ILLINOIS
POLLUTI ON
CON TPOL
BOARD
December 20, 1~89
CITY
OF
GALVA,
)
Petitioner,
v.
)
POE 89—131
(Variance)
ILLINOIS ENVIRONNENTAL
PROTECTION AGENCY,
)
)
Respondent.
OPINION AND ORDER OF THE BOARD
(by N. Nardulii):
This
matter
comes
before
the
Board
upon
a
Petition
for
Variance
filed
on
August
23,
1989
by
petitioner
City
of
Galva
(“c-alva’1).
Galva
seeks
a
five—year
variance
from
reguations
governing the issuance of permits
(35 Ill.
Adra.
Code
602.105(a))
and restricted
status
(35
Iii.
Adr’.
Code
602.106(b))
insofar
as
these regulations involve limitations on combined radium levels in
public water supplies
(35 Ill.
Adin.
Code 604.301).
On November
2,
1989, the Il1inoi~:Environmental Protection Agency (“Agency”)
filed
instanter
its Recommendation that the variance should be granted
subject to certain conditions.
Galva waived its right to request
a hearing.
For the following reasons, the variance is granted.
FACTS
Galva owns
and operates
a permitted deep well public water
supply
system
in
Henry
County,
Illinois.
The
public
water
distribution system includes
2 deep wells, pumps and a distribution
facility.
(Pet. at par.
12.)
A third deep well
(No.
5)
has been
constructed
and
tested,
but
is
not
serviceable.
(Id.)
An
additional elevated storage facility has also been constructed but
is
not
yet
in
service.
(Id.)
Galva
supplies
water
to
1240
residential
customers
and
98
industrial
and
commercial
utility
customers employing approximately 1,000 persons.
(Pet.
at
par.
10.)
Galva seeks the instant
variance so that it
may
extend its
public water supply system.
(Pet.
at par. 8)
An analysis of samples of Galva’s water showed
a radiuin-226
content of
6.0 pCi/l and a radiuin-228 content of less than 1 pCi/i.
(Agency Rec.
at
par.
10.)
Thus,
the combined radium content
in
Galva’s water was 6.0 pCi/i.
(Id.)
Gross alpha content was 24.2
pC~./l.
(Jd.)
A~a
resiflt of exceeding the
combined
radium and
gross alpha standards, Galva was placed on restricted status.
106-~427
2
RELIEF
RE~tJE2TEt:
Galva
seeks
a
five—year
variance
froir
35
Ill.
Adr.
Code
602.105(a)
which
provides
tha
the
Agency
shall
not
grant
an
operatinq or construction permit unless the applicant demonstrates’
that the public water supply system will be constructed, modified
or
operated
so
as
to
not
cause
a
violation
of
the
Illinois
Environmental Protection Act
(“Act’s) or Board regulation.
Gal~.’a
seeks
a variance from this regulation so that the Agency
may
not
legally
deny
Galva a permit for its proposed extension even though
Galva
is
in
violation of the combined radium standard.
Galva also seeks
a variance from 35 Iii. Adm. Code 602.106(b)
governing restricted status.
The Agency agrees that,
if Galva
is
granted
a variance
from the regulation governing the iss~
~:nce of
permits,
then
it
should
also
be
removed
from
the
Agency’s;
restricted status list for violating the combined radium standard.
Galva seeks
a
five—year variance from the
above regulations
or,
alternatively,
a variance until analysis pursuant to
35
Ill.
Adi:.
Code
605.104(a)
shows
compliance with the
combined radium
standard, whichever occurs first.
COMPLIA~NCEPLM~
Galva
has
installed
126
feet
of
liner
in
the
recently
constructed well
No.
5 at
a cost of
$35,970.
(Pet.
at par.
22.)
Test pumping has shown a declining concentration of combined radium
although the
level
is
still
in
excess
of the maximum allowable
concentration
(“MAC”).
(Id.)
Galva has been advised that it
is
possible that continued pumping of well No.
5 may,
in time, produce
a water quality within the MAC.
(u.)
Galva also proposes the construction of a treatment facility
to
treat
all water supplied by well
No.
5.
(Pet.
at par.
22.)
Galva is prepared to complete well No.
5 with a submersible pump,
design and construct aeration, chlorination and pumping facilities
and place the new system
in operation.
(Pet.
at par.
24.)
The
cost of constructing the new treatment facility would be $360,000.
(Pet.
at par.
23.)
Galva
sets
forth
a
schedule,
including
a
timetable
for
securing construction bids and permits,
for obtaining compliance.
(Pet.
at
par.
33.)
