ILLINOIS POLLUTION CONTROL BOARD
February
4,
1988
VILLAGE OF ~ILLOWBROOK,
Petitioner,
v.
)
PCB 87—114
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
OPINION AND ORDER OF THE BOARD
(by
J. Anderson):
This matter comes before the Board on an August
3, 1987
petition for the Village of Willowbrook
(Willowbrook) for
a
four
year extension of
its prior variance from
35 Ill. Mm.
Code
602.105(a)
and 602.106(b)
Standards
for Issuance and Restricted
Status respectively, but only as those
rules
involve
35
Ill.
Adm.
Code 604.301(a),
combined Radium 226,228.
Hearing was waived and
none has been held.
On September
17,
1987,
the Illinois Environmental Protection
Agency (Agency) submitted
a Recommendation that variance be
denied, but
if granted,
that
it be granted
for only one year,
with conditions.
On October 16,
1987, Willowbrook filed
a reply,
which
the Board on October
29,
1987 construed as an amended
petition that restarted
the 120 day time clock.
On November
9,
1987,
the Agency filed
an amended Recommendation that variance be
denied,
but,
if granted,
that it
be granted for
18 months, with
conditions.
Willowbrook, which has a population of about
7,500,
supplies
water
to about 1,050 single family residential,
194 multi—family
residential and 141 industrial and commercial
customers.
Willowbrook
is part
of the regional DuPage Water Commission,
which
is scheduled
to deliver Lake Michigan water
to Willowbrook
in 1992 as
a full replacement
for Willowbrook’s present shallow
and deep well water supply system.
This Opinion primarily will
update Willowbrook’s
circumstances which
are detailed
in PCB 86—65, which Opinion and
Order
is incorporated herein by reference.
In that Docket,
the
Board
on July 31,
1986 granted
a variance through July 31,
1987
from restricted status due
to
a concentration of combined radium
that exceeds the standard.
The Village had been first notified
by the Agency on December
9, 1985 that an annual composite of
four quarterly samples showed
a radium—226 content of 4.4 pCi/l
and
a radium—228 content
of 1.2 pCi/i,
for
a combined radium
86—81
reading
of 5.6 pCi/i,
in excess
of the allowable standard of
5.0
pico Curies per
liter.*
Willowbrook verified the exceederices
through its own analyses, finding that the problem was caused by
its one deep well
in its four well system.
The Board imposed conditions
in the PCB 86—65 variance that
included, among other
provisions, that compliance would be
achieved by July 31,
1987 by blending water from the deep well
with the three shallow wells;
that Willowbrook would implement
its program in consultation with the Agency;
and, also
in
consultation with the Agency,
that Willowbrook would have its
distribution system sampled monthly for radium by
a
laboratory
certified by the State.
In the instant petition, Willowbrook
reported its ongoing
radium results
in radium—226 and radium—228 pCi/i
as follows:
Date
Results
Location
(Pet.,
August
3,
1987,
p.
7,8)
The Agency also provided a July 16,
the distribution system showing readings
radium—226 and 1.7 ±0.2 for radium—228,
combined radium,
(Agency Rec. Attach.
4).
Willowbrook acknowledged that it did not achieve compliance
by the date required in PCB 86—65, explaining
as follows:
Petitioner
was
unable
to
obtain
an
adequate
mixing
ratio
in
order
to
comply
with
the
stated
standard
due
to
design constraints
of
*
The Agency
in its recommendation inaccurately stated
a combined
total of 6.6 pCi/l
(Agency Rec.
p.
5, Pet.
Ex.
