ILLINOiS POLLUTION CONTROL BOARD
July 16,
1987
CITY OF GENEVA,
Petitioner,
v.
)
PCB 86—225
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
OPINION AND ORDER OF THE BOARD
(by J. Anderson):
PROCEDURAL HISTORY
This matter comes before the Board on the petition for
variance filed by the City of Geneva
(City)
on December
30,
1986
as amended February
9,
1987.
The City seeks variance until March
31, 1989 from 35
Ill.
Adm. Code 602.105(a) Standards of Issuance
and
35 Iii. Adm.
Code 602.106(b) Restricted Status
to the extent
those rules relate
to violation of the
5 pCi/i combined radium—
226 and radium—228 standard.
The City seeks variance
to allow
for issuance of water main extension permits while the City works
towards achieving compliance with the radium standard.
Hearing
was waived and none has been held.
The City had previously been granted
a similar variance
in
PCB 85—93
(September
20, 1985),
subject to various conditions.
This prior variance began on January 12,
1986 and expired March
30,
1987.
If this variance is granted,
the City has announced
its intention to file for
a third variance on December
31,
1988.
On April
9, 1987,
the Illinois Environmental Protection
Agency
(Agency)
filed
a Recommendation that variance be denied.
The basis
for this Recommendation was that:
Since
Petitioner
has
not
complied
with
its
prior
variance
by
not providing
a
compliance
plan
with
increments
of
progress
by
January
1,
1987,
i.e.,
one
that
calls
for
compliance
by
a
date certain,
and
by
seeking,
in
effect,
three
variances
stretching
more
than
six
years
from grant
of
the
first
variance,
and
more
than
8
years
from
notification
of
the
violation,
Petitioner
has
not
demonstrated
that
the
delay
in
compliance
is
not
self—imposed.
Hence, Petitioner
has
not proven an
arbitrary
or
unreasonable hardship.
The requested
variance should be denied.
79-45
—2--
On May
7,
the City moved
for leave
to file
a Response
to the
Recommendation instanter.
By Order of May 14,
the Board granted
the motion, noting that the Response was construed
as an amended
petition.
On May 21,
the Agency filed an amended Recommendation,
which discussed
the new information and argument contained
in the
City’s Response.
The Agency again
recommended denial
of
variance,
as
it continued “to believe that the facts demonstrate
that Petitioner did not comply with
its prior variance and that
the delay in compliance from grant of the last variance
is self—
imposed”.
Also on May 21,
the City filed
a motion for expedited
decision of this petition.
That motion was granted by the Board
on May
28.
This case was accordingly discussed at the May 28
meeting,
for possible decision on June
10.
However, on June
4,
the City filed
a motion
for leave to reply instanter
to the
Agency’s May
22 amended Recommendation.
The Board granted this
motion on June
10, noting that it would schedule the case for
decision as expeditiously as practicable after
the Agency had
filed
its
response,
if
any,
to the City’s June
4 filing.
On July
8,
the Agency filed
its second amended Recommendation that
variance should be denied.
The City filed a response to this
last Recommendation on July 13.
Finally, the Board
also notes
its receipt on July 6,
1987
from Representative Suzanne
L. Deuchier of
a June 26,
1987 letter
which she sent to the Agency in support of the City’s variance
request.
On July 9, the Agency filed a copy of the same letter,
as well as
its letter
of response
to Rep. Deuchler.
THE GENEVA WATER SUPPLY SYSTEM
The basic description of the City’s system was not
reiterated
in this proceeding.
In the prior PCB 85—93 variance
proceeding,
the system was described
as follows:
The City of Geneva, which has
a population of about
10,500
people,
is
located
in
Kane
County.
The
Petitioner
owns
and
operates
a
deep
well
water
supply system which provides
“potable water supply
and
distribution
for
a
population
of
3,315
residential,
28
industrial
and
350
commercial
utility customers”.
According
to
the Petitioner’s
1980
estimates,
the
28
local
industries
and
businesses
served
by
its
water
facilities
employ
about
5,000
people.
The
City
of
Geneva’s
public
water
distribution
system
includes
6
deep
wells
(Wells
*2
to
#7)
ranging
in depth
from 1,350
feet
to
2,300
feet
which
were
placed
in
operation
at
various times between 1924 and
1983
(Well
#1, which
was
placed
in operation
in
1896 and
was
850
feet
deep,
was
later
abandoned
in
1947);
two
ground
79.46
level
storage
reservoirs;
two
elevated
storage
tanks;
and
various
pumps,
appurtenances,
and
distribution
facilities.
PCB
85—93,
Opinion,
p.2
(citations
omitted)
As discussed
in more detail
later, the City reports that
since the grant of the prior variance, it has drilled an initial
shallow well number
8 to supplement these deep wells.
This well
was constructed with the assistance of an $878,200 state
construction grant.
Geneva anticipates that this well will not
be operational until approximately August, 1988, due to the need
to install water treatment systems.
Water from this well will be
routed to present well number
6 where treatment systems will be
installed to control iron and manganese.
After treatment,
this
shallow well water will
be blended with deep well water
in a
water reservoir located at well number
6.
Analysis of the water
from this new well shows that radium—226 and 228 levels as less
than 1.7 and 2.1 pCi/l respectively.
Geneva has also determined
that
it will abandon present well number
2 which will have the
result of eliminating
600 gallons per minute of deep well water
in the Spring of
1988.
The City was advised that its public water supply was in
violation of the combined radium standard in
1984.
On September
14,
1984,
an analysis was reported to the City of an annual
composite of four consecutive quarterly samples or •the average of
the analyses of four samples obtained at quarterly intervals.
