ILLINOIS POLLUTION CONTROL BOARD
September 17, 1987
VILLAGE OF MINOOKA,
Petitioner,
v.
)
PCB 87—35
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 filed by the Village of Minooka (Village) on March 16,
1987 as amended May 27, 1987. The Village requests variance
until March 20, 1990, from 35 111. Adm. Code 602.105(a)
(Standards for Issuance) and 35 Ill. Adin. Code 602.106(b)
(Restricted Status List) as they relate to violations of the 5
pCi/i combined radium—226 and radium—228 standard of 35 Ill. Adm.
Code 604.301(a). The Village seeks extension of the variance
previously granted in PCB 85—100 (September 20, 1985) which
expired March 27, 1987, to allow the Agency to issue permits for
water main extensions during the period of the Village’s non-
compliance with the radium standard.
On July 31, 1987, the Illinois Environmental Protection
Agency (Agency) filed a Recommendation that variance be denied.
Despite its conclusion that there are mitigating factors, the
Agency has recommended denial of variance on the grounds that the
Village failed to timely comply with conditions 1(b) and 1(c) of
the PCB 85—100 variance, and that the Village failed to prove
existence of an arbitrary or unreasonable hardship. The Village
filed a response in opposition to the Recommendation on August 7,
1987. Hearing was waived and none has been held.
The Village of Minooka, which is located in Grundy County,
Illinois, provides water to a population of approximately 2000
persons via 646 residential user lines and 7 industrial/business
user lines. Additionally, the Village’s water distribution
system serves two Illinois Department of Transportation rest
areas along Interstate 80.
The Village owns and operates a distribution system which
consists of two deep wells, various pumps, and concomitant
distribution facilities. Well #3 was placed into operation in
1965 and is 1,508 feet deep, and Well #4 was placed into
Operation in 1973 and is 725 feet deep. (Pet. 5).
8 1—245
4-
As noted by the Board in PCB 85—100, the Petitioner was
first advised of the excessive combined radium content of its
water by an Agency letter dated September 4, 1984, which reported
a radium—226 content of 5.6 pico Curies per liter (pCi/l) and a
radium—228 content of 2.8 pCi/l, for a combined total of 8.4
pCi/i. This total exceeds the 5 pCi/i combined radium standard
by 3.4 pCi/i. The water sample analysis of an annual composite
of four consecutive quarterly samples (or the average of the
analyses of four samples obtained at quarterly intervals) was
performed by the USEPA laboratory.
In response to the Board’s March 19, 1987 query concerning
existence of radium test results more recent than that referred
to above, the Village stated that the only more recent sample
result is one dated May 5, 1987 performed by Radiation
Measurements, Inc. This analysis was not of a distribution
system sample, but instead of a sample only from Well No.. 3. The
radium—226 content was reported as 4.75 pCi/i, and the radium—228
content was reported as 4.2 pCi/i, resulting in a combined radium
content of 8.95 pCi/i. (The Agency additionally reports that a
composite of four distribution system samples taken on June 18,
1984, September 11, 1984, May 14, 1986, and July 22, 1986,
distribution system showed the concentration of gross alpha to be
10±4pCi/i, and that the sample is being held for combined radium
analysis. The Agency does not have any other analyses for radium
other than the September 14, 1984, analysis.)
By letter dated October 4, 1984, the Agency notified the
Village of Minooka that its public water supply was being placed
on restricted status because the Petitioner’s water supply
exceeded the maximum allowable concentration for combined radium—
226 and radium—228. The system will remain on restricted status
absent grant of variance or achievement of compliance..
The purpose of the short—term variance granted in PCB 85—100
was to allow the Village time to continue investigation of the
existence and feasibility of compliance options, and to develop a
Compliance plan and timetable “with increments of progress”..
The Village reports that by January 1, 1986, it had secured
the services of Engineering Enterprises, Inc., a consultant
specializing in civil and sanitary engineering, to determine the
best methods to bring the Village water system into compliance.
With the aid of the consultant, the Village attempted to locate
Sites within the vicinity where water could be drawn from shallow
aquifers which could be blended with the present water supply in
order to reduce the radium levels in the public water system.
The Village identified one site near the DuPage River. Results
of two tests commissioned by the Village demonstrated that the
water quality at this location was acceptable (Pet., Exh.. 1—
3). Engineering Enterprises provided Petitioner with an
evaluation of its water works system on June 24, 1986, recommend—
81—246
—3--
ing the Village develop a shallow aquifer supply through two new
wells at the test site location; a copy of this report was sent
to the Agency on June 25, 1986 (Pet., Exh. 3A
—
3A—9).
