ILLINOIS POLLUTION CONTROL BOARD
August
9,
1990
CITY OF BATAVIA,
)
Petitioner,
v.
)
PCB 89—183
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
OPINION AND ORDER OF THE BOARD
(by J. Theodore Meyer):
This matter
is before the Board on
a petition for extension
of variance filed by the City of Batavia
(Batavia)
on November
9,
1989.
Batavia
seeks
variance
from
35
Il1.Adm.Code
602.105(b)
“Standards of Issuance” and 35 Il1.Adm.Code 602.106(b)
“Restricted
Status”,
but
only
as
those
rules
relate
to
35
Ill.Adin.Code
604.301(a),
combined radiuin-226 and radium--228.
Batavia requests
a
four year
extension
of
the variance granted
by
the
Board
on
August 20,
1987,
in PCB 87—79.
On April
19,
1990,
the Illinois
Environmental Protection Agency
(Agency) filed its recommendation
that the variance extension request
be denied.
Batavia filed
a
response to the Agency recommendation on April 27,
1990.
Hearing
on the variance request was waived, and no hearing was he1d~
PROCEDURAL HISTORY
This
is
Batavia’s
fourth request
for variance
from public
water supply regulations.
On April
4,
1985,
in docket PCB 85-11,
the Board granted Batavia
a variance
from the maximum allowable
concentration (MAC) for combined radium.
Because the United States
Environmental Protection Agency (USEPA)
contended that a variance
from the
MAC
itself was improper,
Batavia subsequently
asked the
Board
to
amend
the
PCB
85-11
variance
to
a
variance
from
the
restricted status regulations only.
The Board granted that relief
on May 22,
1986,
in docket PCB 86-36.
Both of these variances were
to expire on January
1,
1990.
In docket PCB 87-79, Batavia asked
£or
extension
of
one
of the interim conditions
in
its PCB 86-36
variance.
Specifically,
Batavia
requested
an
extension
of
the
deadline to apply to the Agency for construction permits from June
22,
1987,
to
June
22,
1988.
The Board granted
that relief
on
August 20,
1987.
As with the two previous variances, the variance
granted
in PCB 87—79
required Batavia
to achieve compliance with
the radium
standard
by
January
1,
1990,
and
contained
interim
deadlines for progress on the compliance plan.
Batavia filed the instant petition for variance extension on
114—21
2
November 9,
1989, and filed additional information on December 11,
1989,
and on February 7,
1990.
On March
5,
1990, Batavia filed an
amended petition,
seeking an extension
of the PCB 87—79
variance
until
January
1,
1994.
The
Board
then
entered
several
orders
requesting additional information,
and Batavia responded to those
requests on March
14 and April
2,
1990.
As noted above, the Agency
filed its recommendation in opposition to the request on April 19,
1990,
and Batavia filed a response to the Agency recommendation on
April 27,
1990.
On June
4,
1990, Batavia filed a motion for leave
to file supplemental exhibits.
The Board granted that motion on
June
7,
1990,
and ordered Batavia to submit the exhibits by July
9,
1990.
The
Agency
filed
responses
to
the
supplemental
information
on
June
22
and
June
28,
1990,
noting
that
the
supplemental exhibits removed some of its objections to the grant
of variance.
On July 16,
1990,
after moving for an extension
of
time, Batavia filed its final supplemental exhibit.
BACKGROUND
Batavia
is
located
in
Kane County,
Illinois.
It
owns
and
operates its water distribution system which provides potable water
to approximately 17,000 people,
including residential, commercial,
and
industrial
users.
The
system consists
of
four
deep
wells,
numbered
2,
3,
4,
and
5,
elevated and ground level storage tanks,
pumps,
and distribution
facilities.
Wells
2
and
3
feed
into
a
common reservoir from which water is pumped primarily to the west
side
of
town
(west
of
the
Fox
River).
Wells
4
and
5
and the
reservoir for wells
2 and 3 all feed into the distribution system.
