance methods and

that Coal City will choose one method by November 10, 1988. It

states that it will implement the selected method and achieve

compliance within three years of the grant of variance. (Pet., p.

9, 11—12).

During the variance period, Coal City proposes to reduce the

radium and gross alpha content of its water by not drawing water

from well No. 5. Well No. 5 would only be used “in case of

emergency or fire and depletion of the 400,000 gallon storage

tanks or during a catastrophic main break.” According to Coal

City, such action would require that Coal City decrease its

current water consumption rate by approximately 20 percent. Coal

City states that “such conservation will be implemented by the

installation of water meters and the establishment of usage rates

which will discourage waste and the initiation of a water

conservation public relations campaign.” Coal City states that

Well No. 5 would not be utilized again until “the final treatment

plant is in operation.” (Pet. p. 9—10). Since Coal City has not

yet selected a compliance method, presumably this means until

Coal City is able to achieve compliance and still utilize Well

No. 5.

Well No. 5, a deep well, has the highest radium and gross

alpha content of Coal City’s wells. Data, taken when Well No. S

was out of commission, indicate a combined radium content of 15.4

pCi/i and a gross alpha particle activity of 17.3 pCi/i for Coal

City’s water when it draws only from the two shallow wells.

(Pet., p. 10).

With regard to the environmental impact that would result if

this variance were granted, Coal City asserts that the variance

“will not cause any significant harm to the environment or to the

people served by potential water main extensions” for the limited

time period requested. (Pet., p. 10). The Agency similarly

states that the variance “should cause no significant health risk

for the limited population served by new water main extensions

for the time period of this recommended variance.” (Ag. Rec., p.

5). In addition, the Agency asserts that a variance would not

change the existing situation as it concerns users of existing

water lines except that “the variance by its conditions may

90—52 1

4

hasten compliance.” The Agency also points out that a variance

would benefit current users in that the water quality will

improve during the variance period because Well No. 5 will not be

utilized. (Ag. Rec., p. 9).

On April 11, 1987, Coal City entered into a letter of

Commitment (Letter) with the Illinois Environmental Protection

Agency. In the Letter, Coal City commits to achieve full

compliance with drinking water standards by July 

10,

1991. The

Letter also provides:

Violation of the terms of this Letter of

Commitment shall subject Respondent to

enforcement referral by the Agency to the

USEPA for the issuance of an Administrative

Order or the filing of a federal court

complaint, or to the Illinois Attorney

General’s Office for appropriate enforcement

action.

(Pet., Attach. #3)

Evidently, Coal City has made a formal commitment to the Agency

to achieve compliance by a date certain. The Board notes that

the letter of commitment does not bear upon its determination in

this proceeding. Also, the Board notes that it is not bound by

any potential enforcement stipulation contained in the letter of

commitment (Village of Channahon v. EPA, PCB 88—42, June 30,

1988).

Given all of the circumstances of the instant case, the

Board finds that a denial of a variance would constitute an

arbitrary or unreasonable hardship. Therefore, the Board will

grant Coal City a variance.

However, Coal City has still not committed itself to a

specific method for achieving compliance. Coal City will not

select a specific method until November 10, 1988, according to

Coal City’s proposal. The Board believes that Coal City is not

entitled to a long term variance, since Coal City does not yet

know exactly how it will achieve compliance. It is important to

note that Coal City has been on the restricted status list since

1983. The combined radium and gross alpha particle activity

content of Coal City’s water greatly exceeds the standards set

forth by Section 604.301. Coal City states in its Petition that

it has not sought a variance prior to the instant request. In

addition, since learning in 1983 that it exceeds the standards,

Coal City has apparently done virtually nothing in an effort to

mitigate or remedy its water problem prior to signing the Letter

of Commitment. While the Board is heartened by Coal City’s

general commitment to achieving compliance, a long—term variance

will not be granted absent a commitment to a specific method for

achieving compliance, village of Elburn v. Illinois

Environmental Protection Agency, PCB 88—4 (June 16, 1988).