Based on the favorable test results and in order to secure
the appropriate site, the Village purchased lot 173 in Boriita
Vista Subdivision, Unit 11, on October 23, 1986, for $15,000
(Pet., Exh. 4). Petitioner also retained the services of
Engineering Enterprises, Inc. on September 22, 1986, to continue
professional engineering services for the proposed water supply
system improvements. These include the development of a
completed water supply system, Consisting of two wells to be
known as Well No. 6 and Well No. 7, a pump house facility, an
iron removal plant building, and the extension of necessary water
mains and plumbings to connect the new proposed Well No. 6 and
Well No. 7 with existing Well No. 3 and Well No. 4 (Pet., Exh.
6).
Engineering Enterprises, Inc. prepared specification for the
water supply system improvements, and the Village of Minooka
advertised for bids for construction of such improvements. (Pet.,
Exh.. 7). Two contractors submitted bids which were received on
October 24, 1986. The low bid resulted in a contract proposal
dated November 10, 1986, by Wehling Well Works, Inc. for $51,984
which would result in the drilling, completing, developing,
testing, and installation of two 16—inch diameter water wells
approximately 50 feet deep at the location purchased by the
Village of Minooka (Pet., Exh. 8). On November 20, 1986, the
Agency issued a permit for the drilling and developing and
testing of Wells No.. 6 and No. 7 to a depth of approximately 50
feet. The permit is restricted to the drilling only of the wells
and it cannot proceed past the drilling until supplemental plans
and specifications have been completed for the wells themselves
(Pet., Exh. 9).
The Village has not, however, entered into contracts for
completion of the well development project, although it intends
to complete such work before March 30, 1990. The Village asserts
that the primary obstacle to the construction is financing. The
Village had solicited grant funds under the Build Illinois
program, which request was under consideration by the Illinois
General Assembly at the time of the filing of the petition.. The
Village further asserts that if, however, such funds are not
readily available, the Village is prepared, if necessary, to sell
general obligation bonds for the financing of the project.. The
approximate cost of the project is $325,000 as of this time
pursuant to the information supplied from Engineering
Enterprises, Inc. As of the close of April 30, 1986, Smith and
Smith, certified public accountants for the Petitioner, presented
a financial statement showing that the assessed valuation of all
corporate property was $12,420,426 which would provide the
Village with a statutory debt limitation of $1,071,262. As of
81— 247
—4—
Aprii 30, 1986, the only bonded indebtedness of the Village was
$180,000 leaving a legal debt margin available for the sale of
bonded indebtedness of $891,262 (Pet., Exh. 10). Since the April
30, 1986, financial statement from the certified public
accountants, the Village has not sold or marketed any bonds for
any corporate purposes and the Village believes that the assessed
valuation has risen. The Village is current in all of its debt
obligations. The Village believes it can, if necessary, sell
municipal bonds for the construction of the water system in order
that it can be completed before the date of the proposed
extension of the variance..
As Petitioner currently has a population of approximately
2,000 persons, the cost of the estimated $325,000 in system
improvements is approximately $160 per person without considering
interest expense or related bond sales costs in the event such
financing must be utilized by the Petitioner.. The Village
asserts that it has already expended approximately $20,000
utilizing general revenue funds for the acquisition of a site,
the retaining of professional consultants, the testing of water
samples, and obtaining construction permits from the Agency..
Under these circumstances, the Village believes that denial of
variance to allow it additional time to obtain funding and
complete necessary construction would impose an arbitrary or
unreasonable hardship. In its March 16, 1987, petition, the
Village stated:
If the extension of the variance is granted,
the Petitioner foresees extending its water
mains to serve new residential and manufactur-
ing users.. There are pending before the
Plan Commission inquiries from four separate
developers wanting to extend water mains for
residential and manufacturing subdivisions..
On or before April 1, 1987, there will be on
file an application for 75 lots in a single
family residential development, and we expect
that there will be additional subdivision
developments brought to the Plan Commission
within the next two or three months, including
an annexation agreement for more than 100
residential subdivision lots. Minooka is
situated immediately south of Interstate 80,
west of Route 59, and east of Route 47. It is
approximately 15 miles west of Joliet, Will
County, Illinois, and there is strong interest
by residential developers to plan subdivisions
for residential construction this summer..
Developers inform the community that financing
has now become available for such construction
and there is a strong demand for new housing
81—248
—5—
in the area which would be a boost to the
local economy. (Pet., par. 13)
As to environmental effects of grant of variance, it is the
opinion of Petitioner that granting the extension for the limited
time period requested will not cause any significant harm to the
environment or to the peopie served by the potential water main
extensions. The Village asserts that, based on its knowledge of
the persons who are purchasing residential lots in the subdivi-
sions added to the Village since the initial variance was
granted, the persons utilizing the water main extensions
presently live in villages which are on the restricted list or
suffer similar radium problems as Minooka experiences, and that
Minooka is closer to allowable levels of radium—226 and radium—
228 than many of the neighboring communities (Pet.., par.. 27)..