The analyses showed
a radium—226 content of 4.4 pCi/l and the
radium—228 content was 9.2 pCi/i.
The combined
radium—226 and
radium—228 content was therefore 13.6 pCi/i,
exceeding the
5
pCi/i standard.
Petitioner’s own water sampling analyses confirmed the
Agency’s findings.
(Petition dated July
1,
1985, Attachment
#3).
Samples of well water taken on February 20,
1985 by the
City of Geneva’s Public Works Department,
when subsequently
analyzed by the Argonne National Laboratory,
indicated combined
radium levels ranging from 8.45 pCi/l
to 18.08 pCi/l
in the
various wells.
(Pet., Attachment #3).
The preliminary results
of that test are as follows:
Sample Source
Radium—226
Radium—228
Combined
Well No. Two
5.47 ±/—0.82
4.49 ±/—0.98
9.96
Well No. Three
8.83 ±/—l.32
9.25 ±/—1.85
18.08
Well No.
Five
7.53 ±/—l.l2
7.65 ±/—l.53
15.18
Well No.
Six
4.62 ±/—0.69
5.09 ±/—l.l8
9.71
Well No.
Seven
3.83 ±/—0.57
4.62 ±/0.92
8.45
Distribution
5.85 ±/—0.88
8.21 ±/—l.64
14.06
Note:
All results reported
in picocuries per liter.
79-47
—4—
According to those water sampling tests,
the average
combined
radium—226 and radium—228 level was 12.57 pCi/l which
is
in excess of the
5 pCi/l standard and
in the same general range
as the test results
(i.e., 13.6 pCi/i)
obtained in Agency
testing.
The Agency reported another
analysis to Petitioner on
November
20,
1986 of an annual composite
of four consecutive
quarterly samples or the average of the analysis of four samples
obtained at quarterly intervals.
The analyses showed a radium—
226 count of 7.5 pCi/l
and the radium—228 content was 5.2
pci/i.
The combined radium—226 and radium—228 content was
therefore 12.7 pCi/l, exceeding the 5pCi/l standard, and not very
different from the level reported two years earlier.
THE PRIOR VARIANCE
In the prior variance proceeding,
the City discussed,
without committing
to, various compliance options.
These
included development of possible alternative water sources, such
as Lake Michigan water,
Fox River water,
or water
from wells
drilled into
a shallow aquifer with low radium content.
The
other option discussed was treatment of water from its existing
$2.5 million dollar deep well system.
Capital costs given for
these options
(save for the Lake Michigan one which was not
quantified)
ranged between
$7 and
$8 million.
In support of
its assertion that denial of variance would
impose an arbitrary or unreasonable hardship,
the City asserted
that the restricted status ban on issuance of new water main
extension permits would delay
four residential development
projects whose worth would be $4.978 million, and prevent
construction of
a water main need to enhance its fire—fighting
capability.
The City additionally argued
that:
(1) presently “available methods
of
compliance
are
so
expensive
that
they
are
practically
prohibitive”;
(2)
future
expansion
of
the
Petitioner’s
municipal
water
distribution
system
“will
include
shallow wells
that are radium free”;
(3)
the
existing
standards
for
radionuclides
are
currently
being
reviewed
and
will
probably
be
relaxed
so
that
“any
attempt
at
removing
or
diluting radium during the interim period will,
for
the most part,
be wasted effort and money”;
(4)
the
Petitioner
has
“more
pressing
infrastructure
problems”
including
pending
water
and
sewer
rehabilitation,
street
rehabilitation,
police
and
fire
projects,
etc.
which
are
estimated
to
cost
over
$8.8
million
dollars;
(5)
water
and
sewer
rates
must
be
raised
41
to
fund
normal
system
maintenance
programs,
and
(6)
the
city
is
79-48
—5—
financially
strapped
for
cash,
having
over
$3
million
dollars
worth
of
outstanding
Revenue
and
General
Obligation
bonds
and
a
maximum
general
obligation
bonding
capacity
which
is
at
its
limit
(without referendum).
Id., p.5.
The Agency recommended that the PCB 85—93 variance be
granted for five years.
The Agency suggested that,
in determining whether the costs
of compliance are an unreasonable or arbitrary hardship upon the
Petitioner, the Board should evaluate “whether significant
adverse health effects are likely if the variance
is granted as
well as whether there
is a reasonable possibility of compliance
with the radium standard in the foreseeable future.
(Rec.
8).
As to health effects the Agency had stated
its belief
that:
While radiation at any level creates some risk,
the
risk
associated
with
this
level
is
very
low.
Original estimates
were
that
5 pCi/i
could
result
in
bone
cancer
to
somewhere
between
0.7
and
3
persons
per million
exposed.
More
recent
feeling
is that this is probably
a high estimate since much
less
radium
is
retained
in
the body than what was
previously
thought.
The
maximum
allowable
concentration (“MAC”)
for radium is currently under
review
at
the
federal
level.
However,
the Agency
does not expect any proposal to change
the standard
before late 1985...
The Agency believes
an incremental
increase in the
allowable concentration for combined radium—226 and
radium—228,
even
up
to
a
maximum
of
20
pCi/i,
should
cause
no
significant
health
risk
for
the
limited
population
served
by
new
water
main
extensions
for
the
time period
of
this recommended
variance.
The
Agency
therefore
concluded
that
“the grant
of
the requested variance would impose no
significant
injury on
the public
or on the environment
for
the
limited
time period
of
the
requested variance
and
that denial
of the recommended variance would
be an
arbitrary
and unreasonable hardship
to
Petitioner.
Id., p.6.
