ILLINOIS POLLUTION CONTROL BOARD
NIay
5,
1988
CITY OF GENEVA,
)
Petitioner,
v.
)
PCB 88—11
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
MR. ROY M.
HARSCH OF MARTIN,
CRAIG, CHESTER AND SONNENSCHEIN
APPEARED ON BEHALF OF THE PETITIONER.
SCOTT
0.
PHILLIPS APPEARED ON BEHALF OF THE RESPONDENT.
OPINION AND ORDER OF THE BOARD (by Michael ~‘1ardu11i):
This matter comes before the Board upon a January
7,
1968
petition for variance filed on behalf of
the City of Geneva.
The
City of Geneva requested
a five—year variance from
35
Ill.
Adm.
Code
602.105(a), Standards
of Issuance,
and fror~35
Ill. Mm.
Code
602.106(b), Restricted Status,
to the extent those
rtiles
involve
35
Ill.
Acim. Code 604.301(a), combined radium—226 and
radium—228 concentration.
The requested period of variance i~
for five years
from the date of issuance
of a Board
order
granting
the request.
The petitioner waived
its right to hearing
in this matter and consequently no hearing
has been held.
On
February
17,
1988,
the Illinois Environmental Protection Agency
(hereinafter
“Agency”)
filed
a Variance Recommendation
recommending
that the variance be denied because the petition
for
variance was
inadequate.
Subsequently, on March
29,
1988,
the Petitioner
filed
a
Response
to Agency Recommendation which was answered by the
Respondent’s
Reply to Petitioner’s Response
to Agency
Recommendation on April
13,
1988.
In the Respondent’s Reply
the
Respondent withdrew its recommendation of denial and states that
“the Agency has
no objection
to
a grant of a variance...”
The
Board construes
this statement as a recommendation by the Agency
to grant
a variance.
Based on
the record,
the Board adopts the Agency’s
Recommendation
of April
13,
1988 and finds
that the
request by
the City of Geneva should be granted
subject to the conditions.
The granting of the variance will allow
the City of Geneva to
avoid an arbitrary or unreasonable hardship that would not be
justified
by the environmental impact.
39—i01
—2—
BACKGROUND
The City of Geneva,
located
in Kane County,
owns and
operates
a deep—well water supply system which supplies and
distributes potable water
to approximately 4,100 residential,
30
industrial and 350 commercial utility customers.
The industries
and businesses served by Geneva’s water facilities employ about
5,000 people.
The water supply system consists of
five deep
wells,
two ground—level storage reservoirs,
two elevated storage
tanks, various
pumps, appurtenances and distribution facilities
and a recently constructed shallow well providing water to blend
with the deep—well water.
The Petitioner has previously sought two variances from
regulations governing public water supplies.
On July
1,
1985 the
petitioner
requested a five—year variance from the restricted
status regulations as they pertained
to the maximum allowable
concentration for combined radium and gross alpha particle
activity (PCB 85—93).
The Board granted
a variance subject to
conditions.
The variance was effective from January 12, 1986 to
March 30,
1987.
The Petitioner filed
its second petition
for variance on
December
30,
1986
(PCB 86—225), requesting a variance until March
31,
1989, from the restricted
status regulations
as they
pertained
to the maximum allowable concentration
for combined
radium.
The Board granted the second requested variance until
December
15,
1988,
to allow the Petitioner
to supply water to
thirteen
(13) new developments
in the City.
The petitioner
sought reconsideration and modification
of the Board Order in PCB
86—225.
The Board denied the Petitioner’s request
for
modification.
The Petitioner
filed another Motion for
Modification on January
8,
1988, requesting
the Board
to allow
the Agency
to issue water main extension permits,
in addition
to
the thirteen
(13)
developments specified
in the Board’s Order
in
PCB 86—225,
as long as
the total population served by
all such
extensions did not exceed the 27,601 people that the petitioner
claimed would be served by water main extensions
to the original
thirteen
(13) developments.
On February
4,
1988,
the Board
denied the motion.
However,
in the February
4,
1988 Order,
the
Board allowed
two
(2) more developments
to be added
to
the list
of thirteen
(13)
new developments
to which
the Agency could
issue
water main extension permits.
PETITIONER’S COMPLIANCE PLAN
The compliance program developed by the City of Geneva
involves construction of additional shallow wells
to provide
water
to blend with its existing supply of deep—well water and as
a result,
reduce
the concentration of Radium
in the water
distributed.
Geneva anticipates
that carrying out this
compliance schedule will cost approximately eight—million dollars
($8,000,000)
—
although
it cannot estimate the cost with
89—102
—3—
certainty because Geneva has not chosen
the sites
for the
wells.
The sites of the wells will
be selected after
a study
evaluating
the shallow groundwater aquifer for Kane County is
received from the Illinois State Water Survey
in June of
1988.
