ILLINOIS POLLUTION CONTROL BOARD
February 23, 1989
VILLAGE OF SUGAR GROVE,
)
Petitioner,
v.
) PCB 88—~47
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
LEONARD B. STOECKER, II, ATTORNEY, APPEARED ON BEHALF OF THE
PETITIONER; A~’TD
BOBELLP. GLATZ, ATTORNEY, APPEARED
ON
BEHALF OF
THE
RESPONDENT.
OPINION AND ORDER OF THE BOARD (by J. Anderson):
This matter comes before the Board on the Third Amendment to
Petition for Radium Variance filed by Petitioner, Village of
Sugar Grove (Sugar Grove), on January 6, 1989. Sugar Grove
requests variance, until January 1, 1992, from 35 Ill. Adm. Code
602.105(a), Standards for Issuance, and 35 Ill. Adm. Code
602.106(b), Restricted Status, but only as such standards relate
to 35 Ill. Adm. Code 304.301(a), combined
radium—226
and radium—
228. On January 20, 1989, the Illinois Environmental Protection
Agency filed its recommendation to grant the variance, subject to
conditions.
The impetus for this variance request is the Agency~s
placing of Sugar Grove on the Restricted Status List. The Agency
advised Sugar Grove on April 1, 1988 that it would be placed on
the list because Sugar Grove!s water supply exceeded the maximum
allowable concentration for radium. This notice, in turn, was
based upon an analysis reported to Sugar Grove on February 19,
1988, of an annual composite of four consecutive quarterly
samples or the average of the analyses of four quarterly
samples
of Sugar Grove’s water supply.
That analysis showed a radiurn—226
content of 7.3 pCi/I and a radium—228 content of less than 2
pCi/i. Hence, the combined radium—226 and radium—228 content was
7.3 pCi/i, exceeding the 5 pCi/l standard.
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The Facility
Sugar Grove, which has a population of 1607 (1987 census)
operates a water supply system that is presently served by two
wells. This system is, in fact, comprised of two free standing
water systems (i.e., they are not interconnected). According to
Sugar Grove, the Agency’s Restrictive Status action was taken
with regards to only one of these wells, the “existing deep
well”; this well serves only the 300 plus residents as well as
eight to ten small businesses of~“the affected area”, also
referred to as “Dugan Woods”. It is producing 180 gallons per
minute. The other well, which serves the main part of Sugar
Grove, is a shallow well; it reportedly does not exceed the
radium standard. The distance between the nearest points of
existing water mains for the two systems is approximately 10,300
feet.
Procedural Background
Sugar Grove filed its first petition for variance on
September 12, 1988. That petition, inter alia, requested that
the variance be granted for a period of five years, with blending
of the two wells as the compliance plan. By Order dated
September 22, 1988, the Board indicated that the petition was
defective in that it failed to “explain why five years are
necessary to implement the compliance option of blending”; the
Order gave Sugar Grove 45 days to cure this defect. On October
31, 1988, Sugar Grove filed its first Amendment to Petition for
Variance in response to the Board’s Order. By way of explanation
of the five—year request, Sugar Grove noted that the area to be
served by the proposed extensions were the subject of
negotiations by Sugar Grove with various developers; it was Sugar
Grove’s hope that the entire cost of extending water mains and
installing necessary adjunct facilities (e.g., storage tank and
booster pump) could be borne, over time, by the developers.
On November 7, 1988, the Agency filed a Motion to Dismiss
the petition as amended, contending that it failed to meet the
requirements of 35 Iii. Adm. Code 104.121. Sugar Grove filed its
response to the Agency’s motion to dismiss on November 15, 1988,
together with a second amendment to the petition. By Order of
November 17, 1988, the Board denied the Agency’s motion to
dismiss, citing the new facts adduced in the second amendment as
mooting the Agency’s motion.
In the second amendment to the petition,
Sugar Grove
explains the segments of projected development of
the affected
area and identifies a number
of alternative sources of funds
which are or may be available to Sugar Grove from developers,
“Build Illinois” funds and other sources. Sugar Grove indicated,
however, that if such sources are not available to Sugar Grove by
July 1, 1990, Sugar Grove will undertake the remaining segments
of the project to complete same by 1992, and will borrow money if
necessary to fund completion of the project.
