ILLINOIS POLLUTION CONTROL BOARD

March 9,

1989

CITY OF OTTAWA,

)

Petitioner,

v.

)

PCB 88—180

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

OPINION

AND

ORDER OF THE BOARD

(by M. Nardulli):

This matter comes before the Board upon

a petition

for

extension of variance filed

by the City of Ottawa

(Ottawa)

on

October 31,

1988,

as amended January 11,

1989.

Ottawa seeks

extension of

a variance granted by the Board on March

5,

1987

from 35

Ill. Mm.

Code 602.105(a),

“Standards

for Issuance”

and

from 35

Iii. Mm.

Code 602.106(b), “Restricted Status”,

as they

relate to Ottawa’s lack of compliance with the

5 pCi/i combined

radium—226 and radium—228

standard contained

in 35 111. Mm.

Code

604.301

for its public water supply.

The Illinois Environmental

Protection Agency (Agency)

filed

its Recommendation on December

7,

1988,

as amended January 24,

1989

in support of grant of

variance.

Hearing was waived and none has been held.

The original variance was granted

in PCB 86—179.

An

extension

is requested until March

5,

1990.

The Agency notes

in

its Recommendation that one year of sampling,

after construction

is complete, will be required to demonstrate compliance.

Accordingly,

for complete relief,

variance would be necessary

through March

5,

1991.

BACKGROUND

Ottawa,

located

in LaSalle County,

supplies drinking water

to

a population of

6,000 residential and 500 industrial

and

commercial utility customers representing approximately 18,000

residents.

Ottawa’s public water supply system

includes three

deep wells, storage tanks, pumps and distribution facilities.

Based

on an analysis of Ottawa’s distribution system using

four

samples obtained at quarterly intervals prior

to October

of

1985,

the combined

radiurn—226 and radium—228 content of the water

was 6.2 pCi/i, exceeding

the 5 pCi/i standard.

In PCB 86—179,

the Board granted Ottawa

a two—year variance with an expiration

date of March

5,

1989.

Pursuant

to paragraph

1(1)

of the Order,

()7—117

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—2—

Ottawa was required

to file

a variance petition on or before

November

5,

1988 if compliance could not be achieved by March

5,

1989.

The present petition

is

in response

to that order.

Ottawa asserts

that it has complied with the conditions

in

the PCB 86—179 Opinion and Order as

follows:

(a)

Pursuant to Section 1(M)

of the Opinion

and Order, Ottawa has taken all

reasonable measures with

its existing

equipment

to minimize

the level

of radium

•in its finished water, including

utilizing well

no.

11 to the maximum

extent possible.

As

a result,

a sample

taken from the distribution

system on

January

21,

1988

indicated combined

radium—226

and 228 of

4.1 pCi/i,

in

compliance with the 10.0 pCi/i

limit

in

Section

1(b)

of the Board’s Order.

(b)

Ottawa secured professional assistance

to

investigate alternative solutions

for

achieving compliance

and submitted

the

resultant study and final compliance plan

to

the Agency November

7,

1987, pursuant

to Sections 1(D),

(E)

and

(F) of the

Order.

(c)

Ottawa authorized

its consultants to

proceed

with plans and specifications

for

the construction of

a new deep—water well

and investigative measures

for the

existing wells

on January

191

1988.

Ottawa advised

the Agency of

its progress

on April

7,

1988.

(d)

Pursuant

to Section

1(3)

of the March

5,

1987 Order, Ottawa filed

a variance

petition before November

5,

1988.

(e)

Pursuant to Section

1(L) Ottawa has sent

to each water user

a written notice that

Ottawa has not been in compliance with

the combined

radium—226

and 228 standard.

(f)

Ottawa engaged

a financial consultant for

prepara.tion of

a financial statement

requisite to the issuance of general

obligation bonds to

fund

the project.

Ottawa employed an engineering firm to

investigate various

possible compliance methods.

These included

the construction of

several

shallow wells or utilization of water

from the Fox River

97—118

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and blending these sources with existing wells.

Both of these

plans required treatment prior

to blending with the existing

wells.

