ILLINOIS POLLUTION CONTROL BOARD

October 15, 1987

VILLAGE OF NORTH AURORA,

Petitioner,

v.

)

PCB 87—83

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

OPINION AND ORDER OF THE BOARD (by J. Theodore Meyer):

This matter is before the Board on the June 17, 1987

petition for variance filed by the Village of North Aurora

(Village). The Village seeks a three year variance from 35 Ill.

Adm. Code 602.105(a), Standards for Issuance, and from 35 III.

Adm. Code 602.106(b), Restricted Status, but only to the extent

those rules involve 35 Ill. Adm. Code 604.301(a) (combined

radium—226 and radium—228 concentration). On June 25, 1987, the

Board found the petition deficient

for lack of sufficient

information,

and on July 28, 1987, the Village filed an amendment

to the petition. The Illinois Environmental Protection Agency

(Agency) filed its Recommendation in support of grant of

variance, subject to conditions, on September 3, 1987. Hearing

was waived, and none has been held.

The Village, located in Kane County, provides drinking water

for 1,646 residential and 115 industrial and commercial utility

customers, representing some 5,300 residents and 115 industries

and businesses employing approximately 3,000 people. The water

supply system includes four deep wells, two 500,000 gallon

elevated water storage tanks, pumps and distribution

facilities. A user charge is imposed by ordinance.

By letter dated December 8, 1986, the Village was advised by

the Agency that the maximum allowable concentration of combined

radium—226 and radium—228 (combined radium) was exceeded. An

analysis of four quarterly samples showed a combined radium

concentration of 12.4 pCi/l. (35 Ill. Mm. Code 604.301(a)

provides for a maximum allowable concentration for combined

radium of 5 pCi/l.) Although the Village states at one point

that all previous radium samples showed it to be in compliance

(Petition at 6), it also states that no additional radium

sampling and analysis data exists (Petition at 5). In its

amendment to the petition, the Village reiterates that no

additional data exists (Amendment at 1—2). On January 8, 1987,

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the Agency notified the Village that it would be placed on

restricted status.

The Village has identified

five possible compliance

options.

The first is the purchase of water from the City of

Aurora (Aurora). The estimated annual cost of this alternative

is $307,000 to $763,000 per year, based upon a cost of $.84 to

$2.09 per 1,000 gallons. The estimated time of implementation is

3 years and is dependent upon the approval and construction of

Aurora’s new water system. The Village estimates that the

average cost to each of its 1,761 customers would be $19 per year

for 20 years for capital costs and $163 to $417 per year

indefinitely for water purchase costs. (See Petition, Attachment

3.)

The Village apparently prefers this first alternative, and

has begun negotiations with Aurora for the purchase of water from

Aurora’s proposed new water system. The Village states that

Aurora has over—sized the proposed plant to service the

Village. Aurora’s new plant is apparently scheduled for

completion in July 1990.

The second compliance option involves blending water from

two of the existing deep sandstone wells with water from four new

dolomite wells. The Village estimates constructions costs at

$860,000 and annual operation and maintenance (O&M) costs at

$160,000. This results in a total cost of $.70 per 1,000

gallons. The annual cost to each of the Villagers 1,761

customers is estimated at $54 per year for 20 years for capital

costs, and $91 per year indefinitely for O&M costs. The

estimated time for implementation is 3 years. (See Petition,

Amended Attachment 4.)

The third alternative involves replacing the existing deep

sandstone wells with shallow sand and gravel aquifer wells, with

associated treatment facilities for iron and hardness removal.

The estimated construction cost is $2,300,000, and annual O&M

costs are estimated at $250,000 per year. This results in a

total cost of $1.38 per 1,000 gallons. The annual cost to each

of the Village’s 1,761 customers is estimated at $143 per year

for 20 years for capital costs, and $142 per year indefinitely

for O&M costs. The estimated implementation time is 3 years.

(See Petition, Attachment 5.)

The fourth option is the replacement of the existing deep

sandstone wells with water from the Fox River, with associated

treatment facilities. The Village estimates construction costs

at $1,900,000, and annual O&M costs at $290,000. This results in

a total cost of $1.36 per 1,000 gallons. The annual cost to each

of the Village’s 1,761 customers is estimated at $118 per year

for 20 years for capital costs, and $165 per year indefinitely

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for O&M costs. The estimated implementation time is again 3

years.

(See Petition,

Attachment 6.)

The final compliance option involves the construction

treatment facilities in order to properly treat all water

supplied by the existing wells.

The Village estimates

construction

costs at $1,400,000, and annual O&M costs at

$300,000.

This results in a total cost of $1.24 per 1,000

gallons. The annual cost to each of the Village’s 1,761

customers is estimated at $87

per year for 20 years for capital

costs, and $170 per year indefinitely for O&M costs. The

estimated implementation time is 3 years. (See Petition,

Attachment 7.)

