ILLINOIS POLLUTION CONTROL BOARD
September 19, 1996
CITY OF DEKALB,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 96-246
(Variance - Public Water Supply)
RONALD G. METEKAITIS APPEAR ON BEHALF OF PETITIONER;
STEPHEN E. EWART APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD (by J. Theodore Meyer):
The City of DeKalb (DeKalb) filed a petition for variance on June 3, 1996, seeking an
extension of variance from the requirements of “Standards for Issuance” and “Restricted
Status” as they relate to the maximum contaminant level (MCL) for combined radium in its
drinking water supply. (35 Ill. Adm. Code 602.105(a), 602.106(b) (1994).) In the prior
variance, the Board granted DeKalb relief from the requirements of “Standards for Issuance”
and “Restricted Status” to the extent those rules involve 35 Ill. Adm. Code 611.330(a), which
establishes an MCL of 5.0 picocuries per liter (pCi/L) for combined radium-226 and radium-
228. (City of DeKalb v. IEPA, (June 20, 1991) PCB 91-34, 123 PCB 593.) DeKalb’s prior
variance expired June 20, 1996.
DeKalb now seeks to extend that variance until the earliest of the following five dates:
(1) three years following the effective date of any regulation promulgated by the United States
Environmental Protection Agency (USEPA) which amends the MCL for combined radium; (2)
when analysis pursuant to 35 Ill. Adm. Code 611.720, or any compliance demonstration
method then in effect, shows compliance with combined radium standards then in effect; (3)
three years following USEPA publication of notice that no amendments of the 5.0 pCi/L
combined radium standard will be promulgated; or (4) five years from the date of any grant of
its request for extension of variance. (Pet. at 1-2.)
For the reasons set forth below, the Board finds that DeKalb has presented adequate
proof that immediate compliance with the Board’s regulations for “Standards for Issuance” and
“Restricted Status” would impose an arbitrary or unreasonable hardship. In addition, the Board
finds that DeKalb has made satisfactory progress towards achieving compliance during the
term of its prior variance. Accordingly, the request for an extension of variance from the
Board’s standard for combined radium is granted, beginning on the date of this opinion and
subject to the conditions set forth in the attached order.
2
The Board’s responsibility in this matter arises from the Illinois Environmental
Protection Act (Act). (415 ILCS 5/1
et seq.
(1994).) The Board is charged therein with the
responsibility of granting variance from Board regulations whenever it is found that immediate
compliance with the regulations would impose an arbitrary or unreasonable hardship upon the
petitioner. (415 ILCS 5/35(a).) A request for extension of variance may be extended from
year to year upon a showing of satisfactory progress during the prior variance. (415 ILCS
5/36(b).) The Agency is required to appear at hearings on variance petitions (415 ILCS
5/4(f)), and is charged, among other things, with the responsibility of investigating each
variance petition and making a recommendation to the Board as to the disposition of the
petition. (415 ILCS 5/37(a).)
PROCEDURAL HISTORY
On July 18, 1996 the Illinois Environmental Protection Agency (Agency) filed a
Motion to File Recommendation Instanter and its Recommendation for Variance. By affidavit
the Agency asserts that it received DeKalb’s petition on June 14, 1996 and could not complete
the technical review of the variance extension by July 14, 1996; therefore, the Agency requests
leave to file its recommendation four days late. The Board hereby grants the Agency’s motion
to file its recommendation instanter and accepts its recommendation. The Agency
recommends that DeKalb’s request for extension of variance be granted, subject to certain
conditions which are explained later in this opinion.
Between July 17, 1996 and July 22, 1996 the Board received three motions to
intervene by various DeKalb residents. On July 29, 1996 DeKalb filed a Motion for an
Expedited Decision. In its August 1, 1996 order the Board denied the motions to intervene
and granted the motion for expedited decision subject to timely receipt of transcripts and post-
hearing briefs, and as Board resources would allow.
In its petition for variance, DeKalb waived the hearing requirement in this matter.
However, on June 10, 1996 the Board received a letter of objection and request for hearing
from DeKalb resident Dorianne Burg. Eight letters of objection and requests for hearing were
subsequently received. Consequently, and pursuant to 35 Ill. Adm. Code 104. 160(c)(2), a
hearing was held before Hearing Officer Deb Frank on August 5, 1996 in DeKalb, Illinois.
Dozens of members of the public attended, 19 of whom delivered public comments. In
addition, after the hearing, the Board received 11 additional public comments.
1
Finally, the
Agency filed its post-hearing brief on August 20, 1996 and DeKalb filed its post-hearing brief
on August 22, 1996.
2
BACKGROUND
1
Public comments were assigned numbers in the chronological order in which they were
received by the Board. Public comments will be cited to as (P.C. #__.)
2
DeKalb’s Petition for Extension of Variance will be cited as (Pet. at __); the Agency’s
Recommendation will be cited as (Rec. at __.); the hearing transcript will be cited as (Tr. at
__.); DeKalb’s post-hearing brief will be cited as (DeKalb Br. at __.); and, the Agency’s post-
hearing brief will be cited as (Agency Br. at __.).
3
DeKalb, located in DeKalb County, Illinois, is a municipality that provides a potable
water supply and distribution system to a population of approximately 35,076. The population
served consists of 7,494 residential customers, 659 commercial and industrial users, 53 users
at Northern Illinois University and 93 miscellaneous utility customers. (Pet. at 4.)
DeKalb’s water supply and distribution system consists of nine sandstone aquifer wells,
four elevated storage tanks totaling 5.75 million gallons, and ninety miles of distribution
facilities. Water is provided to all residential, commercial and industrial users, as needed, and
charges are made to all users, as established by ordinance. In 1995 water was pumped at an
average of 4.05 million gallons per day. The materials used are raw water, polyphosphates for
iron sequestration, fluoride for tooth care and chlorine for disinfecting. DeKalb is not part of
a regional public water supply. (Pet. at 4-5.)
DeKalb is requesting an extension of its prior variance to allow for expansion or
extension of its water supply and distribution system. The most recent analyses of its water
supply was completed at the following locations:
Tap 1, Well 4: Combined radium content of 12.0 pCi/L taken 11/15/95;
Tap 2, Well 6: Combined radium content of 13.7 pCi/L taken 1/3/96;
Tap 3, Well 7: Combined radium content of 6.0 pCi/L taken 9/13/95;
Tap 4, Well 8: Combined radium content of 7.2 pCi/L taken 11/15/95;
Tap 6, Well 10: Combined radium content of 9.1 pCi/L taken 1/3/96;
Tap 7, Well 11: Combined radium content of 5.1 pCi/L taken 11/15/95;
Tap 8, Well 12: Combined radium content of 5.8 pCi/L taken 5/9/96;
Tap 9, Well 13: Combined radium content of 10.9 pCi/L taken 11/15/95.
The results were obtained from analyses of composite samples compiled over four
consecutive quarterly samples. DeKalb’s water system currently draws water from its wells at
night and stores it in four elevated storage tanks prior to distribution during daytime hours.
(Tr. at 23.) Although radium testing was not drawn from the storage tanks, DeKalb calculated
a weighted average consumption of combined radium, which was 7.3 pCi/L for 1995. (Tr. at
23-24,29-30.) The levels currently exceed the 5.0 pCi/L combined standard for radium-226
and radium-228. DeKalb is not listed on restricted status for exceeding any other contaminant.
