ILLINOIS POLLUTION CONTROL BOARD
August
9,
1990
CITY OF BATAVIA,
)
Petitioner,
v.
)
PCB 89—183
(Variance)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
DISSENTING OPINION
(by J.
D.
Dumelle):
This case deals with radium-laden drinking water.
If, as
most scientists believe, a carcinogen has no threshold, then at
the Batavia levels of radium some cancer will be induced.
Will
it be head cancer?
Will
it be bone cancer?
Will
it be
leukemia?
Anyone drinking Batavia water
is at
risk.
The
risk to the residents drinking the water from Wells Nos.
2 and
3 at
21 pCi/i is about l—in—3,400 over a lifetime.
This
is
294 times the usual accepted risk of
l—in—1,000,000 over
a
lifetime for most other carcinogens.
Had the Board not overruled IEPA and had it denied instead
of granted the variance then additional persons would not be
placed at
risk.
In addition
to these health concerns,
the holding
in this
proceeding
is procedurally defective.
If
ever a case existed
which screams self—imposed hardship,
it
is the one at
bar.
Further, for
the Board
to find that Batavia has satisfied Section
36(b) of the Act
in that it has progressed satisfactorily towards
compliance
is
in direct contravention of the evidence,
irrespective of how the language was couched as an “extremely
close call”.
Since Batavia procured its original variance more than give
years ago (April
4,
1985),
the municipality has done little,
to
bring
itself
into timely compliance.
In accordance
with its
original
variance, Batavia was supposed to drill several
new
wells,
construct new treatment, storage and distribution
facilities,
secure professional assistance
in regards
to
preparation of plans and improvements, advertise for
bids and
complete construction by January
1,
1990.
The majority opinion
found that “Batavia has not complied with any of
these
conditions”
(Opinion and Order,
pg.
3).
114—33
—2—
Batavia’s sole reason
for disregarding
these interim
deadlines remains
that
it has been
“unable
to obtain the property
necessary
for
the new wells and treatment
facilities”.
This
proposition
is
so lame that
it should be dismissed on its face.
Batavia
is
a municipality and,
as
such,
possesses the power
Lo
condemn property via eminent domain.
Batavia
has provided
no
proof
to
this Board
that
it
initiated condemnation proceedings in
1985—1988,
yet
the Board has now found
that
the municipality has
“progressed satisfactorily”.
Indeed,
the evidence indicates that
Batavia did not initiate condemnation proceedings until July of
1989.
The
real reason that Batavia has not complied with ~
of
its responsibilities
in
a timely fashion
is because
it has been
stalling.
As evidenced by
its Amended Petition,
Batavia does not
want nor does
it understand why it has
to allocate funds
to
reduce cancer-causing radioactive elements
from its water supply
in that the federal standards ~y
be
relaxed in 1992.
Not only
is the City relying upon speculation,
but
it disregarded this
Board’s
1985 variance order
based upon
that speculation.
For the
Board to turn around and ratify this transparent strategy
is
disappointing.
Is
a Board variance order
a mere “paper
tiger”?
Equally disturbing
is
the fact
that the Board found
that
Batavia complied with Section
36(b)
of the Act because
the
necessary property
“has
finally been obtained’.
Not only did
it
take the City five and half years
to do so, but any property
obtained by Batavia can be
just
as easily sold
in the future.
This
is merely
a
last—ditch effort
to appease
the Board while
delaying compliance.
For the Board
to be
“particularly
persuaded’
by this reluctant
and late action
is
to ignore the
vast array of other, more profound evidence
to the contrary.
Finally,
in
the “Hardship” section of
the Opinion and Order,
the Board discusses Batavia’s plight as well as
the Agency’s
recommendation
to deny
the City’s application, but makes no
finding
there.
Pursuant
to Section
36(a)
of
the Act,
Batavia
must prove and the Board must find
that
the City will suffer an
unreasonable
or arbitrary hardship should
its variance petition
be denied.
In support thereof, Batavia lists several residential
and commercial developments which have already
been approved by
the city
as well
as several other ~rojects,
includina
a new
junior high school.
There
is
no auestion
that Batavia knew of
these projects and their
impact
to the community.
The question
then becomes:
why did the City blow its deadlines and ignore the
conditions imposed upon them?
Furtner, why did
it not
inform the
Board of
the alleged impediments preventing compliance?
The answer
is simple
in
that the City was hopinc
that
the
federal standards would be
relaxed.
There were no uncontrollable
circumstances
or
other
locistical proolems which stood between
Batavia
and
compliance.
There
is
therefore,
nothing
unreasonabLe
—3—
or arbitrary about denying Batavia another variance
(See Village
of Braidwood v.
IEPA,
PCB 89-212, June
21,
1990).
Batavia knew
what
it had to do but chose not
to.
For
the Board to ratify this
behavior
is not only bad policy, but legally incorrect.
Moreover,
the precedent is extremely shaky.
Will the Board,
in
further proceedings, grant variances from public health, cancer—
preventing regulations because a municipality merely alleges
that
within the course of more than five full years,
it was unable to
obtain the necessary property?
I sincerely hope not.
And as
such,
I would urge the majority to re-evaluate its reasoning
should a motion
to reconsider
be filed by IEPA.
For the reasons contained herein,
I would have denied
Batavia’s petition for
a variance extension on the basis
that its
actions extended a cancer hazard and constitute
a self—imposed
hardship.
In the alternative,
I would hold that Batavia did not
fulfill
the requirements of Section 36(b).
Accordingly,
I
dissent.
~
acob D.
Dumelle
oard Member
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Dissenting Opinion was
submitted on the
~~~day
of
~
,
1990.
~.
Dorothy M. G~n,
Clerk
Illinois Pollution Control Board
114—35