ILLINOIS POLLUTION CONTROL BOARD
    September 27, 1990
    CITY OF BRAIDWOOD,
    )
    Petitioner,
    v.
    )
    PCB 89—212
    (Variance)
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    Respondent.
    ORDER OF THE BOARD
    (by J. Anderson):
    On August 27,
    1990, the City of Braidwood (“Braidwood”)
    filed a Motion to Reconsider,
    requesting the Board to reconsider
    its June 21, 1990 Opinion and Order denying Braidwood’s request
    for variance from
    35 Ill. Adm. Code 602.105(a),
    “Standards of
    Issuance”, and 602.106(b),
    “Restricted Status”.
    On September 10,
    1990, the Illinois Environmental Protection Agency
    (“Agency”)
    filed its “Response to the Motion to Reconsider.” The Board
    hereby grants the Motion to Reconsider,
    but denies the relief
    requested therein.
    Braidwood cites several arguments
    in support of its motion.
    First, Braidwood states that the Board unfairly portrayed
    it in
    an unfavorable light when it stated that neither the Agency nor
    Braidwood addressed the issue of Braidwood’s noncompliance with
    the gross alpha standards
    (Opinion,
    p.
    7).
    Braidwood asserts
    that it filed a “Motion for Leave to File Supplemental Petition”
    and a “Supplemental Petition to First Amended Petition for
    Variance” with the Hearing Officer at
    hearing.
    Braidwood states
    that the Supplemental Petition contains Braidwood’s request for
    variance from restricted status for gross alpha activity.
    Second,
    although Braidwood admits that testing was not done
    pursuant to the regulations,
    it cites poor recordkeeping,
    a
    reliance on the Agency,
    and the lack of expertise and self—
    control as reasons for its failure.
    Specifically, Braidwood
    states that it acted in good faith and submitted the results of
    gross alpha tests for eleven quarters (between July,
    1979 and
    April
    25,
    1990)
    even though the Agency waited for the same period
    of time to raise the issue of noncompliance with the gross alpha
    standard.
    Braidwood also states that its testing and reporting
    efforts should be considered applicable to a single contaminant
    based on the fact that Dr. Toohey testified that the gross alpha
    contamination is due to excess radium.
    Third, although Braidwood admits that
    it acquired a permit
    for the construction for the first portion of the water main loop
    subsequent to its construction,
    it states that its Mayor believed
    that no permit was required and that it did not allow new homes
    115—9 1

    2
    to tap into the construction loop.
    Fourth,
    although Braidwood
    admits that
    it did not publish notices on three occasions since
    August 26,
    1987,
    it argues that,
    as a practical matter,
    citizens
    were notified before and after each lapse, that the citizens knew
    about the excess radium from previous notices, and that the Mayor
    acted in good faith because he believed that the notices were
    published each quarter and was unaware that they should have been
    forwarded to the Agency.
    Finally, Braidwood argues that it is
    unfair for the Board to fault it for noncompliance when
    it,
    like
    other communities, was simply awaiting a federal change
    in
    the
    radium standard.
    At the outset,
    the Board notes that the Hearing Officer
    filed Braidwood’s “Motion for Leave to File Supplemental
    Petition” and Supplemental Petition with the Board on September
    7,..
    199C.....
    The Hearing Officer stated,
    in the cover letter
    accompanying the documents,
    that his notes did not contain any
    information about the filing of the documents and that he could
    only surmise that Braidwood gave him the documents at the
    beginning of hearing without any comment.
    Because there
    is no
    mention of the documents
    in the transcript and because
    a Hearing
    Officer is only required to forward the record to the Board,
    the
    Board will not fault the Hearing Officer for not forwarding the
    documents to the Board.
    Moreover,
    even if the documents had been
    in the Board’s possession at the time that the Opinion and Order
    were written,
    its decision would not have been different
    With regard to Braidwood’s other arguments,
    the Board notes
    that most,
    if not all,
    are not new or have already been
    considered by the Board..
    The Board wishes to note, however,
    that
    the basis for its decision did not rest on questions
    of good
    faith, the “practical” effects
    of public notice omissions,
    or of
    whether testing and reporting should be applicable to only one
    contaminant.
    The Board reminds Braidwood that it was made aware
    that it was
    in violation of the gross alpha standard and the
    combined radium standard in 1981 and 1984,
    respectively.
    We see
    no reason why Braidwood should not be, as the Agency correctly
    points out, presumed to know the law and to take appropriate
    action to comply with the law.
    Finally, with regard to Braidwood’s argument that
    it should
    not be penalized because
    it was awaiting
    a potential federal
    revision of the combined radium standard,
    the Board agrees with
    the Agency that
    it is inappropriate for Braidwood to supplement
    the record at this time when it never mentioned its reliance on
    a
    possible federal revision
    in the radium standard previously.
    Without in any manner implying that the Board would make a
    favorable determination,
    we note that Braidwood is free to file
    another variance petition.
    IT IS SO ORDERED.
    Ii 5—92

    3
    Board Member R.
    Flemal dissented.
    I,
    Dorothy M. Gunn,
    Clerk of the Illinois Pollution Control
    Board~ hereby certif~.ythat the above Order was adopted on the
    ~
    day of
    ~
    ,
    1990,
    by a vote of
    5
    ,~..
    /1
    ~
    //_
    ~
    -J
    Dorothy
    NJ
    Gunn,
    Clerk
    Illinois Pollution Control Board
    115—93

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