tLLINOIS POLLUTION CONTROL BOARD
November
12,
1982
LAKE COUNTY DEPARTMENT OF PUBLIC WORKS,
Petitioner,
v.
)
PCB 82—29
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
)
Respondent.
JOHN KOENEN, ASSISTANT STATES ATTORNEY, APPEARED ON BEHALF OF
PETITIONER, AND
MARY DRAKE APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by J.
Anderson):
This matter comes before the Board on the petition for
variance of the Lake County Department of Public Works
(County)
filed March 19,
1982 as amended May 14,
1982.
The County seeks
a
five—year variance from the 15 pCi/i gross alpha particle activity
limit of Rule 304(C)(1)(b)
of Chapter
6:
Public Water Supply
since
codified
as
35 Ill. Adm.
Code 604.301(b)
as they relate to the
public water supply serving the Wildwood area in unincorporated
Lake County.
On June
3,
1982 the Illinois Environmental Protection
Agency (Agency)
filed its Recommendation in support of grant of
variance until January
1,
1986,
subject to conditions.
Hearing
was held on July 13,
1982,
at which the parties, objectors and
other interested citizens presented testimony and comment.
On
October 12,
1982 the County filed a Motion for Decision which is
hereby granted.
The service area of the Wildwood public water supply includes
a number of unincorporated subdivisions in central Lake County,
as well
as the College of Lake County.
About 2,000 primarily
residential customer accounts are serviced,
the area population
being about 7,500.
Daily water needs of about 500,000 gallons are
supplied by
2 deep wells,
a third shallow well being available for
emergency standby use.
An October,
1981 Agency analysis of
a composite of
4
distribution system samples taken between August,
1979 and July,
1981 showed a gross alpha particle activity l~evelof 27.4 ±4.54
pCi/i
(Pet.
Ex.
4).
In its Recommendation,
the Agency furnished
other sample analyses.
March,
1980 samples of the waters of Wells
#2 and #4 showed activity levels
in pCi/i,
respectively of 7.57 ±
3.47 and 28.1 ±5.49.
However in June, 1980 Well
#2 showed an
49-289
2
activity level
nearly
5 times greater:
35.2 ±5.30 pCi/i.
A
December,
1981 distribution system sample taken at
2 John Mogg
Road showed activity less than 1.41 pCi/i.
A March,
1982 distri-
bution system sample taken at an unspecified point showed activity
of
2.05
±1.52 pCi/i.
No testing has been done of radium—226,
22R
levels.
In
its amended petition, the County reports results of
its
preliminary investigation of compliance methods.
It states that
sLnce
it was first informed of non—compliance by the Agency on
December
4,
1981,
“on
such
short
notice
it
was impossible
for the
petitioner
to
investigate, design and implement a radiological
control
program”
(Am.
Pet.
p.
3).
(The
Board
notes,
however,
that in
a 1976 State Water Survey report on “Public Groundwater
Supplies
in Lake County”, portions of which were submitted by
the
County as
Ex.
2 to its petition,
the gross alpha level
of
Well
#2 was given a 39.1 pCi/i and of Well
#4 as 7.3 pCi/i, thus
giving some indication of non-complying radioactivity levels.)
The County states that dilution of well water with shallow
groundwater
is “impractical as well as uneconomical” based on
the slow recharge rate of shallow wells and unspecified high
construction costs.
Lime softening was also stated to be an
impractical solution for economic reasons, based on a $400,000
cost estimate derived from a 1977 USEPA publication
(Ex.
6)
(which
would need to be adjusted upward for inflation,
etc.).
Based on
the same report,
reverse osmosis was rejected on the same economic
groun1s (graphs
in Ex.
7 would indicate the costs as being at
least $100,000 higher, by the Board’s reading).
The ion—exchange
softening method was rejected because of anticipated problems with
‘3ludge disposal,
and because of the high sodium content of water
resulting
from this treatment process
(Am.
Pet.
5).
The County states that
it intends to substitute or dilute
with
Lake Michigan water
to achieve compliance.
(But see,
for
example
R.
15 indicating no final decision has been made.) On
February 28,
1981 the County received a Lake Michigan water
allocation permit for the Wildwood area,
the allocation to
commence in 1985.
