ILLINOIS POLLUTIOt~1CONTROL BOARD
March 24,
1988
CITIZENS UTILITIES COMPANY
OF ILLINOIS,
Petitioner,
v.
)
PCB 86—185
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
OPINION AND ORDER OF THE BOARD
(by J. Anderson):
This matter comes before the Board on
a petition
for
variance by Citizens Utilities Company of
Illinois
(Citizens)
filed October
23,
1986,
as
first amended
on January 12,
1987,
as
second amended on April
2,
1987.
Citizens requests
a three year
variance from
35 Iii.
Adm.
Code 602.105(a),
(Standards
of
Issuance),
and from 35
Ill.
Adm. Code 602.106(b),
(Restricted
Status),
as they relate
to violations of the 5 pCi/i combined
radium—266 and radium—228 standard of
35
Ill.
Adm.
Code
604.301(a).
Citizens seeks variance
to allow the Agency to issue
permits
for water main extensions during the period of Citizens’
non—compliance with the radium standard.
Citizens is not seeking
variance from the radium standard itself.
The Board received
a citizen objection and hearing was held
January
13,
1987.
The citizen objector was not present
at
hearing
(R.6).
At hearing the Village of Mt. Prospect was
granted leave
to
intervene as respondent and participated.
On
March
19,
1987,
the Board, among other
things,
authorized an
additional hearing in response
to Citizens March
9, 1987
motion.
No additional
hearing was held.
The Illinois
Environmental Protection Agency (Agency)
filed
a recommendation
to deny on December
8,
1986;
a brief
in opposition
to grant of
variance on February 26, 1987; and an amended variance
recommendation to deny on December
18,
1987,
although the Agency
also stated that Citizens was not entitled
to a variance of more
than one year
(Agency Amend. Rec.,
p.
4).
Citizens filed
a
notarized response on January 20,
1988, which included
a single
compliance plan
to get Lake Michigan water with
a proposed three
year
schedule,
as opposed
to the three compliance options and
a
five year schedule contained
in its first amended petition.
Since the issues raised
in this proceeding are complex, the Board
notes at the outset that one issue that no one disputes is the
87—155
—2—
desirability
of Citizens’
changing from well water
to Lake
Michigan water
supply.
History:
Citizens’ petition relates
to one of
its certified
service areas, referred
to as “Chicago Suburban”.
Chicago
Suburban supplies water and sanitary sewer service
to portions of
the Village of Mt.Prospect,
the City of Prospect Heights, and
unincorporated portions of Wheeling Township, all
in Cook
County.
As of September,
1986 there were about 7,170 residential
units served,
comprised of about
3,870 single—family residences,
3,130 multi—family units and 170 commercial
units.
Citizens’
integrated supply and distribution system consists
of four deep wells and one shallow well, chlorination equipment,
two storage tanks,
500
fire hydrants,
and 244,000
feet of water
main.
One
of the deep wells, Well #5,
is out of service.
The
shallow well, Well #1, has limited pumpage capacity and
is able
to supply only about 10
of the system’s pumpage demand and
actually supplied 8.2
in 1985
(R.25,
Pet.
p.
3).
Citizens
initially employed a private laboratory,
Eberline,
to sample
Wells #2,
4 and
6 in October 1979; all showed radium in excess of
the
5 pCi/i combined radium standard, with values ranging from
6.9 to 8.0
(Pet.
Ex.
C)
It
is important to note,
as further
discussed later,
that these samples were the basis for an earlier
variance from the combined radium standard granted by the Board
in PCB 82—63 on August
5,
1982,
and which terminated on January
1, l984.~
On December
8,
1985,
the Agency notified Citizens that a
composite of samples
of its distribution system, taken between
November
1980 and July 1981 and analyzed by the Agency showed
a
combined
radium level
of 9.3 pCi/I
(Pet.
Ex. C).
Citizens
subsequently had three single samples of
its distribution system
*
In PCB 82—63, variance was also granted from the
15 pCi/l gross
alpha particle activity standard; however, during the term of the
PCB 82—63 variance quarterly samples tested by the Agency did not
exceed the 15 pCi/l gross alpha standard and thus relief from
this standard was not requested
in this instant proceeding.