As will
be discussed below,
the language and intent of
the
Board’s findings
in PCB 85—93 are at issue here,
so they are set
forth
in their entirety:
79.49
—6—
The
Board
finds
that
denial
of
variance
would
impose
an
arbitrary
or
unreasonable
hardship
of
Geneva,
given
its
economic
situation
and
need
to
increase
its
fire—fighting capabilities.
Variance
to allow continued issuance of water main extension
permits
will
be
granted
for
the
period
beginning
January 12,
1986 and ending March
30,
1987,
subject
to conditions.
A variance term of approximately 15
months rather than
5 years has been chosen because,
due to the fact that Geneva has known of its radium
problem
for
just
a
year,
it
has
only
begun
its
exploration
of
compliance
options
and
has made
no
commitment
to
achieve compliance by
a date certain
as has, for
instance, the City of Aurora.
Variance
for this time period will allow the City to develop
a
plan
and
timetable
to
achieve
and
finance
compliance
with
applicable
radium
standards,
as
well
as
allowing
the
Board
adequate
time
to
complete
the
R85—l4
rulemaking.
Geneva
may
then
apply for any necessary extension of variance.
The Board
agrees
with
the Agency
that the
risk
of
adverse
health
effects
to
the
limited
population
consuming
water
delivered
by
the
new
water
main
extensions
permitted
pursuant
to
this
15
month
variance will not be significant.
Id.,
p.
7.
The language of various conditions contained
in the variance
order are also at issue, but they will be set forth
in the
context of the discussion of the City’s alleged non—compliance
with
them.
THE PRESENT VARIANCE REQUEST
At the outset,
the Board wishes to note that the City of
Geneva’s “petition” now essentially consists
of
6 filings:
1)
the initial December
30,
1986 filing,
2)
the February
9,
1987
Response to the Board’s January
8,
1987 request for more
information,
3)
the City’s May
7 response to the Agency’s April
9
Recommendation,
4)
the testimony presented by Thomas Talsma,
Director of Public Works
for the City of Geneva on May
12,
1987
79-50
—7—
in the regulatory proceeding R85_14,* which was admitted
to the
Board pursuant to Order of May
28,
1987,
5)
the City’s June
4
response to the Agency’s May 21 first amended Recommendation, and
6)
the City’s July 13 response to the Agency’s July
6 second
amended Recommendation.
Later filings contradict earlier
filings, and, even taking all of these filings together,
the
Board
is unable to piece together all of the information which
would be desirable concerning
some aspects of the City’s
situation,
e.g.
the radium reduction in the distribution system
which is anticipated when Well No.
B comes on iine and Well No.
2
is taken out of service.
However,
the Recommendation/Response system has served
its
intended function of pinpointing at least some areas which needed
additional information and explanation, and of allowing the
parties to clarify and crystallize areas of disagreement.
The
Board sees little point in chronicling
the back and forth
exchanges between the City and the Agency,
or detailing at what
point various
items of information were entered
into the record.
The Board will instead present the crystallized version of each
parties assertions and positions.
Similarly,
the Board sees
little point
in addressing those portions of the pleadings which
can best be characterized as
“name calling”,
as to do so
in no
way fosters resolution of the issues.
Relief Requested
The instant petition seeks extension of the variance granted
in PCB 85—93 until March 31,
1989.
The purpose of this extension
is, essentially,
to allow for completion of various studies.
The
first such study
is entitled “Shallow Groundwater Resources
Assessment
in Geneva—Batavia Township.”
This $40,000 study,
which
is being funded
in equal shares by the Cities of Geneva and
Batavia,
is being conducted by
the State Geological and Water
Surveys.
The purpose of this study, which
is to be completed by
June
30,
1988,
is
to define the maximum development of the large
*
Docket R85-14
(Proposed Amendments
to Public Water Supply
Regulations,
35
Ill. Adm.
Code
602.105 and 602.106) was initiated
to consider
a proposal for regulatory change made by the
Agency.
Among other things,
the Agency has proposed that, until
January
1,
1989, public water supplies whose water contains no
more than 20 pCi/l of combined radium should be removed from the
restricted status list.
If the Board adopts this rule change,
supplies would
still be subject
to enforcement for violation
of
the
5 pCi/i standard, which remains unchanged,
consistent with
the USEPA—adopted limit.
However,
the Agency would
be able to
issue water main extension permits to such water
supplies,
even
if
the supply has not been granted
a Board variance.
The public
comment period for
this rulemaking closed
on July
10, and the
merits of the proposal are being deliberated
by the Board.
79.51
—8—
shallow aquifer water resources which have previously been found
to be available.
This will involve the Geological Survey’s
location of competent sand and gravel aquifers
in which to site
production wells, and the Water Survey’s design of wells and
supervision of pump tests.
The second such “study”
is that being undertaken by USEPA.
In a September 30,
1986 notice of advance rulemaking
(51 Fed.
Reg.
34836), USEPA announced that
it is reviewing the
5 pCi/l
combined radium—226 and 228 standard.
The City,
as a member of
the Kane County Water Association, supports revision of the
standard to 20 pCi/l.
(The City would be
in compliance with such
a revised standard.)
USEPA has not formally announced any
timetable for publication of results of its review, which could
result
in the standard remaining the same, being made more
stringent,
or being made less stringent.
The Agency does not
expect results from USEPA before late 1987 or early 1988.
The third study, which Geneva has supported by Resolution,
concerns
a new less—expensive system of removal of radium from
drinking water developed by Iso—Clear,
Inc.
In October,
1986,
the Department of Nuclear Safety contracted with the Battelle
Memorial Institute to provide
a procedure
to evaluate the
effectiveness and safety of the system.
