ILLINOIS POLLUTION CONTROL BOARD
June
21,
1990
CITY OF BRAIDWOOD,
Petitioner,
)
v.
)
PCB 89—212
(Variance)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION
AGENCY,
)
Respondent.
KURT A.
LEINWEBER,
ESQ. APPEARED ON BEHALF OF THE PETITIONER.
BOBELLA GLATZ, ESQ. APPEARED ON BEHALF OF THE RESPONDENT.
OPINION
AND
ORDER OF THE
BOARD
(by
J.
Anderson):
This
matter
comes
before
the
Board on a Petition for
Variance filed by the City of Braidwood (“Braidwood”).
Braidwood seeks a variance from the Board’s public water supply
regulations,
namely
from
the
maximum
allowable
concentrations
for
radium
226
and
228
that
are
contained
in
35
Ill.
Adm.
Code
604.301(a)
and
the
construction
permit
requirement of 35 Ill.
Adm.
Code
602.101.
In
the
alternative,
Braidwood
seeks
a
variance
from
35
Ill.
Adm.
Code
602.105(a),
“Standards
for
Issuance”,
and
35
Ill.
Adm.
Code
602.106(b),
“Restricted
Status”,
to
the extent those rules relate to the standards for radium 226
and
228
that
are
set
forth
in
35
Iii.
Adm.
Code
604.301(a).
The
variance
is
requested
for
a period of two years
so
that
Braidwood
can
extend
its
water
mains
to
supply water to areas already
contained
in
its
geographical
boundaries
and
provide
public
water
service
to
areas
to
be
annexed
to
its
boundaries.
Based
on
the
record before
it,
the
Board
denies
Braidwood’s
variance
request.
PROCEDURAL
HISTORY
Braidwood
filed
its
initial
Petition
for
Variance
(“Petition”)
on
December 21,
1989.
On
January
11,
1990,
the
Board issued an Order finding the Petition to be deficient
because
it
did
not
include
a
hearing
request
or
waiver
as
required
by
35
Iii.
Adm.
Code
104.124.
The
Board
also
asked
Braidwood
to
incorporate
into
the
record
a
Letter
of
Commitment
that
it
referenced
in
the
Petition.
The
Board
granted
Braidwood
45
days
in
which
to
cure
the
articulated
deficiencies and stated
that the Petition would be subject to dismissal
if
Braidwood
did
not
file
an
amended
petition within the specified timeframe.
On
March
1,
1990,
Braidwood
filed an Amended Petition for Variance
(“Amended
Petition”)
that
included
a
waiver
of
hearing
and
the
Letter of Commitment.
112—351
2
The Board issued a second order on March
8,
1990.
The
Board,
on its own motion, ordered that a hearing be scheduled
after noting that Braidwood’s water supply contained an unusually
high combined radium concentration.
The Board also requested the
parties to provide it with the numerical results and dates of all
available radiological analyses of the water supply and to
address the health effects and environmental impacts of the
combined radium level.
On April
9,
1990,
the Illinois Environmental Protection
Agency
(“Agency”)
filed a Motion for Leave to File its Variance
Recommendation instanter.
The Board granted the Agency’s motion
on April
12,
1990.
In its Variance Recommendation
(“Recommendation”), the Agency recommended that Braidwood’s
variance request be denied.
A hearing was held on April
25,
1990.
Although no post-hearing briefs were filed, the Agency
filed a Notion to Supplement the Record, which was granted on May
24,
1990.
BACKGROUND
The City of Braidwood is located
in Will County,
Illinois.
Braidwood operates
a water supply system serving
approximately 3,500 residents and 1,300 residential and
commercial accounts.
(Amended Pet.,
par.
2).
The system
consists of three wells, aeration and chlorination facilities,
two reservoirs,
an above—ground storage tank,
service pumps,
and
a complete distribution system.
(Amended Pet., par.
3).
This is Braidwood’s first variance request from the public
water supply regulations.
(Agency Rec., par.
7).
However, the
somewhat confusing history of the violations goes back a number
of years, as detailed below.
On July 10,
1981, the Agency
notified Braidwood that it would be placed on the Restricted
Status List for gross alpha particle activity because its water
supply exceeded the maximum allowable concentration.
(Agency
Rec.,
par.
11,
Ex.
A).
On January 25,
1984,
the Agency sent a
letter to Braidwood stating that it would be placed on the
Restricted Status List because its radium 226 and 228 levels were
10.2 pico Curies per liter
(“pCi/l”) and 2.6 pCi/l,
respectively.’
(Resp. Grp. Ex.
4,
p.
1).
The maximum allowable
concentrations for gross alpha and combined radium are 15 pCi/l
and 5pCi/l, respectively.
On July 31,
1987,
the Agency met with Braidwood to discuss
the excess levels of gross alpha particle activity and combined
radium in the City’s water.
(R.,
p.
100; Resp.
Ex.
3,
Pp.
6-7).
1A11
of
the radiological
data that was
presented
in this
record is listed on pages 5-6 of this Opinion.
112—352
3
Pursuant
to
the
meeting,
Braidwood
agreed
to execute a Letter of
Commitment
that
was prepared by the Agency
in
order
to
come into
compliance.