The
Board hereby incorporates by reference and attaches the Opinion
and Order
in PCB 82—63.
Many of the issues involved
in this
instant proceeding are interrelated with this prior Opinion and
Order.
87—156
—3—
and one sample of Well
#2 analyzed, with the results as follows:
(Pet.
Ex. C)*
Collection Date
Location
Laboratory
Comb.
pCi/l
1/21/86
Distr.
System
Teledyne
8.4
3/31/86
Distr.
System
Argonne
1.46
5/29/86
Distr.
System
Teledyne
3.8
7/24/86
Well
#2
Argonne
9.3
Based
on the Agency results, Citizens was placed on
restricted status
in April,
1986; notice
first appeared
in the
Board’s April 24,
1986 Environmental Register,
and thereafter
as
listings were
received by the Board from the Agency.
At
this
juncture,
the Board points out that at no time between January
1,
1984, when the PCB 82—63 variance terminated,
and April
4,
1986,
did
the Agency place Citizens on
its restricted status
list**;
in
fact, Citizens was given
a Certificate
of Commendation by the
Agency
for compliance with all water quality standards
in 1983
and 1984,
as well as
in 1982
(Ex. H).
Nor did Citizens request
further variance relief or demonstrate
that it had come into
compliance with
the combined radium standard during
that time.
The Board granted the 1982 combined radium variance based on the
Eberline results,
and the Agency supported grant of variance at
that time based on those same results.
Alleged Violation of
the Prior Variance:
One of the reasons
that
tne Agency recommends denial
is based on its allegation
that
Citizens had violated three conditions of that 1982 order.
Since
the Board takes very seriously violations of its prior variance
conditions,
these allegations will be dealt with first.
The Agency alleged that Citizens violated condition 1(d)
of
the PCB 82—63 order because, while Citizens included in its
customer billings notice that variance had been granted
from the
*
There was some indication
in this record that Argonne National
Laboratory’s certification status affected the Agency’s
recognition of its
sample results.
(R.l29,130).
Use of
a state
approved laboratory is required only when demonstrating
compliance with federally derived requirements.
(See
40 CFR
121.28)
In this proceeding,
a demonstration
of compliance
is not
at issue.
Here,
Citizens has not demonstrated compliance; all of
the sample results are used
as evidence of non—compliance,
and in
support of the request only for relief from enforcement of
a
state derived regulation,
i.e. restricted status.
Also see PCB
87—114,
2/4/88.
**
Copies
of
the Environmental Register reviewed, and of which
the Board takes official notice, were dated
1/9/84,
1/8/85,
4/15/85, 7/23/85 and 10/23/85.
87—157
—4—
gross alpha standard,
it did not also include combined radium as
the condition required.
(Agency Br.
p.
6)
Citizens acknowledged
its omission at hearing,
but stated that
it was unintentional and
that the oversight resulted from its focus on the gross alpha
problem arising from the Agency’s concern about gross
alpha.
(R.
67)
Citizens asserted that its radium results “were somewhat of
a side issue”
in the earlier variance request.
(R.
119)
The Agency also asserted that Citizens failed
to comply with
condition 1(a)
of the PCB 82—63 order
requiring radium
sampling.
Citizens responded that it
believed
it was complying
when it sent
its quarterly samples to the Agency for testing;
they received and relied on the Agency’s gross alpha results and
awaited the Agency’s radium results.
The Agency asserted that
the condition obliged Citizens
to use
a private laboratory and
that, had Citizens done so “it would have known it was
in
violation
of
the combined radium standard”
(Agency Br.
p.
6,
R.
96,97).
The Agency also asserted that Citizens failed to comply with
condition 1(b)
of the PCB 82—63 Order requiring Citizens
to
submit by January
1,
1984,
a compliance program with increments
of progress.
Citizens did respond on January
3,
1984,
showing
compliance with gross alpha and stating that
it expected
to have
Lake Michigan water
in early 1985, under
the assumption that the
Glenview agreement with Wilrnette
(from whom Glenview receives its
lake water) would proceed quickly;
instead
it took three years.
(R.
147—49).
As a general response, Citizens asserted
it believed that it
was
in overall compliance after
the gross alpha problem was
resolved,
so the January
3,
1984 communication did not need
a
plan with increments
of progress.