Completion of
the
Battelle study would likely be followed by a large—scale
demonstration treatment project at a public water
supply.
This
record contains
no indication as
to when evaluation of the Iso—
Clear system is expected to be completed,
or the system’s
availability thereafter.
Following submittal of the Surveys’ shallow groundwater
resources assessment in June
of
1988,
Geneva plans to assess the
results of that study as well as any results from the other two
above—described studies.
On the basis of this assessment,
Geneva
then intends to develop
a compliance program,
including
compliance deadlines.
Then, on December
31,
1988, Geneva intends to file
a
petition
for extension of this variance for the purpose of
installation of shallow wells and/or treatment technology.
In
art
estimated timetable provided
in its June
4 response,
the City
indicates that,
based upon “very favorable assumptions which are
in all probability unlikely to occur
in total”,
that construction
of shallow wells
could conceivably be completed by January,
1993.
However,
the City notes that if
it must resort to
condemnation procedures
to obtain well sites and transmission
easements that perhaps
a year could be added
to this schedule.
An unknown length of time could
also be added
if the Surveys’
study does not identify two
or more sites which test out
positively for both quantity and quality of water.
(6/4/87
Response,
pp.
3-7).
79-52
—9—
To put the circumstances of
the present request for
a
2 year
“more information variance”
in historical perspective,
recall
that the violation was discovered in September,
1984.
The PCB
85—93 variance was applied for
in June,
1985, and granted in
September,
1985 for
a period of
15 months beginning January, 1986
to allow for study of the problem.
(The emergency rule adopted
in R85—14, removed restricted status for the time period prior
to
January,
1987).
The City here requests
24 more months for study
of the problem.
Then,
some
4
1/2 years after discovery of the
problem, Geneva intends
to file a petition detailing how
it
intends to achieve compliance within
the next
4 to
5 years.
Assuming a less than “best case”
scenario, this would result
in a
total
of
8
1/2 to
9
1/2 years between discovery of the radium
problem to
its correction.
Developments
Impacted by Restricted Status and anticipated Health
Effects
There are two areas of Geneva’s petition which are not
presently the subject of dispute between the parties:
the
economic effect of
the restricted status water main extension
ban,
and the health effects
of consumption of Geneva’s water on
those persons who would be served by new water main extensions if
the restricted status ban
is lifted.
As reflected
in the testimony of Thomas Talsma
in R85—l4,
13
potential developments were being affected by restricted status
as of April
20,
l987.*
Seven of these would be strictly
residential uses, three would be mixed residential and
commercial, two would be mixed office and commercial,
and one
would be
a hospital.
These projects would have
a value of
approximately $50—60 million
in actual construction costs.
When
completed,
they would
add approximately $l5—$20 million to
Geneva’s current assessed valuation of approximately $120
million.
Mr.
Talsma stated that Geneva:
needs
this
development
and
the
tax
dollars
it
represents
to finance
a
number
of municipal public
works projects
including
our program which will
in
all probability be required to comply with the
*
Each project was named and pinpointed on a map attached
as
an
exhibit to Mr.
Talsmas’
testimony.
Aside
from name and land use,
no other details were given.
These projects are:
R.
R. Donnelley
& Co.,
Randall Square, Blackberry Subdivision, Williamsburg
Development, Bennett House Townhornes,
Stonebridge Subdivision,
Delnor—Community Hospital,
Kirk Road Office/Research Development,
Geneva East Subdivision, Lucerne Development, Riverfront
Redevelopment Plan,
Denalco Demolition/Geneva Townhomes and
Geneva Place.
79-53
—10—
radium
standards
through
the
construction
of
a
number
of shallow wells.
Another
problem
associated
with
restricted
status
is
one
of
the development
projects,
number
13
on
the
map
Geneva
Place)
is
being
impacted
by
restricted
status.
This
project
involves
a
site
which
Geneva
has
found
to
constitute
a
public
health
hazard
and
against
which
Geneva
has
instituted condemnation procedures to have the site
torn down.
We have
a
developer who
is
interested
in
moving
forward
and
developing
this
property
which
should
aid
our
efforts
at
eliminating
the
public
hazard.
This
hazard
is
located
directly
across
the Street
from
a
neighborhood park
and we
are
very
concerned
over
public
safety
questions
which
arises
given
the
present condition
of
this
building.
This record does not further address the nature of the public
health hazard that the Geneva Place development would replace.
As to health effect, the Agency again asserted, as it did
in
PCB 85—93, that it believed that consumption of water containing
radium at concentrations even
4 times over the allowable standard
of
5 pCi/i
(i.e.
20 pCi/i).
The Agency believes an incremental
increase
in
the
allowable
concentration
for
the
contaminant
in
question
even
up
to
a
maximum
of
four
times
the
level
of
the
maximum
allowable
concentration
(“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.
However,
the Agency
notes
that this
is
the
second
of
three
variances
that
Geneva
has
or
intends
to
seek,
the
Geneva’s
compliance
plan
will
not
show
compliance
within
five
years
of
receipt
of
its
first
variance.
The
longer
noncompliance
continues,
the
greater
is
the
risk
to
the
population served by Geneva.
Past Efforts Towards Compliance
and Current Compliance Plan
The parties’ disagreements center around the acceptability
of Geneva’s efforts towards compliance during the prior variance
period and its planned future compliance efforts.
The PCB 85—93 variance was granted
in September,
1985.
In
October, the City and the Agency commenced discussions concerning
state—grant financing for
the construction of shallow Well
No.
79-54
—11—
8.
In November, the City signed
a Certificate of Acceptance and
agreement to be bound
by the conditions of the PCB 85—93
variance.
In December, the City approved the Agency grant
agreement
for the construction of Well
No.