The combined radium levels are as
follow:
Well Number
Combined
Radium
Date Collected
Level
(pci/i)
2
13.5
9/8/87
14.3
12/14/88
3
28.4
6/17/87
30.0
12/14/88
13.3
2/1/90
4
8.1
8/14/87
9.5
12/14/88
6.8
2/1/90
5
7.9
8/14/87
7.5
2/22/89
5.0
2/1/90
Assuming
the highest combined radium reading
from each well,
the
average
radium level
for Batavia’s
system
is
14.29
pCi/i,
The
average
radium level
for wells
2 and
3
is 20.82
pCi/i.
(Agency
Rec.
at
4—5.)
Batavia
submitted
results
of
additional
tests
on
ii
3
samples
taken
on March
22
and April
4,
19.90.
Those
test
show
radium levels of
13.3 to 14.1 pCi/l for the common reservoir for
Wells
2 and 3,
12.7 pCi/i for the west side elevated tank, and 6.9
pci/i
for the east side elevated tank.
The
MAC
for combined radium
is
5
pCi/i.
(35
Ill.Adm.Code
604.301(a).)
Batavia was
first
advised that its water system exceeded the combined radium standard
on
January
25,
1984
and was placed
on
the
Agency’s
restricted
status
list.
Batavia was removed from restricted status by
the
variance granted on April 4,
1985,
in PCB 85-11.
COMPLIANCE
PLAN
Batavia’s
compliance
plan
involves
blending
the
radium-
tainted
deep well water
with radium—free shallow well
water
to
achieve
the
5
pCi/l
MAC
for
combined
radium.
This
plan
necessitates the drilling of several new wells and the construction
of new treatment, storage, and distribution facilities.
The Board
approved this compliance plan in the prior variances,
and imposed
interim deadlines on the progress of the plan.
In brief,
Batavia
was
to
secure
professional
assistance
in
preparing
plans
and
specifications
for
the
improvements
by
December
22,
1987,
and
submit applications for all necessary construction permits to the
Agency by June 22,
1988.
Batavia was to advertise for bids within
three
months
after
each
construction
permit was
issued
by
the
Agency.
Construction of all improvements was to
be completed no
later than January
1,
1990.
Batavia has not complied with any of
these
conditions,
however,
stating
that
it
has been
unable
to
obtain the
property
necessary
for
the new wells
and
treatment
facilities.
Batavia
intends
to
continue
with
its
blending
program,
although
it
contends
that
if
the
United
States
Environmental
Protection Agency (USEPA) changes the current maximum concentration
limit
(MCL)
for radium in drinking water,
some of the work would
not need to be done.1
Batavia states that
if USEPA revises
the
radium standard to
5 pCi/I for radium 226 and
5 pCi/l for radium
228,
there will be no need to extend water mains through the west
side of the city and across the Fox River to the east side of town,
thus saving approximately $401,000.
(Amended Pet.
at
3.)
It
is
difficult
for
the
Board
to
ascertain
the
compliance
schedule
proposed by Batavia, however, because
at least two schedules are
discussed in Batavia’s various filings.
These two schedules vary
widely:
for instance,
the amended petition states that the well
and treatment
sites
will
be
purchased
by
October
1991,
while
Batavia’s February 7, 1990 addendum to the petition estimates that
1 Pursuant
to
Section
17.6
of the Environmental Protection
Act, any revision of the 5 pCi/i standard for combined radium by
USEPA
will
automatically
become
the
standard
in
Illinois.
Ill.Rev.Stat.1989,
ch.
111 1/2,
par.
1017.6.
114—23
4
condemnation proceedings will be completed by September 1990.2
The
Board
will
accept
the
schedules
set
forth
in
the
February
7
addendum,
because
those
schedules
are
much
more
detailed
and
provide
for
separate
schedules
for
west
side
and
east
side
construction,
depending
upon
any action
by USEPA
on
the radium
standard.