A blending alternative was the chosen method.

Ottawa

proposes

to achieve compliance

in

a

two step program

—

first,

construction of a new deep water well and second, investigative

and remedial work on wells

8 and 10.

Ottawa’s estimated cost for

this plan

is $819,000.

(P.

at Attached

6).

Ottawa intends

to

fund the improvement needed

to bring

it into compliance and the

construction of its combined sewer overflow project, by issuing

general obligation bonds

in the approximate amount of 3.5 million

dollars.

Ottawa states in

its petition that although combining

the funding of the projects will result

in some savings,

the

joint funding has caused delays

in preparing cost estimates and

required documentation.

In Ottawa’s November

3,

1988 petition,

it states that

it “appears that bonds will be

issued within 60

days.”

(P.

at 3).

HARDSHIP

AND

ENVIRONMENTAL IMPACT

In

its petition for variance, Ottawa maintains that

compliance with sections 602.105(a)

and 602.106(b)

during the

requested period for variance would

result in an arbitrary or

unreasonable hardship on Ottawa.

Ottawa asserts that this

hardship would be

a result of the continuation of the effect of

being on Restricted Status which

in turn affects Ottawa’s

taxpayers and prospective developers.

Ottawa further maintains

that there

is no significant

risk of environmental harm or risk

to the public health during the requested 12 month extension

to

its variance.

In recommending that Ottawa’s variance extension be granted,

the Agency states

that denial of the extension of this variance

from the Standards

for Issuance would

result

in an arbitrary or

unreasonable hardship because

the Agency would be required

to

continue

to deny construction and operating permits until

compliance

is achieved.

Additionally,

the Agency states that

“continuation of Restricted Status means that no new water main

extensions could be issued permits by the Agency and economic

growth, etc.,

dependent on those water main extensions would not

be allowed.”

(Agency Rec.

at. 8).

Regarding environmental impact,

the Agency believes that

granting Ottawa’s variance extension “would

impose no significant

injury on the public pr on the environment” for the limited time

period requested.

(Agency Pec.

at 7).

In its recommendation,

the Agency states that an extension of Ottawa’s variance from

Restricted Status “should affect only those users who consume

water drawn from any newly extended water lines”

and should not

affect the rest of Ottawa’s population “drawing water

from

existing water lines,

except

insofar as the variance by its

conditions may hasten compliance.”

(Agency Rec.

at 10).

The

97—119

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—4—

Agency also believes that in the interim, granting

the extension

of variance may “lessen exposure for that portion of the

population which will be consuming more effectively blended

water.”

(Agency Rec.

at 10).

Thus,

the Agency recommends

granting

an extension of Ottawa’s variance for one year,

subject

to conditions.

CONCLUSION

The Board

finds that Ottawa would suffer

an arbitrary or

unreasonable hardship

if the requested extension of Ottawa’s

variance

is not granted.

Further, the environmental impact of

granting the variance

is considered

to be minimal.

Accordingly,

extension of the variance will

be granted

until

March

5,

1991,

with conditions as outlined

in the Order below.

The Board notes

that although Ottawa has substantially

complied with the March

5,

1987 Order, compliance with parts of

that Order

is somewhat unclear

—

e.g.

application for

construction permits and timely submission of written reports.

The Board expects that Ottawa will strictly comply with the

conditions

in

the following Order.

This Opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

1.

Petitioner,

the City of Ottawa,

is hereby granted extension

of its va.riance granted on March

5,

1987 from 35

Ill.

Adm.

Code

602.105(a) Standards

of Issuance and from 35 Iii. Mm.

Code

602.106(b)

Restricted Status but only as they relate

to the

combined radium—226 and radjum—228 standard

of

35

Ill. Adm.

Code

604.301(a),

subject

to the

following conditions:

(A)

This variance expires on March

5,

1991 or

when anaylsis pursuant

to

35

Ill. Adm.

Code 605.104(a)

shows compliance with the

combined radium standard, whichever

occurs

first.