Citizens also pointed out the
fact that it received an Agency Certificate of Commendation in
1983 and 1984
for meeting or exceeding water quality standards.
(Ex.
H,
R.
165—167)
Given
this overall situation,
the Board believes that any
weight it might have given to Citizens’ violation
of the Board’s
Order
is offset by the Agency’s baffling actions.
The Board
is
persuaded by this record that Citizens’ failure
to properly
notice the radium portion of the variance was an inadvertant
oversight.
As far
as the other violations,
the Board
is
persuaded that
it was not unreasonable for Citizen’s to place
reliance on the Agency’s actions.
The Agency made
clear both
directly and indirectly that it did not consider Citizens
in
violation of
the radium standard until
it
received quarterly
composite results from its own tests
in December
1985.
The Board
wishes
to strongly point out to Citizens and the Agency that the
Board,
in granting the earlier variance, officially recognized
that the radium results submitted were sufficient
to get
87—158
—5—
temporary relief from a violation of the combined radium
standard.
Four quarterly test results are not necessary
to demonstrate
a violation,
and thus
the need for variance relief.
On the
contrary,
four quarterly test results are necessary to
demonstrate compliance with
a regulation.
Absent variance
relief,
and variance relief was absent after January
1,
1984,
Citizens was not
in compliance with the combined radium standard
as long
as
it could not carry
its burden of demonstrating
compliance with testing
of four quarterly samples.
To reason
otherwise
is
to suggest that grant
of variance, including the
conditions,
had no meaning or enforceability.
If the Board
thought
a variance were unnecessary,
it wouldn’t have granted
it.
Put another way, the Agency’s actions appear
to be
no
different than had the Board denied variance relief.
It gave
Certificates
of Commendation in
1982, when Citizens had variance
relief,
and awarded the same Certificates
in 1983 and 1984 when
Citizens did not have variance relief.
It used an identical
pattern regarding restricted status.
The Board also
notes that
it has frequently accepted single samples as evidence
of
a
violation
in variance cases.
In any event, while
the Board does not absolve Citizens
of
its violations,
it does note that the Agency’s failure
in
particular
to put Citizens on the restricted status list untii
it
received its own test results
in late 1985, and its issuance of
its two Certificates of Commendation after
the variance expired
certainly lends credence
to Citizens assertions that it did not
believe
it was
in violation.
For
the reasons stated
above,
the
Board also does not agree with the Agency’s assertions that
Citizens’ hardship was self—imposed during this period because
Citizens failed
to take timely action
in seeking Lake water
to
remedy
its combined radium violation.
Citizens’ Compliance Plan
The Agency’s final assertion
supporting
its recommendation to deny was that Citizens’
compliance plan was speculative, and therefore not acceptable.
The Board believes
it
is not fruitful
to summarize other than the
present posture regarding the compliance plan
in this proceeding.
Citizens proposes
to receive Lake Michigan water
in three
years from the date of
this Board Order.
Citizens has received
its water allocation from the Illinois Department of
Transportation;
has finalized an agreement to hook on
to the
Village of Glenview, which in turn has finalized an agreement
with the Village
of Wilmette;
and, as
of November
2,
1987,
has
received the Illinois Commerce Commission’s
(ICC)
rate approval.
(amended Pet. Response
to
Rec..,
Ex.
1)
87—159
—6—
There were
three conditions precedent
in Citizens agreement
with Glenview.
The only condition still unresolved
is
in Article
V,
Section
I—Conditions Precedent,
$3:
The
awarding
of
a declaratory
judgment
by
a
court
of competent jurisdiction,
and affirmation
of
that
declaration
by
a
court
of
last
recourse
if
an
appeal
is
taken,
that
the
June
6,
1977
purchase
agreement
between
Northfield
Woods
Water
and
Utility
Co.,
Inc.
(Northfield Woods)
and Glenview
does
not
require
a
connection
fee
to
be
paid
to
Northfield Woods
if
a
connection
is made at either
of
the
following
transmission
connection
point
locations:
a.
The
intersection
of
Robin
Lane
and
West
Lake
Avenue.
b.
The
intersection
of
Joy
lane
and
East
Lake
Avenue.
Glenview will seek
the declaratory judgment on
behalf
of
Citizens.