The Agency states that
it has no objection to the compliance
plan
presented by
Batavia.
However,
the Agency does
note
some
concern
“that
it may not
be
appropriate
to
await
final
(USEPA
standards prior to initiating construction, should the Board decide
to grant variance.”
(Agency
Rec.
at
11.)
In response,
Batavia
maintains
that
it
intends
to
initiate
construction
as
soon
as
possible,
with
hopes
that
the
initiation
of
construction
and
promulgation
of
final
standards
by USEPA will
coincide.
At any
rate,
Batavia
states that
it
is
actively pursuing the necessary
steps
to
construction,
and
that
if
construction
can
be
started
prior
to
the
promulgation
of
new
standards,
construction
will
start.
(Response to Agency
Rec.
at
1—2.)
ENVIRONMENTAL
EFFECTS
Batavia
contends
that
“as
indicated
in
the
granting
of
previous variances, the health risks at these low dosages of radium
are minimal.”
(Amended
Pet.
at
5.)
The Agency
provides
risk
assessment
calculations
which
it
maintains
demonstrate
that
no
significant danger exists
for the time
period
of
this variance.
The Agency notes that Batavia’s radium level is only very slightly
above
the
level
of
20
pCi/i,
and that
because
of
intermediate
mixing,
no segment of Batavia’s population is subjected to radium
levels of 30 pci/i or higher.
Thus, the Agency concludes that the
present
levels of combined radium do not present any significant
health risk either to the limited population served by new water
main
extensions
or
to
the
population
currently
being
sei-ved
by
Batavia.
(Agency Rec.
at 4—6,
9-10.)
In its recommendation, the Agency refers to
a contract which
it entered
into with
Dr. William Hallenbeck
to update his prior
reports
on health effects
of
radium,
in connection with City
of
Braidwood
v.
Illinois Environmental Protection Agency, PCB 89—212.
However,
at the time of
filing of the recommendation,
the Agency
had not received Dr. Hallenbeck’s testimony.
(Agency Rec. at 10.)
The
Board
notes
that
on
June
21,
1990,
it
denied
Braidwood’s
2
According
to subsequent
filings
by
Batavia,
all property
necessary for testing and construction of facilities has now been
obtained,
thus eliminating any further time necessary to
proceed
with
condemnation
proceedings.
:.~
5
request
for
a
radium
variance.3
In
that
opinion,
the
Board
discussed
the
statement
submitted
by
Dr.
Hallenbeck,
and
the
testimony of Dr. Richard Toohey, on the issue of health effects of
radium.
In
sum,
Dr.
Hallenbeck
testified
that
based
upon
Braidwood’s
excess
radium
level
of
25.6
pCi/l
(30.6
pCi/l
—
5
pCi/i),
the most probable value for excess cancer cases per year
is
0.02
(two
excess
cancer
cases
per
every
100
years).
In
contrast, Dr. Toohey testified that the additional health risk from
grant of variance in the Braidwood case would be negligible, with
the risks varying from 0.012 to zero, depending on which model was
used
in
calculating
the
risk.
(City
of
Braidwood
v.
Illinois
Environmental ~‘rotection Agency, PCB 89—212
(June 21,
1990),
slip
op.
at 10—11.)
Based upon Batavia’s and the Agency’s statements
in this proceeding,
the Board finds that the environmental impact
of granting the requested variance would be minimal.
CONSISTENCY WITH FEDERAL LAW
The
Agency
believes
that
the
Board
may
grant
Batavia’s
requested variance consistent with
the requirements
of
the Safe
Drinking
Water
Act
(42
U.S.C.
300(f))
and
corresponding
regulations because the requested relief
is
not variance from
a
national primary drinking water regulation.
(Agency Rec.
at
11-
12.)
HARDSHIP
Batavia
contends that both
the city
and the general public
will suffer a great hardship
if variance
is not granted,
because
it will
be unable
to
obtain permits
for water main extensions.