The Village also notes that the two primary treatment

methods used for radium removal, lime or lime—soda softening and

ion exchange softening, each produce large quantities of

sludge. The removed radium is concentrated in this sludge, which

can create disposal and handling problems. Additionally, if an

ion exchange softener is regenerated with salt, the sodium

content of the finished water is increased, creating health risks

for those with hypertension or heart problems.

The Village has not made any formal assessment of the effect

of the requested variance on the environment, but refers both the

Board and the Agency to the testimony and exhibits presented by

Dr. Richard E.

Toohey, Ph.D. and Dr. James Stebbings, Ph.D., both

of Argonne National Laboratory,

on July 30 and August 2, 1985, in

R85—l4, Proposed Amendments to Public Water Supply Regulations,

35 Ill. Mm. Code 602.105 and 602.106.

The Village does state

that it “does not consider the radiological quality of this

community water supply to be a significant health risk for the

limited time period of the requested variance.” (Petition at

10.) It is the opinion of the Village that the granting of the

variance will not cause any significant

harm to the environment

or to the people served by potential

water main extensions.

The Village asserts that since

non—compliance with the

combined radium standard does not significantly

injure the public

or environment for the limited period of the requested variance,

the expenditure of significant

sums of money to comply would be

an arbitrary or unreasonable

hardship.

The Village also notes

that the maximum allowable concentration for combined radium is

currently under review at the federal level, and contends that

“the substantial expenditure of public funds for treatment

facilities

which may become obsolete in the near future is not in

the public interest and does not grant a corresponding benefit to

the public.” (Petition at 14.)  Finally, the Village states

that failure to obtain a variance means that the Agency must

continue to deny construction

and operating permits.

The Village

asserts that such an impediment to economic growth would be an

unreasonable or arbitrary hardship, since there is no significant

82—28 1

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risk of environmental

harm or risk to the public health for the

limited period of the requested variance.

The Agency recommends that the variance be granted, subject

to conditions. The Agency feels that while radiation at any

level creates some risk, the risk associated with the level

involved here is very low. The Agency also agrees that denial of

the variance, with the resulting denial of construction and

operating permits, would indeed impose an arbitrary and

unreasonable hardship on the Village. Furthermore, the Agency

states that the Board may grant the variance consistent with

federal requirements, since the requested relief is from

restricted status and not a variance from national primary

drinking water regulations. In sum, the Agency believes that the

hardship resulting from denial of the requested variance would

outweigh the injury to the public from the grant of the variance.

Based on all of the facts and circumstances

here presented

the Board finds that denial of variance would impose an arbitrary

or unreasonable hardship.

The Board notes that the Village

admits that it has no immediate plans for extension of its water

mains (Petition at 5).

However, the fact that the Village is on

restricted status is an impediment which may virtually eliminate

the possibility of attracting new development. Therefore, the

Board will grant the requested three—year variance subject to

conditions. One of these conditions is that by October 15, 1988,

the Village provide the Agency with a contract for delivery of

water from Aurora. The Agency may extend this deadline by six

months for good cause shown. If the Agency refuses such an

extension, the Village may petition the Board for modification of

this variance.

The Board agrees with the Agency that this grant of variance

from restricted status will affect only those users who consume

water drawn from any newly extended water lines. This variance

will not affect the status of the rest of the Village’s

population which draws water from existing lines, except insofar

as the variance by its conditions may hasten compliance. In so

saying, the Board emphasizes that it c~ontinuesto place a high

priority on compliance with standards. The Village must achieve

compliance with the combined radium standard by the expiration of

the variance. If the Village is unable to comply through the

purchase of water from Aurora, it must implement another

alternative.

This Opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

Petitioner,

the Village of North Aurora, is hereby

granted a variance from 35 Ill. 

Admn.

Code 602.105(a),

82— 282

Standards of Issuance, and 602.106(b),

Restricted

Status, but only as 

they relate to the 5 pCi/i combined

radium—226, radium—228 standard of

35 Ill. Mm. Code

604.301(a). The variance is subject to the following

conditions:

Compliance shall be achieved with the 5 pCi/l

combined radium standard no later than three years

from grant of this variance. The variance shall

expire on October 15, 1990;

B)  The Petitioner shall continue to negotiate with

the City of Aurora in an attempt to obtain water

service;

C)

On October 15, 1988, 

Petitioner

shall provide the

Agency with a copy of a fully executed contract

for delivery of water from the City of Aurora to

the Village of North Aurora effective before the

expiration

of the variance.

The Agency may extend

the due date for submission of the contract upon

the written request of the Petitioner

for good

cause shown.

Any extension is not to exceed six

months.

