ILLINOIS POLLUTION CONTROL BOARD

December

15,

1988

VILLAGE OF PLAINFIELD

)

Petitioner,

v.

)

 PCB 88—134

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

)

MR. JAMES

 B. HARVEY,

 ESQ.,

 OF MCKEOWN, FITZGERALD,

 ZOLLNER, BUCK,

SANGMEISTER AND HUTCHISON APPEARED ON BEHALF OF THE PETITIONER.

MS. BOBELLA GLATZ,

 ESQ.,

 OF THE ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY APPEARED ON BEHALF OF THE RESPONDENT.

OPINION AND ORDER OF THE BOARD

 (by M. Nardulli):

This matter comes before the Board upon

an

August 23,

1988

petition for extension of variance filed

 on behalf of

 the City of

Plainfield

 (hereinafter “Plainfield”).

 Plainfield

 is requesting

an extension of the variance granted

 by the Board on April

16,

1987 which granted

 a variance from 35

 Ill. Adm. Code 602.105(a),

Standards of Issuance and from 602.106(b),

 Restricted Status,

to

the extent

those

 rules relate to

35

Ill. Mm.

 Code 604.301(a),

combined radium—226 and radium—228 concentration and

35

Ill.

 Adm.

Code 604.301(b),

 gross alpha particle activity.

 The original

variance was granted

 under Board docket number PCB 87—9.

An

extension

 is requested until April

15,

 1992.

The Petitioner waived its right

to

hearing

 in this matter

and

consequently no hearing has been held.

 On October

 21, 1988,

the Illinois Environmental Protection Agency (hereinafter

“Agency”)

 filed a variance recommendation recommending that the

requested variance be granted subject

 to conditions.

 Based on

the record,

 the Board finds

 that the request

 for variance should

be granted subject to conditions

 recommended by the Agency.

Compliance with the rule would impose an arbitrary or

unreasonable hardship on the Petitioner.

94—109

—2—

BACKGROUND

Plainfield

 is an Illinois municipal corporation located in

Will County which provides public services including potable

water supply for

 a population of approximately 1,450 residential

and 200 commercial and industrial customers.

 The water supply

system includes two deep wells, pumps and distribution

facilities.

 Based on an analysis of the water supply using four

samples obtained at quarterly intervels prior

 to December

of

1985, the combined radium—226 and radium—228 content of the water

was 9.8 pCi/i,

 exceeding the

 5 pCi/i

 standard.” Gross alpha was

19 pCi/i, exceeding the standard on May 20,

 1986.

 On January 22,

1987, the Petitioner filed

 its petition for variance

 in PCB 87—

9.

 A twenty—two month variance was granted by the Board

 in PCB

87—9 with an expiration date

 of February 15,

 1989.

 Pursuant to

paragraph 1(H)

 of the Opinion and Order

 of PCB 87—9,

the

Petitioner was

 to file

 a variance petition on or before October

15,

1988

 if compliance was not scheduled

 to be achieved by

February 15,

 1989.

 The present petition

is

 in response to the

order.

The Petitioner has fully complied with the conditions

 in the

PCB 87—9 Opinion and Order as follows:

(a)

 The petitioner has continued its

sampling program pursuant to

1

(B)

of the aforementioned Opinion and

Order consisting of sampling and

analysis beginning with

 a report

dated August 10,

 1987 from samples

taken June

3,

 1987 and ending with

samples taken May 23,

 1988,

and

analyzed in

a

 report dated June

30,

1988.

(b)

 Petitioner secured professional

assistance on June 15,

 1987,

and

notified the Agency on June 17, 1987

pursuant to Sections 1

(C)

and

1

(D)

of the Opinion and Order.

(.c)

 Petitioner has completed the

investigation of possible compliance

methods pursuant

 to Section 1

(E)

of

the Opinion and Order.