Batavia maintains that this hardship is not speculative,
and lists
several
residential
and commercial developments which
have
been
approved by the city and are ready for submission
of applications
for water main extensions.
Additionally,
Batavia states that
it
is negotiating for several other developments and major retailers,
and that voters have approved a referendum for construction of
a
new junior high school which will also need water main extensions.
Batavia
contends that
these projects
are
crucial
to
the city’s
efforts to decrease its reliance on state and other outside sources
of funding.
Batavia admits that
it did not fulfill several of the
conditions imposed in the earlier variances, but maintains that it
has proceeded
towards
compliance,
and
points
out
that
it
has
retained
an
engineering
firm,
completed
exploration
and
test
drilling, and has now obtained the property needed to implement the
The Board
notes
that
it
denied Braidwood’s petition
for
variance
on
the
grounds
that
Braidwood’s
hardship
was
self-
imposed, and not on environmental factors.
The
Board
encourages
the
Agency
to
use
this
updated
testimony in future recommendations on radium variances.
114~-25
6
compliance plan.
The
Agency
notes
that
Batavia
did
not
comply
with
the
conditions
of
the prior variances which would have required that
Batavia have obtained permits, completed construction, and been in
compliance with the combined radium standard by January
1,
1990.
The Agency points out that Batavia did not petition for extension
of
the deadlines when
it became apparent that they would
not be
met,
but
waited
until
just
before
the
expiration
of
the
previous
variance.
Thus,
the
Agency
believes
that
Batavia
cannot
demonstrate sufficient hardship to justify grant of variance,
and
recommends that the variance be denied.
Section
36(b)
of
the
Act
provides
that
a
variance
can
be
extended
only
if
satisfactory
progress
has
been
shown.
The
Board
finds
that
this
case presents
a close call as to whether Batavia
has
demonstrated
satisfactory
progress,
and
thus
whether
there is
arbitrary
or
unreasonable
hardship.
On
the one
hand,
Batavia
failed
to
meet
at
least
three
important
deadlines,
including
the
deadline for ultimate compliance,
without informing the Board of
the problems which it was experiencing or moving for extension
as
soon as
it became apparent that
it would not meet the deadlines.
On the other hand, Batavia did continue with its exploration, test
drilling,
and property negotiations throughout the course of the
prior variance.
After careful consideration of the facts
of the
case,
the Board
finds that Batavia’s compliance efforts resulted
in satisfactory progress.
The Board is particularly persuaded
by
the fact that all necessary property has finally been obtained.
CONCLUSION
The Board finds that,
in light of all the facts of this case,
denial
of
the
requested
variance
would
impose
an
arbitrary
or
unreasonable hardship on Batavia, and that the environmental impact
of granting the variance would
be minimal.
Therefore,
the Board
will grant the requested variance.
However, the Board emphasizes
that
this
proceeding
presented
an
extremely
close
case
on
the
issues
of
satisfactory
progress
and
arbitrary
or
unreasonable
hardship.
Batavia
is
cautioned
that
the
Board
will
not
look
favorably upon further requests for extension or modification.
The
Board
has
imposed
several
restrictions
on
the
grant
of
this variance.
Only those projects which Batavia has approved or
which have received building permits as
of this date may connect
to any extension
of water mains under this variance.
No permits
for water main extensions
for these projects may be issued
by
the
Agency until Batavia actually awards the contract for construction
of the “west
side” compliance
plan.
Additionally,
this variance
will automatically terminate
on
December 31,
1992,
if Batavia has
not completed construction of the “west
side”
improvements.
The
Board also notes that it has somewhat tightened the timeframes for
compliance
set
forth
in
Batavia’s
February
7
addendum.
For
Ii
7
example,
the Board believes that preliminary engineering
for the
east side work should be done before January of 1992, when Batavia
hopes that USEPA will promulgate final revisions to the combined
radium
standard.