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-.3—
On December 19, 1988, the Agency filed a Motion for
Extension of Time to file its recommendation, citing ongoing
discussions with Sugar Grove and Sugar Grove”s representation
that it would send to the Board a 45 day waiver of the Board’s
decision date to accommodate such discussions. On December 20,
Sugar Grove did file a request for 45 day extension; by Order of
January 5, 1989, the Board granted the Agency’s Motion and
construed Sugar Grove’s request as a 45 day waiver of decision
deadline, until April 29, 1989.
Sugar Grove, by a Motion to Expedite a Decision, filed with
the Board on February 9, 1989, has advised the Board that the
terms of the Agency’s recommendation are acceptable to the
Village of Sugar Grove and has requested expedited
consideration. That motion is hereby granted.
Compliance Plan
On January 6, 1989, Sugar Grove filed its third amendment to
the petition. That amendment sets forth additional information
as to the status of the several segments (Sections A through D)
of the project. According to this filing, Section A water main
extensions are being constructed by the Brewster Corporation.
Sections B and C will be the subject of permit applications
within 60 days of approval of this variance, with construction to
commence as soon as possible. As to Section D, a chronological
timetable has been developed pursuant to which compliance will be
achieved by January 1, 1992. The Agency’s recommendation
addresses the petition as thus amended.
Grant of this variance will facilitate significant planned
growth in the general area, including phase two of a plotted
subdivision, Sugar Creek (Section A of this project); a 4200 foot
extension of water main to serve, at least in part, the Aurora
Airport under the aegis of a “Build Illinois” project (Section
B); and a 3100 foot extension of water main to serve the Dugan
Woods subdivision, (Section C). The compliance plan will also
require installation of a storage/mixing tank and pump for
blending (Section D). Sugar Grove estimates that the cost for
constructing all the facilities would be $2,350 per person
($705,000 divided by 300 persons), excluding financing costs. If
this variance is granted, most if not all these costs are
expected to be absorbed by developers, the “Build Illinois” funds
(Section
B) and infrastucture fees levied by Sugar Grove on new
construction
and paid as each lot is sold, expected to be
completed by mid—1990.
Sugar Grove’s compliance plan calls for blending of
the
water from its two wells to produce a single supply
which will
not exceed the radium standard.
Other options have been
considered by Sugar Grove but
have been rejected as unfeasible.
Neither of the alternatives
considered (lime—soda softening and
ion exchange) are viable, according to Sugar Grove, in light of
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the absence of sanitary sewers in the affected area, as well as
the lack of space for sludge holding ponds.
Agency Comments
The Agency’s recommendation states that it does not disagree
with the facts as stated in the Petition. It notes that Sugar
Grove is not on the Restricted Status List for any other
contaminant. It concurs with Sugar Grove’s assertion that the
slightly incre~sed radium levels should cause no significant
health risk for the limited population served by new water main
extensions for the time period of the recommended variance. The
Agency noted “that this grant of variance from restricted
status
should affect only
those users who consume water drawn from any
newly extended water lines.
This variance should not affect the
status of the rest of Petitioner’s population drawing water from
existing water lines, except insofar as the variance by its
conditions may hasten compliance. In so saying, the Agency
emphasizes that it continues to place a high priority on
compliance with the standards.”
It agrees that denial of the variance would result in an
arbitrary and unreasonable hardship and states its belief that
this variance may be granted consistent with the Federal Safe
Drinking Water Act and regulations thereunder, since variance is
granted only from restricted status, which is a State, not a
Federal, standard. It recommends that the variance be granted
subject to conditions.
Board Determination
In consideration
of the above circumstances,
including the
insignificant environmental impact during the term of this
variance, the Board finds that Sugar Grove has presented adequate
proof that compliance with the Board’s regulations regarding
restricted status as related to the combined radium standards
would impose an arbitrary or unreasonable hardship. It also
accepts the Agency conditions with certain timetable
clarifications and one exception.