8.
While to
so note
at this juncture disturbs
a strict chronology of events,
the
Board will note that the drilling construction and testing of
Well No.
8 was accomplished between April and June,
1986.
Condition 1(a)
of the PCB 85—93 established the term of the
variance.
Conditions 1(b)
and 1(c) provided that:
b)
By
January
1,
1986,
the
Petitioner
shall
secure
professional
assistance
(either
from
present
staff
or
an
outside
consultant)
in
investigating compliance options,
including
a
review
of
the possibility
and
feasibility
of
achieving
compliance
by
blending
water
from
shallow wells with that of its deep wells.
By
February
1,
1986,
evidence
that
such
professional assistance has been secured shall
be submitted to the
Agency.
C)
As
expeditiously
after
identification
of
a
feasible
compliance method
as
is practicable,
but
no
later
than
January
1,
1987,
the
Petitioner
shall
submit
a
program
(with
increments
of
progress)
for
bringing
its
system
into
compliance
with
radiological
quality standards
to the
Agency...
The City
of
Geneva
shall
adhere
to
all
timetables
contained
in this compliance program.
Compliance with condition 1(b)
is not at issue;
on January 10,
1986,
the City notified the Agency that
it had secured the
professional services of Rempe—Sharpe and Associates,
Inc.
The dispute concerns compliance with condition 1(c).
In
August,
1986, Rempe—Sharpe submitted to the City the “Radium
Compliance Report”
(“Report”)
which it had prepared
in
association with Black and Veatch Engineers—Architects.
As noted
in the Executive Summary to the “Report”,
four project
alternatives were evaluated by conducting a present worth
analysis over
a twenty year period.
The summary of the project
alternatives analysis was as follows:
79-55
—12—
PRESENT WORTH COST ANALYSIS SUMMARY
FOR PROJECT ALTERNATIVES
ALTERNATIVE
DESCRIPTION
PRESENT WORTH
A.
.
.
.
.
.4.0 MGD TREATED SHALLOW WELL WATER.
.
.
.
$12,637,500
B
BLENDING 4.0 MGD TREATED SHALLOW WELL
WATER
AND
1.6 MGD UNTREATED DEEP WELL
WATER
.
.
.
.
.
.
.
.
12,551,900
C.
.
.
.
.
.2.5 MGD WEST TREATED SHALLOW WELL WATER
AND 1.5 MGD EAST TREATED DEEP WELL WATER.
13,576,500
D.
.
.
.
.
.4.0 MGD TREATED FOX RIVER WATER
.
.
.
.
.
13,276,500
Of these alternatives, Rempe—Sharpe recommended alternative B.
The stated reasons
for this conclusion were that:
From
the
present
worth cost analysis performed
as
part
of
the
study,
Project
Alternative
“B”
Blending 4.0 MGD Treated Shallow Well Water and 1.6
MGD
Untreated
Deep
Well
Water
has
the
lowest
present worth cost and
is therefore the recommended
plan.
In-
addition
to
being
the
least
cost
alternative,
Project
Alternative
“B”
provides
greater
capacity
for
future
utilization,
greater
reliability due
to
two water
sources,
better water
quality than presently experienced with deep wells,
and improvements
to the distribution system.
This alternative would require construction of two shallow
wells
in addition
to Well No.
8.
A water treatment plant would
also need to
be constructed
at the Well No.
8 site for removal of
iron and magnesium.
(The magnesium problem was unanticipated
at
the time of the Well’s construction, having been discovered only
as
a result of the Water Survey’s post—construction testing.)
Various other modifications and improvements
to the system would
be necessary,
including blending controls, sludge lagoons,
and
transmission mains.
In reaching this conclusion,
the engineers assessed the
City’s water
needs
for
a
20 year period, assuming 1
growth per
year.
For design purposes,
the Maximum Daily Demand was
established at 4.00 MGD, although the projected Average Daily
Demand and Maximum Daily Demand were projects to be 2.42 and 3.88
MGD, respectively.
The Report noted that water levels
in the
deep aquifers which
the City taps are expected
to continue their
historical decline
of between
6 and 10 feet per year.
If the
rate of decline does not increase, Wells
3,5,6 should remain
usable, although use of Well
7 could be limited; Well
2 is
79.56
—13—
planned for demolition,
as it will soon cease
to be reliable.
As
to blending,
the Report noted that location of water
sources is
important due to the nature of the existing distribution system:
“The existing
distribution system was
planned
for
four
major
zones
as
influenced
by the location of
wells,
railroad
rights—of—way,
and
the
Fox
River.
The
system
was
not
planned
for
a
single
source
located
near
the
extremities
of
the
distribution
system.
Those
alternatives
which
consider
one
source or two sources
in the same geographical area
will
require
extensive
modifications
to
the
distribution
system.
Those
alternatives
with
sources located on opposite sides of the river will
require
minor
modifications
to
the
distribution
system.”
On September 15, the City Council accepted the Report’s
Recommendation of Alternative
B.
Thereafter, discussions were
commenced with Batavia and the Surveys concerning the shallow
groundwater resource assessment to determine potential sites for
location of the new wells.
All agreements
necessary for
commencement of the study were approved.
On December
30,
1986,
the City filed
this petition for variance.
Commencing in January,
1987,
the City began communicating
with the Agency concerning amendment to the grant agreement
concerning Well No.
8 to reflect increased costs
for construction
of treatment facilities.
The total costs
for the project were
stated
to be $1,252,430;
$374,230
is
to be financed by Geneva as
its share of
the project.
As of the filing of Geneva’s June
4,
1987 Response, the City anticipated that construction would be
completed
in August,
1988.
