ILLINOIS POLLUTION CONTROL

BOARD

July

3,

1990

CITY OF BATAVIA,

)

Petitioner,

v.

)

 PCB 89—183

(Variance)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

DISSENTING OPINION

 (by B.

 Forcade):

I strongly dissent from today’s action by the majority.

In

my opinion

 it represents a profound departure from the prior

practices of this Board.

 Now,

 the majority alone may determine

what information will be placed in the record and addressed by

the parties,

 thus stifling dissent.

 In this particular

situation, the majority action results in striking from the

record the only information on fatal health impacts of radium for

Batavia’s water supply,

 which is one of the two most highly

contaminated in the State of Illinois.

 The stricken information

would allow calculation of the number of fatal head and bone

sarcomas that would be expected to have occurred already from

drinking Batavia water.

 Now the only information

 is an Agency

calculation which vaguely refers to cancer.

 In short, today’s

majority action has managed to strike totally from the record the

anticipated incidence of death.

It has been the practice at this Board

 (for at least my

tenure of nearly seven years)

 that any individual Board Member

who reviewed a variance petition and found

 it wanting could get a

Board Order setting

 it for hearing

—

 asking the parties to

address the troublesome issues.

 Or, they could get a Board Order

incorporating relevant documents into the record and asking the

parties to address their significance.

 The courtesy of allowing

individual Board members to secure a Board Order setting hearing

continued at least up to and including my request

 in City of

Braidwood,

 PCB 89—212, Order of March

8,

 1990.

 That hearing

process produced the very health impact information which has

been stricken from this proceeding by the majority action today.

Certainly,

 the majority can continue to demand a hearing

in any variance proceeding

 it wants.

 Pursuant to Section

37

(a)

of the Act, any person can command that such

 a hearing take

place.

 I requested a hearing in this proceeding to address the

high radium levels and their health impacts, but

 it was not

endorsed by the majority.

 This effectively curtailed the

introduction of health impact information into this record.

1 13—~3

2

A similar situation exists pertaining to the incorporation

of documents into this record.

 The Board’s own regulations,

at

35 Ill.

 Adin.

 Code 101.106

 (a), provide that,

 “upon

 separate

written request of any person or on its own initiative,

 the Board

or hearing officer may incorporate..

.“

 such documents into the

record.

 Here, the request by two Board Members for a Board Order

that health documents be placed

 in the record was not afforded

the treatment granted by Section 101.106 to any person.

Certainly this Board, by majority action, has repeatedly

referenced extra-record documents

 (or placed them in the record,

or asked the parties to place certain documents into the record)

and then asked the parties to comment on them.

 Indeed,

 in this

particular proceeding

the Board has ~ ready ref~-enced an extra—

record document, an Agency computer print—out

 ILled “Chemical

and Radiological MAC

violations”

 (See Order of

 rch 8,

 1990). It

is regrettable that the majority would not sup~-

 t introduction

of the only meaningful health information into

 ~is record.

Since the majority would not support a Board Order

introducing the health effects information,

 Boa”-~dMember Dumnelle

and myself introduced it into the record as a public comment,

ensuring that it would be sent to the parties,

and requesting

comment.

 Neither party expressed any objection to the

 introduction of this material into the record

as a

public

comment.

 In an unprecedented move,

 a bare 4-3 majority decided

to strike this health effects information.

 There was no request

to the Board to strike this health effects information, and the

majority provided no explanation for their action.

The information in question was not vague speculation by a

fringe of the scientific community.

 It represented the informed

opinion of the two most

respected experts on the subject to

testify in any past radium proceeding of this Board.

 Under the

theory of Ecko Glaco Corp.

 IEPA,

 542 N.E.2d ~74 (1st Dist.

1989),

 and Caterpillar Tractor v.

 IPCB,

 363 N.E2d 419

 (3rd Dist.

1977), this type of information cannot be considered by the Board

Members

 in their decision making process unless

it has been

disclosed and put on the

record for the parties to review.

Because of the majority action striking this health effects

information,

 it cannot be considered here.

 Perhaps the most

troubling aspect is that the record now contains no basis for

calculating the number of fatal cases of cancer expected from

drinking Batavia water, nor information on how the existing

cancer statistics were derived and what they encompass.

I note that on page

 5 of the Recommendation, the Agency

states that lifetime exposure to excess radium contamination in

Batavia water will cause

 1.88 plus 1.11, or essentially

3

additional cancers; then, on page

13

 it states that,

 “the radium

level does not pose any significant health risk.”

 I believe that

since three men, women,

 or children from Batavia are calculated

to have developed cancer, the health risk is clearly significant.

113- 3~

3

I,

 Dorothy M.

 Gunn, Clerk of the Illinois Pollution Control

Board, here~ycertify that’-t~ieabove Dissenting Opinion was filed

on the

i’V~-~

day of

1990

Board Member

-J

/

Poll

 Control Board

113—35