Citizens
will
pay
all
expenses
associated
therewith
and
select
the
attorney.
A
declaratory
judgment
action
will
not be required
if Northfield
Woods
agrees,
in
writing,
that
a connection
fee
is not required
at either of
the transmission connection point
locations.
(Pet.
post hearing submittal of January 22, 1987)
Citizens
states
that
the
status
of
this
case
is
as
follows:
The Village
of
Glenview commenced
the
declaratory
judgment action referred by the Agency on March
18,
1987,
in
the case
entitled Village
of
Glenview
v.
Northfield Woods Water
and Utility Co.,
Inc.,
Case
No.
87
CH
02577,
Circuit
Court
of
Cook
County,
Illinois.
Discovery
has
been
in
progress,
and
Glenview is expected
to seek summary judgment or
an
expedited trial.
(Pet. Resp., January 20,
1988,
p.
5)
The Board believes that this remaining condition need not
cause the Board
to reject the compliance plan as too
speculative.
While
it
is true that this condition precedent
could arguably cause
the whole compliance plan to unravel,
it
is
unclear
in this record whether this result would inevitably occur
were there
to be an adverse court decision.
No costs
of the
87—160
—7—
connection fees were
included
in this record;
the ICC Order does
not indicate whether
recovery of such fees has been factored into
Citizens’ approved compensation for
the incremental
costs of
providing Lake water; and Citizens has not made clear whether
this condition precedent
is an essential element of
its proposed
timetable.
Citizens proposed timetable,
identically submitted in
both
its April
2,
1987 second amended petition and in
its January
20,
1988 response
is
as
follows:
Total Elapsed Time From
Date
of Board Order
Event
Granting Petition Request
1.
Satisfying conditions precedent
12th month
to the Glenview Lake Michigan
water supply agreement including
ICC approval of agreement and
associated tariff revisions
2.
Citizens and Glenview initiate
12th month
design of facilities
for
Glenview supply.
3.
Citizens and Glenview complete
18th month
design of facilities
for
Glenview supply.
4.
Citizens and Glenview receive
24th month
necessary permits and easements,
bonding,
complete advertisement,
bid and award construction
contract.
5.
Start of construction of
24th month
facilities
for Glenview supply.
6.
Complete construction and begin
36th month
supply from Glenview.
Citizens
is now committed
to this one compliance plan.
It
has retreated from its earlier
two alternate scenarios:
to
negotiate with another water supply source
if Glenview and
Wilmette failed
in their negotiations;
or
to install ion exchange
treatment should
the negotiations with the other water supply
fail.
(Amend. Pet.
p.
3).
Citizens has also stated that “this revised compliance
schedule, assuming timely action by the regulatory authorities
and absent delays due
to causes beyond Citizens’
reasonable
control, allows
for completion of
a Lake Michigan water supply
87— 161
—8—
from Glenview within three years of
the date of the Board’s order
granting the requested variance”.
(Pet.
Resp.
1/20/88,
p.
3,4)
The Board is persuaded that the number
of steps Citizens has
taken already
to secure Lake water
is sufficient
to demonstrate
that its compliance plan
at this juncture
is beyond
“speculative”
for purpose
of grant of variance.
However,
while the Board may
hypothesize as
to why Citizens does not wish to state precisely
at this time,
regarding the condition precedent,
its course of
action should
the Court decision be adverse to Citizens,
the
Board cautions Citizens that any subsequent petition
to lengthen
or alter
its compliance plan will
be carefully reviewed.
Hardship:
Citizen’s has stated that it has been contacted for
new developments of about
200 residential/commercial
units,
some
of which were already under construction (presumably prior
to
knowledge of the imposition of restricted status)
(R.
18).
Citizens also testified
that
it would lose the additional
revenues generated by new development
(R.
79).
There was
no dispute concerning
the minimal,
if
any,
environmental effect during
the term of
the variance.
The Board
therefore finds
that,
given the totality of circumstances
of this
case discussed earlier,
and the fact that Citizens has been
attempting
to timely come into compliance, certainly since the
time of
the Agency’s notification of the results of
its combined
radium tests, that Citizens would suffer an arbitrary or
unreasonable hardship should variance be denied.
The Board will grant variance,
but only for two, not three
years.