Both
the
meeting
and
the
Letter
of
Commitment
were
part
of
an
Agency
enhanced
enforcement
program,
in which the
Agency
provides
water
supplies
with
technical
assistance
and
an
opportunity
to
come
into
compliance
with
the
Board’s
regulations
within
a certain tiineframe, thus, not risking a penalty in
a
formal
enforcement
action.
(R.,
pp.
120,
132—134).
On
August
6,
1987,
the
Agency
sent
a
letter
to
Braidwood
reminding
it
of
the
August
30,
1987
deadline
for
signing
the
Letter
of
Commitment.
(Resp.
Ex.
3,
pp.
6-7).
On August
26,
1987,
Braidwood
executed
the Letter of Commitment.
(Resp.
Ex.
3,
pp.
1-5;
Agency Rec.,
Ex.
F;
Amended
Pet.,
Ex.
A).2
The
Letter
of
Commitment
detailed
those
actions
that
Braidwood
would
take
in
order
to
achieve
compliance with the Illinois Environmental Protection Act
(“Act”)
and the Board’s public water supply regulations.
Among other
commitments, Braidwood promised to collect quarterly samples and
have them analyzed annually,
at its own
expense,
by
an
Agency
certified laboratory.
Braidwood
was
to
report the results to
the
Agency.
Braidwood
also
agreed that
it
would
submit
a
compliance
report
on
or
before
November
10,
1988.
On
September
24,
1987,
Radiation
Measurements,
Inc.,
an
Agency
contractor,
sent
the
Agency
the
results
of
its
combined
radium
analyses
for
73 public drinking water supplies.
(Resp.
Grp.
Ex.
4,
pp.
2—6;
Agency
Rec.,
Ex.
D).
The
analysis
for
Braidwood’s
supply
was
20.1
± 10.8
pCi/i
for
radium
226
and
10.5
± 1.8
pCi/i
for
radium
228.~
On
December
1,
1987,
the
Agency
informed Braidwood of the September 24,
1987
sample
analysis
for
radium.
(Pet.
Ex.
12).
On
Nay
5,
1988,
the
Agency
sent
a
letter
to
Braidwood
stating
that
it
had
not
received
a
copy
of
the
public
notice
from
the
City
within
the
past
three
months.
(Resp.
Grp.
Ex.
5,
p.
1).
The
Agency
then
requested
Braidwood
to
forward
a
copy
of
such notice to the Agency.
On May
16,
1988,
Braidwood
mailed
a
2The
Letter
of
Commitment
that
is
marked
as
Respondent’s
Exhibit
3 and the Letter of Commitment that is attached as Exhibit
A to the Amended Petition bear an August
26,
1987
execution date.
The
Letter
of Commitment that
is
attached
as
Exhibit
F
to
the
Recommendation, however, bears a September 15, 1987 execution date.
3me Agency believes that the results are an annual composite
of four consecutive quarterly samples.
4Pursuant
to
Board
regulations,
a community
is
required
to
notify
the
public
on
a
quarterly
basis
of
the
radium
and
gross
alpha
content
in
its
water
supply
when
the
community is placed on
restricted status.
35
Ill.
Adm.
Code
606.201
and
606.202.
11 2—353
4
letter to each of its customers notifying them of the excess
gross alpha and radium levels.
(Resp. Grp.
Ex.
5,
p.
2).
Braidwood then published this notice on May 18,
1988.
(Resp.
Grp. Ex.
5,
p.
3).
On June 3,
1988, Braidwood notified the
Agency of its actions.
(Resp.
Grp. Ex.
5,
p.
4).
On November
3,
1988, the Agency learned that Braidwood was
installing a new eight inch water main.5
(Agency Rec.,
Ex.
D).
In a letter dated November 14,
1988,
the Agency informed
Braidwood that no construction permit had been issued for the
water main and that Braidwood would need an operating permit from
the Agency prior to placing the water main into operation.
(Agency Rec.,
Ex.
D).
The Agency also noted that Braidwood could
not connect any new water service to the line until its radium
problem was resolved because the City was on the Restricted
Status List for this contaminant.
On January 19,
1989,
the Agency received Braidwood’s
Compliance Report.
(Agency Rec., par.
20).
On March
8,
1989,
the Agency notified Braidwood that it did not issue a public
notice in February to its customers of the excessive radiation
levels
in its water supply.
(Resp.
Grp.
Ex.
5,
p. 7).
The
Agency then warned Braidwood that it would issue the public
notice
if Braidwood did not do so within two weeks.
On April
24,
1989,
Braidwood submitted its application for a construction
permit for the water main construction to the Agency.
(Pet.
Ex.
7;
Pet. Ex.
8, pp.
1-2).
On April 25,
1989, Braidwood held a
public hearing on the available treatment alternatives and passed
a resolution affirming the selection of a Kankakee River water
treatment option.
(Agency Rec.,
Ex.
C, pp.
5-10).
On Nay 11,
1989,
Braidwood submitted a supplement to its Compliance Report
to the Agency.
(Agency Rec.,
par.
20, Ex.
C).
On July 14,
1989,
the Agency issued
a construction permit for Braidwood’s water
main construction.
