ILLINOIS POLLUTION CONTROL BOARD
September 27, 1990
CITY OF BRAIDWOOD,
)
Petitioner,
v.
)
PCB 89—212
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE BOARD
(by J. Anderson):
On August 27,
1990, the City of Braidwood (“Braidwood”)
filed a Motion to Reconsider,
requesting the Board to reconsider
its June 21, 1990 Opinion and Order denying Braidwood’s request
for variance from
35 Ill. Adm. Code 602.105(a),
“Standards of
Issuance”, and 602.106(b),
“Restricted Status”.
On September 10,
1990, the Illinois Environmental Protection Agency
(“Agency”)
filed its “Response to the Motion to Reconsider.” The Board
hereby grants the Motion to Reconsider,
but denies the relief
requested therein.
Braidwood cites several arguments
in support of its motion.
First, Braidwood states that the Board unfairly portrayed
it in
an unfavorable light when it stated that neither the Agency nor
Braidwood addressed the issue of Braidwood’s noncompliance with
the gross alpha standards
(Opinion,
p.
7).
Braidwood asserts
that it filed a “Motion for Leave to File Supplemental Petition”
and a “Supplemental Petition to First Amended Petition for
Variance” with the Hearing Officer at
hearing.
Braidwood states
that the Supplemental Petition contains Braidwood’s request for
variance from restricted status for gross alpha activity.
Second,
although Braidwood admits that testing was not done
pursuant to the regulations,
it cites poor recordkeeping,
a
reliance on the Agency,
and the lack of expertise and self—
control as reasons for its failure.
Specifically, Braidwood
states that it acted in good faith and submitted the results of
gross alpha tests for eleven quarters (between July,
1979 and
April
25,
1990)
even though the Agency waited for the same period
of time to raise the issue of noncompliance with the gross alpha
standard.
Braidwood also states that its testing and reporting
efforts should be considered applicable to a single contaminant
based on the fact that Dr. Toohey testified that the gross alpha
contamination is due to excess radium.
Third, although Braidwood admits that
it acquired a permit
for the construction for the first portion of the water main loop
subsequent to its construction,
it states that its Mayor believed
that no permit was required and that it did not allow new homes
115—9 1
2
to tap into the construction loop.
Fourth,
although Braidwood
admits that
it did not publish notices on three occasions since
August 26,
1987,
it argues that,
as a practical matter,
citizens
were notified before and after each lapse, that the citizens knew
about the excess radium from previous notices, and that the Mayor
acted in good faith because he believed that the notices were
published each quarter and was unaware that they should have been
forwarded to the Agency.
Finally, Braidwood argues that it is
unfair for the Board to fault it for noncompliance when
it,
like
other communities, was simply awaiting a federal change
in
the
radium standard.
At the outset,
the Board notes that the Hearing Officer
filed Braidwood’s “Motion for Leave to File Supplemental
Petition” and Supplemental Petition with the Board on September
7,..
199C.....
The Hearing Officer stated,
in the cover letter
accompanying the documents,
that his notes did not contain any
information about the filing of the documents and that he could
only surmise that Braidwood gave him the documents at the
beginning of hearing without any comment.
Because there
is no
mention of the documents
in the transcript and because
a Hearing
Officer is only required to forward the record to the Board,
the
Board will not fault the Hearing Officer for not forwarding the
documents to the Board.
Moreover,
even if the documents had been
in the Board’s possession at the time that the Opinion and Order
were written,
its decision would not have been different
With regard to Braidwood’s other arguments,
the Board notes
that most,
if not all,
are not new or have already been
considered by the Board..
The Board wishes to note, however,
that
the basis for its decision did not rest on questions
of good
faith, the “practical” effects
of public notice omissions,
or of
whether testing and reporting should be applicable to only one
contaminant.
The Board reminds Braidwood that it was made aware
that it was
in violation of the gross alpha standard and the
combined radium standard in 1981 and 1984,
respectively.
We see
no reason why Braidwood should not be, as the Agency correctly
points out, presumed to know the law and to take appropriate
action to comply with the law.
Finally, with regard to Braidwood’s argument that
it should
not be penalized because
it was awaiting
a potential federal
revision of the combined radium standard,
the Board agrees with
the Agency that
it is inappropriate for Braidwood to supplement
the record at this time when it never mentioned its reliance on
a
possible federal revision
in the radium standard previously.
Without in any manner implying that the Board would make a
favorable determination,
we note that Braidwood is free to file
another variance petition.
IT IS SO ORDERED.
Ii 5—92
3
Board Member R.
Flemal dissented.
I,
Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board~ hereby certif~.ythat the above Order was adopted on the
~
day of
~
,
1990,
by a vote of
5
,~..
/1
~
//_
~
-J
Dorothy
NJ
Gunn,
Clerk
Illinois Pollution Control Board
115—93