The Board
is not persuaded that Citizens still
needs the
one year lead time to
initiate engineering designs.
In the
amended compliance plan on p.
7
of this Opinion, when first filed
last April
2,
1987,
Citizens asserted that it needed one year
to
initiate design following Board action,
for which
it requested
expedited consideration.
(Second Amend. Pet.
p.
4,6)
The Board
notes that at the earlier January
13,
1987 hearing Citizens
testified that it would initiate design and construct the
facilities following the ICC approval of
the Wilmette/Glenview
contract, which approval occurred
in November,
1987.
Citizens
also testified at hearing, however, that
it and Glenview had
already contracted with an engineering firm to do the design
work.
(R.
28,150,151).
In addition,
the compliance plan proposes
initiation of design
to run concurrently with seeking
ICC
approval.
Finally, Citizens again proposed the same one year
lead time
in its January 20,
1988 response.
Given
the less than precise record concerning
the status of
Citizens’
engineering design efforts,
the Board will assume that
Citizens does not need the one year lead time
to initiate
design.
The Board notes that it has not shortened the six months
Citizens requested to complete facility design.
87—162
—9—
This Opinion constitutes
the Board’s findings of fact and
conclusions
of law in this matter.
ORDER
1.
Citizens Utilities Company of
Illinois is hereby granted
variance
as
it relates
to
its Chicago Suburban water supply
from 35 Ill Adm.
code 602.105(a) and from 35
Ill. Mm.
code
602.106(b)
but only as they relate
to the
5 pCi/l combined
radium—226 and radium—228 standard of
35 Ill. Mm.
Code
604.301(a), subject
to the following conditions:
(a)
This variance
terminates
on March 24,
1990,
or when
analysis pursuant
to 35 Ill. Adm. Code 605.105(a)
shows
compliance with the combined radium standard, whichever
comes 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 finished
water.
Until
this variance expires, Petitioner
shall
collect quarterly samples of
its water from its
distribution system,
shall composite and shall analyze
them annually 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;
(c)
Compliance shall
be achieved no later
than March 24,
1990;
(d)
By September
24, 1988,
the Petitioner
shall complete its
design of facilities
to receive a Lake Michigan water
supply from Glenview;
(e)
By December
24,
1988, the Petitioner
shall
apply to the
Illinois Environmental Protection Agency for all
necessary permits;
By March
24,
1989, easements,
bonding, advertisements,
and bid and award
of construction contracts shall be
completed,
and construction of
facilities shall have
commenced;
87—163
—10—
The deadline
for applying
for said Agency permits for
treatment facilities
and starting said construction
of
treatment facilities may be extended
by the Agency in
writing
for good cause shown.
Notwithstanding this
provision Petitioner must comply
in full with paragraph
(g) below;
(f)
Petitioner
shall notify the Agency’s Division of Public
Water Supplies,
FOS,
at 2200 Churchill Road,
Springfield, Illinois 62794—9276, within
30 days of each
action of:
1) advertisements for bids,
2) names
of
successful bidders,
and
3) whether
Petitioner accepted
the bids.
(g)
By March 24,
1990,
construction shall have been
completed and receipt of a Lake Michigan water supply
from Glenview shall commence;
(h)
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. Mm.
Code
602.105(a) Standards of
Issuance and
35
Ill. Adm.
code
602.106(b) Restricted Status,
as they relate to the
5
pCi/l combined radium standard;
(i)
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 each user of
its public water supply as written notice
to the effect
that Petitioner
is not
in compliance with the combined
radium standard.
The notice shall state the average
combined radium content
in samples taken since the last
notice period during with samples were taken;
(j)
That Petitioner shall take all reasonable measures with
its existing equipment
to minimize the level of combined
radium
in
its finished water;
and
(k)
The Petitioner shall provide written progress reports
to
IEPA,
DPWS,
FOS every
six months concerning steps taken
to comply with paragraphs
(j)
and every three months
concerning steps
taken
to comply with paragraph
(e) 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.
87—164
—11—
2.
Within
45 days of the date of
this Order, petitioner
shall
execute and forward
to Wayne L. Wiemerslage, Enforcement
Programs, Illinois environmental Protection Agency,
200
Churchill Road, Springfield, Illinois 62794—9276,
a
Certification of Acceptance and Agreement to be 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.