(Pet. at 4-9.)
REGULATORY FRAMEWORK
In determining whether any variance is to be granted, the Act requires the Board to
ascertain whether a petitioner has presented adequate proof that immediate compliance with the
Board regulations at issue would impose an arbitrary or unreasonable hardship. (415 ILCS
4
5/35(a).) Furthermore, the burden is upon petitioner to show that its claimed hardship
outweighs the public interest in attaining compliance with regulations designed to protect the
public. (Willowbrook Motel v. Pollution Control Board, 135 Ill.App.3d 343, 481 N.E.2d
1032 (1st Dist. 1977).) Only with such showing can the claimed hardship rise to the level of
arbitrary or unreasonable hardship.
A variance, by its very nature, is a temporary reprieve from compliance with the
Board’s regulations, and compliance is to be pursued regardless of the hardship which eventual
compliance presents an individual petitioner. (Monsanto Co. v. Pollution Control Board, 67
Ill.2d 276, 367 N.E.2d 684 (1977).) Accordingly, as a condition to the granting of variance,
a variance petitioner is required to commit to a plan which is reasonably designed to achieve
compliance within the term of the variance, unless certain special circumstances exist. A
request for extension of a variance can be granted on a year to year basis, but only upon a
showing of substantial progress towards achieving compliance. (415 ILCS 36(b).)
The action that DeKalb requests is not a variance from the MCL of 5.0 pCi/L for
combined radium. The radium standard will remain applicable to DeKalb’s water supply
irrespective of the action taken by the Board in this matter. Rather, the instant variance
request concerns two features of the Board’s public water supply regulations: Standards for
Issuance and Restricted Status. These features are found at 35 Ill. Adm. Code 602.105 and
602.106, respectively, and in pertinent part read:
Section 602.105
Standards for Issuance
a)
The Agency shall not grant any construction or operating permit required by
this Part unless the applicant submits adequate proof that the public water supply will
be constructed, modified or operated so as not to cause a violation of the
Environmental Protection Act...or of this chapter.
(35 Ill. Adm. Code 602.105.)
Section 602.106
Restricted Status
a)
Restricted status shall be defined as the Agency determination pursuant to
Section 39(a) of the Act and Section 602.105, that a public water supply facility may
no longer be issued a construction permit without causing a violation of the Act or this
Chapter.
b)
The Agency shall publish and make available to the public, at intervals of nor
more than six months, a comprehensive and up-to-date list of supplies subject to
restrictive status and the reasons why.
(35 Ill. Adm. Code 602.106.)
The principal effect of these regulations is that public water suppliers are prohibited
from extending water service due to their inability to obtain the requisite permits, unless and
5
until their water meets all the standards for finished water supplies. A grant of variance from
“Standards for Issuance” and “Restricted Status” neither absolves a petitioner from compliance
with the drinking water standards at issue, nor insulates a petitioner from possible enforcement
actions for violation of those standards. The underlying standards remain applicable to the
petitioner regardless of whether the variance is granted or denied.
Standards for combined radium in drinking water were first adopted as National Interim
Primary Drinking Water Regulations by the United States Environmental Protection Agency
(USEPA) in 1976. The standard adopted was 5.0 pCi/L for the sum of two isotopes of
radium: radium-226 and radium-228 (“combined radium”). Shortly thereafter Illinois
adopted the same limits. Although characterized as “interim” limits, these standards
nevertheless are the MCLs under both federal and Illinois law, and will remain so unless
modified by the USEPA. In anticipation of USEPA’s revision of the radium standard, the
Illinois legislature amended the Act at Section 17.6 in 1988 to provide that any new federal
radium standard will immediately supersede the current Illinois standard. The state standard is
therefore inexorably tied to the federal standard, and cannot be greater than or less than the
federal limit.
Since their original promulgation, the current radium standards have been under review
at the federal level. The USEPA has been evaluating the interim radium standards pursuant to
Sections 1412(b)(1)(B) and 1412(b)(2) of the Safe Drinking Water Act that require USEPA to
propose and promulgate the National Revised Primary Drinking Water Regulations. On
October 5, 1983 USEPA announced its intention of revising the interim radionuclides
standards in an Advanced Notice of Proposed Rulemaking (ANPR) (48 Fed.Reg. 45502). In
that notice, USEPA stated that it would perform a comprehensive reassessment of the interim
standards in order to optimize public health protection without unnecessary economic burdens
on states and communities. It later republished this ANPR in September 1986, establishing
MCL goals for radionuclides and providing information related to establishing MCLs for
radionuclides (51 Fed.Reg. 34836).
On July 18, 1991 the USEPA published a rulemaking proposal which included a
revision of the interim standards for radium-226 and radium-228 (56 Fed.Reg. 33050).
USEPA proposes to replace the 5.0 pCi/L combined radium standard with separate MCLs of
20.0 pCi/L each for radium-226 and radium-228. In proposing the revised MCLs, USEPA
gave consideration to available technologies and associated costs, analytical capabilities and
health risks associated with the contaminants. USEPA determined that alternatives at the 10
-4
lifetime risk level, approximately 20.0 pCi/L for both radium-226 and radium-228, are
protective to human health. As such the USEPA concluded that it was not cost effective to set
MCLs for radium at the technically feasible level of 5.0 pCi/L.
This change in the radium standard was to be promulgated by April 1995, but the
deadline was later extended to September 1995. However, Congress prohibited funds for the
promulgation of final radionuclide standards for fiscal year 1994 and 1995. Mr. Joseph
Harrison, Chief of the Safe Drinking Water Division, USEPA Region V, announced that in
light of the projected proposal for the relaxed standard, the USEPA would not force any
6
municipality to spend funds to comply with the federal combined standard. At hearing, Tracey
Virgin reported that the Agency expects a decision as to specific final regulation action to be
announced by USEPA in October 1996. (Tr. at 133.)
COMPLIANCE PLAN
Past Compliance Efforts
On December 26, 1990 the Agency notified DeKalb that its water supply system had
been placed on Restricted Status List for exceeding the MCL for combined radium. (Rec. at
7.) DeKalb petitioned for, and was granted a variance from 35 Ill. Adm. Code 602.105(a),
Standards for Issuance, and 602.106(b), Restricted Status, to the extent those rules apply to
combined radium-226 and radium-228. (City of DeKalb v. IEPA (June 20, 1991), PCB 91-
34, 123 PCB 593.) DeKalb states that, during the five-year period of its variance, it followed
the directives set forth in the Board’s June 20, 1991 order. Specifically, DeKalb continued its
sampling program of collecting quarterly water samples from each well, having them analyzed
and submitting the results to the Agency. (Tr. at 37.) DeKalb also created an Ad Hoc Water
Quality Advisory Committee and hired the engineering consulting firm of Baxter & Woodman
to evaluate alternatives methods to achieve compliance. (Tr. at 37, 41.) DeKalb attempted to
minimize the levels of combined radium by reducing the water volumes from the two wells
with the highest concentrations of radium, thereby reducing the weighted average consumption
of radium by DeKalb’s customers. (Tr. at 21.) In addition, DeKalb notified its users of its
noncompliance with the radium standard by including a notice with its monthly water bills.
(Tr. at 40.) The notice language was drafted pursuant to Agency directive. (Tr. at 328.)