(d)

 Pursuant

 to Section

1

(F)

 of the

Opinion and Order

 the “Radium

Compliance Report”

 has been

forwarded

 to the Agency as well

as

to the Illinois Pollution Control

Board.

94—110

—3--

(e)

 Pursuant to Section 1

(H)

 of the

Opinion and Order, Petitioner has

filed a variance petition before

October

15,

 1988.

(f)

 Pursuant to Section

1

(I)

and

1

 (J),

Petitioner has sent to each water

user

 a written notice concerning

radium standards.

(g)

 Petitioner has submitted progress

reports,

 per Section

1

 CL),

 to the

Agency and Board.

 Said reports

demonstrated an average gross alpha

result, well below the maximum

 allowable concentration.

PETITIONER’S COMPLIANCE PLAN

The Petitioner employed an environmental engineering firm to

investigate possible compliance methods.

 The recommended method

of compliance calls

 for the blending of shallow well water with

the deep well water presently used by Plainfield.

 The estimated

total capital cost of this project

 is $4,471,000, with an

 initial

capital cost of $3,065,000.

 These costs are based on an

assumption that a shallow well water supply can be developed with

a reasonable number

 of wells

 and at locations close to existing

water mains.

 Plainfield must perform a shallow well testing

program in order

 to determine the viability of

 the proposed

compliance method.

Among the alternative compliance plans

 investigated by the

Petitioner was interconnections with other water

 systems.

One

such method would be

 a connection with the City of Joliet to

receive Kankakee River water.

All

 of the

 interconnection

proposals were excessively expensive.

HARDSHIP AND ENVIRONMENTAL IMPACT

In its petition for variance, Plainfield maintains that

compliance with Section 604.301(a) and

 (b) during

 the requested

period for variance would result

 in an arbitrary or unreasonable

hardship on Plainfield.

 Without

 a variance, Plainfield would

be

 under restricted status which would disrupt Plainfield’s economic

growth which

is

 necessary to finance improvements,

 including the

construction of shallow wells.

 Plainfield offered the following

examples of hardships

 it would endure without

 a variance:

(a)

 Inability to extend water mains to

a

94—111

—4—

tract of

 property bordering on the

southeasterly boundaries

 of the

village consisting of 56

 lots with a

yearly anticipated sales

tax

revenues of $150,000 and

approximately 1.5 million dollars of

equalized assessed valuation.

The

area

 is presently served by well and

septic and annexation agreements are

presently underway and being

negotiated

 to accomplish the above.

(b)

 Pursuant

 to a previously executed

annexation agreement another

developer has proposed a certain

residential subdivision entitled

River Ridge Estates consisting of 56

residential lots which would require

extension of the Petitioner’s water

mains.

Cc)

 Pursuant to a previously executed

annexation agreement,

 a proposed 80

residential lot subdivision which

has been platted as Lake Side Manor,

which would also require water

service and main extensions.

Cd)

 The village has been approached by

a

developer,

for

 a proposed 28 unit

multi—family residential development

requiring water extension to the

property consisting of approximately

21.82 acres 14.64

 of which

are

proposed

 to be donated as public

park lands.

Ce)

 The Village has been approached by

a

developer regarding a proposed 320

acre development to be the site of

single family residences

 and town

homes with

 a density of

 11/2 units per

acre.

(f)

 Community growth is necessary

to

successfully finance a number of

improvements either planned or under

way within Plainfield including

construction

 to comply with

the

radium standard.

 Relief

 from

restricted

 status

 is necessary for

this development.

 In addition,

it

is necessary for Petitioner

to

provide long range planning

to

94—112

—5—

ensure that the community growth

occurs

in

 a manner which

is

controlled and

 in the best long—term

interest of

 its residents.

 Without

relief from restricted status,

Plainfield will be unable

 to sustain

community growth,

 and in turn will

be unable to afford and carry out

the compliance program necessary

to

comply with

 the radium standard at

an economical rate that

is

commensurate with other

 communities.

