ILLINOIS POLLUTION CONTROL BOARD

February 28,

1991

CITY OF BATAVIA,

)

Petitioner,

v.

)

PCB 89—183

(Variance)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

DISSENTING OPINION

(by R.C. Flemal):

I respectively dissent from today’s Order in which the

majority denies the City of Batavia’s

(“Batavia”) Motion to Amend

Board Order.

I find the arguments of Batavia and the supporting arguments

of the Illinois Environmental Protection Agency to have merit,

and accordingly believe that the relief requested by Batavia

should be granted.

Moreover,

I am troubled by the very matter of variance from

Restricted Status related to radium in drinking water.

Indeed,

this matter remains one of the most persistently vexing problems

faced by the Board.

In part the problem has stemmed from

uncertainty as to what the appropriate standard for radium in

drinking water ought to be, compounded by major part by the long-

standing failure of the United States Environmental Protection

Agency

(“tJSEPA”)

to address the adequacy of the current radium

standard.

This has caused the various responsible agencies,

including the USEPA itself, to regularly revise and amend their

strategies for managing radium cases.

Moreover, the rapid change

in strategies has often caused the different agencies, including

the USEPA,

IEPA, and Board, to be at odds and to pursue different

paths.

In the last few short years alone we have seen USEPA

revocation of variances from the radium standard, group

variances,

elimination of Restricted Status associated with

radium, “enhanced enforcement”, protection via compliance orders,

disappearance of enforcement,

etc.,

etc.

So many themes have

entered the fray in such short time that it is a wonder anyone is

able to adjust to them all.

As regards the instant matter,

I think that the majority

fails to recognize that again much has changed since the issuance

of the original Opinion and Order in this matter,

in August of

last year.

In particular,

it is now on record. that the Deputy

Administrator of the U.S. EPA himself recommends that the radium

standard be 20 pCi/i

for each of the two radium isotopes

(see

Motion Exhibit B).

Batavia’s concentration is thus less than

one-third the level advocated by the highest authorities within

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the USEPA.

The Illinois General Assembly has also declared that

the standard determined by the USEPA shall be the standard

applicable in Illinois

(see Section 17.6 of the Illinois

Environmental Protection Act).

Thus,

at both the federal and

State levels, the highest authorities are now on record as urging

an substantial upward revision of the radium standard.

Moreover,

Batavia would apparently be in compliance with any such revised

standard.

Why,

in the face of these circumstances, force Batavia to

comply now with a standard that will be changed shortly,

according to the overwhelming sense?

Why is it not prudent to

let the standard revision procedure proceed before demanding that

Batavia incur what may well be unwarranted compliance costs?

Why does the majority feel that Batavia’s feet need to be so held

to the fire?

I simply cannot find a reasonable answer to any of

these questions.

The situation would be different if Batavia’s circumstance

constituted any remotely significant health risk.

But it does

not;

I know of no responsible authority who believes that the

concentrations encountered in Batavia’s water, over the short

time involved in this variance request, constitute a significant

health risk.

I am also troubled by what has become of Illinois’

Restricted Status provision in the context of the radium

situation.

I fear that Restricted Status’ purpose has been

distorted.

Moreover,

I fear that in the process the Board has

assumed for itself the uncomfortable role of enforcer, which role

is of questionable legitimacy and compatibility with the Board’s

primary adjudicatory charge.

The origins of Restricted Status predate any Board

regulation authorizing or requiring it

(see R8l-6, September 2,

1982,

48 PCB 132).

The Agency had initially adopted Restricted

Status as an internal policy.

The Board subsequently “saw that

it was good” and adopted it as a Board policy over the objection

of the Agency.

The Board position was that,

if the Agency was to

employ a Restricted Status program,

it had to have authorization

of the Board so as to provide a legal basis for the program.

What is interesting is that in none of the Opinions in R8l-

6 is there any apparent specification of the purposes to which

Restricted Status is now being applied1.

Rather, the reason

given is “to forewarn supplies of their deficiencies”

(48 PCB

I.e.:

(a) limiting the expansion of systems where such

expansion would reasonably lead to unacceptable performance of

part or all of the system,

(b)

limiting the duration of exposure

or number of people exposed to a contaminant where the

contaminant is injurious to health,

(c) providing incentive to

correct a problem beyond the incentive provided by the threat of

enforcement.

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—3—

132) and to notify “the supplies and persons serviced of the

potential inadequacies and violations of the supplies”

(48 PCB

133).

Even now the Agency’s Restricted Status list begins with

the statement:

The Restricted Status List was developed ~

give

additional notification to officials of public water

supplies which are in violation of 35 Ill. Adm.

Code,

Subtitle F:

Public Water Supplies, Chapter

I or the

Illinois Environmental Protection Act.

The original purpose of Restricted Status thus seemingly was

to provide a notification mechanism; there

is no indication that

it was intended to serve as a punitive mechanism or even as a

mechanism to limit public injury.

Again,

interestingly,

it would

appear that, as originally conceived,

Restricted Status was not

even considered to have economic consequences:

DENR issued a

Declaration of Negative Impact

(48 PCB 129)!

As applied to Batavia, however,

it is certainly the

enforcement aspect of Restricted Status which is at the

forefront.

There has been no evidenced desire on the part of the

USEPA,

the IEPA, or anyone to enforce against violations of the

current radium standard, be it against Batavia or any other

community.

In this vacuum, the Board has become the sole

“enforcer” of the radium standard, and then only via the indirect

route of Restricted Status.

In essence, the Board is telling

Batavia that unless

it makes a binding commitment to come into

compliance with the radium standard we refuse to lift Restricted

Status

(i.e., we extract the penalty of putting them on economic

hold).

This is an uncomfortable role for me as a Board Member,

and

I would hope also for my fellow Board Members;

the Board is

not an enforcement agency.

Moreover,

I would question that our application of

Restricted Status,

as a penalty,

is directed toward the right

person.

Is it not the new homeowner, business person, developer,

etc.,

who finds that public services are denied, who is being

penalized?

It must be small consolation to such individuals to

learn that to receive services they need only get the local

utility or public works department to “shape up”.

In the

particularly context of radium Restricted Status,

it is,

of

course, questionable whether any “shaping up”

is necessary or

even desirable.

If it were for me to decide,

I would adopt the following

course of action as regards Batavia:

(1) give Batavia full

variance from radium/Restricted Status;

(2) condition the

variance to terminate at a given time following USEPA

promulgation of the new radium standards, with such time being

sufficient to allow coming into compliance with the post-

promulgation standards,

if that in fact remains necessary;

(3)

in

the time between grant of variance and USEPA promulgation require

Batavia to take steps such that it will be in a position to

effectuate compliance shortly after USEPA promulgation.

119—15

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I believe that this is the justifiable course of action.

Moreover,

it has the satisfying aspect of giving honest

recognition to the service needs of the citizens of Batavia, to

the need of the authorities of Batavia to responsibly serve their

citizens, to our best understanding of the health risks

associated with Batavia’s water supply, and to current dynamics

affecting the underlying radium

rd.

~.

I~ônald’C.Flemal

Board Member

I, Dorothy M.

Gunn, Clerk of the Illinois Pollution Control

Board,

hereby certif~,,~atthe above Di senting Opinion was

submitted on the

~‘J~~

day of

___________________,

1991.

Dorothy M.~unn,Clerk

Illinois Pollution Control Board

119—16