90—522

5

Instead, the Board will grant Coal City variance until March

20, 1989. Coal City will choose a compliance method by November

10, 1988, since the additional time will allow Coal City to

Petition for the extension of this variance once a compliance

alternative is selected. However, the Board fully expects that

Coal City not delay implementation of its chosen compliance

method while it pursues a variance extension.

On June 13, 1988, the Agency filed an addendum to its

Recommendation which adds another condition to the Agency’s

proposed variance conditions. The Board accepts this filing.

Coal City did not respond to the June 13th submission.

In conclusion, the Board hereby grants Coal City a variance

subject to conditions. The conditions to this variance are

largely taken from the Agency’s Recommendation.

This Opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

The Village of Coal City (Coal City) is hereby granted

variance from 35 Ill. Mm. Code 602.105(a) Standards of Issuance,

and 602.106(b), Restricted Status, but only as those Sections

relate to the limitations for combined radium and gross alpha

particle activity set forth in Section 604.301, subject to the

following conditions:

1) This variance expires March 20, 1989, or when analysis

pursuant to 35 Ill. Adrn. Code 604.301(a) and (b) shows

compliance with the standard for the contaminant in question,

whichever occurs first.

2) In consultation with the Illinois Environmental Protection

Agency (Agency), Coal City 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, Coal City 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 the contaminant in question.

The results of the analyses shall be reported to the

Compliance Assurance Section, Division of Public Water

Supplies, 2200 Churchill Road, Illinois Environmental

Protection Agency, Springfield, IL 62784—9276, within 30 days

of receipt of each analysis. At the option of Coal City, 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 qvarterly sample.

90—523

6

3) On or before November 10, 1988, Coal City 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 the Agency,

DPWS, a detailed Compliance Report showing how compliance

shall be achieved within the shortest practicable time, but

no later than July 10, 1991.

4) 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, Coal City will send to each user of its

public water supply a written notice to the effect that Coal

City 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 it relates to the maximum allowable concentration (MAC)

standard in question.

5) Pursuant to 35 Ill. Mm. 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, Coal City will send to each user of its public

water supply a written notice to the effect that Coal City 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.

6) Until full compliance is reached, Coal City shall take all

reasonable measures with its existing equipment to minimize

the level of contaminant in question in its finished drinking

water, inducing but not limited to shutting down Well No. 5,

except during emergencies.

7) For each and every occasion when Coal City is required by

emergency to use its Well No. 5 during the variance period,

the following information shall be submitted to the Agency,

DPWS, within 10 working days of the date when Well No. 5 was

used:

A)  The date when Well No. 5 was used;

B)  The reasons for which Well No. 5 was required to be

used;

C)  The volume of water pumped from Well No. 5 and each of

the other wells on the date of usage;

D)  the length of time for which Well No. 5 was in use.

90—524

7

8) After Coal City submits its Compliance Report to the IEPA

pursuant to paragraph (3), Coal City shall provide written

progress reports to the Agency, DPWS, FOS every two months

summarizing steps taken to implement the compliance plan set

forth by the Compliance Report.

9) That wfthin forty—five days of the date of this Order, Coal

City shall execute and send to Bobella Glatz, Enforcement

Programs, Illinois Environmental Protection Agency, 2200

Churchill Road, Springfield, Illinois 62794—9276, a

Certificate of Acceptance by which Coal City agrees to be

bound to all terms and conditions of the granted variance.

This variance will be void if Coal City fails to execute and

forward the Certificate within the forty five (45) day

period. The 45—day period shall be held in abeyance for a

period during which this matter is appealed. The form of

this Certificate shall be as follows:

Certificate of Acceptance

I, (We)                       

hereby

accept and agree to be bound by all terms and conditions of the

Order of the Pollution Control Board in PCB 88—83, adopted

June 30, 1988.

Petitioner

Authorized Agent

Title

Date

Section 41 of the Environmental Protection Act, Ill. Rev.

Stat. 1985 ch. ill 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.

Board Members J. Dumelj,e and B. Forcade dissented.

9 0—525

8

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

Board, hereby certify that the aboye Opinion and Order was

adopted on the 

~/t~

day of 

________________,

1988, by a vote

of __________________________.

Ill

on Control Board

90—526