(Pet.
Ex.
8,
p.
3; Resp.
Ex.
2).
On August
15,
1989, the Agency sent another letter to Braidwood regarding
the City’s failure in August to issue a public notice regarding
the excess radium and gross alpha levels in its water supply.
(Resp.
Grp. Ex.
5,
p.
10).
Braidwood issued a public notice on
August
23,
1989.
(Pet.
Ex.
5).
On September 6,
1989, the Agency
sent a letter to Braidwood stating that it received Braidwood’s
August 23,
1989 notice and that it was acceptable.
(Pet.
Ex.
5).
On December 15,
1989, the Agency notified Braidwood that it had
not issued a public notice since August 23,
1989.
(Resp.
Grp.
Ex.
5,
p.
11).
The Agency also stated that it would issue a
5The record
indicates that Braidwood was constructing
a new
water main loop for the sole purpose of increasing water volume and
pressure,
specifically in the area of the high school.
(R.,
p.
64).
Braidwood stated at the hearing that no new customers have
hooked
on to the
portion
of the
main
for
which
a
permit
was
eventually issued.
(R., p. 66—67,
79).
112—3
54
5
notice if the City did not take any
action
on
the
matter
within
two weeks.
On January 18,
1990,
and in March,
1990,
Braidwood
notified its customers of the excess gross alpha and radium
content of its water.
(Pet.
Ex.
4).
On March 27,
1990, the
Agency sent a letter to Braidwood documenting the fact that the
Agency received Braidwood’s January 10,
1990,
and March,
1990
public notifications and that such notifications were acceptable.
(Pet.
Ex.
4).
On April
24,
1990,
Braidwood passed a resolution
to improve its recordkeeping and keep the Agency informed of its
radiological sampling.
(R.,
p.
91,
Pet.
Ex.
6,
pp.
1-2).
Braidwood is currently on the Agency’s April,
1990 Restricted
Status List.
(Agency Rec.,
par.
11).
The following is a list of the radiological sampling results
that either the Agency and Braidwood presented in this case.
a.
July 30,
1979
—
samples taken at well
3
(duplicate
analyses of the same sample):
1)
61.8 ±11.0 pCi/l
gross alpha activity
53.1
±10.0 pCi/l
gross beta activity
2)
71.6
± 12.0
pCi/I
gross alpha activity
64.0
± 10.6
pCi/i
gross beta activity
b.
January 25,
1984
-
sample results of annual
composite analysis from USEPA laboratory (sampling
location and sampling date not noted):
1)
10.2 pCi/l
radium 226
2)
2.6 pCi/i
radium 228
c.
March 25,
1986
—
samples taken at
N.
Center Street
(duplicate analyses of the same sample):
1)
52 ±11 pCi/l
gross alpha activity
47 ±12 pCi/l
gross beta activity
2)
55 ±11 pCi/i
gross alpha activity
56
± 12
pCi/l
gross beta activity
d.
July 13,
1987
-
sample results for two samples from
Teledyne
Isotopes Midwest Laboratory
(sampling location
and sampling date not noted):
1)
1.5
pCi/l
gross alpha activity
2)
2.6 ±1.8 pCi/l
gross alpha activity
e.
September 24,
1987
-
sample results from Radiation
Measurements,
Inc.
for 73 public drinking water
samples from various supplies
(The Agency believes
that the results represent an annual composite
112—355
6
rather than the average of four consecutive
quarterly samples.)
The analysis for Braidwood’s
supply was:
1)
20.1 ±10.8 pCi/l
radium 226
2)
10.5 ± 1.8 pCi/l
radium 228
f.
July 29,
1988
—
sample results of single sample
analysis from Teledyne Isotopes Midwest Laboratory
(sampling location and sampling date not noted)
1)
12.5 ±1.8 pCi/l
gross alpha
2)
11.9 ±0.2 pCi/l
radium 226
3)
5.1 ±1.2 pCi/l
radium 228
g.
November
3,
1988
—
sample results of single sample
analysis from Teledyne Isotopes Midwest Laboratory
(sampling date not noted)
gross alpha
radium 226
radium 228
well
1
10.9 ±3.7
7.3 ±0.1
3.7 ±1.2
well
2
12.7
± 4.2
7.0
± 0.1
4.6
± 1.1
well
3
31.3
± 5.6
21.8
± 0.2
8.0
± 1.4
h.
non—composited sample results for three quarters:
1)
July 11,
1989
32.7 ±2.8 pCi/l
gross alpha
(sewage plant)
11.2 ±1.8 pCi/l
gross alpha
(city hall)
2)
October 5,
1989
The sample was not analyzed but discarded due
to questionable sampling location.
3)
October 26,
1989
31.3 ±2.5 pCi/l
gross alpha
(sewer plant)
17.5 ±1.9 pCi/l
gross alpha
(city hall)
January 31,
1990
4)
10.9 ±1.6 pCi/l
gross alpha
(wells #1
& #2—
puinphouse)
19.0 ±2.0 pCi/l
gross alpha
(sewer plant)
(Pet. Exs.
9,
10,
11;
Resp.
Grp.
Ex.