This
schedule
is
based
in part
upon
the
projected
final
promulgation by
the USEPA
of
a
revised
radiun’
standard no
later than December of
1991.
(Pet.
at pars.
37-40;
Agency Rcc.
Attachment A.)
Galva has considered and rejected both lime softening and ion
exchange
waster
softening
as
viable
methods
of
coIning
intc
compliance.
(Pet. at pars.
27,
28.)
106--428
3
HARDSHIF AND
ENVIRONY.ENThL
IMPACT
Galva asserts that immediate compliance with the regulations’
governing issuance
of permits
and restricted
status,
insofar
as
these
regulaticns
involve
violations
of
the
combined
radium
standard,
imposes
an
arbitrary
or unreasonable hardship
because
there is
a need for
the
expansion of the water distribution system
in
order
to
serve
the
domestic
needs
and
fire
protection
requirements
of
the
local
population.
(Pet.
at
par.
42
and
attachment C.)
Additionally, failure to obtain the variance would
prevent the development of homes and businesses thereby preventing
economic
growth.
(Pet.
at
par.
41.)
(Pet.
at
par.
41.)
The
Agency
agrees that denial of the requested variance would
impose
an arbitrary or unreasonable hardship upon Galva.
(Agency Rec.
at
pars.
20, 21.)
The
parties
also
agree
that
any
adverse
health
effects
resulting from the requested variance would be minimal.
(Pet.
at
par.
29;
Agency
Rec.
at
pars.
13-15.)
In
support
of
this
assertion,
the parties
point
to testimony
elicited
in
R85—l4,
Proposed Amendments to Public Water Supply Regulations.
COMPLIANCE WITH
FEDERAL LAW
Both Galva and the Agency
state that Galva may be granted
a
variance
from
35
Ill.
Adra.
Code
102.106(b)
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.
(Pet.
at par.
44; Agency Rec. at par.
23.)
Both parties recognize that
Galva would still be subject to a possible enforcement action for
violating the combined radium standard.
(Pet.
at par.
47; Agency
Rec.
at
par.
26.)
Lastly,
the Agency
states
that
USEPA
has
reconsidered its position that it would object to any such variance
extending beyond September 30,
1993.
(Agency Rec.
at attachment
A.)
USEPA
has
recently
shown
a
willingness
to
accept
such
variances extending beyond that date where progress is being made
toward compliance.
(u.)
CONCLUSION
The Board finds that Galva has presented adequate proof that
immediate
compliance
with
35
Ill.
Adm.
Code
602.105(a)
and
602.106(b),
as
those
regulations
involve
the
combined
radium
standard,
would
impose
an
arbitrary
or
unreasonable
hardship
considering the minimal adverse environmental impact of granting
the r~qucstcdrelief.
Therefore,
the variance is granted subject
to those conditions recontmended by the Agency.
This
Opinion constitutes
the Board’s findings
of
fact
and
conclusions of law in this matter.
P16—429
4
ORDER
Petitioner, City of Galva,
is granted a variance from 35 Ill.
Adni. Code
602.105(a) and 602.106(b), but only as these regulations
relates to combined radium,
subject to the following conditions:
1.
This variance begins Dece~ther20,
1989 and expires
five years from that date
or
when analysis pursuant
to
35
Ill.
Adin.
Code 605.104(a)
shows compliance
with the combined radium standard, whichever occurs
first;
2.
Until
the expiration
of this variance, petitioner
shall
collect
quarterly samples of
its water
from
its distribution system,
at locations approved by
the
Agency,
to
determine
the
possible
level
of
radioactivity
in
its
wells
and
finished
water.
Petitioner
shall
composite
the
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 the contaminant
in question.
The results of the analysis should be
reported to the following address within 30 days of
receipt of each analysis:
Compliance Assurance Section
Division of Public Water Supplies
Illinois Environmental Protection Agency
2200 Churchill Road
Springfield, Illinois 62794—9276
At petitioner’s
option,
the quarterly samples may
be analyzed when collected.
The running average of
the most recent four quarterly sample results shall
be reported to the above address within 30 days of
receipt of
the
most recent quarterly sample.
3.
Within three months of the grant
of the variance,
petitioner
shall
secure
professional
assistance
(either from present staff or an outside consultant)
in investigating compliance options;
4.
Within
four months
of the grant of the variance,
evidence that such professional assistance has been
secured shall be submitted to:
Illinois Environmental Protection Agency
Division of Public Water Supplies, FOS
2200 Churchill Road
106.-~430
5
P.O.
Box 19276
Springfield, Illinois 62794—9276;
5.