It has been the Agency’s consistent opinion, throughout this
proceeding,
that the City has failed to file the compliance plan
required
by the PCB 85—93 variance.
As detailed earlier,
this
petition contains no detailed program for achievement of
compliance by the end
of the term of what would be the City’s
second variance.
It instead proposes that on December
31,
1988,
that the City will file
a third petition outlining when and how
it will come into compliance.
Again, assuming that the Rempe—
Sharpe Alternative B plan
is that finally chosen, as of
its June
4 filing the City’s belief was that the plan could not specify
that compliance would be achieved earlier than
4 years
thereafter, assuming no delays
of any sort.
The Agency’s analysis of this situation
is
as follows:
“Paragraph
4
of
the
December
31,
1986
Petition
said
that Condition
1(c)
of the September
20,
1985
variance
required
that Geneva
develop and submit
a
79-57
—14--
compliance
program
to
the
IEPA
by
January
1,
1987.
Paragraphs
8
and
9
basically
say
another
study
is
underway
which
will
result
in
another
compliance
plan.
The conflict
is that the January
1,
1987 compliance report was
to be a program with
increments of progress
to achieve compliance,
not a
preliminary
report
to
be
used
as
a
basis
for yet
another
study
that
has
no
definite
compliance
timetable.
Geneva’s
original
Variance
Petition
filed July
1,
1985
asked
for
a
variance
for
five
years
and
committed
itself
to
be
in compliance by the end of
that
five
year
period
(Petition
for
Variance,
paragraph 26(d)).
The September
20,
1985 Variance granted
a variance
to
“allow the City to develop
a plan and timetable
to achieve and
finance compliance...”
(Order,
page
7).
The variance was not to give Geneva time to do
a
study,
followed
by
yet
another
variance
and
study,
followed by a third variance.
Geneva does
not explain why
it waited more than
a
year after grant of its 1985 variance
to enter
into
the
joint
study
with
the
Illinois
State
Water
Survey
to
evaluate
the
shallow
ground
water
resource within
Geneva
and Batavia
Township.
The
Agency
believes
that
study
should
have
been
undertaken
concurrently
with,
or
as
part
of,
the
study
performed
by
Geneva’s
consultant.
The
September
20,
1985 variance specifically ordered a
Study
on
the
possibility
and
feasibility
of
achieving compliance by blending water from shallow
well
with
that
of
its
deep
wells.
This
self—
imposed
delay
is
a
self—imposed hardship.
4/7/87
Response,
pages.
31—34
City of Carlyle v.
Illinois
Environmental
Protection
Agency,
PCB
84—171, April
4,
1985,
page
3.
These points are reiterated
in the first and second amended
Recommendations.
The City’s responses to each Recommendation
become more speciric
in detailing when it took past actions, and
setting forth projected timetables for activities to occur within
the next six or
seven years.
Notwithstanding,
it
is the Agency’s
belief that the City has failed to make
a firm commitment to come
into compliance by
a date certain as required by the prior
variance and the Board’s procedural
rule 35
Ill.
Adrn.
Code
104.121(f) which provides the variance petitions shall contain “a
time schedule for the implementation of all phases
of the control
program from initiation of design to program completion”.
For
79-58
—15—
these reasons,
the Agency continues to recommend that variance be
denied.
The City’s contention is that
it has in fact complied with
the Board’s Order
in PCB 85—93.
While
the City acknowledges that
it “cannot at the present time commit to
a date certain when it
will
in fact be
in compliance with the standard” it nonetheless
believes that “there should
be no question that it has developed
a compliance schedule which
it is implementing.” 6/4/87 Response,
p.
3.
Geneva states
that, while
in its petition in PCB 85—93
it
had anticipated that it would achieve compliance within
5 years,
this estimate was made without the benefit of the Rempe—Sharpe
Report on the basis of the best information then available.
The
City asserts that it could not reasonably have initiated the
groundwater assessment study in advance of its receipt of the
Report,
since two of the compliance alternatives which were the
subject of the study did not involve use of shallow wells.
Geneva argues that revision of its original tentative timetable
was both necessary and reasonable, based upon the Report’s
recommendation both of Alternative
B and attendant studies to
locate the necessary and suitable source of 4.0 MGD of water.
The City asserts that after
its acceptance of the Report,
that
it expeditiously contracted with the Survey for the
groundwater assessment.
It believes that “tilt is simply
impossible
for Geneva or anyone else,
for that matter, to predict
with the kind of precision the Agency
is demanding when Geneva
can complete its program”,
as to do so would require prediction
“with
‘certainty’ how long
it would take
to acquire land and
transmission easements
for unknown wells at unknown locations and
determine how long
it would
take the City to reach agreements
with unknown landowners and parties in interest sometime
in the
future”.
The City concludes that variance should be granted
because
it:
“has proceeded before the Board
in this matter
in a
straight—forward and candid manner and has proposed
a reasonable and feasible compliance schedule which
is as detailed and as definite as the circumstances
of this case allow.
Geneva has established that it
will
suffer
an arbitrary and unreasonable hardship
if the variance extension is
not granted.”
7/13/87
Response,
p.
3—5
Board Resolution
This case presents
a very close judgment call
for the
Board.
The Board agrees with many of the Agency’s assessments
concerning
this case,
including the observation that much of
Geneva’s asserted hardship is self—imposed.
However,
for
the
reasons expressed below, the Board concludes that denial
of
a
short—term variance from the effects of restricted status would
79-59
—16—
impose an arbitrary or unreasonable hardship.
The variance will,
however, be
for
a shorter time period than that requested by
Geneva and subject
to termination at various intermediate points
in the event that Geneva fails to strictly comply with its terms.