4, pp. 2-6; Agency
Rec. par.
14, Ex.
B,
pp.
1-2,
5—16,
18—19)
At the outset, the Board notes that the gross alpha test
results that triggered Braidwood being placed on restricted
112—356
7
status
on
July
10,
1981,
are
not
contained
in
this
record.
We
also
note
that
Braidwood
is
asking
for
relief
from
restricted
status,
but
only
as
it
relates
to
the
combined
radium
standard
Even
the
Agency,
in
its
Recommendation,
appears
to
focus
only
on
the
combined
radium
standard
and
seems
to
have
initiated
efforts
to
pressure
Braidwood
to
come
into
compliance
with
only
those
standards.
In
fact,
in
the
Letter
of
Commitment,
the
Agency
refers
only
to
the
radionucleide
standards of
35
Ill.
Adm.
Code
604.301.
As
we
look
at
the
above
results,
however,
it
appears
evident that Braidwood is
in violation of the gross alpha
standard.
Moreover, there is no indication in the record that
Braidwood has demonstrated compliance with the gross alpha
requirements since being placed on restricted status for gross
alpha
in 1981,
or that the restricted status has been lifted.
Braidwood should have started compliance efforts by instituting a
compliance plan,
sampled for gross alpha
on a quarterly basis,
and issued quarterly notices regarding the gross alpha content of
the
water
once
it
was
placed
on
restricted
status.
In
any
event,
the Board is at a loss to determine why neither the Agency nor
Braidwood
have
addressed
these
matters.
REGULATORY
FRAMEWORK
The
United
States
Environmental
Protection
Agency
(“USEPA”)
has
promulgated
a
maximum
concentration
limit
for
drinking
water
of
5 pCi/l of combined radium 226 and radium 228.
Illinois
subsequently adopted the same limit as the maximum allowable
concentration
under
Illinois
law.
Pursuant
to
Section
17.6
of
the
Illinois
Environmental
Protection Act
(“Act”)
(Ill.
Rev.
Stat.
1989,
ch.
111½, par.
1017.6,
any revisions to the 5
pCi/l
standard
by
the
USEPA
will
automatically
become
the
standard
in
Illinois.
Braidwood requests
a variance from the maximum allowable
concentrations
for
combined
radium.
The
Board,
however,
cannot
grant a variance from national primary drinking water
regulations.
The
standards
will
remain
applicable
to
Braidwood.
In the alternative, Braidwood requests a variance 35
Ill. Adm.
Code 602.105(a)
and 602.106(b), but only to the extent those
rules involve the combined radium standard
in 35 Ill.
Adm. Code
604.301(a)
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.
111½, pars.
1001
et
seq.)
(Act),
or
of
this Chapter.
112—357
8
Section 602.106
Restricted Status
b)
The Agency shall publish and make available to the
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.
Section 604.301
Radium-226,-228,
and Gross Alpha Particle
Activity
The following are the maximum allowable concentrations
for radium—226,
radium—228, and gross alpha particle
radioactivity in community water supplies:
a)
Combined radium-226 and radium-228:
5pCi/l
Board regulations provide that communities are prohibited
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 finished water supplies.
This
provision is a feature of Board regulations not found in federal
law.
In consideration of any variance, the Board determines
whether a petitioner has presented adequate proof that immediate
compliance with the Board regulations at issue would impose an
arbitrary or unreasonable hardship.
Ill.
Rev. Stat.
ch.
111½,
par.
1035(a) (1989).
Further, the burden is not upon the Board to
show that the harm to the public outweighs petitioner’s
hardships;
the burden is upon petitioner to show that its claimed
arbitrary and unreasonable hardship outweighs the public interest
in attaining compliance with regulations designed to protect
human health and the environment.
Willowbrook Motel v. Illinois
Pollution Control Board,
135 Ill.
App.
3d 343, 481 N.E.2d 1032
(1st.
Dist.
1985)
Moreover,
a variance by its nature
is a temporary reprieve
from compliance with the Board’s regulations and compliance
is to
be sought regardless of the hardship which the task of eventual
compliance presents an individual polluter.
Monsanto Co.
v.
IPCB
67 Ill.2d 267,
367 N.E.2d 684
(1977)
.
Accordingly, except in
certain special circumstances,
a variance petitioner is required,
as a condition to grant of variance, to commit to a plan that is
reasonably calculated to achieve compliance within the term of
the variance.
COMPLIANCE PROGRAM
The basis for Braidwood’s compliance program is set forth
its Letter of Commitment to the Agency and is
as follows:
112—358
9
secure assistance of
January
10,
1988
registered professional
engineer
submission of interim
May 10,
1988
compliance report
submission of detailed
November 10,
1988
compliance report and
compliance plan
compliance
July
10,
1991
(Resp.
Ex.
3,
pp.
1-5; Agency
Rec.,
Ex.
F; Amended Pet.,
Ex.
A)
The
Letter
of
Commitment
contains
several
other
commitments
made
by Braidwood other than those mentioned above.
Moreover, the
Letter
of
Commitment
specifies
that
the
dates
for
permit
application,
bid advertisement, construction,
and final
compliance
should
be
contained
in
the
compliance
plan
submitted
on or before November 10,
1988.
