ILLINOIS POLLUTION CONTROL BOARD
June 30, 1988
VILLAGE OF CHANNAHON
Petitioner,
v.
)
PCB 88—42
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
OPINION AND ORDER OF THE BOARD (by
3.
Anderson):
This matter is before the Board on petition for variance
filed by the Village of Channahon (Village) on March 4, 1988 as
amended May 5, 1988. The Village seeks variance until July 1,
1991 from 35 Ill. Adm. Code 602.105(a) “Standards for Issuance”
and from 35 Ill. Mm. Code 602.106(b) “Restricted Status’t, to the
extent these rules relate to the 5.0 pCi/i standard for combined
radiurn—226 and radium—228 (combined radium) contained in 35 Ill.
Mm. Code 604.301(a) and the 15.0 pCi/i standard for gross alpha
particle activity contained in 35 Ill. Adm. Code 604.301(b).
On June 6, 1988, the Village filed a motion for expedited
consideration in this matter, which gives, among other reasons
for its request, the fact that the Village has received grant
funds for extension of its water system to serve an industrial
development. On June 10, 1988, the Illinois Environmental
Protection Agency (Agency) filed its Recommendation in support of
grant of variance. Hearing was waived and none has been held.
Decision in this case has been expedited as requested by the
Village.
The System and History of Violation
The Village of Channahon, whose 1980 population was 3788,
supplies potable water to 80 customers, all of which are
residential ones located within its corporate limits; the total
population served by the water supply system is 280 residents.
The Village’s water supply system consists of one deep well,
placed into service in 1978, a 250,000 gallon elevated water
storage tank, pumps and distribution facilities.
The Village learned of exceedances of the gross alpha
standard in 1984, and of the combined radium standard in 1986;
this is its first petition for variance from either standard. As
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to gross alpha, by letter of December 18, 1984, the Agency
advised the Village of its violation of the standard. An
analysis of an annual composite of four consecutive quarterly
samples or the average of the analyses of four samples obtained
at quarterly intervals showed gross alpha particle activity
content of 17.4 pCi/i, 2.4 pCi/i over the standard of 15.0. By
letter of January 9, 1985, the Agency placed the Village on
restricted status for this contaminant. The Village asserts that
compliance with gross alpha standard may or may not have been
achieved to date. Single samples, rather than composite samples
were analyzed in August 1986, and August 21, 1987 by the Agency
with gross alpha particle activity with concentrations of 8 pCi/l
and 7 pCi/i respectively.
As to combined radium, by letter of August 5, 1986, the
Agency advised the Village of its violation of the standard. An
analysis of an annual composite of four consecutive quarterly
samples or the average of the analyses of four samples obtained
at quarterly intervals showed a radium—226 content of 6.2 pCi/l
and a radium—228 content of 4.4 pCi/i. The combined radium
content of 10.6 pCi/l is 5.6 pCi/l over the standard of 5.0
pCi/i. By letter of August 14, 1986, the Agency placed the
Village on restricted status for this contaminant. The Village
continues to be on restricted status for gross alpha as well as
combined radium.
On January 22, 1988, as part of its “enhanced enforcement”
program, the Agency sent the Village an Enforcement Notice Letter
and Letter of Commitment. The enforcement notice letter advised
the Village, as required by Section 31(d) of the Act, that the
Agency intended to initiate formal enforcement proceedings. It
went on to note the Village’s opportunity to meet with the Agency
and to resolve the matter by signing a Letter of Commitment to a
compliance program. The draft Letter of Commitment would require
that compliance be obtained by January 22, 1992, and would
require the Village to develop and implement a compliance
program, consistent with interim compliance milestones/
deadlines. The draft Letter of Commitment goes on to explain
that the compliance plan would be incorporated into a Stipulation
which, along with a Complaint, would be submitted to the Board.
Paragraph 9 of the Letter states that the Board’s Order would not
include civil penalties for past penalties, but would include
provisions for contingent penalties for missed compliance
milestones/dead lines.
The Agency notes in its Recommendation that the Village has
not executed a draft Letter of Commitment. The Board wishes to
make clear at this juncture that there is no linkage between a
petition for variance and any Agency pre—enforcement activity in
this or any other case; the Board is required by Section 37 of
the Act to determine on the basis of the pleadings before the
Board whether denial of variance would impose an arbitrary or
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unreasonable hardship. The Board also wishes to note that the
Letter of Commitment, particularly in paragraphs 9 and 10, could
lead a reader to conclude, incorrectly, that the Board had
predetermined that it would enter the Order described. The Board
has made no such determination, and has not as yet been presented
with any enforcement case in which the parties have sought to
have such astipulation incorporated into a Board Order. The
Board is required by Section 33 of the Act to base its decisions
on enforcement cases solely on the record before it at that time;
it is not appropriate for the Board to consider here the
enforcement aspects of the draft Letter of Commitment.