The Board first wishes to address a theme which runs through
many of Geneva’s filings:
the notion that
it is being
discriminated against, that the Agency somehow “owes” it a
favorable Recommendation in this case because
in PCB 85—93 the
Agency had recommended
a five year variance, and that
correspondingly the Board “owes” Geneva this extension because
the original variance was granted for “only”
15 months when some
-
other communities at various times have received five year
variances.
This argument rests on the faulty premise that every
community which
is on restricted status as
a result of naturally
occurring radioactivity is identically situated
in every respect,
and that there have been no changes
in circumstances, or
experience gained by the Board and Agency, between the time
Illinois’ communities’
radium problems began to surface and
today.
The situation of most communities with naturally occurring
violations of radioactivity standards
is similar
to the extent
that a)
none of them caused
its problem,
b) none
is sure whether
or when USEPA may revise the federal standard and whether any
change
in the state standard will result, and
C)
none
is sure
whether or when more easily managed and less costly treatment
technologies will develop.
All
then, have
a similar, and not
totally irrational,
incentive to delay compliance efforts while
they “wait and see”.
Dissimilarities between the radioactivity
restricted status list include levels of radioactivity in the
water, length
of time the violation has been known, compliance
efforts since the violation was discovered,
availability of
alternate water sources, availability of treatment systems
appropriate to the water supply size,
and economic situation of
the community as evidenced by per capita income, unemployment
rates,
growth rate, assessed evaluation, bonded indebtedness,
level
of infrastructure improvements needed and the like.
Illinois received primary authority and resulting funding to
enforce provisions of the federal Safe Drinking Water Act
in
1979.
This means that Board and the Agency must implement
a
state program consistent with the federal program;
failure to do
so may result in USEPA’s entry into the state to itself enforce
the federal program.
At about the time enforcement primacy was received, the
Board received the first major
“wave” of requests for variances
from radioactivity standards, specifically the gross alpha
particle activity standard.
As
a result of various factors,
including
some early inaccuracies
in test methods,
the fact that
radioactivity standards were even then under review by
(JSEPA,
and
79-60
—17—
the aforementioned problems associated with cost and
identification of compliance strategies,
the Board generally
issued five—year variances to allow for additional testing to
confirm exceedances, and development and implementation of
control strategies.
In 1984—1985,
the Board
began
to receive
a second “wave” of
variance requests:
requests for renewal of prior variances, and
requests from communities, such as Geneva, which had recently
been informed of radium exceedances.
In reviewing efforts
towards compliance under
the prior variances,
it became clear
to
the Board that while some steps towards compliance were taken,
many municipalities had been inclined to concentrate
their
efforts on
“waiting and seeing”
in the hopes that major expenses
could thereby be avoided.
When considering
the first—time variance requested by
communities which had recently learned of their problems
in 1984—
1985,
then,
the Board
in some circumstances declined to grant
five year variances even where they had been recommended by the
Agency.
Rather than giving
a variance requiring submission of a
compliance plan to be implemented by the end of a
five year
period as recommended by the Agency,
in some cases the Board
granted
a short—term variance
for the sole purpose of developing
a plan.
The intent was
to require
a community
to come back to
the Board sooner,
rather than later, to prove that it had been
actively pursuing compliance rather than “waiting and seeing”.
In the same general span
of time,
the USEPA and the Agency
began to intensify discussions concerning disagreements between
USEPA and the Board and Agency concerning SDWA variances and
enforcement.
The disagreement concerning variances culminated
in
USEPA revocation
in 1986 of some Board variances from the
radiological quality and fluoride standards.
The dispute has
also prompted the Agency to suggest that communities seek
variance only from the restricted status
rules,
rather
tha.n from
these standards.
Concerning enforcement, as presented
in the R85—l4
proceeding, the USEPA/Agency discussions have resulted in the
Agency’s recent development of an “enhanced enforcement
program”.
Pursuant to
a timetable contained
in the program,
the
Agency will commence enforcement proceedings against communities
who are not
in compliance with drinking water regulations and who
have not signed an agreement, with increments of progress
detailing how they will reach compliance by
a date certain.
One
such type of agreement which can insulate
a community from
enforcement
is acceptance and agreement
to be bound by a Board
variance requiring that compliance will
be achieved by
a date
certain.
79-6 1
—18—
Given
these circumstances, under some conditions,
the Board
has again begun granting five year variances.
Although the Board
continues
to hold the belief that the short—term variance
is a
superior mechanism for insuring that
a compliance plan is
developed expeditiously,
it also believes that communities which
make firm compliance commitments should be afforded as much
insulation from enforcement as possible.
When Geneva’s situation is viewed
in light of all these
facts,
it is clear that there has been no inconsistency in the
City’s treatment.
The PCB 85—93 short—term variance was granted
to allow and require Geneva to develop and file a plan whereby
it
would achieve compliance by a date certain.
Geneva accepted the
terms and conditions of that variance, but has not, as the Agency
correctly states, complied with that variance.
The Agency’s
Recommendation that variance be denied
as
a result of Geneva’s
failure
to commit to achieving compliance by a date certain is
entirely consistent with
a)
its Recommendation in PCB 85—93,
where Geneva had made such a commitment and b)
its treatment of
other communities now seeking variance in light of its “enhanced
enforcement program”.
Geneva’s explanation of why it cannot presently commit to
compliance is somewhat disingenuous.
Geneva explains that only
after
it had reviewed the Remke—Sharpe Report and chosen a
shallow groundwater alternative,
did
it have enough information
to know that
a groundwater assessment study by the Surveys’ would
be needed, and that
it was logical
to defer the expense of the
Surveys’
study until
after
the Report was completed.