As
previously
stated,
the
Agency
alleges
that
it
received
Braidwood’s
compliance
report
on
January
19,
1989.
(Agency
Rec.,
par.
20).
Braidwood then submitted
a supplement to the report on
May 11,
1989.
(Agency Rec.,
par.
20,
Ex.
C).
In the supplement,
Braidwood presented the four compliance methods that were
discussed at a April 25,
1989 public hearing on the matter:
lime
and soda ash treatment, cation exchange, the purchase of water
from Wilmington,
and treatment of Kankakee River water.
Braidwood then stated that the overwhelming consensus at the
hearing was to pursue the Kankakee River water treatment option
and that the City passed a resolution affirming such consensus.
Although no radium removal will be necessary with this option,
the raw water will be pumped from the river to
a new water
treatment plant.
The plant,
in turn, will use lime and soda ash
softening to treat the raw water.
Braidwood also presented the
following compliance schedule for implementation of this option:
initiate
project
design
June
1,
1989
design complete
November 1,
1989
IEPA
review
and
approval
February
1,
1990
advertise
for
bids
February
13,
1990
award construction contract
March
13,
1990
begin construction
April
1,
1990
112—3
10
construction complete
May
1,
1991
achieve full compliance
July 10,
1991
(Agency Rec.,
Ex.
C,
p.
9)
ENVIRONMENTAL EFFECTS
At the outset,
the Board notes that what follows
is a brief
summary of each expert’s opinions.
We will not conduct an in-
depth analysis of the merits of each expert’s opinions in light
of the fact that we are denying the requested relief on the basis
of self-imposed hardship.
At hearing, the Agency submitted
a April
16,
1990 report
from William H.
Halienbeck,
Dr.P.H.
(Resp.
Ex.
6).
Dr.
Hallenbeck’s report updated his 1986 ENR report entitled “Risk
Assessment to Radium and Fluoride in Illinois Public Water
Supplies” ILENR/RE-EA-86/14) and his paper entitled “Risk
Analysis of Exposure to Radium-226/228 in Groundwater”
(Iii~
Environmental Professional 11:171—177,
1989).
(Resp. Ex.
6,
p.
1).
In the report, Dr. Hallenbeck calculates that the most
probable value for excess lifetime cancer risk is 3.5 x ~
(350
chances in one million of developing cancer) and that the most
probable value for excess cancer cases per year is 0.02
(two
excess cancer cases per every 100 years).
(Resp.
Ex.
6,
p.
4).
The upper 99 percent values for excess lifetime cancer risk and
excess cancer cases per year are 5.4
x 10~ (540 chances in one
million of developing cancer)
and 0.03
(three excess cancer cases
per every 100 years),
respectively.
(Resp.
Ex.
6,
p.
5).
Dr.
Hallenbeck based these calculations on the total population for
Braidwood (3500 people),
an excess radium limit of 25.6 pCi/l
(30.6 pCi/i
—
S pCi/l),
a 68 year exposure
(75 year exposure
adjusted by a nominal
7 year latency),
and an average fluid
intake of
2 liters per day.
(Resp.
Ex.
6,
pp. 3-4).
Richard C. Toohey,
Ph.D.,
of Argonne National Laboratory,
testified on behalf of Braidwood.
(R., pp.
11-56; Pet.
Ex.
2).
Dr. Toohey noted that all of the gross alpha in Braidwood’s water
supply is accounted for by the radium.
(R.,
pp. 51—52).
He also
stated that the Agency overestimated the risk associated with the
grant of this variance because it used the entire population of
Braidwood when making its calculations.
(R., pp.
33—34; Pet. Ex.
2,
p. 9).
In assessing the risk associated with a grant of
variance,
Dr. Toohey noted that one must determine the effect of
the variance, versus the imposition of restricted status, on the
population newly exposed to the drinking water by extension of
the water supply system to new developments.
(R., p. 34; Pet.
Ex.
2,
p.
9).
Thus,
Dr. Toohey based his calculations on the
additional population of Braidwood resulting from development
during the next two years.
(R., pp.
14,
34; Pet. Ex., pp.
2,
9).
112—360
11
He estimated that this number would be 1350 people
(450 new
dwellings x 3.0 average number of people per dwelling).
(R.,
p.
14; Pet.
Ex., p.
2).
After making several calculations pursuant to several
scientific models,
Dr. Toohey concluded that the additional
health risk from a grant of variance
in this case would be
negligible no matter what model was used.
(R.,
p.
35; Pet.
Ex.,
p.
9).
He then stated that if one makes a conservative
assumption that all of the development occurs immediately so that
all of the 1350 people would be drinking Braidwood water for the
two years of the variance,
the excess cancers induced in this
population would be 0.012 based on the USEPA’s linear no-
threshold model.
(R.,
p.
34,
Pet.
Ex.
2 p.
9).
If USEPA’s
linear no—threshold model were adjusted for
a tap water intake of
1.0 liters/day rather than
2 liters per day,
the excess cancer
would be 0.006 cases,
(R.,
p.
34;
Pet.
Ex.
2,
p.
9).