The Board’s order also required DeKalb to submit written progress reports to the
Agency every six months until compliance is achieved. DeKalb states that it complied with
this directive through June 1992, but failed to submit any more reports until August 1996,
when Ronald Naylor, director of public works, submitted a four-year summary progress report
to the Agency. (Tr. at 44-45.) Finally, DeKalb states that, as directed by the Board’s 1991
order, it has investigated options for reducing the amount of radium in its water supply. (Rec.
at 7.) DeKalb reports that, at a cost of $30,000, two primary options were identified:
(a)
Blending: Developing shallow wells from sand and gravel or limestone aquifers
for blending and diluting purposes. (Pet. at 16.) DeKalb found that the best location
for developing shallow wells is west of DeKalb, near the Village of Malta in the buried
Troy Bedrock Valley. (Id.) DeKalb estimates a 3-year construction timetable for
acquiring rights to develop wells and actual construction of the wells, and calculates the
total cost to be between $6.8 and $12 million because blending will have to occur at
each of the system’s nine water supply points. (Tr. at 63-66.)
(b)
Ion Exchange Treatment: a water softening treatment that can effectively
remove more than 90% of the radium but creates an iron sludge which will have to be
disposed by connecting to the DeKalb Sanitary District system at a cost of $10,000 to
7
$15,000 per year. (Tr. at 59, 66.) DeKalb is not confident that the DeKalb Sanitary
District would allow iron sludge to be disposed in the sewage system. (Pet. at 8.)
Future Compliance Plans
DeKalb proposes to take certain steps toward achieving compliance during the extended
term of its variance. DeKalb will continue to consult with the engineering firm of Baxter &
Woodman, Inc., and will continue to work with its Ad Hoc Water Quality Advisory
Committee to consider alternative compliance options. In consultation with the Agency,
DeKalb will continue its sampling program to determine as accurately as possible the level of
radioactivity in its wells and finished water. Every three months, DeKalb will notify its water
supply customers of its noncompliance with the combined radium standard, its most current
radium level, and that it has received a variance from the requirements of 35 Ill. Adm. Code
602.105(a) “Standards for Issuance” and 602.106(b) “Restricted Status”. DeKalb states that
since implementing a checks and balances system between the water superintendent and the
city’s engineer, it can assure timely submission of progress reports to the Agency every six
months during the extended term of the variance. (Tr. at 46.).
DeKalb points to the uncertain status of the federal standard for combined radium, and
to the USEPA’s position of not enforcing the current standard as long as the water supplier
makes satisfactory progress towards achieving compliance, in stating that the most appropriate
course of action is to seek an extension of its variance that is linked to the adoption or non-
adoption of revised radium standards. (Pet. at 13.) DeKalb believes that such a variance
would relieve it from expending significant funds to design and construct facilities which may
either be over-designed or unnecessary by the time they are completed. (Id.) DeKalb states
that it is willing to commit to all actions short of final design and construction of appropriate
facilities until a final decision is made regarding radium standards. (Id.)
ARBITRARY OR UNREASONABLE HARDSHIP
DeKalb states that denial of its request for an extension of variance would pose an
arbitrary or unreasonable hardship because significant development would be delayed or
precluded. (Pet. at 17.) During the term of its prior variance, DeKalb experienced notable
economic growth which required the installation of 90,000 feet of water mains to serve new
developments and improve fire flows in the community. (Id.) DeKalb anticipates further
growth in the next few years and listed 37 planned or ongoing projects which would be
seriously affected if an extension of variance is denied. (Id. at 18.) Mark Bernaci, director of
DeKalb’s department of planning and development, stated at hearing that approximately 805
dwellings will be constructed which represents an estimated 2,265 new customers to be served.
(Tr. at 91-92.) In addition, the city estimates 850,000 square feet of new development, and
990,000 square feet of new industrial development during the term of the extended variance.
(Tr. at 95.)
Mr. Bernaci further explained the fiscal impact of these new developments:
8
“Property tax to the area’s local governmental agencies would amount to $3.65 million
annually, again, to all taxing districts, of which $240,000 would accrue to the City of
DeKalb. Sales tax revenues would amount to $3.2 million annually of which $2.8
million would accrue to the City of DeKalb, and the balance to the DeKalb County
government. And then third, utility tax would amount to $140,000 annually to the City
of DeKalb.”
(Id.) Mr. Bernaci asserted that these planned and ongoing developments have a significant
economic impact as well. DeKalb will experience approximately $135 million of new
construction value, hundreds of construction jobs, roughly $160 million in gross annual retail
sales activity and about 2,200 permanent jobs employed by the proposed new commercial and
industrial development. (Tr. at 96-97.) Mr. Bernaci indicated that these numbers are
conservative in that many developments did not provide him with statistics to analyze. (Id.)
In light of these statistics, DeKalb states that denial of its requested extension of
variance would be an arbitrary or unreasonable hardship because it would require the Agency
to place DeKalb on restricted status. Placing DeKalb on restricted status would require the
Agency to reject construction and operating permits until compliance with the standards is
achieved, which in turn means that no new water main extensions could be constructed, and
further development would be obstructed. (Pet. at 13-14.)
ENVIRONMENTAL IMPACT
At hearing DeKalb introduced Dr. Robert Rowland as its expert on the health effects of
radium. Dr. Rowland received a Ph.D. in radiation biology and has worked from 1950 to the
present at Argonne National Laboratory studying the effects of ingested radium in human
beings. (Tr. at 99-101, Pet. Exhibit 12.) Dr. Rowland explained that radium, a daughter of
uranium 238, is uniformly distributed throughout the environment; in fact, one ounce of
garden soil can contain about 21.0 picocuries of radium. (Tr. at 102-103.) Since we grow
our food from soil, all food stuffs, including meat from grazing farm animals, contain radium.
For example, one Brazil nut contains nearly 1,000 picocuries per gram. In short, Dr.
Rowland states that radium “is truly with us at all times in all ways”. Regarding radium’s
presence in water, Dr. Rowland stated that radium leaches into aquifers from the rocks below,
and is uniformly present in those aquifers from year to year. (Tr. at 105-106.)
Dr. Rowland asserted that he is familiar with a number of models employed to
determine the health risks associated with radium in drinking water, including the linear
nonthreshold model used by the USEPA which appeared in the July 18, 1991 Federal Register
along with the proposed radium levels of 20.0 pCi/L for each isotope. Dr. Rowland believes
this model to be invalid, despite the 1991 modification which acknowledged that radium does
not induce leukemia, and which approximated what effects are seen at very low levels of
intake. (Tr. at 107-108.) When asked to apply the model to DeKalb’s variance request, Dr.
Rowland took the estimated number of new water customers (2,265) and the daily weighted
average for combined radium (7.3 pCi/L), and over a five-year period, calculated a risk of
0.006 radium-induced malignancies per year in the population served by DeKalb. (Tr. at
9
108.) Dr. Rowland stated that since malignancies occur in integers, he believes the best
number to be zero. (Tr. at 109.)