USEPA
publishes
proposed
rules
months before
final action,
and there is no reason that preliminary work cannot
proceed before any revisions are finally effective.
This
Opinion constitutes
the Board’s
findings
of
fact
and
conclusions of law in this matter.
ORDER
1.
Petitioner,
the City of Batavia,
is hereby granted variance
from 35 Ill. Adm. Code 602.105(a)
“Standards of Issuance” and
602.106(b)
“Restricted Status”,
but only
as those
sections
relate
to
the
5
pCi/i
combined
radium-226
and radium-228
standard of 35
Ill.
Adm.
Code 604.301(a).
This variance
is
subject to the conditions set forth below.
2.
Only those projects which Batavia has approved or which have
received building permits as of August
9,
1990 may connect to
any water main extensions under this variance.
3.
Compliance with the maximum allowable concentration
(MCL)
of
combined radium, or with any standards for radium in drinking
water then in effect, shall be achieved no later than November
1,
1994.
4.
This variance shall terminate on the earliest of the following
dates:
A)
Thirty-four months following the effective date of any
regulation promulgated by the United States Environmental
Protection
Agency
(USEPA)
which
amends
the
MCL
for
combined radium, either of the isotopes of radium, or the
method
by
which
compliance
with
a
radium
maximum
concentration level is demonstrated; or
B)
When analysis pursuant to 35
Ill. Adm.
Code 605.104(a),
or
any
compliance
demonstration
method
then
in
effect,
shows
compliance
with
any
standards
for
radium
in
drinking water then in effect; or
C)
November
1,
1994.
5.
Notwithstanding the provisions
of condition
4, this variance
will
terminate
on
December
31,
1992,
if
Batavia
has
not
completed
construction
on
the
“west
side”
compliance
plan
referenced
in condition
8.
6.
in
consultation with
the Illinois
Environmental Protection
Agency
(Agency),
Batavia shall continue its sampling program
114—27
8
to
determine
as
accurately
as
possible
the
level
of
radioactivity
in its wells and finished
water.
Until this
variance terminates,
Batavia shall collect quarterly samples
of
its
water
from
its
distribution
system
at
locations
approved by the Agency.
Batavia shall composite the quarterly
samples
for
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 of radium-228.
At Batavia’s
option, the quarterly samples may be analyzed when collected.
The results of the analyses shall be reported within 30 days
of receipt of the most recent analysis to:
Illinois Environmental Protection Agency
Compliance Assurance Section
Division of Public Water Supplies
2200 Churchill Road
Springfield,
Illinois 62794—9276
7.
No permits for water main extensions for the projects included
in
this variance
(see
condition
2)
shall
be
issued
by the
Agency
until
Batavia
actually
awards
the
contract
for
construction of the “west side” compliance plan referenced
in
condition
8.
8.
Batavia shall begin work on the “west side”
compliance plan
immediately,
pursuant to the following schedule:
A)
By November
1,
1990,
Batavia
shall apply to the Agency
for all permits necessary for construction
of all “west
side”
installations,
changes,
or
additions
to
the
public
water supply needed for achieving compliance with the MCL
for
combined radium,
or with
any other
standards
for
radium
in drinking
water
then
in
effect.
The permit
application(s)
shall be sent to:
Illinois Environmental Protection Agency
Division of Public Water Supply
Permit Section
2200 Churchill Road
Springfield,
Illinois 62794—9276.
B)
Within
30 days after each construction permit
is issued
by the Agency,
Batavia
shall advertise for bids,
to be
submitted
within
60
days,
from
contractors
to
do
the
necessary
work
described
in
the
construction
permit.
Batavia shall accept appropriate bids within a reasonable
time.
Batavia shall notify the Agency at the address
in
condition
3
of
each
of
the
following
actions:
1)
advertisement for bids;
2)
names of successful bidders,
and
3)
whether Batavia accepted the bids.