A)
March
1986
March 1986
March 1986
March
1986
March
1986
March 1986
September 1986
October 1986
November
1986
December 1986
January 1987
February 1987
March
1987
~pril 1987
May 1987
1.19
+
1.23
+
6.85 +
0.71
+
5.03 +
5.68
+
4.4
+
2.4
+
2.3
+
2.1
+
3.8
+
0.2
+
4.2
+
4.2
+
4.2
+
0.38
0.30
0.61
0.62
0.48
0.72
2.0
1.7
0.9
0.9
1.5
0.1
1.9
2.0
1.9
Well #1
Well
#2
Well #3
c~el1#4
Distribution System
Distribution System
Distribution System
Distribution System
Distribution System
Distribution System
Distribution System
Distribution System
Distribution System
Distribution System
Distribution System
1987 Argonne analysis of
of
3.4 ±0.2 pCi/i
for
totalling 5.1±0.3 pCi/i
86—82
—3—
the
existing
distribution
system,
for
the
reason
that
there
is
no
central
mixing
facility.
During
mixing,
an
additional
adverse
side
affect
in
water
quality
was
produced.
The
iron content
and
hardness
of
the
water
was
increased
with
a
decrease
in
fluoride
content
and these quality
issues may
require
the
petitioner
to provide
additional
treatment of the water.
(August
3,
1987, Pet.
p.
8)
Wiliowbrook has been attempting
to acquire Lake Michigan
water
from the Justice—Willow Springs Water Commission, which
receives
its water
from Chicago,
in quantities sufficient
to
supply 50
of its water needs as
a temporary alternative until
Lake Michigan water
is permanently available from the DuPage
Water Commission, Chicago has already given
its preliminary
authorization
to the Justice—Willow Springs Water Commission
to
service Willowbrook.
(Amend. Pet.
Ex.
A).
Willowbrook
is willing
to accept the Agency’s recommended conditions
as long
as the
variance is granted
for eighteen months
to enable Willowbrook
to
complete its negotiations and secure delivery of the water.
(Amend Pet., p.
5)
The Agency believes that Willowbrook’s hardship
is self—
imposed.
First,
the Agency asserts that Willowbrook, by using
Argonne National Laboratory (Argonne),
failed
to use
a certified
laboratory as required in the PCB 86—65 Board Order.
Various
correspondence and assertions indicate that:
the Agency had
stated
in
a letter to Willowbrook on January 26,
1987 that a
certified laboratory must
be used and that the only two
laboratories certified for radium analysis are Teledyne Isotopes
in Northbrook and Radiation Measurements
in Mundelein; on
February 4,
1987, Willowbrook nevertheless was verbally allowed
by the Agency
to use Argonne
(which apparently is not pursuing
certification);
the Agency shortly reversed itself on March
16,
1987,
in writing; Willowbrook nevertheless continued to use
Argonne, which
the Agency stated
is a reputable laboratory but
whose
results the Agency believes should be disregarded.
The
Agency additionally notes that federal regulations require that
radium analyses
for determining compliance with the radium
standard be performed by State certified labs
or
they cannot be
considered, citing
40 CFR 141.28(a).
Willowbrook believes
that
it had the understanding and approval
of
a representative of the
Agency even after
receiving correspondence stating otherwise,
that
it attempted
to comply with the intent
of the Board Order
and that the Argonne results should be accepted.
(Agency Rec.
p.
6, Attach
1—4, Amend Rec.
p.
3)
The second area where
the Agency believes Willowbrook had
a
self—imposed hardship concerns Willowbrook’s failure
to consult
with the Agency
in implementing its blending program,
thus
86—83
violating the Board Order.
The Agency stated that,
if consulted
it would have recommended trying sequestration
to comply with
the
iron standard, possibly resulting in compliance with both the
iron and radium standard.
Willowbrook acknowledges that
it had
felt that its use
of independent consulting engineers provided
sufficient professional
advice but that,
in hindsight,
it
believes
it would have been beneficial
to consult with
the
Agency,
(Agency Rec.,
p.
9,
Amend Pet.
p.
3)
The Agency also asserts that Willowbrook has few outstanding
requests
for water main extensions and thus has not demonstrated
sufficient hardship
in this respect.