However,
the Board
finds it equally if not more logical to have proceeded
with the Report and
the Survey’s study
in tandem;
if the City’s
aim was to have the Council choose,
in September of 1986, the
most desirable of the compliance options which were feasible,
it
would appear that information as to availability of usable
quantities of groundwater
of sufficiently high quality would be
an important factor
in the decision.
As
it is,
the Council has
approved an option of only hypothetical do—ability.
Notwithstanding,
the Board will give the City the “benefit
of the doubt”
that the sequence of its actions was taken in good
faith and not solely for the purposes of delay in which to “wait
and see”.
In finding that not all of the hardship asserted by
the City
is self—imposed,
the Board has given weight to the fact
that there were no lengthy periods of
unexplained delay involved
during the course of the City’s other compliance activities,
and
the fact that the magnesium problem
in Well No.
8 had been
unanticipated.
The Board has also considered the $l2—$l3 million
price
tag
of the various compliance options, and the revenue
which
the listed delayed construction projects could bring to the
City.
The Board finds that
there will be no significant health
risk for the limited population served by new water main
extensions during
the period of
a limited variance, and that the
79-62
—19—
City has
——
if but barely
——
proved that denial of
a limited
lifting of restricted status would impose an arbitrary or
unreasonable hardship.
However,
given
the totality of the circumstances here, the
Board believes that
the City’s activities deserve Board scrutiny
at a date earlier than it suggests.
The City projects that the
groundwater assessment will be presented to the City on June 30,
1988, and will be scheduled for Council approval on August
1,
1988.
The City had then anticipated entering into negotiations
for options, and filing
a petition for variance renewal on
December
31,
1988
in anticipation of
a Board decision on or
before March
31,
1989.
The Board believes that the more
appropriate “break point”
in this scenario is the City’s
consideration of the Surveys’ assessment,
rather than conclusion
of the options negotiation process whose date
the City contends
is uncertain.
This variance will terminate no later than
December 15,
1988.
It will terminate on August 15,
1988
if the
Board has not received
a petition for variance extension which
contains a committment to
a specific option and commitment
for
achievement of compliance
by a date certain.
The Board will lift
restricted status only
for the thirteen proposed projects
identified by Geneva
in this record and earlier listed
in this
Opinion.
Finally, the Board notes that,
as this variance does not
shield Geneva from enforcement liability for violation of the
radium standard,
that Geneva may be subject to being placed back
on the restricted status list pursuant to Order issued in an
enforcement action.
This Opinion constitutes
the Board’s findings of fact and
conclusions of law in this matter.
ORDER
1.
The Petitioner,
the City of Geneva,
is granted variance from
35
Ill. Adm. Code 602.105(a)
and from 35
Ill. Adm. Code
602.106(b)
but only as
they relate
to the
5 pCi/i combined
radium standard of
35
Ill.
Adm. Code 604.301(a), and only as
they relate
to issuance of permits
to serve
the
13
developments listed
in the above Opinion, subject to the
following conditions.
(a)
This variance
expires on December 15,
1988 or when
analysis pursuant to 35
Ill. Adm. Code 605.105(a)
shows
compliance with
the combined radium standard, whichever
comes
first.
However,
if compliance has not been
achieved on or before August
14,
1988, and the
Petitioner has not filed
a petition for variance
extension with the Board and the Agency on
or before
79-63
—20—
that date,
this variance will terminate on August
15,
1988.
(b)
As expeditiously after
identification of a feasible
compliance method as
is practicable, but no later than
August 14,
1988, the Petitioner shall submit
a program
(with increments of progress)
for bringing its system
into compliance with radiological quality standards to
the Agency’s Division of Public Water Supplies, Permit
Section, at 2200 Churchill Road, Springfield, Illinois
62706.
The City of Geneva shall adhere
to all
timetables contained
in this compliance program.
(c)
Pursuant to
35
Ill. Adm. Code 606.201, the Petitioner
shall send to each user of
its public water supply a
written notice
to the effect that the Petitioner has
been granted by the
Illinois Pollution Control Board
a
variance from 35
Ill.
Adm. Code 602.105(a)
(Standards
for Issuance)
and from 602.106(b)
(Restricted
Status)’. as
they relate to combined radium—226 and radium—228
in the
first set of water
bills issued after
the grant of this
variance and every three months thereafter.
The notice
shall state
the average concentration of radium—226 and
radium—228
in samples taken since the last notice period
in which samples were taken.
(d)
Until full compliance is reached, the Petitioner
shall
take all
reasonable measures with its existing equipment
to minimize the level of combined radium—226 and radium—
228
in its finished drinking water.
2.
Within forty—five days of the date of this Order, the City
shall execute and forward
to Mr. Wayne Wiemerslage,
Enforcement Programs, Illinois Environmental Protection
Agency,
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 days
period shall be held
in abeyance for any period this matter
is being appealed.
The form of this certification shall
be
as
follows:
CERTIFICATION
This City of Geneva hereby accepts and agrees
to be bound
by
all terms and conditions of the Order
of the Pollution Control
Baord
in PCB 86-225,
dated July 16,
1987.
79-64
—21—
The City of Geneva
By:
Authorized Agent
Title
Date
IT IS SO ORDERED.
J.
D. Dumelle and B.
Forcade dissented.
I,
Dorothy M.
Gunn, Clerk
of the Illinois Pollution Control
Board, hereby certify that the
ove Opinion and Order was
adopted on the
/~~-
day of
______________,
1987, by
a vote
of
~
.
Dorothy M. dunn, Clerk
Illinois Pollution Control Board
79-65