Based on a
quadratic model with an intake of 1.0 liters per day, the excess
cancers would be
88 billionths of one case.
(R.,
p.
34;
Pet.
Ex.
2,
p.
9).
Based on the practical threshold model, the excess
would be zero.
(R.,
pp.
34-35;
Pet.
Ex.
2,
p.
9).
CONSISTENCY WITH FEDERAL
LAW
As previously stated, the Board cannot grant Braidwood a
variance from the maximum allowable concentrations for combined
radium that are contained in 35
Ill. Adm. Code 604.301(a).
Both
Braidwood and the Agency agree,
however, that variance from
restricted status may be granted consistent with the requirements
of the Safe Drinking Water Act
(42 U.S.C. 300(f)
~.
~q.),
as
amended
by
the
safe
Drinking
Water
Act
Amendments
of
1986
(Pub.
Law 99—339,
100 Stat.
642
(1986)), and the USEPA National Interim
Primary Drinking Water Regulations
(40 CFR Part 141) because such
relief would not constitute a variance from national primary
drinking water regulations nor a federal variance.
(Agency Rec.,
pars.,
23,
25; Amended Pet,
par.
12).
Specifically, granting a
variance from the effects of restricted s.tatus means that only
the State’s criteria
for variances are relevant.
The Agency states that grant of variance leaves Braidwood
subject to the possibility of federal enforcement for violations
of the radium standards.
(Agency Rec.,
par.
26).
The Agency,
however,
is unable to state with any certainty whether USEPA
would oppose a variance
in this case because it has never
presented a variance involving such unusually. high radium
concentrations to USEPA.
(Agency Rec.,
par.
27).
AGENCY RECOMMENDATION
The Agency has recommended that this variance be denied.
(Agency Red.,
par.
28).
It cites four reasons for its
conclusion.
(Agency Rec.,
par.
10).
First,
the Agency alleges
112—361
12
that it has not received any sampling results from Braidwood.
It,
therefore, concludes that the City has failed to honor
its
commitment, as set forth in the Letter of Commitment, to collect
quarterly samples, have them analyzed on a yearly basis,
and to
report the results to the Agency.
(Agency Rec., pars.
10,
20).
Second,
the Agency states that Braidwood failed to submit its
compliance report on or before November 10,
1988,
as required by
the Letter of Commitment.
(Agency Rec.
par. 20).
The Agency
alleges that it received the report on January 19,
1989,
and that
it received a Supplement to the report in Nay of 1989.
(Agency
Rec., par.
20).
The Agency argues that the supplement is,
in
fact, the final Compliance Report.
Third, the Agency alleges
that,
in November of 1988, Braidwood constructed a water main
without permits,
in violation of restricted status.
(Agency
Rec., par.
20).
Finally, the Agency alleges that Braidwood
failed on numerous occasions to notify its customers,
on a
quarterly basis,
of the radium and gross alpha content of its
water supply,
as required by Board regulations.
(Agency Rec.,
par.
20).
HARDSHIP
Braidwood argues that
a denial of variance would constitute
an arbitrary or unreasonable hardship because it would be
in
a
less favorable financial situation to come into compliance.
(Amended Pet., par.
9).
Braidwood’s reasoning for this statement
is as follows.
First,
Braidwood notes that if the variance
is
granted, certain properties in the City will be developed as a
result of the water main extension.
This construction,
in turn,
would result in the expansion of the tax base and enhance the
equalized assessed evaluation of the tax base.
Braidwood argues
that this expansion is important because the City,
as
a non-home
rule unit,
can only pay for the improvements to its water system
that are necessary to achieve compliance through the issuance of
general obligation bonds.
(Amended Pet., par.
9).
The Board notes that the Mayor of Braidwood stated at the
hearing that the City unsuccessfully attempted to form a regional
water district with seven other communities.
(R., pp.
101-102,
111-112).
Two citizens also presented testimony at hearing.
The
first,
a developer, testified that he has had to stop work on a
development because he is waiting to obtain water service for it.
(R., pp.
174-175).
The second citizen
(also a real estate
developer)
testified that he is concerned about whether Braidwood
will be able let him proceed with the development of his
property.
(R.,
pp.
176-178).
BOARD DISCUSSION
The Board reviews three essential elements when making a
variance determination; the degree of hardship justifying delayed
compliance with the standards,
a petitioner’s compliance efforts,
112— 362
13
and the reasonableness of the compliance plan.
When
the variance
relief sought
is from restricted status,
any special hardship
justification that may be made for being allowed to deliver
noncomplying
water
in
the
interim
to
new
customers
must
identify
the hardship with some degree of particularity.
Moreover,
the
internal
and
external
timeframes
of
the
proposed
compliance
plan
are a concomitant,
indeed an essential,
consideration in a
restricted status variance determination because the duration of
restricted status
is linked to the length of time it takes a
petitioner to come into compliance with the underlying standards.
We also note that included in a review of compliance efforts is
whether the petitioner complied with Board regulations related to
notice and sampling following a determination of noncompliance
with the radium standard.
Although the Board recognizes that Braidwood may experience
some financial hardship if restricted status
is continued,
such
hardship is self-imposed.
Braidwood fails to show that it
was
taking timely steps toward compliance,
even when under Agency
pressure.