Dr. Rowland further testified that he developed his own analysis from the radium
studies at Argonne which rejects the linear nonthreshold model, or other models dependent
upon the amount of radium intake. Dr. Rowland believes that a threshold exists, below which
no radium-induced malignancies will occur, above which there exists an increased chance of
developing a radium-induced malignancy. Dr. Rowland explained that Argonne studied 2,238
people who acquired radium in a variety of ways, including: chemists who extracted radium
from raw materials; patients who received intravenous injections of radium to treat various
illnesses; and women who painted radium on items for a glow-in-the-dark effect. From
studying these people, Dr. Rowland determined that no one who ingested less than 500
microcuries of radium developed a radium-induced malignancy, and that many malignancies
were observed in those who ingested more than 500 microcuries of radium. (Tr. at 112-113.)
Dr. Rowland explained that one microcurie equals one million picocuries. (Tr. at 113.)
Based on this model, Dr. Rowland testified that the risk associated with 7.3 picocuries in
DeKalb’s drinking water is zero. (Tr. at 114.)
In its recommendation, the Agency stated its belief that granting the requested variance
extension would impose no significant injury to the public or the environment. (Rec. at 13.)
The Agency asserts that the proposed variance should cause no significant health risk for the
population served by any new water main extensions for the time period of the recommended
variance. (Id.) At hearing the Agency presented Tracey Virgin, toxicologist for the Agency,
who testified that USEPA derived its linear nonthreshold limit of 5.0 pCi/L as an initial
standard from combined human and animal studies. (Tr. at 127.) Ms. Virgin stated that these
findings turned out to be flawed; thereafter, USEPA reanalyzed their data and set a new
standard of 20.0 pCi/L each for radium-226 and radium-228. (Tr. at 128.) Ms. Virgin
testified that USEPA indicated that a time frame for the promulgation of the new radium
standard would be available October 21, 1996. (Tr. at 133.)
Both parties referred the Board to testimony presented by Richard E. Toohey, Ph.D.,
of Argonne National Laboratory, at hearing held on July 30 and August 2, 1985 in R85-14,
Proposed Amendments to Public Water Supply Regulations, 35 Ill.Adm.Code 602.105 and
602.106.
CONSISTENCY WITH FEDERAL LAW
The parties believe the Board can grant the requested variance consistent with the Safe
Drinking Water Act, PL 93-523, as amended by PL 96-502, 42 U.S.C. 300(f) and the USEPA
drinking water regulations (40 CFR 141 (1993)). The requested variance, which would allow
construction of water main extensions, would not be a variance from federal drinking water
regulations, but only a variance from the state’s regulations regarding Restricted Status. Since
only state criteria are relevant in this request for variance, there is no federal law with which
the USEPA needs to be concerned. The parties point out that granting the variance will not
insulate DeKalb from possible enforcement actions for violations of the radium standards;
10
however, the USEPA has indicated that it will not intervene in variances which trigger final
design and construction of compliance equipment by the date on which USEPA revises the
MCL for radium set forth at 40 CFR 141.15(a). (Pet. at 24, Rec. at 14-15.)
PUBLIC COMMENTS
After the Agency published notice of DeKalb’s request for extension of variance on
June 25, 1996 in The Daily Chronicle, the Board received fourteen public comments at hearing
and nine public comments by mail. All public comments oppose a granting of the extension of
variance because DeKalb’s radium levels exceed the federal standard and commenters believe
the radium levels pose a serious health risk to DeKalb citizens. Below is a synopsis of each
public comment received.
Public Comments Entered at Hearing
1.
Judson Hite, Altheimer & Gray, on behalf of Citizen’s Advocacy Network (CAN),.
stated that DeKalb citizens were not only denied intervention in this proceeding, but also feel
cut off from and uninformed by the City of DeKalb. Mr. Hite stated that DeKalb knew in
1979 that its radium levels did not comply and the citizenry wants a compliance schedule that
the city will follow. DeKalb failed to comply with 7 of 12 requirements in the 1991 order.
The amount spent on compliance efforts is paltry and there is no evidence that DeKalb sought
alternative funding sources. (Tr. at 139-149.)
2.
Dorianne Burg reported DeKalb County statistics which reported 9 bone cancers in
females ages 5-14 from 1987 to 1991. Ms. Burg stated that 5.0 pCi/L was the combined
radium standard and it has never changed, and noted that that Illinois has a 1.0 pCi/L radium
standard for wildlife, and requested that the standard for children be set at the same level.
3
Ms.
Burg warned that DeKalb is in jeopardy of being sued for violating the standard. Ms. Burg
stated that the notice date and comment period were not sufficient in this case. (Tr. at 150-
161, 319-322.)
3.
Jessica Brown urged the Board “to keep the water good”. (Tr. at 189.)
4.
Linda Lahey stated that on the back of its water bills, DeKalb acknowledges that
ingesting 5.0 pCi/L may result in bone cancer in a small portion of the population. Ms. Lahey
explained how radium is processed in the human body. Ms. Lahey compared the federal
standards of radium levels with the levels found in DeKalb’s water and concluded that
DeKalb’s water supply is unsafe because its radium levels exceed the standard. Ms. Lahey
contended that granting an extension of variance would increase the health risks to DeKalb
citizens. (Tr. at 191-199.)
3
Illinois only regulates radium in drinking water supplies, that is, water treated for human
consumption. Neither the Act nor Board regulations provide a radium standard for other state
waters.
11
5.
Dr. Terry D. Sandman, practicing board-certified radiologist, presented evidence
showing the difference in health risks associated with low level exposure versus high level
exposure to radium. Dr. Sandman discussed the different kinds of cancer that may occur at
different levels of exposure to radium, and the types of factors, such as age, that are
considered. Dr. Sandman maintained that acceptable exposure levels of radium are based on
speculation as to the “does-response” curve in the low-dose region; therefore there is too much
potential for error in determining the dose risk in drinking water studies. (Tr. at 205-246.)
6.
Mike Brown stated that DeKalb and the Agency seem to support each other’s case.
Mr. Brown pointed to the Argonne study which revealed that of three family members who
ingested radium water as a medical treatment, the youngest developed bone cancer, to
conclude that children are more sensitive to radium. Mr. Brown estimated that many in
DeKalb drink bottled water. (Tr. at 150-152.)
7.
Militsa Samardzija stated that data can be manipulated to suit anyone’ agenda, and that
the hearing was more about power and money [than DeKalb’s water supply] because it is an
election year. Ms. Samardzija stated that DeKalb’s citizens do not want DeKalb to pass the
blame to USEPA, or seek another variance, and asks why the city’s manager has bottled water
in his office. (Tr. at 253-256.)
8.
Diana Strauss stated that not everyone in DeKalb is at equal risk, that children are at
greater risk because of long-term exposure and because radium acts like calcium and settles in
the bone. Ms. Strauss states that housing developers should be patient. Ms. Strauss expressed
dissatisfaction with the mentality that radium standards are too stringent and will eventually be
relaxed, as a rational to act as if they are already relaxed. (Tr. at 257-260.)
9.
Shawn Brown questioned the conclusion that a standard of 40 pCi/L for combined
radium is acceptable when there are no conclusive studies of the effects of radium on children
or elderly. Mr. Brown was discouraged that the hearing excluded citizens from asking
questions to promote understanding of government motivations in this proceeding. Mr. Brown
stated that, by speaking, he put himself at risk of being discredited by attorneys without being
able to ask pertinent questions of panelists in agreement with each other. Mr. Brown stated
that this lack of opportunity to ask questions fuels his suspicions. (Tr.at 262-265.)