As earlier mentioned, the Agency recommends that variance be
denied on two grounds. The first is failure to comply with two
conditions of the variance in PCB 85—100. Conditions 1(b) and
1(c) of that variance provided that:
(b) By January 1, 1986, the Petitioner shall
secure professional assistance (either
from present staff or an outside consul-
tant) in investigating compliance
options, including a review of the pos-
sibility 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’s
Division of Public Water Supplies, FOS,
at 2200 Churchill Road, Springfield,
Illinois 62706.
(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’s Division of Public Water
Supplies, Permit Section, at 2200
Churchill Road, Post Office Box 19276,
Springfield, Illinois 62794—9276.. The
Village of Minooka shall adhere to all
timetables contained in this compliance
prog ram.
8 1—249
—6—
The Agency does not contest the Village’s assertions that it
did indeed perform the compliance—related activities described
earlier in this Opinion. However, the Agency notes that its
records do not indicate that Petitioner explicitly complied with
above condition 1(b) by providing evidence that Petitioner had
secured professional assistance to investigate compliance
methods, including blending, by February•-~1, 1986. Petitioner’s
engineering firm did write to the Agency September 27, 1985, that
it was retained as the engineer for Petitioner’s water works
improvements, but did not say it was investigating compliance
options.
The Agency further asserts that Petitioner has not complied
with above condition 1(c), i.e., it did not submit a program
(with increments of progress) for bringing its system into
compliance to the Agency’s Division of Public Water Supplies,
Permit Section by January 1, 1987. That variance condition
required adherence to all timetables contained in that compliance
program, so that condition was obviously not complied with.
Petitioner did submit with its Petition for Extension of Variance
contract documents for the drilling and completion of two wells
(Exh. 7), but nothing was submitted for work that is necessary
after that work is completed.
In its August 7 response to the Agency’s Recommendation, the
Village states that “while Petitioner has not explicitly
complied with all of the conditions of the prior variance,
Petitioner has proceeded in good faith with all necessary steps
to improve water quality standards for the community” (Response,
p. 2).
The second basis for the Agency’s negative Recommendation is
asserted inadequacy in proof of current and future economic
hardship. The Agency states that:
The petition does note there are “inquiries”
from four separate developers wanting to
extend water mains and an application for 75
lots was expected on or before April 1, 1987,
with additional developments expected later.
Hence, at this time the only known hardship
would be a development consisting of 75 lots.
No valuation was made for this development or
for any other possible development. Petition-
er did not allege failure to extend water
mains to serve these real and hypothetical
developers would impose an arbitrary or unrea-
sonable hardship on Petitioner.
Petitioner is “waiting and seeing” if it can
obtain grant funds under the Build Illinois
project in the hopes that major expenses can
81—250
—7—
be avoided (Petition, page 9, paragraph 20).
This attitude was criticized by the Board in
City of Geneva v. IEPA, PCB 86—225, July 16,
1987, page 17. Minooka should have provided
an update on the likelihood of obtaining Build
Illinois funds (Rec., pars. 23 and 27).
In response to these assertions, the Village stated:
Petitioner objects to the conclusion made
by the Agency that no arbitrary or
unreasonable hardship has been shown if the
variance is not extended. Failure to grant
the extension would prohibit any further
development in the community for a period of
possibly up to three years and there is only a
limited supply of available buildable land in
the Village for residential, commercial or
industrial development and, in fact, many
developers have contacted the Village about
building plans which are now being put on the
stream (sic). Such building plans have not
been made concrete simply because the Village
is unable at this time to consider actively
such plans due to the prohibition against the
extension of water mains. If the Village can
not receive development for three or more
years, the municipality faces the likelihood
of stagnation (Response, p. 2)
Notwithstanding its belief that variance should be denied,
the Agency suggested various conditions which should be included
in any variance granted by the Board, The Agency itself stated
that:
There are substantial mitigating factors here
not found in the above cited Geneva proceed-
ing. For example, Minooka has apparently
finalized its compliance plan, taken
substantial steps toward compliance, and is
apparently just waiting to find out if it will
get Build Illinois funds. Even more important
is the fact that Petitioner has agreed to
drill the wells and install the equipment it
believes are necessary to achieve compliance
by a date certain, i.e. March 30, 1990
(Petition, paragraphs 20, 26, pages 9, 26).
The Agency also notes that this deadline would
mean that Minooka would achieve compliance
within four and a half years of grant of its
first variance.