(B)

In consultation with the Agency, Ottawa

shall continue its sampling program

to

determipe as accurately as possible the

level of radioactivity

in its wells

and

finished water.

Until

this variance

expires, Ottawa shall sample

its water

from its distribution system at locations

approved by the Agency.

Ottawa shall

composite

the quarterly samples for each

location separately and shall analyze

97—120

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—5—

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,

IEPA,

Springfield, Illinois 62794—9276,

within

30 days of receipt of each

analysis.

At the option of Ottawa,

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)

By May

5,

1989,

unless there has been a

written extension by the Agency, Ottawa

shall apply to

IEPA,

DPWS,

Permit

Section, for

all permits necessary to

construct the new deep water well as

described

in Petitioner’s Amendment

to

Petition for Variance.

Within

4 months

of completion of construction of the new

deep water

well, Ottawa shall apply to

IEPA,

DPWS,

Permit Section for

all

permits necessary for construction of all

other

installations, changes or

additions

to Ottawa’s public water supply needed

for achieving compliance with the maximum

allowable concentration for the standard

in question.

(D)

Within

3 months after each construction

permit

is issued

by

IEPA,

DPWS, Ottawa

shall advertise for bids,

to be submitted

within 60 days,

from contractors to do

the necessary work described

in the

construction permit.

Ottawa

shall accept

appropriate bids within

a reasonable

time.

Ottawa

shall notify

IEPA,

DPWS,

within

30 days,

of each of the following

actions:

1)

advertisements for bids,

2)

names of sucessful bidders,

and 3)

whether, Ottawa accepted the bids.

(E)

Construction allowed

on 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

97—121

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—6—

concentration

in question shall begin no

later than July

5,

1989 and shall be

completed no later

than March

5,

1990.

(F)

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,

Ottawa

shall

send to each user of

its public water

supply

a written notice

to the effect

that Ottawa has been granted

a variance

from 35

Ill.

Adm. Code

602.105(a)

Standards of

Issuance and

35 Iii.

Mm.

Code 602.106(b) Restricted

Status.

(G)

Pursuant

to 35

Ill. Adm. Code 606.201,

in

its first

set of water

bills or by June

5,

1989, whichever occurs first, and

every three months thereafter, Ottawa

will send

to each user of its public

water supply a written notice

to the

effect that Ottawa

is not

in compliance

with the combined radium standard.

The

notice

shall state

the

average content of

radium

in samples taken since the last

notice period during which samples are

taken.

(H)

Until

full compliance

is reached, Ottawa

shall

take all reasonable measure with

its existing equipment

to minimize the

level of contaminant

in question

in its

finished drinking water,

including

primary reliance on Well

No.

11

so as

to

minimize radium levels in the water.

(I)

Ottawa shall provide written progress

reports

to

IEPA,

DPWS,

FOS by April

5,

1989 and every two months thereafter

concerning

steps taken

to comply with the

requirements of this Order.

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, Ottawa shall

execute and forward

to Bobella Glatz,

Enforcement Programs,

Illinois Environmental Protection Agency,

2200 Churchill

Road,

Springfield,

Illinois

62794—9276,

a Certificate of Acceptance and

Agreement to be bound to all terms and conditions of this

variance.

This forty—five

(45) day period

shall be held

in

abeyance for any period this matter

is being appealed.

If the

97—122

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—7—

petitioner

fails to execute and forward

the agreement within a

forty—five

(45) day period,

the variance shall be void.

The

form

of certification shall be as follows:

CERTIFICATION

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—180,

March

9,

1989.

Petitioner

Authorized Agent

Title

Date

Section

41

of the Environmental Protection

Act,

Ill.

Rev.

Stat.

1987

ch.

llll/~, 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.

Dumelle and

B.

Forcade dissented.

97—123

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—8—

I, Dorothy M Gunn,

Clerk of the Illinois Pollution Control

Board,

hereby certify that the above Oprion and Order was

adopted on the

?ZZ

day of ________________________

1989, by a vote of

~—L.

.

Dorothy

M. cry~r Clerk/

Illinois Po1~.l1itionControl

Board

97—124