10.
Julie Dubicz stated that she is a new resident to DeKalb with three young children, and
does not allow them to drink DeKalb water. Ms. Dubicz reported that her family used two to
three gallons of bottled water a day which, at $3 per gallon, represents a drain on the family
pocketbook. Ms. Dubicz also expressed disappointment that DeKalb citizens are being
ignored.
11.
Jeff Houghtby questioned how, given this country’s unsurpassed wealth, technology,
and ability to communicate instantly, the level of a known carcinogen could be increased. Mr.
Houghtby stated that eroding standards is a disservice, and if both sides have conflicting
studies, one should err on the side of caution. Mr. Houghtby, as a member of CAN, learned
that the city of DeKalb offers economic development grants to Fortune 500 companies: for
12
example, Wal-Mart was given $500,000 to move across the street from its original location,
and $2.4 million was given to a car dealership to relocate to the city of DeKalb. Mr.
Houghtby also reported that DeKalb has a high bond rate, and stated that if DeKalb is not
financially strapped, it can fix its water problem instead of passing the issue onto USEPA.
(Tr. at 268-272.)
12.
John Hepperly stated that he is opposed to the grant of a variance extension. (Tr. at
273.)
13.
James Lahey read letters from Dr. Goldman and Gretchen Duguay, outlined below.
(Tr.at 275-276.)
14.
Marilyn Burrile stated that she is opposed to the grant of a variance extension because
DeKalb failed to file its reports to the Agency, and doubts that DeKalb will take seriously the
conditions of a new variance. In addition, Ms. Burrile stated that DeKalb failed to educate its
customers because the notice on the its water bills are ripped in half at payment time, so the
notice is incomplete after payment. Also, the water bills are not sent to students. Ms. Burrile
stated that if findings are inconclusive, there should be no radium in the water supply. Ms.
Burrile stated that city officials are supposed to do what the public wants.(Tr. at 278-280.)
15.
Miguel Checa stated that he has been a DeKalb resident since 1993, and is a co-founder
of CAN. Mr. Checa reported that there are avoidable risk factors and unavoidable risk
factors; since radium is an avoidable risk factor, DeKalb should avoid it. Mr. Checa
summarized the statement he submitted (
See
P.C.#12 below), and gave suggestions for the city
to achieve compliance. Mr. Checa believes the beneficiaries of the variance are the developers
not DeKalb residents, and that the money residents spend on bottled water is a hidden tax.
Mr. Checa stated that city hall provides no feedback and urges the Board to assist city hall in
moving in the right direction. Mr. Checa asked whether the Board conducts scientific peer
review, and if so, to submit those studies for review. (Tr. at 281-295, 318.)
16.
Jacque Suding reported that the lowest intake of radium observed in the Argonne
studies was 9 microcuries. Ms. Suding stated that this variance will affect all users of
DeKalb’s water supply. Ms. Suding stated that DeKalb must meet the federal standard and
should be given six months to comply. Ms. Suding stated that DeKalb can set its own
standard that is equal to or stricter than the federal standard. (Tr. at 296-302, 313.)
17.
Ellen Partridge, Partridge & Niro, stated that she represented certain residents in their
motion to intervene, and expressed dismay that the Agency didn’t enforce the prior variance
and that DeKalb did not comply with the Board’s previous order. Ms. Partridge asked the
basis for the Agency’s contention that only new users are affected by the variance request,
when the Agency plans to enforce the standard and how the Board chooses which models and
whether or not there is a threshold. Ms. Partridge asked whether the Board has ever denied a
variance. Ms. Partridge listed a number of remedies DeKalb citizens would like implemented.
(Tr. at 303-308.)
13
18.
Steve Kapitan stated that if 20.0 pCi/L is the true standard then it would be a waste of
taxpayer money to spend money on remediation. If the standard should be 5.0 pCi/L, then it
would be irresponsible not to address the problem. Mr. Kapitan stated that there is a
deficiency in the structure of this hearing. Mr. Kapitan encouraged citizens to lobby the
federal government if they believe the 5.0 pCi/L standard should remain in effect. Mr.
Kapitan questioned the Agency’s stance on variances only affecting new users, stating that this
leads to suspicion that a variance grant is an economic decision, not a health decision. (Tr. at
310-312, 326-327.)
19. Symone Roscelli asked if there is documentation that the federal government considered a
change in the radium standard over the past 20 years. (Tr. at 315.)
Public Comment Exhibits Entered at Hearing
P.C. #1
“Chernobyl Study Suggests Fetal Risk for Low Radiation Exposure”, The
Chicago Tribune, July 25, 1996. This article states that the Chernobyl study suggests a
possible link between everyday exposure to low levels of radiation to cancer.
P.C.#2
Illinois Department of Public Health, County Cancer Incidence Report. This
report describes the cancer incidents by county in Illinois from 1987 through 1991.
P.C.#3
1978 IEQ Advisory Report on Radium in Drinking Water. This report explains
how radium levels effect the bone, including causing bone cancer. It also explains the latency
period for cancer.
P.C.#4
Well D Data. This report lists the radiological data for Well D of DeKalb’s
water supply prior to and including September 1974 deposits.
P.C.#5
Sam Goldman letter dated June 17, 1991. Dr. Goldman is concerned about
proposals to relax radium standards for DeKalb’s drinking water because of the avidity of
radium for bone, especially in children.
P.C.#6
Documents from Linda Lahey, including reports on county cancer incidents in
Illinois, study by Dr. Seth Tuler, Dr. Bertel and Dr. Gofman.
P.C.#7
Dr. Sandman’s written comment.
P.C.#8
Illinois Department of Public Health, County Cancer Incidence Report. This
two-page excerpt lists the types of cancer and notes that DeKalb has a high rate of prostate
cancer in males.
P.C.#9
Letter and attachments from Dr. Perry. Dr. Perry states that young children are
at higher risk of developing cancer and should be protected. Dr. Perry gave suggestions on
ways to reduce radium levels in water, pointing to the water softening system employed in
Elgin, Illinois.
14
P.C.#10
Letter from Danica and Tim Lovings. The Lovings are strongly opposed to a
grant of an extension of variance.
P.C.#11
Letters of Dr. Goldman and Gretchen Duguay, read by James Lahey. Dr.
Goldman is concerned the avidity of radium for bone, especially in children. Ms. Duguay,
Chairman of Environmental Concerns, Illinois Parents and Teachers Association, states that
the PTA opposes any variance allowing more radium in water.
P.C.#12
Documents presented by Miguel Checa. Mr. Checa explained how cancer can
be caused by two types of agents: initiators and promoters. Initiators, such as x-rays,
smoking and certain chemicals, start the damage to a cell that can lead to cancer. Promoters
usually do not cause cancer by themselves; rather, they change cells already damaged by an
initiator. For example, the combination of alcohol and tobacco can promote the development
of cancers in the mouth and throat. Mr. Checa opposed the variance due to the increased risk
of developing cancer through exposure to radium.
In addition, Mr. Checa states that while renting a house in DeKalb, he received no
notice of the radium levels in his drinking water, or the health risks associated with radium in
drinking water. Mr. Checa urges the Board to order DeKalb to develop a notification method
that would include renters, whose numbers are quite high due to the student population.