Within nine months of the grant
of the variance,
petitioner shall complete investigating compliance
methods,
including
those
treatment
techniques
described in the Manual of Treatment Techniques for
Meeting
the
Interim
Primary
Drinking
Water
Regulations, USEPA,
M~y
1977, EPA—600/8—77—005, and
submit to the address listed
in condition No.
4
a
detailed Compliance Report showing how compliance
shall
be achieved within the shortest practicable
time, but no later than five years from the date of
this variance;
6.
The
Compliance Report referred to
in paragraph
5
above
shall be submitted within ten months
of
the
grant
of
the
variance
to
the
address
listed
in
condition No.
4;
7
Within
14 months of grant
of the variance, unless
there has been a written extension by the Agency,
petitioner
shall
apply
to
IEPA,
DPWS,
Permit
Section, for all permits necessary for construction
of
installations,
changes
or
additions
to
the
petitioner’s
public
water
supply
needed
for
achieving
compliance
with
the
maximum
allowable
concentration for the standard in question;
8.
~iithjnthree months after each construction permit
is issued by IEPA,
DPWS, petitioner shall advertise
for
bids,
to be
submitted within
60
days,
from
contractors to do the necessary work described in
the construction
permit.
Petitioner shall accept
appropriate
bids
within
a
reasonable
time.
Petitioner shall notify IEPA,
DPWS, within 30 days,
of each of the following actions:
1) advertisements
for bids,
2)
names
of
successful bidders,
and
3)
whether petitioner accepted the bids;
9.
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
maximum
allowable
concentration in question shall begin no later than
three
years
from
the
grant
of this
variance and
shall
be completed no
later
than four years
from
the grant of this variance;
10.
Pursuant to 35 Iii. Adm. Code 606.201, in its first.
set of water bills or within three months after the
10E~
43!
6
date
of
this
Variance
Order,
whichever
occurs
first,
and
every
three
months
thereafter,
petitioner will
send
to
each user
of
its
public
water supply
a written notice to
the effect that
petitioner
has
been
granted
by
the
Pollution
Control
Board
a
variance
from
35
Ill.
Adri.
Code
602.105(a)
Standards of Issuance and
35
Ill.
Adm.
Code 602.106(b) Restricted Status, as
it relates to
the
MAC
standards in question;
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, petitioner will send
to
each user
of its public water supply
a
written
notice
to
the
effect
that
petitioner
is
not
in
compliance
with
the
standards
in
question.
The
notice
shall
state
the
average
content
of
the
contaminants in question in samples taken since the
last notice period during which samples were taken;
12.
Until
full compliance is reached, petitioner shall
take
all
reasonable
measures
with
its
existing
equipment to minimize the level
of contaminant
in
question in its finished drinking water;
13.
Petitioner
shall
provide written progress
reports
to IEPA, DPWS, FOS every six months concerning steps
taken to comply with paragraphs
3,
4,
5,
6,
i,
8,
9,
10,
11 and 12.
Progress reports shall quote each
of
said
paragraphs
and
immediately
below
each
paragraph state what steps have been taken to comply
with each paragraph;
14.
That within
forty-five
days
of the grant
of
the
variance, petitioner shall
execute and forward to:
Bobella Glatz
Enforcement Programs
Illinois Environmental Protection Agency
2200 Churchill Road
Springfield,
Illinois 62794—9276.
A
certificate
of
acceptance
of
this
variance
by
which
it
agrees to be bound by the terms and conditions contained herein.
This variance will be void if the City of Galva fails to execute
and forward the certificate within the forty-five day period.
The
forty-five day period
shall be
in abeyance for any period during
which the
matter
is appealed.
The form of certification shall
be
as follows:
106—432
7
CERTIFICATION
I,
(We)
,
having read
the Opinion and Order of the Illinois Pollution Control
Board
in
PCB 89-131, dated December 20, 1989, understand and accept the said
Opinion and Order, realizing that such acceptance renders all terms
and conditions thereto binding and enforceable.
Petitioner
Authorized Agent
Title
Date
IT
IS SO ORDERED.
Board Members J.
Duinelle and B. Forcade dissented.
Section 41 of the Environmental Protection Act,
Ill.
Rev.
Stat.
1985,
ch.
lll—½, 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.
I,
Dorothy N.
Gunn,
Clerk of the Illinois Pollution Control
Board here~ycertify t~atthe above Opinion and Order was adopted
on tha~d~—dayof
_______________,
1989 by
a vote of ~
~
~
ti~~
~Y2~
V~~r
_
Dorothy M./,~’unn, Clerk
Illinois Pollution Control Board
lO~A33