The record does not support the conclusion that
Braidwood was precluded from resolving its compliance problems
because
of
financial
difficulties.
The
Board
notes
that
had
Braidwood committed to a compliance plan years earlier,
its
claims of need to be removed from restricted status so as to ease
its
financial
hardship
might
have
been
more
persuasive.
At the outset,
the Board notes that Dr. Toohey testified
that all of the gross alpha in Braidwood’s water supply is
accounted for by the radium.
(R.
pp. 51-52).
If Braidwood had
acted
quickly
when
it
received
the
gross
alpha
reading
that
placed it on restricted status,
and had conducted quarterly
testing
for
gross
alpha,
it
would
have
discovered
the
excess
radium levels
in its water supply long before 1984.
Even if one
could
find
an
explanation
(that
is
not
in
this
record)
as
to
why
Braidwood
did
not
initiate
compliance
during
the
period
of
1981
to 1984 when gross alpha was the only contaminant at issue,
one
cannot ignore the fact that Braidwood was first placed on
restricted
status
for
combined
radium
on
January
25,
1984.
It
appears
that
Braidwood
took
no
action
to
come
into
compliance
between the date that it was placed on restricted status and
August
26,
1987,
the
date
that
it
signed
the
Letter
of
Commitment.
Instead, Braidwood waited for three years, until
it
signed
the
Letter
of
Commitment
on
August
25,
1987,
to
start
proceeding
toward
compliance
and,
even
then,
has
not
shown
due
diligence.
The
Board
notes
that,
even
after
signing
the
Letter
of Commitment,
Braidwood has not satisfied its terms and has
again delayed coming into compliance.
The Agency received
Braidwood’s Compliance Report on January
19,
1989,
rather than on
the November 10,
1988 deadline specified in the Letter of
Commitment.
(Agency Rec.,
par.
20).
The Board notes that
Braidwood submitted a supplement to the Compliance Report on May
11,
1989.
(Agency Rec.,
par.
20).
This supplement should be
1
12—363
14
construed as Braidwood’s final report because it selected and
evaluated the Kankakee River treatment option and set forth a
compliance
schedule
to
implement
the
option.
(Agency Rec., par.
20,
Ex.
C).
While
failure
to
comply
with
the
Letter
of
Commitment
is
not
p~.
~
a
violation
of
the
Board’s
regulations,
it
is
evidence
of
Braidwood’s gross lack of diligence in coming
into
compliance.
Moreover,
the
Board
notes
that
there
is
nothing
in
the
record
explaining
why
Braidwood
has
failed
to
come
into
compliance
for
all
of
these
years.
The
Board
sees
no
mitigation
for
the
length
of
time
that
Braidwood
has
been
in
violation
of
the
combined
radium
standard.
We
note
that
some
water
supplies
have
sought
(though
not
necessarily been granted)
relief because
of
the
potential
fedcral
change
in
the
radium
standard.
That
has
never
been
at
issue
here;
Braidwood’s
combined
radium
results
indicate
levels
as
high
as
this
Board
has
seen.
There
also
are
three
aggravating
factors
that
support
the
Board’s
decision
to
deny
the
requested
relief.
First,
Braidwood
failed to conduct proper sampling for radium in accordance with
the sampling requirements
in the Board’s regulations, and
continued not to do so in spite of Agency pressure and the Letter
of Commitment.
35
Ill.
Adin.
Code.
605.106(d)
states that when
a
water supply is placed on restricted status, there should be
quarterly monitoring for radium until compliance is achieved or
until a monitoring schedule set forth in a variance, exemption or
enforcement action becomes effective.
At the outset, we note
that the Agency’s and Braidwood’s sampling records are not in
agreement.
However,
a review of both sets of records shows that
Braidwood failed to conduct proper sampling.
The Agency,
in its
Recommendation,
states that Braidwood failed to sample, analyze,
or report the results to the Agency, but that the Agency files
contain the following samples:
March 25,
1986, September 24,
1987, July 11,
1989, October
5,
1989, October 26,
1989, and
January
31,
1990 (see c,
e, and h on pages
5 and 6 of this
Opinion).
(Agency Rec., pars.
10,
14,
Ex.
B, pp.
1,
2, 5—15,
17—
18).
The Agency then stated at hearing that it possessed three
additional samples;
a January 25,
1984 sample,
a July 29,
1988
sample and
a November
3,
1988 sample
(see b,
f, and g on pages
5
and
6 of this Opinion.
(R., pp.
123,
124—125).
Petitioner’s
Exhibits
9,
10,
and 11,
on the other hand,
indicate that
Braidwood sampled and/or analyzed its water supply on July 30,
1979,
March 25,
1986, July 13,
1987,
July 29,
1988, November 3,
1988,
and October 26,
1989
(see a,
c,
d,
f,
g, and h(3) on pages
5 and
6 of this Opinion).
When examining Braidwood’s exhibits,
it becomes evident that
Braidwood analyzed the radium content of its water only on July
29,
1988 and November
3,
1988
(the tests that Braidwood conducted
on the other dates are for gross alpha and beta).
Also, the
radium results are single sample analyses rather than composite
analyses of data collected for four quarters.