On April
13,
1982 the County entered into an
intergovernmental cooperation agreement with the municipalities
of Grayslake,
Lake Bluff,
Libertyville, and Mundelein establishing
the Central Lake County Water Committee
(Committee).
The Commit—
tee’s purpose
is
to undertake
a “feasibility study for extending
water services to Participating Units through
a municipal joint
action water agency”
(Ex.
9).
In furtherance
of this goal, each
member has contributed a non—refundable $10,000.
As of February,
1982 the Committee’s timetable called for receipt of preliminary
financial and engineering consultants reports by January,
1983,
formation of
a Water Agency by March,
1983,
initiation of con—
struction bidding pursuant
to final engineering plans by November,
1984 and start up of its system by November,
1986
(Ex.
10).
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3
The petition asserted the County’s belief that grant of
variance would not be detrimental to the health of
its water
users.
In support thereof,
it presented a statement to Congress
by
Dr. R.E.
Rowland,
former Director of Radiological and Environ-
mental Research,
Argonne National Laboratory.
In this statement
Dr.
Rowland supported revision of the
5 pCi/i combined radium
standard.
Based on metabolic data gathered after USEPA’s initial
settling of this standard,
Dr.
Rowland suggested that the standard
could be raised to 30 pCi/i and still provide an adequate margin
of safety
(Ex.
11).
Based on the foregoing,
the County alleged that denial of
variance would impose an arbitrary or unreasonable hardship since
a)
the Wildwood water service area cannot be extended absent
variance, and b)
since the County
is pursuing delivery of Lake
Michigan water,
it would be unreasonable to require installation
of treatment facilities which would he possibly rendered obsolete
in 1986.
In its Recommendation,
the ~igencygenerally agreed with the
facts alleged in the County’s petition.
It additionally commented
that the County needs both wells
to serve
the needs of its water
users.
Based on the County’s entry into the Committee argument,
the agency believes that variance relief can be granted until
January
1,
1986,
consistent with the deadline date established
in §1416 of the federal Safe Drinking Water Act
(SDWA).
(The
SDWA provides that entities which have “binding commitments”
to become part of a “regional water supply” may receive variance
until January
1,
1986;
all others are eligible for relief only
until January 1,
1984.)
Variance was recommended until January
1,
1986,
subject to conditions.
One such condition was an interim
gross alpha
limit of
50 pCi/i.
At hearing, evidence
in the County’s behalf was presented
by Martin Galantha, the Superintendent of the County Department
of Public Works,
and Dr.
Thomas Nedved, environmental engineer
with the Lake County Health Department.
The Agency presented
no witnesses in support of its Recommendation, but its employee
Charles Bell answered questions asked by the citizens who
participated in the hearings.
In addition to recapitulating
the evidence presented
in the petition,
the witnesses explained
in some detail that the radioactivity in the Department’s water
is naturally occurring
in the deep shale and sandstone aquifers
underlying much of Illinois,
Iowa,
and Wisconsin, rather than
being the result of a leak from a nuclear power plant
(R.
54—57).
Mr.
Bell stated that the 50 pCi/i was recommended as an interim
limit,
as being on a “short—term basis, safe and achievable”.
Seven citizens testified or asked questions.
Two of these
presented exhibits and spoke,
on their own behalf and
in behalf
of others,
in strenuous opposition to the grant of variance:
Darlene Schoenke and Rita Jeneis
(Schoenke Ex.
1,
Jenels
Ex.
1).
49-291
4
The gist of their arguments is that variance should not be granted
because they believe
1)
there
is no safe level of radioactivity
in water,
2) the petition is deficient because no radium—226,
228 test levels are presented,
3)
the petition does not present
specific up—to—date cost of compliance figures for either treat-
ment of the current well water supply or its replacement with Lake
Michigan water,
and 4)
a survey they took of Wildwood residents
indicates that the residents do not believe the Lake Michigan
viater
alternative
is cost—effective or otherwise in their best interests.
The Board finds that some of
the citizens’ objections have
some merit.
The Board has long been concerned about both the
accuracy of gross alpha particle activity testing methods, and
about the fact that testing for radium has not been commenced when
gross alpha readings exceed the
15 pCi/i
limit
(see
Coun~yof
Du Page v.
IEPA, PCB 82—24,
May 27,
1982, and cases cited therein).
