ILLINOIS POLLUTION CONTROL BOARD
September 25, 1986
VILLAGE OF OAK BROOK
)
A MUNICIPAL CORPORATION,
)
)
Petitioner,
)
V.
)
PCB 86—97
)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY,
)
Respondent.
OPINION AND ORDER OF THE BOARD
(by J~Marlin):
This matter comes before the Board upon
a July 1,
1986
petition for variance from restricted status filed by the Village
of Oak Brook.
The Village
is requesting variance for
a period of
five years from 35
Iii.
Adm. Code 602.105(a),
Standards for
Issuance,
and from 35 Ill.
Adm. ‘Code 602.106(b),
Restricted
Status, but only to the extent that those
rules involve
35 Ill.
Adm. Code 604.301(a)
(combined radiuni—226 and radium—228).
On
July 11,
the Board, by its own motion, set this matter for
hearing.
On July 31,
the Board denied Petitioner’s motion to
waive and cancel
the hearing, which had been scheduled for
August
8,
1986.
The Illinois Environmental Protection Agency
(Agency)
filed
its variance recommendation with the Board on
August
4, 1986.
The Agency recommended granting the variance
subject
to certain conditions.
On August
8, 1986,
the hearing
was held, at which members of the public were present.
The Village of Oak Brook
(the Village)
is located
in DuPage
County,
Illinois.
The Village owns and operates a public water
supply and distribution system which includes five deep wells,
one shallow well,
pumps and distribution facilities.
(Pet.
p. 4).
The depths, ages, production, and location of these wells
in
Oak Brook are as
follows:
Placed
Gallons
Well No.
Depth
in Operation
per Minute
Location
1
1521’
1961
834
1219 22nd St.
2
1540’
1961
887
1519 22nd St.
3
250’
1970
1000
2213 Tower Dr
5
1502’
1976
1313
2011 Windsor Dr.
6
1522’
1977
1256
2915 Oakbrook Rd.
7
1513’
1978
1160
2415 Midwest Rd.
(Pet p.
5)
72.394
2
The Village provides potable water to 4,397 residential and 372
commercial customers.
This represents a population served by the
well and distribution system of approximately 20,000.
(Pet.
p. 4).
It should be noted that in PCB 82—27,
the Board granted the Village
a variance
for
gross
alpha particle activity
for
the period from
June 10, 1982
to January
1, 1986.
(Pet.
p. 9).
The Village,
however, attained compliance with that standard about one year
after
the variance had been granted.
(R.
p. 13).
An Agency letter dated October
4,
1985 first advised the
Village that the maximum allowable concentration
(MAC)
for radium—
226 and
radium—228 was exceeded.
The Agency report indicated
a
combined radium content concentration of
7 pCi/i.
(Pet.
p.
5),
That
concentration
is
2 pCi/l
in excess of the
5 pCi/i standard.
35. Ill.
Adm. Code 604.301(a).
The Village claims that the variance would
allow water main
extensions and development.
It specifically cites the I.C. Harbour
Office Building
(a two story,
65,000 square foot office building,
currently under construction
(R.
p. 27))
as a new user
if the
variance
is granted.
Due to the Village’s Restricted Status,
the
Agency has refused
to grant a permit for the specific water main
extension that would serve
the I.C. Harbour Office Building.
(Pet.
p.
5).
The Harbour building project manager claims that
if the
variance
is denied,
there would be “no economically feasible way to
supply water
to the project.”
(R.
p.
29).
The Village also emphasizes that
as
a member of the DuPage
County Water Commission,
it fully expects
to replace
its well water
supply with water taken from Lake Michigan by 1992
(Pet.
p.
7)
or
late 1991
CR.
p.
16).
It points out that once it begins using Lake
Michigan water, the water
supply will
no longer
exceed
the radium
MAC standards.
(Pet.
p.
7).
The Village contends that the DuPage
Water Commission has already executed
a contract with the City of
Chicago for providing Lake Michigan water,
and the members of
the
Commission are investing over $350,000,000
in
a transportation
system to deliver
the water
from Chicago
to DuPage County.
(Pet.
p.
6).
The DuPage Water Commission asserts that 12 percent of the
transportation line has already been installed.
Also, the Village
“should be one of the
first communities served by the Commission’s
system,”
when
it comes on line after the “latter half of 1991.”
(Letter from James
J.