35 Ill.
Adm. Code
605.105(a), however, requires that a demonstration of compliance
112—364
15
with the combined radium standards shall be based on the analysis
of an annual composite of four consecutive quarterly samples or
the average analyses of four samples obtained at quarterly
intervals.
There
is no indication
in the record that Braidwood
conducted quarterly sampling between the date that it was placed
on restricted status for radium and the date that it signed the
Letter of Commitment.
Even from the date that the August 1987
Letter of Commitment was signed, Braidwood should have compiled
either the results of two annual composites or two annual
averages of quarterly analyses.
The Board also notes that Braidwood reported only its
November 3,
1988 sample result to the Agency.
35 Ill.
AdIn. Code
605.106, however, states that an owner or operator of
a water
supply shall notify the Agency if the water supply exceeds the
maximum concentration- for combined radium.
Second,
Braidwood constructed a water main loop without the
appropriate Agency permits and in violation of restricted status.
As previously stated,
Braidwood was constructing the loop in
November of 1988,
for the purpose of increasing water volume and
pressure
in the area of the high school.
(R.,
p.
64).
The
construction consisted of two phases.
(R.,
p.
65).
A contractor
worked on the first portion,
and the City worked on the second
portion.
(R.,
p.
65).
Although Braidwood obtained a
construction permit for the first portion prior to its
construction,
it
obtained
the
construction
permit
for
the
second
portion subsequent to its construction.
(R.,
p.
66).
Braidwood
finally applied for the construction permit on April
21, 1989.
(Pet.
Ex.
7;
Pet. Ex.
8,
pp.
1-2).
The Agency issued the permit
on July 14,
1989.
(Pet.
Ex.
8,
p.
3;
Resp.
Exs.
1 and 2).
Finally,
there have been occasions when Braidwood has failed
to notify its customers of the radium and gross alpha content of
its water supply even though it was required to do so on
a
quarterly basis pursuant to Board regulations.
35 Ill.
AdIn.
Code
605.201 and 605.202.
The Mayor of Braidwood stated at the
hearing that,
to best of his knowledge, he published notice on a
quarterly basis regarding the excess radium in the water but was
unaware that he should have forwarded the notices to the Agency.
(R.,
p.
110-111).
Respondent’s Group Exhibit
5
indicates,
however, that the Agency notified the City on May
5,
1988,
March
8,
1989,
August
15,
1989,
and December 15,
1989,
of its
failure
to issue a quarterly notice.6
(R.,
pp.
127-128; Resp.
Grp.
Ex.
5, pp.
1,
7,
10,
11).
The Agency stated at hearing that these
6The
Board
notes
that
the
record
contains
three
press
releases.
(Resp. Grp.
Ex.
5, pp.
5—6, 8—9, 12-13; Agency Rec.,
Ex.
B,
pp.
3-4
and Ex.
E,
pp 1-2,
).
We will disregard such notices,
however,
in
light
of
the
fact that the hearing officer
in this
matter excluded them from evidence.
(IL,
pp.
160-162).
ii 2—363
16
were the only times that Braidwood did not issue notice since the
date on which it signed the Letter of Commitment.
(R., pp.
138-
139).
In response, Braidwood presented two letters.
The first
letter,
dated September 6,
1989,
is from the Agency to Braidwood
acknowledging that the City issued a notice on August 23,
1989.
(Pet.
Ex.
5).
The second letter,
is from the Agency to Braidwood
acknowledging that the City issued a notice on January 10,
1990.
(Pet.
Ex.
4).
The Board concludes that there was no violation in
August of the Board’s rules regarding notification.
In fact, the
Agency admitted at the hearing that it mailed its August 15,
1989
letter to Braidwood before it received word that Braidwood issued
a notice for August.
(R., pp.
142-143).
We cannot come to the
same conclusion with regard to the issue of whether Braidwood
issued a notice for December.
If Braidwood issued a notification
in August,
it should have issued another notice in November.
Thus, the Board concludes that,
since Braidwood executed the
Letter of Commitment,
it failed to issue public notices on three
occasions.
Moreover, there is no indication in the record that
Braidwood issued quarterly notices between the date that it was
placed on restricted status and the date that
it signed the
Letter of Commitment.
As a final note, the Board will not asses such issues as
Braidwood’s compliance plan or the environmental effects of the
variance in light of the fact that the Board is denying re1ie~f
because Braidwood’s hardship is self-imposed.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
For the foregoing reasons the City of Braidwood’s request
for variance from 35 Ill. Adm. Code 602.105(a),
“Standards for
Issuance”,
and 602.106(b),
“Restricted Status”, to the extent
that those rules involve
35
Ill. Adm. Code 604.301(a),
is denied.
Section 41 of the
Environmental Protection Act,
Ill. Rev.
Stat.
1989,
ch.
111½, 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.
Dumelle and B. Forcade concurred.
112—366
17
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board,
hereby certi~that the abov
Opinion and Order was
adopted on the
67/
day of
______________,
1990, by a vote
of
7—O
.
~
~,
/L~’
Dorothy M.7/unn,
Clerk
Illinois Pàllution Control Board
112—367