The exception is that the term of the variance will be
extended for ten months beyond the completion of construction
solely to secure the four quarterly samples necessary to
demonstrate compliance; thus, since construction for blending
must be completed by April 23, 1991, and allowing up to one month
for taking the first blended sample, a compliance demonstration
with four quarterly samples must be completed by January 23, 1992
(rather than January 1, 1992 as recommended).
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
96—218
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ORDER
Variance from 35 Ill. Adm. Code 602.105(a), Standards for
Issuance and 602.106(b), Restricted Status, as they relate to the
combined radium standard of 35 Ill. Adm. 604.301(a), is granted
to the Village of Sugar Grove, subject to the following
conditions:
A) This variance expires on January 23, 1992, or when
analysis pursuant to 35 Ill. Adin. Code 605.104(a) shows
compliance with the standard for combined radium—226 and
radium—228, whichever occurs first.
B) In consultation with the Agency, Petitioner shall
continue its sampling program to determine as accurately
as possible the level of radioactivity in its wells and
finished water. Until this variance expires, Petitioner
shall collect quarterly samples of its water from its
distribution system at locations approved by the
Agency. The Petitioner shall composite the quarterly
samples for each location separately and shall analyze
them 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 analyses shall be reported to the
Compliance Assurance Section, Division of Public Water
Supplies, 2200 Churchill Road, IEPA, Springfield,
Illinois
62794—9276, within 30 days of receipt of each
analysis.
At the option of Petitioner,
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.
C) No later than April 24, 1989, Petitioner shall have
applied for all necessary permits for construction of
Section B and C of Petitioner’s
Plan for compliance.
Construction on Section B and C shall commence as soon
thereafter as practicable. Petitioner’s Plan (Ex h) is
hereby incorporated as if fully set forth herein.
D) No later than June 23, 1989, a final engineering report
for Section D shall be completed. Said engineering
report shall be submitted to the Illinois Environmental
Protection Agency, Division of Public Water Supplies at
2200 Churchill Road, P. 0. Box 19276, Springfield,
Illinois 62794—9276.
E) No later than December 23, 1989, Petitioner shall have
completed all final engineering drawings and plans, and
shall have made application
for all necessary permits
for Section D of Petitioner’s plan.
96—2 19
-.6—
F) No later than March 23, 1990, Petitioner shall advertise
for bids on construction for Section 0.
G) No later than April 23, 1990, Petitioner shall have
completed financing for completion of the planned method
of compliance.
H) No later than June 23, 1990, Petitioner shall commence
construction of Section D of Petitioner’s Plan, and said
construction shall be completed no later than April 23,
1991.
I) Pursuant to 35 Ill. Adm. Code 606.201, in its first set
of water bills or within three months after the 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. Adm. Code
602.105(a) Standards of Issuance and 35 Ill. Adm. Code
602.106(b) Restricted Status, as it relates to the
combined radium standard.
J) 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 standard
in question. The notice shall state the average content
of the contaminant in question in samples taken since
the last notice period during which samples were taken.
K) Until full compliance is reached, Petitioner shall take
all reasonable measures with its existing equipment to
minimize the level of the contaminant in question in its
finished drinking water.
L)
Within 45
days of the date of this Order, Petitioner
shall execute and forward to Bobella Glatz, Enforcement
Programs, Illinois Environmental Protection Agency, 2200
Churchill Road, Springfield, Illinois 62794—9276, a
Certification
of Acceptance and Agreement to he 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 being appealed.
The form of said
CertificaUon
shall be as follows:
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—7—
CERTIF ICATION
I, (We), ____________________________, having read the
Order of the Illinois Pollution Control Board, in PCB 88—147,
dated February 23, 1989, understand and accept the said Order,
realizing that such acceptance renders all terms and conditions
thereto binding and enforceable.
Peti tioner
By: Authorized Agent
Title
Date
IT IS SO ORDERED.
Board Members B. Forcade and J. Dumelle dissented.
Section 41 of the Environmental Protection Act, Ill. Rev.
Stat. 1987 ch. 111 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.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the~,aboveOpinion and Order was
adopted on the
Z5~-
day of
~
,
1989, by a vote
of
~f:e.;:1~
Dorothy ~/Gunn, Clerk
IllinoisUPollution Control Board
96—22 1