If the Petitioner

fails to provide said

executed contract by October 15, 1988 or within an

extension granted by the Agency, the Petitioner

shall apply for all necessary permits for the

construction

of treatment facilities

or wells by

April 15, 1989, and have the treatment facilities

or wells operational

prior to the expiration of

the variance on October 15, 1990;

D)  In consultation with the Agency, Petitioner shall

continue its sampling program, which it began on

June 28, 

1987, to determine as accurately as

possible the level of radioactivity in its wells

and finished water. Until this variance expires,

Petitioner shall collect quarterly samples of its

water from its distribution system, shall

composite such samples and shall have them

analyzed annually by a laboratory certified by the

State of Illinois for radiological analysis so as

determine the concentration of combined radium.

The results of the analysis 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

8 2—283

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reported to the above address within 

30 days of

receipt of the most recent quarterly sample;

E)   Within three months of the grant of the variance,

the Petitioner

shall secure professional

assistance (either from present staff or an

outside consultant)

to investigate

compliance

options, including the possibility

and feasibility

of achieving compliance by obtaining an alternate

water source, building treatment facilities

blending water from shallow wells with that of

its

deep wells;

F)

Within four months 

of the grant of the variance,

the Petitioner shall submit evidence that such

professional assistance has been secured to the

Agency’s Division of Public Water Supplies, FOS,

at 2200 Churchill Road, Springfield, 

Illinois

62794—9276;

G)  Within nine months of the grant of the variance,

the Petitioner 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 prepare a detailed Compliance

Report showing how compliance shall be achieved

within the shortest practicable time, but no later

than three years from the date of this variance;

H)

Within ten 

months of the grant of the variance,

the Village’s Compliance Report shall be submitted

to the Illinois Environmental Protection Agency,

Division of Public Water Supplies;

I)   By April 15, 1989, the Petitioner shall apply to

Illinois Environmental Protection Agency, Division

Public Water Supplies, Permit Section, for all

permits necessary for construction

installations, changes or additions to the

Petitioner’s public water supply needed for

achieving compliance with the maximum allowable

concentration for combined radium;

Within three months after each construction

permit

is issued by Illinois

Environmental Protection

Agency, Division

of Public Water Supplies, the

Petitioner

shall advertise for bids, to be

submitted within 60 days, from contractors

to do

the necessary work described in the construction

permit. The Petitioner shall accept appropriate

82—284

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bids within a reasonable time. Petitioner shall

notify the Illinois Environmental Protection

Agency, Division of Public Water Supplies within

30 days of each of the following actions: (1)

advertisement for bids; (2) names of successful

bidders; and (3) whether Petitioner accepted the

bids;

K)  Construction allowed on said construction permits

shall begin within a reasonable time of bids being

accepted, but in any case, construction of all

installations, changes or additions necessary to

achieve compliance with the maximum allowable

concentration in question shall begin no later

than two years from the grant of this variance and

shall be completed no later than three years from

the grant of this variance.

L)  Pursuant to 35 Ill. Mm. Code 606.201, in its

first set of water bills or within three months

after the date of the grant of variance, 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.

Mm. Code 602.106(b), Restricted 

Status, as

it

relates to the combined radium standard;

M)  Pursuant to 35 Ill. Adm. Code 606.201, in its

first set of water bills or

within three months

after the date of the grant of variance, 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 is not in compliance with the standard

in question.

The notice shall state the average

content of combined radium in samples taken since

the last notice period during which samples were

taken;

N)  That Petitioner shall take all reasonable measures

with its existing equipment to minimize the

concentration of combined radium in its finished

water; and

0)  The Petitioner shall provide written progress

reports to Illinois Environmental Protection

Agency, Division of Public Water Supplies, every

six months concerning steps taken to comply with

paragraphs B, C, G, I, J, K, and N. Progress

82—285

reports shall quote each of

said paragraphs and

immediately below each paragraph state what steps

have been taken to comply with each paragraph.

2)  Within forty—five days of the date of this Order,

Petitioner shall execute and forward to Jose L.

Gonzalez, Jr., Enforcement Programs, Illinois

Environmental Protection Agency, 2200 Churchill Road,

Springfield, Illinois 62794—9276, a certificate of

Acceptance and Agreement to be bound to all terms and

conditions of the variance. This variance shall

terminate if Petitioner fails to execute and forward the

certificate within the forty—five day period. The

forty—five day period shall be held in abeyance during

any period that this matter is being appealed. The form

of said

Certification shall be as follows:

I, (We), ____________________________,

having read the

Order of the Illinois Pollution Control Board in PCB 87—83, dated

October 15, 1987, understand and accept said Order, realizing

that such acceptance renders all terms and conditions thereto

binding and enforceable.

Peti tioner

By: Authorized Agent

Ti tle

Date

3.  Section 41 of the Environmental Protection Act (Ill

Rev. Stat. 1985, ch. 1111/2 

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.

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J. D. Dumelle and B. Forcade dissented.

I, Dorothy M. Gurin, Clerk of the Illinois Pollution Control

Board, hereby certify that the abov~Opinion and Order was

adopted on the 

/5~

day of ______________________, 1987, by a

vote of 

~-~?

Dorothy

,L~

M./Gunn,

#~.

Clerk

Illinois Pollution Control Board

82— 287