The City of Geneva anticipates being
in
a position to provide the
Board,
and the Agency, with a detailed schedule for installing
the shallow wells,
the treatment system for the shallow water and
the required distribution system within six
(6) months
of
receiving the aquifer report.
Geneva anticipates that it will
take approximately thirty—eight
(38) months
to construct the
wells,
treatment facility and distribution system.
The Petitioner states
in its Response
to the Agency
Recommendation that they evaluated four potential compliance
options before choosing the recommended shallow water plan.
The
alternatives
involved the use of treatment to remove radium from
deep—well water, Lake Michigan water and Fox River water.
Based
on availability and cost,
the consultants
for
the City of Geneva
recommended that Geneva pursue the shallow—well—water
option.
HARDSHIP AND ENVIRONMENTAL IMPACT
In its petition, the City of Geneva states that the
imposition of restricted Status on Geneva will cause a
“continuing hardship” on the City.
The Petitioner claims that
the imposition of restricted status would disrupt Geneva’s
sustained economic growth which
is necessary
to finance
improvements, including the construction of shallow wells.
Further,
the disruption would interfere with Geneva’s efforts to
provide long range planning
to ensure controlled growth in the
best long—term interest of
its residents.
In its recommendation
and reply the Agency acknowledge the hardships but maintains that
they were largely self—imposed by Geneva.
Constrasting with the issue of hardship
is the issue of
environmental impact.
The Petitioner and the Respondent maintain
that the potential risk to human health from ingestion of water
with radium levels that are present in the City of Geneva are
very low.
The Agency points out that the present MAC
for
combined radium and gross aiphic 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.
No other environmental impact appears
to be involved in this
petition.
Therefore,
even though
it is disputed whether the
hardship
is self—imposed
or,
even
if not self—imposed, whether
a
delay
in economic development
is
a hardship of consequential
value,
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 the City of
Geneva’s compliance with 35
Ill.
Adm. Code 604.301(a) will
significantly reduce the
risk to its customers.
89—103
—4—
AGENCY RECOMMENDATION
In
its variance recommendation of February 17,
1988,
the
Agency recommended
that the variance be denied because the
petition for variance was
inadequate.
The Agency also stated
that
it believed
the Petitioner failed
to comply with
the Board
Order
in PCB 85—93
and that such failure has resulted
in
a delay
in bringing the Village of Geneva
into compliance with the MAC
for
the contaminant
in question.
The Agency therefore believes
that any continuing hardship on the Petitioner
is
in large
measure self—imposed and not arbitrary or unreasonable.
Nevertheless,
the Agency believes
it
is important for the Board
to place
the Petitioner under
an enforceable
Board Order
that
requires the City of Geneva
to be
in compliance with the MAC
in
the contaminant in question by
a date certain.
Therefore,
the
Agency was inclined to support the grant of the requested relief,
subject
to conditions,
if an adequate petition for variance was
submitted.
The Agency accepted the additional information supplied by
the Petitioner
in
its Response
to Agency Recommendation as
comprising an adequate petition.
In its Reply to Petitioner’s
Response
to Agency Recommendation,
the Agency withdrew its
recommendation of denial.
Accordingly,
the Agency has
no
objection
to
a grant of
a variance from 35 Ill. Adm.
Code
602.105(a), Standards for Issuance, and from 35
Ill. Mm.
Code
602.106(b), Restricted
Status,
as
they relate
to combined radium—
226
and radium—228, subject
to the conditions
incorporated into
this Order.
In the Response
to Agency Recommendation the Petitioner
objected
to the importance
of the Agency’s recommended conditions
that were labeled
37C,
37D, 37F and 37G.
The Board has noted
these objections but
in light of Geneva’s apparent difficulty in
committing
to
a compliance plan,
it
is appropriate to include
stringent conditions
that will allow close supervision
of
Geneva’s progress
in complying.
The Board also notes
the
Petitioner’s comments concerning
the Petitioner’s past efforts
to
comply with the original variance granted to Geneva
in PCB 86—225
and the intent
of the Petitioner
in seeking further variance.
The Board strongly disagrees with the mischaracterizations made
by the Petitioner on this subject.
The Board responds
to these
mischaracterizations by standing by
its statements
in the Order
and Opinion of PCB 86—225.
SUMMARY
The Board
notes that the environmental impact
is relatively
small and the length of time for which
the Petitioner would be
out of compliance would
be relatively short.
On this basis,
the
Board concludes that the hardship associated with
a denial
of the
variance would be arbitrary or unreasonable.
The Board
is
89—104
—5—
persuaded by the reasoning of the Agency that the important
issue
in this situation
is
to guarantee
the timely compliance
to the
standard.
With the conditions imposed with the variance,
this
objective should be achieved.
The Board will grant
the requested
variance, subject
to conditions
intended to ensure that the City
of Geneva expeditiously comes
into compliance.
However,
the
Board cautions the Petitioner
that the Board
is of
the opinion
that Geneva has been granted
a considerable amount of freedom
in
this matter.