Failure
to execute and forward the
Certificate within 45 days renders this variance void and of
no force and effect as a shield against enforcement of rules
from which variance was granted.
The form of said
Certification shall
be as follows:
CERTIFICATION
I,
(We), _____________________________,
having read the
Order
of the Illinois Pollution Control Board,
in PCB 86—185,
dated March
24,
1988,
understand and accept the said Order,
realizing that such acceptance
renders all terms and conditions
thereto binding and enforceable.
Petitioner
By:
Authorized Agent
Title
Date
Section
41 of the Environmental Protection Act,
Ill. Rev.
Stat.
1985,
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.
IT
IS SO ORDERED.
J.
D.
Dumelle and B.
Forcade dissented.
I, Dorothy M. Gunn, Clerk
of the Illinois Pollution Control
Board, hereby ce~tf
that the above Opinion and Order was
adopt d on the~’(
day of
~
,
1988, by a vote
of
.
Dorothy M.
unn,
Clerk
Illinois Pollution Control Board
87—165
ILLINOIS POLLUTION CONTROL BOARD
August
5,
1982
CITIZENS UTILITIES COMPANY OF ILLINOIS,
Petitioner,
v.
)
PCB 82—63
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
)
Respondent.
OPINION AND ORDER OF THE BOARD
(by J.
Anderson):
This matter comes before the Board on the petition for
variance of Citizens Utilities Company of Illinois
(Citizens)
filed May
6,
1982 as amended June
4,
1982.
Citizens seeks
variance from the 15 pCi/i gross alpha particle activity and
5 pCi/i radium-226,
228 limitations of Rule 304(C) (1)
of Chapter
6:
Public Water Supplies.
On June 22,
1982 the Environmental
Protection Agency
(Agency)
filed
its Recommendation in support
of grant of variance until January
1,
1984.
Hearing was waived
and none has been held.
Citizens seeks variance on behalf of one of its service
areas,
the “Chicago Suburban” area serving
7,090 water service
connections
in portions of the Village of Mt.
Prospect, the
City of Prospect Heights,
and unincorporated areas
in Wheeling
Township.
The
water needs
of these users are supplied by four
deep
(1320’
to 1468’
)
wells,
Nos.
2,
4,
5,
and
6;
while an
additional shallow
(213’) well,
No.
1,
exists,
it is not
normally used due to the limited production capacity of the
aquifer.
A sixth
well has been abandoned.
The gross
alpha particle activity level of each deep
well was determined by the Agency in 1974 or 1975; no data
is
available for Well No.
1.
The respective activity levels
for
Wells
2,
4,
5,
6
in pCi/i
are,
respectively,
19.7 ±4.2,
19.1 ±5.1,
19.9 ±4.9,
11.2 ±3.6.
In October,
1979,
Citizens
had Wells
2,
4,
and
6 tested for gross alpha and radium 226 and
223 :evels by Eberline, a private laboratory.
In pCi/l, Well
No.
2 showed levels of gross alpha of
22 ±6,
radium 226 of
3.6 ±0.2 and radium 228 of 4.4 ±1.8; Well No.
4,
in two tests
showed levels of gross alpha of
20 ±6 and 19 ±2,
radium 226
of
2.8 ±p.2 and 2.9 ±0.1, and radium 228 of
3.1 ±2.1 and
5.0 ±2.0; and Well No.
6 showed levels of gross alpha of
14 ±2,
radium 226 of 3.3 ±0.2 and radium 228 of 3.9 ±2.3.
87—166
47-501
2
An Agency analysis of a composite of four quarterly
distribution system samples taken between November,
1980 and
July,
1981
showed
a gross
alpha
level
of 16.0 ±3.99, but did
not report radium levels.
Subsequently, Agency single samples
showed levels
of 1.58 ±1.44 pCi/i
(sic)
and 14.0 ±3.83 pCi/i.
Citizens believed that there is
no alternative complying
groundwater source available
to it.
The shallow aquifer is
viewed as infeasible either
as
a total replacement source or as
a blending source, due to its unreliable production capacity,
whiie the deep aquifer is generally beiieved to exceed
radiological
limitations.