Holzwart, DuPage Water Commission
to Wayne
Wiemerslage,
IEPA, dated July 21,
1986).
The Village discussed
two possible primary treatment methods
that could be used
to remove most of the
radium.
The first is lime
softening.
This method can remove 80
to 90 percent of the radium,
However, the Village points out that this method creates large
quantities of sludge and concentrates that need proper
disposal.
The Village claims that such disposal will cause further problems
and expenses.
The second treatment method
is ion exchange softening
which can remove more than
90 percent of the radium.
However, using
this method, the sodium content of the water increases greatly.
The
Village contends that this could add further risk
to persons who are
72-395
3
hypertensive or who have heart problems.
The waste stream from this
method also contains the concentrated radioactivity obtained from
the exchange, which
the Village claims may be more of
a hazard
than
the original water with radium.
Also
it
is contended that the waste
product
is difficult to dispose of.
The softener, itself, also.
retains some of the radioactivity in the ion material.
The Village
concludes that this would create
a hazard
to anyone working on the
softener as well
as creating additional problems for disposal of the
ion exchange material.
(Pet, p. 7,8).
The Village has not conducted
a formal assessment of the effect
of this variance on the environment.
However,
it refers the Board
to
and incorporates by reference the testimony and exhibits
presented by Richard E.
Toohey, Ph.D. and James Stebbings,
Ph.D.,
both of Argonne National Laboratory,
on July 30 and August
2, 1985
in R85—14, Proposed Amendments
to Public Water Supply Regulations,
35
Ill. Adm. Code 602.105
and 602.106.
(Pet.
p.
8).
In its recommendation,
favoring the granting of this five—year
variance, the Agency concludes that “an incremental increase
in the
allowable concentration for the contaminant
in question even up to
a
maximum of
four times
the allowable concentration
(MAC)
for the
contaminant
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.”
(Rec.
p.
7).
The
Agency,
then lists nine conditions under which
the variance should
be granted.
The Village claims that
if it was not granted
the variance, it
would suffer arbitrary or unreasonable hardship.
Without
a
variance, most further construction and development within
the
Village would be halted.
The Village asserts that future homeowners
as well as business developers would be harmed by this.
This
in
turn,
the Village claims, would also have
a negative impact upon the
Village’s tax base.
Even
if the construction of treatment
facilities was begun,
the Village believes that
it would still need
the ability
to expand
its water system during the construction
period.
Also, the Village views the construction of such treatment
facilities as an arbitrary or unreasonable hardship, because the
facilities would be rendered obsolete as soon as the Village
transfers
to
a Lake Michigan water
suppy, which could occur as
soon
as 1992.
(Pet.
p.
11).
Findings
The Board agrees that the Village will suffer hardship if this
variance
is not granted.
Without the variance, most further
expansion and development of the Village’s water distribution system
will cease.
Such an effect will adversely impact upon the Village
and its economy.
Also specific developers,
who began their
developments prior
to restricted status being
imposed, will suffer
greatly if
a variance
is not granted.
In light of the fact that the
variance will have minimal environmental impact,
it would also be
unreasonable for the Village to build treatment facilities and later
/2-396
4
abandon them when the Village replaces its well water supply with
Lake Michigan water.
These factors are viewed with the knowledge
that the Village only recently discovered
that its water exceeded
the combined radiuui—226 and radium—228 MAC.
There
is also
no
evidence of bad
faith or delay on the part of the Village.
Assessing the situation
in total,
the Board finds that the Village
would
suffer
arbitrary or unreasonable hardship if denied this
varlance.
The Board notes that the Village
is committed to
a firm
compliance plan.
Specifically,
the Board is persuaded that the
Village will diligently continue the process by which
it will obtain
Lake Michigan water through the Village’s membership in the DuPage
Water Commission.
The Board also finds that a five—year variance
from the combined radium standard would have minimal environmental
impact.
The Village expects
to replace its well water with Lake
Michigan water by 1992 or late 1991 at the earliest.
Once such
a
replacement
is made, the Village will be
in compliance with the
MAC.
The Board notes that a short variance extension may be needed
if
Lake Michigan water
is available after September
25,
1991.
Given
the
arbitrary
or
unreasonable
hardship,
minimal
environmental
impact and the Village’s strong commitment to
a firm
compliance plan,
the Board will grant the Village
a five—year
variance contingent upon conditions which are
set forth in the
Order.