I
I
‘~--2~
9
C)
Construction allowed on the 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 of combined radium,
or with any standards
for radium in drinking water then in effect, shall begin
no
later than August
1,
1991.
Construction
shall
be
completed by December 31,
1992.
9.
For purposes of this Order,
“the date of USEPA action” shall
consist of the earlier of the:
A)
the effective date of any regulation promulgated by USEPA
which amends the MCL for combined radium,
either of the
isotopes of radium,
or the method
by which compliance
with a radium MCL is demonstrated; or
B)
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 standard will
be promulgated.
10.
Work on the “east side” compliance plan shall be governed by
the following schedule:
A)
Within
30 days after the date of USEPA action,
Batavia
shall apply to the Agency for all permits necessary for
construction of all “east side”
installations, changes,
or
additions
to
the
public
water
supply
need~d for
achieving compliance with the MCL for combined radium,
or with any other standards for radium in drinking water
then in effect.
The permit application(s)
shall be sent
to the address in condition 8(A).
B)
Within 30 days after each construction permit is issued
by the Agency,
Batavia
shall
advertise for bids,
to be
submitted within
60
days,
from contractors
to
do the
necessary
work
described
in
the
construction
permit.
Batavia shall accept appropriate bids within a reasonable
time.
Batavia shall notify the Agency at the address in
condition
3
of
each
of
the
following
actions:
1)
advertisement for bids;
2)
names of successful bidders,
and
3) whether Batavia accepted the bids.
C)
Construction allowed
on the 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 of combined radium,
or with any standards
for radium in drinking water then in effect, shall begin
no later than nine months after the date of USEPA action.
Construction shall be completed 22 months after the date
114—29
10
of USEPA action.
11.
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,
Batavia
shall
send
to
each user
of
its public
water supply a written notice to the effect that Batavia has
been granted, by the Pollution Control Board,
a variance from
35
Ill.
Adm.
Code
602.105(a)
“Standards
of
Issuance”
and
602.106(b) “Restricted Status1t, as they relate to the combined
radium standard.
12.
Pursuant to
35
Iii.
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,
Batavia
shall
send
to
each user
of
its public
water supply
a written notice to the effect that Batavia
is
not in compliance with the standard for combined radium.
The
notice shall state the average content of combined radium in
samples
taken
since
the
last
notice
period
during
which
samples were taken.
13.
Until
full
compliance
is
achieved,
Batavia
shall
take
all
reasonable measures with
its existing equipment
to minimize
the level
of combined radium,
radium-226, and radium—228
in
its finished drinking water.
14.
Batavia shall provide written progress reports to the Agency
every
six
months
concerning
steps
taken
to
comply
with
conditions
6 through
13.
Progress reports
shall quote each
of the conditions and then state what steps have been taken
to comply with each condition.
Progress reports shall be sent
to:
Illinois Environmental Protection Agency
Division of Public Water Supply
Field
Operation
Section
2200 Churchill Road
Springfield,
Illinois 62794—9276.
12.
Within
45
days
of
the
date
of
this
Order,
Batavia
shall
execute and forward to Bobella
Glatz,
Enforcement Programs,
IEPA,
2200
Churchill
Road,
P.O.Box
19276,
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 appealed.
Failure to execute
and
forward
the
certification within
45
days
renders
this
variance null and void.
The form of the certification shall
be as follows:
11
11
CERTIFICATION
I
(We),
,
hereby accept and
agree to be bound by all terms and conditions of the Order of the
Pollution Control Board in PCB 89-183,
dated August
9,
1990.
Petitioner
Authorized Agent
Title
Date
Section 41 of the Environmental Protection Act, Ill.Rev.Stat.
1989,
ch.
ill 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.
J.D. Dumelle dissented, and B.
Forcade was not present.
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
________________,
1990,
by
a
vote
of
___
I
/~‘
/
//~ ~
Dorothy Mv/Gunn, Clerk
Illinois P6llution Control Board
114—31