P.C.#13
Video tape of DeKalb city council May 28, 1996 and July 8, 1996 meetings
submitted by Mr. Checa.
P.C.#14
Written statement from Jacque Darcy Suding. Ms. Suding noted that paragraph
35 of the Agency’s Recommendation stated that granting of the extension variance would
affect only those users who consume water from any newly extended water lines. Ms. Suding
contends that a variance extension would affect all users of DeKalb’s water supply because
DeKalb’s system is interconnected. Ms. Suding claims it is impossible to separate current
users from potential users of new water lines.
Ms. Suding also included letter from Jacob Dumelle, former Board Member, who is
concerned by the findings of Dr. Murray M. Finkelstein as published in the Canadian Medical
Association Journal, September 1994. Mr. Dumelle states that Dr. Finkelstein found an
association between bone cancer and radium exposure as low as 0.19 pCi/L. Since DeKalb’s
radium levels are as high as 13.7 pCi/L, Mr. Dumelle urges DeKalb to quickly reduce the
radium levels in its drinking water.
Finally, Ms. Suding included copies of Mr. Dumelle’s dissents in In the Matter of
Proposed Amendments to Public Water Supply Regulations, 35 Ill. Adm. Code 602.105 and
602.106 (August 15, 1985) $85-14, and City of DeKalb v. IEPA (June 20, 1991) PCB 91-34.
Post-Hearing Public Comments
15
P.C.#15
Letter dated August 5, 1996 from Ines De Romana. Ms. De Romana objects,
on behalf of her children, to grant of a variance extension because water is a nutrient, and in
consuming radium, her family’s health would be impacted by the variance. Ms. De Romana is
concerned that political and economic interests would outweigh the health of DeKalb’s
residents in the Board’s determination.
P.C.#16
Letter dated August 5, 1996 from Marilyn Barrile. Ms. Barrile objects to a
grant of variance extension because of radium exposure through drinking, swimming,
showering, cooking and washing dishes. She is also concerned about the long-term health of
her children, and contends that it is not known how much radium actually causes health
problems. Ms. Barrile urges the Board to consider all the facts.
P.C.#17
Declaration of Marvin Resnikoff, Ph.D. dated August 9, 1996. Dr. Resnikoff
objects the variance extension because an increase in the radium level, as proposed by the
USEPA, increases cancer risks which is unacceptable.
P.C.#18
Letter dated August 13, 1996 from Dorianne Burg. Ms. Burg spoke at hearing,
and sent this letter of clarification to submit her objection to the grant of DeKalb’s request for
variance extension. Ms. Burg states that USEPA set a radium standard of 5.0 pCi/L in 1976
because of the harmful health effects of radium. She also contends that cities like DeKalb
have been given estimates of under $50,000 to achieve compliance, and urges DeKalb to
investigate opportunities to clean sediment from city wells and install concrete plugs and
casings as ways to achieve compliance. Finally, Ms. Burg states that granting the variance
would violate federal law because the city is out of compliance with federal standards.
P.C.#19
Letter dated August 14, 1996 from Mark and Susan Hauser. Mr. & Ms.
Hauser request that the variance extension be denied because DeKalb’s radium levels exceed
the standard and a granting of the variance extension may not be legally enforceable.
P.C.#20
Letter dated August 14, 1996 and video tape of the August 5, 1996 PCB 96-246
hearing from Miguel Checa. Mr. Checa requests that the variance extension be denied based
upon the risk of cancer due to high levels of radium.
P.C.#21.
Letter dated August 14, 1996 from Dorianne Burg. Ms. Burg believes the
radium standard should remain at 5.0 pCi/L and requests that the variance extension be denied
because of the risks of cancer.
P.C.#22
Letter dated August 14, 1996 from Linda Lahey. Ms. Lahey submitted the Ad
Hoc Water Quality Advisory Committee’s 1992 report which lists alternatives for supplying
water with less radium content to DeKalb residents, and points out that most committee
members do not feel that a threat to their water supply exists. In addition, Ms. Lahey
submitted DeKalb County cancer incidence reports and the separate predictions of Dr. John
Gofman and Dr. Meyer for the incidence rate of bone cancer in DeKalb. Ms. Lahey asserts
that the proposed 20.0 pCi/L is too high and increases the risk of cancer.
16
P.C.#23
Letter dated August 14, 1996 from Jacque Darcy Suding. Ms. Suding
submitted two reports titled, Health Benefit - Cost Analysis for Activities Involving Ionizing
Radiation Exposure and Alternatives and Determination of Radium Removal Efficiencies in
Illinois Water Supply Treatment Processes. Ms. Suding questions whether DeKalb is properly
testing its water sources, because the first report contends that most methods of detecting
radium levels are flawed. Ms. Suding states that the danger of radium is downplayed because
of the lack of accurate data concerning exposure to radium over time. The second report
describes ion exchange and lime softening methods for treating radium. Ms. Suding states that
the treatments do not cost $6 to $13 million as DeKalb claims and wonders how the city
derived its estimate.
P.C.#24
Affidavit of Dr. Seth Tuler filed August 14, 1996. Dr. Tuler’s affidavit is
identical to the one attached to Ms. Lahey’s testimony at hearing.
P.C.#25
Reports read by Linda Lahey at hearing, filed August 14, 1996. These reports
are copies of figures presented at hearing. Ms. Lahey contends that the bad faith exhibited by
DeKalb in not achieving compliance during the term of its prior variance makes a mockery of
the Board’s 1991 order. Ms. Lahey states that it is within the Board’s realm to order
compliance with the federal standard for radium on behalf of the children of DeKalb.
ANALYSIS
At the outset, the Board notes its appreciation of the depth of concerns expressed by
DeKalb citizens as evidenced by the numerous public comments received both at hearing and
at its office. However, the issue we are statutorily allowed and required to decide in a petition
for variance is: whether petitioner would incur an arbitrary or unreasonable hardship which
outweighs the environmental and health impact if its request for variance is denied. In
addition, in petitions for extension of variance, the Board must decide whether petitioner has
demonstrated satisfactory progress toward achieving compliance. As the Board has previously
stated, a variance proceeding is not a proper forum to challenge local economic development
and financing decisions. (County of Lake, Vernon Hills Water System v. IEPA and Tina
Santopoalo, Lake County Defenders, Village of Vernon Hills, North Suburban Group of Great
Lakes Chapter of Sierra Club, Mark D. Booras and F.T.Mike Graham (May 5, 1988) PCB 87-
198, 89 PCB 69.
See also,
(Metro Utility Company v. IEPA (April 26, 1990) PCB 89-210,
110 PCB 378.).) Additionally, as we also stated in a regulatory order entered today, any
debate before the Board of the merits of existing or future MCL for radium is fruitless, as the
General Assembly has taken this matter out of the hands of the Board. (
See
In the Matter of:
Amendments to 35 Ill. Adm. Code Subtitle F, (September 19, 1996) R96-18.) Section 17.6 of
the Act directs that the Illinois radionuclides (including radium-226 and radium-228) MCL
“shall be the [USEPA] enforceable” MCL. (415 ILCS 5/17.6) Therefore, the Board will
restrict its responses to those public comments which are germane to the issues described
above.