Failure
to comply with the Order,
or further
requests for variance without some consideration from Geneva,
will
be look upon with disfavor.
Geneva requests variance
for five years from the date of
the
Board Order,
maintaining that thirty—eight
(38) months are
required
for construction
of the wells.
While this construction
period seems unnecessarily long,
the Board will accept Geneva’s
assertion.
However,
the Board notes
that the requirement of
demonstrating compliance by May
of
1993 involves more than having
fully operational facilities by May of
1993.
A demonstration of compliance,
in
fact,
requires
that the
concentration of an annual composite of consecutive quarters
or
the average
of the analyses
of four consecutive quarterly samples
be
less than the
5 pCi/i standard,
pursuant to
35
Ill. Mm.
Code
604.105(a).
Thus,
the accumulation of data necessary to
demonstrate compliance may reauire
as much as
a year
after sub—5
pCi concentrations are first 3chieved.
Therefore,
it will be
necessary to have all
of the required facilities operational
for
one year prior
to
the end of the variance period,
in order
to be
able
to prove compliance
by May of
1993.
If Geneva does not have
all
of the facilities
fully operational,
and available for
sampling,
by May
of 1992,
the variance will
be terminated.
This Opinion constitutes
the Board’s finding of fact and
conclusion of law
in this matter.
ORDER
Petitioner, City of Geneva,
is hereby granted variance from
35
Ill. Adm. Code 602.105(a), Standards for Issuance, and from 35
Ill.
Adm.
Code 602.106(b),
Restricted Status,
as they relate
to
35
Ill. Mm. Code 604.301(k), combined radium—226
and radium—228
concentration.
This agreement supersedes
the variance agreement
from PCB 86—225.
Upon the acceptance and agreement to be bound
by all terms and condition of
this Order
of
the Pollution Control
Board,
the Petitioner agrees
to terminate
the variance agreement
from PCB 86—225.
This variance expires five years
from the date
of this Order,
or when compliance with
35 Ill.
Adm. Code
604.301(a)
is achieved, whichever
is sooner.
The variance may
also expire four years from the date o~this Order
for
failure
to
comply with condition
(A)
below.
The grant of variance
is
subject
to the following conditions:
80—105
—6—
(A)
The Petitioner shall apply
for all necessary
Agency construction permits by August
2,
1989.
All such installations, changes, or
additions must
be operational by May
5,
1992.
(B)
The Petitioner shall
award all construction
contracts by January
20,
1990,
and such award
shall not be contingent upon financing.
(C)
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,
IEPA,
2200 Churchill,
P.O. Box 19276,
Springfield,
Illinois 62794—9276, within
30
days of receipt of each analysis.
At the
option of Petitioner,
the quarterly sample
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)
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
has been granted by the Pollution Control
Board
a variance from 35 Ill.
Adrn.
Code
602.105(a) Standards of Issuance and
35 Ill.
Mm.
Code 602.106(b) Restricted Status,
as
it
relates
to the MAC standard
in question.
(E)
Pursuant
to
35
Ill. Mm. 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
89—106
—7—
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.
(F)
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.
(G)
The Petitioner shall provide written progress
reports to
IEPA,
DPWS,
FOS every six months
concerning
steps taken to comply with
paragraphs B,
C, and
F.
Progress reports
shall quote each of said paragraphs
and
immediately below each paragraph state what
steps have been taken
to comply with each
paragraph.
Progress reports shall also
identify each task set forth
in Exhibit
1
of
the Petition for Variance that must
be
completed under
this Order by the date of the
written progress report.
The Petitioner
shall
specify the date that each such task
was completed.
(H)
Within forty—five days
(45)
of the grant of
the variance, Petitioner shall execute and
forward
to Scott
0. Phillips, Enforcement
Programs, Illinois Environmental Protection
Agency,
2200 Churchill Road,
P.O.
Box
19276,
Springfield, Illinois 62794—9276,
a
Certificate of Acceptance and Agreement to be
bound
to all terms and conditions
of
the
granted variance.
This forty—five
(45) day
period
shall
be held
in abeyance for any
period during which this matter
is being
appealed.
If the Petitioner fails
to execute
and forward the agreement within
a
forty—five
(45) day period,
the variance shall
be
void.
The form of Certification shall
be as
follows.
89-~1fl7
—8—
CERTIFICATION
City of Geneva hereby accepts and agrees
to be bound by all
terms and conditions of the Order of
the Pollution Control board
in PCB 88—11
dated ______________________,
1988.
Petitioner
By:
Authorized Agent
Title
Date
Section
41
of the Environmental Protection Act,
Ill. Rev.
Stat.
1985 ch.
lll1/~ar.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. Dumelle and B.
Forcade dissented.
I, Dorothy
M. Gunn, Clerk
of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was
adopted on the
..5~
day of ________________________
1988,
by a vote
of
4.-.~4
.
~
~.
Dorothy
M. ~unn, Clerk
Illinois Pollution Control Board
89—108