The Board cannot overemphasize the importance of the
condition requiring the Village
to “take
all necessary and
appropriate steps
to obtain sufficient Lake Michigan water through
the DuPage Water Commission...”
(Infra, Order
pt. 3).
If, for
any
reason, the Village fails
to fulfill this or any other condition or
withdraws from its present commitment
to
this compliance plan,
any
interested person could commence an enforcement proceeding against
the Village.
It should also be noted that the Board is deleting the
Agency’s recommended condition which sets a 15 pCi/l maximum
limit.
The Board
is granting a variance to the Village relieving
it
of its restricted status due
to combined radium content.
The
Village cannot control
the combined radium content as it occurs
naturally in the Village wells.
Consequently, the Board will not
set a maximum allowable concentration of combined radium as a
condition for this variance from restricted status.
The Board
is also requiring that the Village, on a quarterly
basis,
sample and have analyzed water from each of its wells
evaluating
the water
for combined radium content.
The Village shall
maintain this data for each well and also forward copies of it to
the Agenc~/.
After considering
this data,
the Village shall utilize,
to the maximum extent feasible, the water from wells with lower
combined radium levels as opposed
to wells with higher combined
radium levels.
Such action will help to minimize exposure of the
Village’s water
users
to radium while the variance
is operative.
The Board would
also like to point out that the United States
Environmental Protection Agency (USEPA) has challenged
several Board
issued variances from the radiological standards as being
72-397
5
inconsistent with the
state’s obligation under
the Safe Drinking
Water Act
(SDWA).
However,
the variance requested here
is solely
from
the state
regulations establishing the restricted status
mechanism and not from the national primary drinking water
regulations.
Consequently, this variance will not insulate the
Village
from
the
possibility
of
enforcement
for
violations
of
the
underlying radiological standards.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
Order
The Village of Oak Brook
is hereby granted
a variance from 35
Ill. Adm. Code 602.105(a)
Standards of Issuance, and 602.106(b)
Restricted
Status, as these
rules relate
to exceedances from the
combined radium—226
and radium—228 limitation of
35
Ill.
Adrn.
Code
604.301(a)
subject
to
the following conditions:
1)
That this variance expires on September 25, 1991.
2)
In consultation with the Agency, Petitioner
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, 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 the contaminant
in
question.
The results of the analyses shall be reported
to the
Water Quality Unit,
Division of Public Water Supplies, 2200
Churchill Road,
IEPA,
Springfield, Illinois 62706,
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.
Also, on
a quarterly
basis, the Petitioner
shall sample and have analyzed, for
combined radium content, water from each individual well.
The
data for each well shall
be maintained by the Petitioner as well
as copied and forwarded
to the Agency at the above address.
After considering the individual well sample analyses, the
Petitioner
shall utilize,
to
the maximum extent feasible, water
from wells which have relatively lower combined radium content
in order
to minimize radium exposure
to the Petitioner’s water
users.
3)
Petitioner shall
take all necessary and appropriate steps
to
obtain sufficient Lake Michigan water through the DuPage Water
Commission
so that the concentration of combined radium 226 and
228
in Petitioner’s distribution system shall not exceed
5 pCi/i
five years from the grant of this variance.
72-398
6
4)
Compliance shall be achieved with the maximum allowable
concentration
in question no later
than September
25,
1991.
5)
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 pubic water
supply a written notice
to
the effect that Petitioner
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 MAC standard
in question.
6)
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 the combined radium standard.
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 and
the applicable standard.
7)
That Petitioner
shall take all reasonable measures with its
existing equipment to minimize the level
of contaminant
in
question
in its finished water during the pendency of this
variance.
8)
That within forty—five days of the date of this Order,
Petitioner
shall
execute and ‘forward
to Wayne Wiemerslage,
Enforcement Programs, Illinois Environmental Protection Agency,
2200 Churchill Road,
Springfield, Illinois 62706,
a Certificate
of
Acceptance
and
Agreement
to
be
bound
to
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.
IT IS SO ORDERED.
J.
D.
Dumelle and
B.
Forcade, dissented.
I, Dorothy
M.
Gunn,
C erk of the Illinois Pollution Control
Board, heret~ycertify tha
t
above Opinion and Order was adopted
on the
~
day of
________________,
1986, by a vote
of
V
Dorothy M.
unn, Clerk
Illinois Pollution Control Board
72-399