Willowbrook believes the
lowering of requests
is seasonal, noting that
it had ten requests
each
in 1986 and
1987 and anticipates that this will continue
in
1988 and 1989,
and also that Willowbrook has
large unimproved
lands and
is
in DuPage County,
one of the fastest growing
counties
in the State.
Willowbrook also asserts that
it may need
to provide quick service when private wells
still serving many of
its existing residents fail.
The Agency replies that this latter
problem can be dealt with by delivery of water
(Amend
Pet.
p.
2,
Agency Amend, Rec.
p.
4).
Neither the Agency nor Willowbrook believe
that,
for the
term of this variance, significant health risk will occur
for the
limited population
to be served by new extensions,
citing
testimony in PCB 85—54 and R85—l4 by Richard E. Toohey, Ph.D.
Both also agree
that there are no Federal impediments to a
grant of variance, since Only State regulations are involved.
The Agency does not appear
to object to Wiilowbrook’s
compliance option, but does point out that the Village may need
to blend with
its shallow well water
in any event
to achieve
compliance throughout
its distribution system.
Board Response
While much of Willowbrook’s hardship
is self—imposed,
the
Board
is
inclined to give Willowbrook the benefit of
the doubt
insofar
as
a) some of the problem resulted from some confusing
communication with the Agency,
b)
there
is every indication that
Willowbrook has been seeking
in good faith
to come into
compliance, although
it certainly was not properly following
certain dictates
of
the prior Board Order
and
C)
the indications
are that Willowbrook’s new compliance option will be
successful.
The
Board also notes that utilizing Lake Michigan
water
as quickly
as possible
is likely the best option.
86—84
—5—
Under
the circumstances,
the Board will accept the Argonne
Laboratory data.*
In
its recommendation in PCB 86—65, the Agency
itself recommended that the Board require the use
of
a certified
laboratory
(Agency Rec.
June
17,
1986,
p.
11, PCB 86—65);
notwithstanding,
on February
2,
1987,
the Agency gave verbal
permission to Willowbrook
to continue using Argonne.
While the
Board certainly does not absolve Willowbrook
of its own
responsibilities,
the Board points out that the same condition at
issue here requires consultation with
the Agency, which
Willowbrook did.
The record here does not provide enlightenment
as
to the reasons for
the Agency’s verbal advice
regarding
Argonne and the certification situation.
Given the confusion,
Willowbrook’s decision to rely on the Agency’s verbal advice and
not change laboratories
for
the last
few months of its variance
is not completely indefensible.
Under
these circumstances, and
considering
the fact that there has been no challenge to the
quality
of
Argonne’s radium testing program,
the Board declines
to hold that Willowbrook’s hardship in this instance was entirely
self—imposed.
Regarding the second area where
the Agency believes
Willowbrook’s hardship was self—imposed, Willowbrook does not
excuse
its
failure to consult with the Agency regarding its
blending program.
Had Willowbrook consulted with the Agency,
the
Agency asserts that there was
a possibility that the blending
problems might have been cured.
However, this record does show
that Willowbrook did get professional help and took other
steps
to move forward towards timely compliance by temporary blending
means.
Willowbrook has had all along
an ultimate compliance plan,
i.e., full
use of Lake Michigan water.
The problem has arisen
here because
of
its difficulties
in achieving compliance
in the
interim.
In its earlier PCB 86—65 variance, Willowbrook rejected
the
alternative
of
constructing
treatment
facilities,
arguing
that
the
construction
and
user
costs
are
excessive,
particularly
since such facilities will
be
in operation
for only
a short
time.
The
Agency
agreed,
essentially
because
lime
or
lime—soda
softening,
or
ion
exchange
softening
treatment
methods
also
create
disposal
problems
(PCB
86—65,
Agency
Rec.
p.
7,8).