Proposed Compliance Plan
The Village currently has no controls in place for treatment
of the waters of its single deep well to achieve compliance with
the radiological quality standards, and has made no past efforts
to achieve compliance. The Village has not yet chosen a
compliance option, and has stated its intention to retain a
consulting engineer to review and evaluate its situation over the
course of the next six months. At this juncture, the Village
cannot provide accurate costs or time figures, but states that it
presently envisions implementing one of three compliance options,
with Option A being the currently preferred one:
(A) Using shallows wells for blending and dilution
purposes. The estimated construction cost for each
shallow well is $80,000 and it is anticipated that one
(1) such well would be necessary to reduce the combined
Radium—226 and Radium—228 and gross alpha particle
concentration presently found in the Petitioner’s water
supply below the maximum allowable concentration.
However, the exact number of wells required is unknown
at this time since there is no guarantee of the pumping
capacity of the wells.
The estimated time for
implementation is 24 months.
(B) Connecting to the water distribution system currently
being proposed by the City of Joliet which will be fed
from the Kankakee River and treated near Elwood,
Illinois. According to the City of Joliet, they are
under order from the Illinois Pollution Control Board to
deliver water to their customers from a source that is
in compliance with all Federal and State regulations by
1993.
The City of Joliet has invited neighboring
municipalities to join them in this endeavor and there
are currently discussions being held concerning the
possibility of the County of Will or the Will County
Public Water Commission joining with the City to provide
water to the surrounding municipalities. The Village of
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Channahon is interested in this alternative and is
willing to participate in the cost of analyzing the
existing and future needs of the Village in regard to
potable water as well as the costs involved in the
actual construction of the water transmission and
distribution systems. However, the estimated costs have
not been determined at this time.
(C) Constructing treatment facilities in order to properly
treat all water supplied by the Petitioner. The
estimated construction cost of the new treatment
facilities is $300,000 to $500,000 depending upon the
method of treatment utilized. The estimated time for
implementation of this alternative is 36 months.
In conjunction with Option C, the Village notes that use of each
of the two primary treatment methods——lime or lime soda softening
and ion exchange softening——brings attendant problems of disposal
of sludge containing concentrated radium. It also notes that the
Agency is actively discouraging the use of the ion exchange
method, which brings the additional problems of a) increased
risks to persons with hypertension or heart problems as a result
of increased sodium in the finished water if the softener is
regenerated with salt, and b) increased risks to the supply
operator in working with and disposing of the ion exchange
material as a result of that materials’ retention of
radioactivity.
Alleged Hardship
The Village calculates that, if it chooses to implement
Option C, the installation of a treatment system, the per capita
construction costs to its water consumer population of 280 will
range between $1,072 and $1,786. The Village has not estimated
annual operation and maintenance costs for this option, and has
not estimated economic effects on its population of
implementation of Options A and B.
In its petition, the Village generally states that denial of
variance would impose an arbitrary or unreasonable hardship
because the restricted status ban prevents new construction which
would require extension of its water supply system which “hurts
prospective home purchases as well as business developers and
Petitioner’s tax base.” In its June 6, 1988 letter, the Village
was a bit more specific, stating “we have a proposal and
improvement plans submitted to the Village for a new single
family development and it is important that Board action be taken
as soon as possible to allow completion of this development in
this construction season. Also the Village has received a grant
to extend its water system to serve an industrial area and here
too, it is important that work be completed in this construction
season.
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Finally, the Village notes that USEPA has had the
radiological quality standards under review since 1983. While
admitting that it is unknown whether the standard will be more
strict, less strict, or the same as current standards, the
Village asserts that if the standard becomes less strict,
construction of treatment facilities which could become obsolete
would not be in the public interest.
Environmental Effects
The Village has made no formal assessment of the effects of
grant of variance, although it is of the opinion that no
significant adverse effects will occur.
The Agency in its Recommendation states that while radiation
at any level creates some risk, the risk associated with these
levels are low. Based on the evidence presented in the R85—l4
proceeding, the Agency believes that an incremental increase in
the allowable concentrations for the radiological contaminants
even up to a maximum of four times should cause no significant
health risk for the limited population served by new water main
extensions for the time period of the variance as recommended,
that is, until July 1, 1991.