The petition does lack certain data concerning compliance options,
and does not support the grant of the requested long term variance.
However,
on balance, the Board
finds that denial of variance
would impose an arbitrary or unreasonable hardship.
As the Board
has previously found in a number of cases
of this type,
in which
similar evidence concerning the scientific justification
for
reevaluation of the radium and gross
alpha standards has been
presented,
there would appear to be little immediate risk to
health from consuming the County’s water if a short—term variance
is granted.
The Board will grant a 12 month variance, subject to
conditions,
during which time the County shall commence testing
for radium, prepare and submit a report concerning the cost of
compliance options, develop and submit a compliance plan,
and
notify its customers of the existence of this variance and of
the results of radiological testing during the variance period.
This variance shall
terminate November 15,
1983.*
This Opinion constitutes the Board’s
findings of fact and
conclusions of law in this matter.
ORDER
1.
Petitioner, the Lake County Department of Public Works,
is granted a variance from the 15 pCi/l
gross
alpha particle
*The Board notes that,
as the
Ex.
9 agreement establishing
the Committee provides in ¶5 that any “Participating Unit may
withdraw from the Committee upon five—day prior written notice”,
this agreement does not constitute sufficient commitment to join
a regional water supply such as
to make variance relief available
beyond January
1,
1984.
49-292
5
activity limit of
35 Ill,
Adm. Code 604.301(b)
to allow continued
operation of the Wildwood public water supply until November 15,
1983, subject to the following conditions:
a,
Petitioner shall,
in consultation with the Agency,
continue its sampling program to determine as accurately as
possible the level of radioactivity in its wells and finished
water.
Testing for radium—226,
228 shall be commenced on or
before January
1,
1983,
b.
On
or
before
March
15,
1983
the
Petitioner
shall
secure
professional
assistance
(either
from
present
staff or
an outside consultant)
in investigating compliance
options,
including the possibility and feasibility of achieving
compliance by blending water from its shallow well with that
of
its deep well,
and of replacing its well water with Lake
Michigan
water.
c.
Petitioner
shall
notify
the
Agency
in
the
event
that
it
withdraws
from
the
Central
Lake
County
Water
Committee.
d.
As expeditiously after identification of
a
feasible compliance method as
is practicable, but no later
than September 15,
1983,
Petitioner shall submit a program
(with increments of progress)
for bringing its system into
compliance
with
radiological
quality
standards
to
the
Agency’s Division of Public Water Supplies,
at the address
stated
in paragraph
2, below.
e.
Petitioner shall take all reasonable measures with
its
existng
equipment
to
minimize
the
radioactivity
in
its
finished water.
This variance shall terminate
in the event
that the gross alpha particle activity level exceeds
50 pCi/i.
f.
Pursuant to 35
Ill.
Adm.
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,
Petitioner will send to each user of its
public
water
supply
a
written
notice
to
the
effect
that
Petitioner has been granted by the Pollution Control Board
a variance from the 15
pCi/i
maximum
gross
alpha
particle
activity standard.
The notice shall
state the average
content of gross alpha particle activity and radium—226,228
in samples taken since the last notice period during which
samples
were
taken.
2.
Within forty—five days of the date of this Order,
Petitioner shall execute and forward
to the Illinois Environmental
Protection Agency,
PWS Enforcement Programs, 2200 Churchill Road,
Springfield,
Illinois
62706 a Certificate of Acceptance and
Agreement to be bound to all terms and conditions
of this variance.
49-293
6
This forty—five day period shall be held in abeyance for any period
this matter
is being appealed.
The form of the certificate
shall
be
as
follows:
CERTIFICATE
I,
(We),
,
having read
the Order of the Illinois Pollution Control Board in PCB
82—29,
dated ________________________________, understand and accept the
said Order, realizing that such acceptance renders all terms and
conditions thereto binding and enforceable.
Petitioner
By:
Authorized
Agent
Title
Date
IT
IS
SO ORDERED.
I,
Christan
L. Moffett,
Clerk of the Illinois Pollution
Control Board, hereby cjertify that the above Opinion and Order
was adopted on,~he
/~1~’~
day
of
/)r~4~-\
,
1982
by a vote of
~S~-i
Illinois Pollution
~trolBoard
49-294