The
*
The
Board notes
that the Agency’s remedy raises certain
questior.~: if all of Willowbrook’s results were
to be
disregarded,
only
the
Agency’s
analysis
could
be
considered
for
reimposing
restricted
status~
however,
40
CFR
141.28(b),
as
well
as the Board’s certification condition, relieve the Agency of
the
certification requirement and this record does not indicate who
performed
the
Agency’s
analysis.
While
Willowbrook’s
variance
could
be
denied
for
violation
of
the
Board
Order,
the
Board
is
uncertain what enforcement purpose
is served by throwing out
otherwise
valid
results.
86—85
—
b
—
option
of
choice,
the
blending
of
its deep well with its shallow
wells,
has
yet
to
work.
The
negotiations
for
Willowbrook’s
new
option,
buying
50
of
its
water
from
the Justice—Willow Springs
Water
Commission,
are
well
underway, and the Agency appears to
accept
the
potential
of
these
negotiations as
a means
of
compliance.
There
is
little question that most of Willowbrook’s hardship
has
been
self—imposed.
The
Board certainly does not countenance
deviations from conditions established
in its Orders.
However,
Willowbrook has not exhibited any resistance to achieving timely
compliance,
and did comply with major aspects of
the prior Board
Order.
Also, Willowbrook’s assertion of the need
to build water
main extensions based on past experience and the fact that
it
is
in
a rapidly growing
area is not unreasonable.
The somewhat thin hardship showing even considering
the lack
of any significant environmental effects during an
18 month
variance
is a close call.
Fiowever, Willowbrook’s good faith,
if
in part mis—directed, efforts
to comply persuade the Board
that
Willowbrook would
incur an arbitrary or unreasonable hardship
were variance
to be denied.
The Board also notes the benefits of
keeping Willowbrook on an enforceable compliance schedule.
The
Board will adopt
in the large measure the Agency’s recommended
conditions.
However,
the Board will delete
the certification
requirement.
Variance from state
law does not require the use
of
a certified
laboratory;
however the Board cautions Willowbrook
that,
at the very least when it
is ready to demonstrate
compliance,
failure
to submit results from
a certified laboratory
showing compliance
risks continuing exposure
to enforcement
for
violation of
the radium standards.
The Board also will add a
year
to the recommended program completion deadlines solely
to
provide time to gather for the four quarterly readings necessary
to
demonstrate
compliance
pursuant
to
35
Ill.
Mm.
Code
605.105(a).
This Opinion constitutes
the Board’s findings
of fact and
conclusions of law
in this matter.
ORDER
The Petitioner,
the Village of Willowbrook,
is hereby
granted a variance from 35
Ill. Adm. Code 602.105(a)
(Standards
for Issuance) and from 35
Ill.
Adm. Code 602.106(b)
(Restricted
Status),
but only insofar as those
rules relate
to the combined
radium standard of
35 Ill.
Adm. Code 604.301(a),
subject
to the
following conditions:
1.
This variance shall expire no later than October
4,
1990,
and
shall expire earlier under
the following circumstances:
86—86
—7—
a)
This variance shall expire on October
4,
1989 unless the
Village of Willowbrook has completed by then
a program
capable of demonstrating compliance by providing 50
of
its water, and including any necessary blending,
from
the Justice—Willow Springs Water Commission.
b)
This variance shall expire on such earlier date
as
analysis pursuant to
35
Ill. Mm. Code 605.105(a)
shows
compliance.
c)
This variance shall expire
as otherwise provided
in
Paragraphs
2 and
3
of this Order.
2.
This variance shall expire on August 19,
1988
if by that date
the Village of Willowbrook has not either
a) provided
the
Agency with
a copy of
an executed contract with the Justice—
Willow Springs Water Commission
to purchase 50
of the
Village of Willowbrook’s water needs,
or
b) notified the
Agency of
its
intent to implement
a compliance program by
using
its three shallow wells
for blending purposes.
The
blending program shall proceed according
to Paragraph
3.
3.