Since this matter involves a petition for extension of a prior variance, the Board will
first consider whether the conditions which existed to justify the first variance still exist to
17
justify an extension. Specifically, the Board will review the alleged hardship justifying
delayed compliance with the standards, and whether the stated hardship continues to outweigh
any environmental impact of the requested variance. The Board will then discuss whether
DeKalb has demonstrated satisfactory progress toward achieving compliance by reviewing its
compliance efforts and the reasonableness of its future compliance plan.
Alleged Hardship
The Board finds that the circumstances which prevented DeKalb’s compliance with the
radium standard continues to exist. The same federal regulatory uncertainty which existed in
1991 continues to exist today: continued pendency of USEPA action to promulgate new
standards for radionuclides in drinking water. USEPA’s 1991 proposal of separate 20.0 pCi/L
standards for radium-226 and radium-228, if adopted, could significantly alter or eliminate
DeKalb’s need for variance from the Board’s rules, or its need for alternatives to achieving
compliance with the underlying radium limitations.
While it is undisputed that a speculative change in law is not grounds for establishing
arbitrary or unreasonable hardship, the Board believes that in some circumstances a
prospective change in law may be appropriately reflected in the conditions upon which a
variance is granted. (City of Genoa v. IEPA (December 20, 1990) PCB 90-166, 117 PCB
135).) In the instant case, since USEPA is expected to announce a decision as to radium
standards in October 1996, the Board finds it appropriate to condition the grant of variance to
ensure that DeKalb will achieve compliance with whatever standard is ultimately applicable
while ensuring that DeKalb will not need to prematurely return to this Board to request another
variance extension. As the Illinois legislature has decided to link state standard changes with
federal standard changes, the Board believes it is consistent with legislative intent to allow
delay in compliance until the regulatory scheme stabilizes at the federal level. As a result, the
Board is disinclined to require a municipality to conform, and in the process spend millions of
dollars, to a standard that is being federally reviewed.
DeKalb presented considerable evidence of the economic and fiscal hardship it would
suffer should its request for variance extension be denied. Specifically, DeKalb states that
numerous residential and commercial developments would be halted if the variance request is
denied, resulting in loss of tax income for the city and loss of job opportunities for DeKalb
residents. (Tr. at 90-97.) Normally, consequences of variance denial such as the loss of job
opportunities, city income and taxes, and the loss of sales and enhanced property taxes, are
considered merely the expected consequences of restricted status, and do not, by themselves,
constitute arbitrary or unreasonable hardship. (Willowbrook Motel v. Pollution Control Board
(July 14, 1983) PCB 1-149, 53 PCB 007;
affirmed in
Willowbrook Motel v. Pollution Control
Board, 135 Ill.App.3d 343, 481 N.E.2d 1032 (1st Dist. 1977) (emphasis added.) However,
DeKalb must demonstrate that the claimed hardship outweighs any injury to the public or the
environment in order for the Board to find that an arbitrary or unreasonable hardship would
result. (Marathon Oil Company v. IEPA and IPCB, 610 N.E.2d 789 (5th Dist. 1993).)
Environmental Impact
18
The current combined radium standard is 5.0 pCi/L. The finished water delivered by
DeKalb to its users contains a daily weighted average of 7.3 pCi/L, as the waters from the
high radium deep wells combine with waters from the low radium shallow wells prior to
distribution. In reducing the daily weighted average of radium to 7.3 pCi/L during the term of
its variance, DeKalb has decreased any adverse environmental impact of its drinking water.
The Board finds that DeKalb’s divergence from the radium standard is not great, and that the
proposed variance would cause no significant health risk for the population served by water
main extensions for the time period of the recommended variance. The Board agrees with the
parties that a granting of the requested variance extension would not result in a significant
injury to the public or to the environment for the limited time period requested.
In summary, the Board finds that DeKalb’s alleged hardship, due to the ongoing
scrutiny of the federal radium standard, and due to the loss of economic and fiscal income
should a variance be denied, continues to outweigh the nominal environmental impact of the
requested variance. Therefore, we continue to find the hardship to be an arbitrary or
unreasonable one. We next consider whether DeKalb achieved satisfactory progress toward
compliance during the term of its prior variance.
Compliance Efforts
The Board finds that DeKalb substantially complied with its 1991 order: DeKalb
notified its customers of its noncompliance, subsequent variance and current radium levels;
hired consultants to research compliance alternatives; chose two feasible compliance
alternatives; reduced the amount of water extracted from the two wells containing the highest
amount of radium which reduced DeKalb’s daily weighted average to 7.3 pCi/L; and sent the
Agency progress reports during the term of its variance. It is clear that DeKalb failed to
submit to the Agency three of six progress reports required by the Board’s June 20, 1991
order. However, upon discovering its failure to submit the requested reports, DeKalb
immediately prepared a summary progress report and instituted a checks and balances system
to ensure future timely submission of these reports. Therefore, the Board declines to deny
DeKalb’s request for variance extension based upon this infraction alone. As stated in prior
Board orders, failure to comply with conditions of a past variance may be evidence of bad
faith; however, denial of variance for this reason may constitute an action not commensurate
with the transgression. (County of Lake, Vernon Hills Water System v. IEPA and Tina
Santopoalo, Lake County Defenders, Village of Vernon Hills, North Suburban Group of Great
Lakes Chapter of Sierra Club, Mark D. Booras and F.T.Mike Graham (May 5, 1988) PCB 87-
198, 89 PCB 69.) We find no indication of bad faith in this case, however, due to the
immediate and thorough nature of the corrective action taken by DeKalb.
Future Compliance Plans
DeKalb states that, during the term of the extended variance, it will continue to monitor
its radium levels, and report its findings to the Agency. DeKalb also will continue to send
monthly notices to its users of the water supply’s noncompliance, the grant of the variance,
19
and of the most current radium levels. Finally, DeKalb states its willingness to continue
investigations into shallow well development in the Troy Bedrock Valley located west of the
city. If that option proves infeasible, DeKalb asserts that it will develop an ion-exchange
softening system to remove radium in its deep wells. The Board finds these future compliance
efforts to be reasonable.
The Board is concerned, however, with the type of notification sent to DeKalb water
customers. At hearing, several members of the public mentioned that thousands of water users
in the city of DeKalb, including many University of Northern Illinois students, are renters.
(Tr. at 270, 323.) As renters, these people were not sent monthly water bills and therefore
were unaware of the notice appearing on the bills regarding DeKalb’s radium levels and
variance. In addition, the notification appearing on DeKalb’s water bills would be halved at
payment time, denying users the ability to retain a full copy of the notice. (Tr. at 278.) The
Board will address these concerns in this order by requiring DeKalb to secure means to notify
renters within its water distribution area, and to provide the Agency with of its notification
measures. DeKalb also will be required to relocate the notice on its water bills to allow users
to retain a full copy of the notice after payment. Although the Board recognizes the added
expense that DeKalb will incur by this order, the Board believes the importance of notifying
all users within its service area outweighs the additional cost.
Having found that DeKalb has substantially complied with the Board’s previous order,
and that DeKalb’s future compliance plans are reasonable, the Board also finds that DeKalb
has made satisfactory progress toward achieving compliance during its prior variance. DeKalb
has accomplished all compliance efforts short of final design and construction; to require more
while the radium standard is in flux would be unreasonable.