Compliance could be achieved by
instaiiation of
treatment facilities at all
4 wells at a total
capital
cost of
$994,000.
However, this installation and
operation would impose additional yearly revenue requirements
of $535,091, which would be passed on to Citizens’
customers.
Each would be required to pay an additional
$73 per year,
a
42
increase
in rates.
Citizens’ preferred compliance option
is replacement of its
well water supply with Lake Michigan water.
It has received an
allocation available to it in 1984,
and is presently negotiating
with two (unnamed) regional water supply systems concerning
delivery.
Depending upon with which system Citizens’ contracts,
this water could be available by November,
1983 or by July,
1984.
Finally, Citizens states
its belief that no unreasonable
health risks would be incurred by its customers if variance
is
granted.
In support thereof, Citizens presents a statement by
Dr.
R.E. Rowland recommending an increase
in the allowable
radiological quality levels,
and reminds the Board that
it has
taken prior notice of Dr. Rowland’s opinions.
The
Agency supports grant of variance until January
1,
1984,
in view of the fact that no commitment has been made to
a
regional
system which would make relief available until January
1,
1986.
It suggests that since each of Citizens’ wells has elevated
radiological
levels,
that blending is unlikely to be
a productive
enterprise.
The Board finds that to require immediate compliance would
impose an arbitrary or unreasonable hardship, particularly since
there would appear to be little immediate threat
to health from
consumption of water containing radioactivity at the levels
present in Citizens’ water
(see Village of Kirkwood v.IEPA,
PCB 81—111, December
3,
1981 and Villa9e of Lemont v.
IEPA,
PCB 80—48,
April
30,
1981).
Variance
is granted until January
1,
1984 subject to the conditions outlined in the attached Order.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
87—167
47-502
3
ORDER
1.
Petitioner, Citizens Utilities Company of
Illinois,
is
granted
a variance from the
15 pCi/i gross alpha particle activity
and
5 pCi/i radium—226,
228
limitations of Rule 304(C)(1)(a—b)
of Chapter 6:
Public Water Supply until January
1,
1984,
subject
to the following conditions:
a.
Petitioner shall,
in consultation with the Agency,
continue its sampling program to determine as accurately as
possible the level
of radioactivity
in its wells and finished
water.
Testing
for radium 226 and 228 shall be continued.
b.
Petitioner shall continue to pursue the option of
replacing its well water supply with Lake Michigan water.
As
expeditiously after identification of a feasible compliance
method as
is practicable, but
no later than January
1,
1984,
Petitioner shall submit,
to the Agency,
a program
(with
increments of progress)
for bringing its system
into
compliance with radiological quality standards.
c.
Petitioner shall take all reasonable measures with
its existing equipment
to minimize the level
of radioactivity
in its water supply.
d.
Pursuant to Rule 3l3(D)(1)
of Chapter
6,
in its
first
set of water hills 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 the
5 pCi/i
radiurn—226,
228 standard and
15 pCi/i maximum gross alpha particle activity standard.
The notice shall
state the average content of gross alpha
particle activity
in samples taken since the last notice
period during which samples were taken.
2.
Within forty—five days of the date of this Order,
Petitioner shall execute and forward to the Illinois Environ-
mental Protection Agency,
PWS Enforcement Programs,
2200
Churchill Road,
Springfield, Illinois
62706,
a Certificate of
Acceptance and Agreement to be bound to all terms and conditions
of this variance.
This forty—five day period shall be held in
abeyance for any period this matter
is being appealed.
The
form of the certificate shall be as follows:
CERTIFICATE
I,
(We),
,
having read
the Order of the Illinois Pollution Control Board,
in PCB
82-63
dated ________________________________, uncerstand and accept the
said Order realizing that such acceptance renders all terms and
conditions thereto binding and enforceable.
87—168
47-503
4
Petitioner
By:
Authorized Agent
Title
Date
IT IS SO ORDERED.
I,
Christan L.
Moffett,
Clerk of the Illinois Pollution
Control Board, hereby certify that the above Opinion and Order
was adopted o
the
..S~
day of
_____________________,
1982
byavoteof
-b
.
0
Christan L.
Moff’e
,)
Clerk
Illinois Pollutio
ontrol Board
47-504
87—169