Pursuant to Paragraph
2 and
in consultation with the Agency,
the Village of Willowbrook shall, no later than February
4,
1989,
or this variance shall expire on that date,
implement
an appropriate program to use its three shallow wells
for
blending purposes
to bring
its combined radium—226 and
radium—228 levels
in its drinking water
into compliance with
the
5 pico Curies
per liter maximum allowable concentration
standard for radium—226 and radium—228
in its distribution
system and finished water.
This program shall consider
sequestration as provided
in
35
Ill. Adm. Code 604.203(b).
4.
The combined radium—226 and radium—228 concentration
in the
Petitioner’s distribution system shall not exceed 10 pico
Curies per liter
(10 pCi/l) during
the term of this variance.
5.
In consultation with
the Agency,
the Petitioner shall
continue
its sampling program
to determine as accurately as
possible the level of
radioactivity, including radium—226 and
radium—228,
in its wells and finished water.
Until this
variance expires,
the Village
of Willowbrook shall collect
monthly samples
of its water from its distribution system and
shall composite and analyze these water samples quarterly by
a laboratory certified
by the State of Illinois for
radiological analysis
so as
to determine the concentration
for
combined radium—226 and radium—228.
The results of
the
analyses shall be reported
to the Water Quality Unit,
Division of Public Water
Supplies, Illinois
Environmental
Protection Agency, 2200 Churchill Road, Springfield,
Illinois
62703, within
14 days
of the receipt of each analysis.
At
the option of the Petitioner,
the monthly samples may be
86—87
—8—
analyzed when collected.
The running average of
the three
most recent monthly sample results shall be reported
to the
Illinois Environmental Protection Agency at the previously
given address within
14 days
of the receipt
of said analysis.
6.
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,
the Petitioner shall send
to each user
of its
public water supply
a written notice
to the effect that the
Petitioner has been granted by the Illinois Pollution Control
Board
a variance from
35
Ill. Adm. Code 602.105(a),
Standards
of Issuance, and
35
Ill. Adm. Code 602.106(b), Restricted
Status,
as
it
relates
to the maximum allowable concentration
standard of
5 pico Curies per liter
of combined radium—226
and radium—228.
7.
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,
the petitioner shall send
to each qser
of its
public water supply a written notice
to the effect that the
Petitioner
is not
in compliance with the combined radium—226
and radiuni—228 maximum allowable concentration standard of
5
pico Curies per
liter.
The notice shall
state
the average
content of
the contaminant
in question in samples taken since
the last notice period during which samples were taken.
8.
The Petitioner shall take all reasonable measures with its
existing equipment to minimize the level
of combined radium—
226 and radium—228 in its finished water.
9)
Within 45 days of the date of this Order, Petitioner
shall
execute and forward
to Thomas Davis, Enforcement Programs,
Illinois Environmental Protection Agency,
2200 Churchill
Road, Springfield,
Illinois 62794—9276,
a Certification of
Acceptance and Agreement to be bound to all terms and
conditions
of this variance.
The 45—day period shall
be held
in abeyance during any period that this matter
is being
appealed.
Failure to execute and forward the Certificate
within
45 days renders this variance void and of no force and
effect as a shield against enforcement of rules from which
variance was granted.
The form of said Certification shall
be as follows:
CERTIFICATION
I,
(We), ____________________________, having
read the
Order
of
the Illinois Pollution Control Board,
in PCB 87—114,
February
4, 1988, understand
and accept the said Order,
realizing
that such acceptance renders all terms and conditions thereto
binding and enforceable.
86—88
—9—
Petitioner
By:
Authorized Agent
Title
Date
10. Section
41 of
the Environmental Protection Act,
Ill.
Rev.
Stat.
1985 ch.
111 1/2 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.
3.
D.
Dumelle and B.
Forcade dissented.
I, Dorothy
M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby cer
ify that the
bove Opinion and Order was
adopted on the
_____
day ~
,
1988,
by
a vote
Dorothy M.
Gunn, Clerk
Illinois Pollution Control Board
86—89