CONCLUSION
Based upon the record, the Board finds that to require immediate compliance with the
“Standards for Issuance” and “Restricted Status” regulations would continue to impose an
arbitrary or unreasonable hardship upon DeKalb. The hardship of requiring DeKalb to spend
millions of dollars in taxpayer money to achieve compliance with a standard currently under
federal scrutiny outweighs any nominal environmental and health risks associated with
exposure to the 7.3 pCi/L of radium currently found in DeKalb’s finished drinking water
supply. In addition, the Board finds that DeKalb has made satisfactory progress toward
achieving compliance during the term of its prior variance. Accordingly, the Board hereby
grants DeKalb a variance subject to the conditions stated below.
Today’s action is solely a grant of variance from standards of issuance and restricted
status. Again, the effect of this variance is to allow DeKalb to extend water service to new
customers. DeKalb is not granted variance from compliance with the combined radium
standard, nor does today’s action insulate DeKalb in any manner from enforcement for
violation of that standard.
20
We note, in closing, that it has been the Board’s experience that a variance grant may
hasten ultimate compliance. One of the effects of granting a variance is the placement of
binding compliance conditions. Had variance been denied, compliance conditions would apply
only to the extent that they are otherwise contained in state regulations.
This opinion constitutes the Board’s findings of fact and conclusions of law in this
matter.
ORDER
The City of DeKalb (DeKalb) is hereby granted an extension of variance from 35 Ill.
Adm. Code 602.105(a), “Standards of Issuance” and 602.106(b), Restricted Status, only as
they relate to the standards for combined radium-226 and radium-228 in drinking water as set
forth in 35 Ill. Adm. Code 611.220(a), subject to the following conditions:
(A)
For purposes of this order, the date of United States Environmental Protection
Agency (USEPA) action shall consist of the earlier date of the:
(1)
Date the regulation is promulgation by the USEPA which amends the
maximum contaminant level (MCL) for combined radium, either of the
isotopes of radium, or the method by which compliance with a radium
MCL is demonstrated; or
(2)
Date of publication of notice by USEPA that no amendments to the 5
pCi/L combined radium standard or the method for demonstrating
compliance with the 5 pCi/L will be promulgated.
(B)
The variance shall terminate on the earliest of the following dates:
(1)
Five years from the date of this order; or
(2)
Two years following the date of USEPA action.
(C)
In consultation with the Illinois Environmental Protection Agency (Agency),
DeKalb shall continue a sampling program to determine as accurately as
possible the level of radioactivity in its wells and finished water. Until this
variance terminates, DeKalb shall collect quarterly water samples from its
distribution system at locations approved by the Agency. DeKalb shall
composite quarterly samples from each location separately and shall have them
analyzed annually by a laboratory certified by the State of Illinois for
radiological analysis so as to determine the concentration of radium-226 and
radium-228. At its own option, DeKalb may have the quarterly samples
analyzed when collected. The results of the analyses shall be sent to:
Illinois Environmental Protection Agency
21
Compliance Assurance Section
Drinking Water Quality Unit, Bureau of Water
P.O. Box 19276
Springfield, Illinois 62794-9276
(D)
Within 30 days of receiving the most recent quarterly sample, DeKalb shall
also send to the address in paragraph (C) the running average results of
the most recent four quarterly samples.
(E)
Within three months of USEPA action, DeKalb shall apply to the Agency at the
address below for all permits necessary for construction, installation, changes,
or additions to its public water supply needed for achieving compliance with the
MCL for combined radium or with any other standard for radium in drinking
water then in effect:
Illinois Environmental Protection Agency
Public Water Supply Program
Permit Section
2200 Churchill Road
Springfield, Illinois 62794-9276
(F)
Within three months of the issuance of each construction permit by the Agency,
petitioner shall advertise for bids, to be submitted with 60 days, from
contractors to do the necessary work described in the construction permit.
DeKalb shall accept appropriate bids within a reasonable time. DeKalb shall
notify the Agency, Division of Public Water Supplies (DPWS), within 30 days,
of each of the following actions: 1) advertisements for bids; 2) names of
successful bidders; and 3) whether DeKalb accepted the bids.
(G)
Construction allowed on said construction permits shall begin within a
reasonable time of bids being accepted, but in any case, construction of all
installations, changes or additions necessary to achieve compliance with the
MCL in question, shall be completed no later than two years following USEPA
action. One year will be necessary to prove compliance.
(H)
Pursuant to 35 Ill. Adm. Code 611.851(b), in its first set of water bills, or
within three months after the date of this order, whichever occurs first, and ever
three months thereafter, DeKalb will send to each user of its public water
supply a written notice to the effect that DeKalb is not in compliance with the
standard in question. The notice shall state the average content of the
contaminants in samples taken since the last notice period during which samples
were taken.
(I)
Pursuant to 35 Ill. Adm. Code 611.851(b), in its first set of water bills, or
within three months after the date of this order, whichever occurs first, and
22
every three months thereafter, DeKalb will send to each user of its public
water supply a written notice to the effect that DeKalb has been granted by the
Illinois Pollution Control Board a variance from 35 Ill. Adm. Code 602.105(a),
Standards of Issuance, and 601.106(b), Restricted Status, as it relates to
the
MCL standard in question.
(J)
To achieve the objectives set forth in paragraphs (H) and (I) above, DeKalb
shall develop and incorporate means by which all users within its service area,
including residential and student renters, receive the above-described written
notice. In addition, DeKalb shall take measures to ensure that a full copy of the
notice can be retained by its users after payment of their water bills.
(K)
Until full compliance is achieved, DeKalb shall take all reasonable measures
with its existing equipment to minimize the level of contaminants in its finished
drinking water.
(L)
DeKalb shall provide written progress reports to the Agency at the address
below, every six months concerning steps taken to comply with paragraphs C,
D, E, F, G, H, I and J. Progress reports shall quote each of said paragraphs
and immediately below each paragraph state what steps have been taken to
comply with each paragraph. Progress reports shall be sent to:
Illinois Environmental Protection Agency
Division of Public Water Supply
Field Operations Section
2200 Churchill Road
Springfield, Illinois 62794-9276
IT IS SO ORDERED.
Board Member R.C. Flemal abstained.
If DeKalb chooses to accept this variance subject to the above order, within forty-five
days of the grant of the variance, DeKalb must execute and forward the attached certificate of
acceptance and agreement to:
Stephen C. Ewart
Division of Legal Counsel
Illinois Environmental Protection Agency
P.O. Box 19276
2200 Churchill Road
Springfield, Illinois 62794-9276
Once executed and received, that certificate of acceptance and agreement shall bind
DeKalb to all terms and conditions of the granted variance. The 45-day period shall be held in
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abeyance during any period that this matter is appealed. Failure to execute and forward the
certificate within 45 days renders this variance void. The form of the certificate is as follows:
CERTIFICATION
I (We), ______________________________________________, hereby accept and
agree to be bound by all the terms of the Order of the Pollution Control Board in PCB
96-246, September 19, 1996.
_________________________________
Petitioner
_________________________________
Authorized Agent
_________________________________
Title
_________________________________
Date
Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1994)) provides for
the appeal of final Board orders within 35 days of the date of service of this order. The Rules
of the Supreme Court of Illinois establish filing requirements. (See also 35 Ill.Adm.Code
101.246 "Motions for Reconsideration.")
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above opinion and order was adopted on the _____ day of ___________, 1996, by a vote
of ______________.
___________________________________
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board