Contrasting with

 the issue

 of hardships

 is the issue

of

environmental impact.

 In Lts recommendation,

 the Agency states

that while

 radiation at any level creates

 some risk,

 the risk

associated with this level

 is very low.

 The maximum allowable

concentrations

 (“MAC”)

 for combined radium and gross alpha

particle activity

 is currently under review at the federal

level.

 However,

 the Agency does not expect any proposal

to

change the

 standard

 in the near future.

 The Agency believes an

incremental

 increase in the allowable concentration for the

contaminant

 in question even up to

 a maximum of four time the MAC

for the contaminant

 in question,

 should cause no significant

health risk

 for the limited population served by new water main

extensions

for

 the time period of

 this recommended variance.

Therefore,

 even though a delay

 in economic development

is

a

hardship

 of questionable consequence,

 the lack

 of concern for

environmental impact leads

to

 a conclusion that the imposition

of

even

 a slight hardship,

 for little or no reason,

 would

be

arbitrary or unreasonable.

 However,

 radium at any level creates

some risk and Plainfield’s compliance with

35

 Ill. Mm.

 Code

604.301(a)

and

 (b) will significantly reduce the risk to its

customers.

AGENCY RECOMMENDATION

In its recommendation of October

21,

 1988, the Agency

recommended that Pla~nfieldbe granted

 a variance from 35

 Ill.

Mm.

 Code 602.105(a)

 and 602.106(b) as they relate

 to the

contaminants

 in question, subject to the conditions adopted

in

the Order.

 The Agency believes that the hardship resulting from

denial

 of the recommended variance from the effect

 of being on

Restricted Status would outweigh the injury of

 the public from

grant of that variance.

 In light

 of the cost

 to the Petitioner

treatment of

its

 current water

 supply,

 the likelihood of

no

significant injury

 to the public from continuation of the present

level

 of the contaminant

 in question

 in the Petitioner’s water

for the limited time period of the variance,

 and the possibility

 of compliance with the MAC standard due to blending or new

shallow wells,

 the Agency concludes that denial

of

 a variance

94—113

—6—

from the effects

 of Restricted Status would

 impose an arbitrary

or unreasonable hardship upon Petitioner.

The Agency observes 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.

 Grant of variance may also,

 in the interim,

 lessen

exposure for that portion of the population which will be

consuming more effectively blended water.

 The Agency emphasized

that

 it continues

 to place

 a high priority on compliance with the

standards.

CONCLUSION

The Board finds that Plainfield would suffer an arbitrary or

unreasonable hardship if the requested variance

 is not granted.

Further,

 the environmental

 impact of granting the variance is

considered

 to be minimal.

 Accordingly,

 the variance will be

 granted with conditions consistent with this Opinion.

This Opinion constitutes the Board’s finding of fact and

conclusion of law in this matter.

ORDER

Petitioner, Village of Plainfield,

 is hereby granted

extension

 of its.variance granted on April 16,

 1987 from 35

 Ill.

Adm.

 Code 602.105(a),

 Standard of Issuance, and from 35

 Ill. Mm.

Code 602.106(b), Restricted Status,

 to the extent those

 rules

relate

 to 35

 Ill. Mm.

 Code 604.301(a),

 combined radium—226 and

radium—228 concentration and

 35 Ill. Mm. Code 604.301(b),

 gross

alpha particle activity,

 subject to the following conditions:

(A)

 Compliance

 shall be achieved with

the maximum allowable concentrations

by April

15,

 1992.

(B)

 This variance expires on A~pril 15,

1992 or when analysis pursuant to 35

Ill. Mm.

 Code 601.104(a)

 shows

compliance with the standard for the

contaminants

 in question, whichever

occurs first.

(C)

 In consultation with the Agency,

Petitioner shall continue its

sampling program to determine as

accurately as possible the level

of

94—114

—7—

radioactivity

in

 its wells

and

finished water.