Conclusion
The Board finds that, after weighing the lack of significant
health risks, denial of variance would impose an arbitrary or
unreasonable hardship, but does not believe that this record
justifies grant of the three year variance sought. The Village
has been on restricted status since 1984 for gross alpha
violations, and since 1986 for combined radium violations, but
does not appear to have even yet formally contracted for
professional engineering services. The Village has presented no
explanation for its four year delay in initiating compliance
activities of any sort, and has presented a very thin record on
hardship. However, given the Village’s small size and the
availability of grant funds to finance system enlargements, the
Board feels that compliance would be better facilitated by grant
of variance rather than by denial. However, given the Village’s
track record, and its lack of a firm commitment to a specific
compliance option, the Board believes that only a 13 month
variance, until July 30, 1990, is appropriate. This will allow
the Village nine months to formally secure professional
assistance, investigate compliance options and develop a
compliance plan to which it is firmly committed, and submit a new
petition for variance and four months for processing of that
petition by the Agency and the Board. Grant of variance for this
term is consistent with the Board’s approach with other small
public water supplies (See, e.g. Village of Elburn v. IEPA. PCB
88—4, April 21 and June 16, 1988).
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As to conditions, the variance will terminate automatically
if interim deadlines are not met. The Board notes that the
Agency, in its Recommendation, has suggested compliance
milestones. The Board will retain these dates, but will extend
the one which has passed. Finally, the Board will also retain
the proposed ultimate compliance deadline of January 22, 1993.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Village of Channahon (Village) is hereby granted a
variance from 35 Ill. Adm. Code 602.105(a) “Standards for
Issuance” and 602.106(b) “Restricted Status”, but only as they
relate to the combined radium—226 and radium—228 standard of 35
Ill. Adm. Code 604.301(a) and the gross alpha particle activity
level standard of 35 Ill. Adm. Code 604.301(b). The variance is
subject to the following conditions:
1. This variance expires on July 30, 1990, or when analysis
pursuant to 35 Ill. Mm. Code 605.105(a) shows
compliance with the standard for combined radium, which
ever occurs first.
2. In consultation with the Agency, by July 22, 1988, the
Village 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, the Village shall collect quarterly samples of
its water from its distribution system, at locations
approved by the Agency. The Village shall composite the
quarterly samples from 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 combined radium. 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.
3. By July 22, 1988, the Village shall secure professional
assistance (either from present staff or an outside
consultant) in investigating compliance options,
including the possibility and feasibility of achieving
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compliance by blending water from shallow well(s) with
that of its deep well.
4. By August 22, 1988, evidence that such professional
assistance has been secured shall be submitted to the
Agency’s Division of Public Water Supplies, FOS, at 2200
Churchill Road, Springfield, Illinois 62794—9276.
5. By November 22, 1988, the Village shall submit to the
Agency, DWPS (FOS) An Interim Compliance Report which
shall briefly describe what compliance options the
Village is investigating and a review of the financial
resources being considered for use in achieving
compliance.
6. By May 22, 1989, the Village 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, May 1977, EPA—600/8—
77—005, and submit to IEPA, DPWS, a detailed Compliance
Report showing how compliance shall be achieved within
the shortest practicable time, but no later than January
22, 1993.
7. Failure to meet the deadlines in paragraphs 3, 4, 5 and
6 will result in the automatic termination of the
variance.
8. 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, the Village shall send to each
user of its public water supply a written notice to the
effect that the Village 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 they relates to
the standard the combined radium and gross alpha
particle activity.
9. Pursuant to 35 Ill.
Adrn.
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, the Village shall send to each user
of its public water supply a written notice to the
effect that the Village is not in compliance with the
standard for combined radium and gross alpha particle
activity. The notice shall state the average content of
combined radium and gross alpha particle activity in
samples taken since the last notice period during which
samples were taken.
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10 Until full compliance is reached, the Village of shall
take all reasonable measures with its existing equipment
to minimize the level of contaminant in question in its
finished drinking water.
11. Within 45 days after the date of this Opinion and Order
the Village shall execute and send to:
Attention: Scott 0. Phillips
Enforcement Programs
P. 0. Box 19276
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 Village fails
to execute and forward the certificate within the 45 day
period. The 45 day period shall be in abeyance for any
period during which the matter is appealed. The form of
the certification shall be as follows:
CERTI FICATION
I, (We), _____________________________, having read the
Order of the Illinois Pollution Control Board in PCB 88—42, dated
June 30, 1988, understand and accept the said Opinion and Order,
realizing that such acceptance renders all terms and conditions
thereto binding and enforceable.
Petitioner
By: Authorized Agent
Title
Date
12. Section 41 of the Environmental Protection Act (Ill.
Rev. Stat. 1985, ch. 1fl14 par. 1041) provides for
appeal of final Orders of the Board within 35 days. The
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Rules of the Supreme Court of Illinois establish filing
requirements.
IT IS SO ORDERED.
3. D. Dumelle and B. Forcade dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the a ye Opinion and Order was
adopted on the ~O~-’— day of
__________________,
1988, by a vote
of~_.
Dorothy
~~i2).
M. ~1nn, Clerk
~
Illinois Pol’lution Control Board
90-505