 Until

 this variance

expires, Petitioner shall sample

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 contaminants

 in question.

The results

 of the analyses shall be

reported

 to the Compliance Assurance

Section, Division of Public Water

Supplies,

 2200 Churchill Road, Post

Office Box 19276,

 IEPA, Springfield,

Illinois 62704—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.

(D)

 By August 15,

 1990,

 Petitioner shall

have applied 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.

(E)

 Within three months after each

construction permit

is

 issued by

IEPA,

 DPWS,

 the Petitioner shall

advertise for

 bids,

 to be submitted

within 60 days,

 from contractors

to

do the necessary work described in

the construction permit.

The

Petitioner shall notify the Agency,

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.

(F)

 Construction allowed on said

94—115

—8—

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 April

15,

1991 and shall

 be completed on April

15,

 1992.

(G)

 Pursuant

to

 35 Ill. Mm.

 Code

606.201,

 in its first set of water

bills

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

written

notice

the

effect

that

Petitioner

has

been

granted

the

Pollution

Control

Board

 a variance from 35

 Ill.

Adin.

Code 602.105(a) Standards of

Issuance and

35

 Ill. Adm.

 Code

602.106(b) Restricted Status,

as

it

relates

the

MAC

standard

question.

(H)

 Pursuant to

35

 Ill. Mm.

 Code

606.201,

 in its first set

 of water

bills

 or within three months after

the

date

this

Order,

whichever

occurs

first,

and

every

three

months

thereafter,

Petitioner

will

send

each user

of

 its public water supply

a written notice to the effect that

Petitioner

not

compliance

with

the

standard

question.

The

notice

shal

state

the

average

content

 of the contaminant

in

question

 in samples

 taken since the

last notice period during which

samples were taken.

(I)

Until

full

compliance

reached,

Petitioner

shall

take

all

reasonable

measures

with

 its existing equipment

minimize

the

level

contaminant

question

its

finished

drinking

water.

(J)

The

Petitioner

shall

provide

written

progresss

reports

IEPA,

DPWS,

FOS

every

 six months concerning

 steps

94—116

—9—

taken

 to comply with paragraphs

D,

E,

 F and I.

 Progress reports shall

 quote each of said paragraphs

and

immediately

below

each

paragraph

state

what

steps

have

been

taken

comply

with

each

paragraph.

(K)

That

within

forty—five

days

the

grant

the

variance,

Petitioner

shall

execute

and

forward

Bobella

Glats,

Enforcement

Programs,

Illinois

Environmental

Protection

Agency,

2200

Churchill

Road,

Post

Office

Box

19276,

Springfield,

Illinois

62794—9276,

Certificate

Acceptance

and

Agreement

bound

all

terms

and

conditions

the

granted

variance.

This

forty—

five

(45)

day

period

shall

held

abeyance

for

any

period

during

which

this

matter

being

appealed.

the

Petitioner

fails

execute

and

forward

the

agreement

within

forty—five

(45)

day

period,

the

variance

shall

void.

The

form

Certification

shall

follows:

CERTIFICATION

I, We,

hereby

and

agree

bound

all

terms

and

conditions

of the Order

 of the Pollution Control Board

 in PCB 88—134,

December

15,

1988.

Petitioner

Authorized

Agent

Title

94—117

—10—

Date

Section

the

Environmental

Protection

Act,

Ill.

Rev.

Stat.

1987

ch.

1111/2

par

1041,

provides

for

appeal

final

Orders

the

Board

within

days.

The

Rules

the

Supreme

Court

Illinois

establish

filing

requirements.

ORDERED.

Dumelle

and

Forcade

dissented.

Dorothy

Gunn,

Clerk

the

Illinois

Pollution

Control

Board,

hereby

certif

that

the

above

Opinion

and

Order

was

adopted

the

/?~

day

 1988,

vote

__________

Ill

 Control Board

94—118