8 1—251
—8—
However, the Agency believes Petitioner
should have complied with its prior variance
and should not wait and see if it can obtain
state funds when it has adequate local bonding
authority (Rec., paragraphs 28—29).
While this case involves a close judgment call, based on its
consideration of all of the facts and circumstances here
presented, the Board finds that denial of variance would impose
an arbitrary or unreasonable hardship. The Board finds, as it
did in PCB 85—100 (pages 4—6), that the risk of adverse health
effects to the limited population consuming water delivered by
any new water mains will be insignificant. As to the existence
of economic hardships flowing from denial of variance, the Board
concludes that the Village’s allegations concerning lost or
deferred construction opportunities are sufficiently concrete to
prove such hardship; as the Village notes, firm construction
commitments are not, in the usual course, made absent reasonable
certainty that services such as drinking water are available.
The real issue here is whether the proven hardship here is self—
imposed, that is, whether the Village’s actions warrant
continuation of the construction ban which the restricted status
system was designed to impose. To the extent that the Village
failed to comply with the strict terms of the paragraph 1(b)
notification condition, such violation is de minimus, as the
Village did secure professional assistance and timely if not
completely
——
notified the Agency of that fact. The Village is,
however, culpable for its failure to let a construction contract
and to provide a timetable complete with interim deadlines in
violatin of condition 1(c). However, given the “substantial
mitigating factors” noted by the Agency, the Board will not find
that the Village’s decision to postpone construction pending
determination of availability of Build Illinois fund was made in
bad faith and solely for purposes of delay. The Village’s
commitment to achieve compliance by March 30, 1990, is a major
factor in the Board’s decision to give the Village the “benefit
of the doubt”; failure to honor that commitment will not be taken
lightly by this Board.
In summary, variance is granted until March 30, 1990,
subject to the conditions outlined below. These conditions are
similar to those suggested by the Agency. However, the Agency
recommended that construction begin no later than two years from
grant of variance September 17, 1988, while another condition
would not require submittal of permit applications for the same
work until the very day construction is to commence. The Board
has resolved this internal inconsistency by moving forward the
permit filing deadline and retaining the construction start—up
date.. If this resolution is unworkable, the parties may seek
modification by way of a timely motion for reconsideration.
81—252
—9—
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter..
ORDER
I. The Petitioner, the Village of Minooka, is hereby 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/l
combined radium—226 and radium—228 standard of 35 Ill. Adm.
Code 604.301(a), subject to the following conditions.
(a) This variance terminates on March 30, 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 wells and
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 by a laboratory certified by the State of
Illinois for radiological analysis so as to determine
the concentration of the contaminant in question. The
results of the analyses shall be reported to the
Compliance Assurance Section, Division of Public Water
Supplies, 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 30,
1990;
(d) By December 31, 1987, the Petitioner shall complete
investigating compliance methods and submit to IEPA,
DPWS, a detailed Compliance Report; i) including a plan
detailing how compliance shall be achieved within the
shortest practicable time, but no later than March 30,
1990 and ii) a report concerning how construction shall
be finance;
(e) By February 1, 1988, Petitioner shall apply to IEPA,
DPWS, Permit Section, for all permits necessary for
construction of installations, changes or additions to
the Petitioner’s public water supply needed for
achieving compliance;
81—253
—10-
(f) Within three months after each construction permit is
issued by IEPA, DPWS, 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 bids
within a reasonable time. Petitioner shall notify IEPA,
DPWS, within 30 days of each action, of: 1)
advertisements for bids, 2) names of successful bidders,
and 3) whether Petitioner accepted the bids;
(g) Construction pursuant to 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 September 17, 1988, and shall
be completed no later than March 30, 1990;
(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. Adm. Code
602.105(a) Standards of Issuance and 35 Ill. Adm4 Code
602106(b) Restricted Status, as they relate to the 5
pCi/i combined radium standard;
(i) Pursuant to 35 Ill. Adrn. Code 606.201, in its first set
of water bills or within three months after the date of
this Order, whichever occurs first, and every three
months thereafter, 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 standard
in question. The notice shall state the average
combined radium content in samples taken since the last
notice period during which samples were taken;
(j) That Petitioner shall take all reasonable measures with
its existing equipment to minimize the level of
contaminant in question 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 e, f, g and i. Progress
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 45 days of the date of this Order, Petitioner shall
execute and forward to Wayne L, Wiemerslage, Enforcement
81—254
—11—
Programs, Illinois Environmental Protection Agency, 2200
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. The form of said Certification shall be
as follows:
CERTI FICATION
I, (We)
,
hereby
accept and agree to be bound by all terms and conditions of the
Order of the Pollution Control Board in PCB 87—35, September 17,
1987.
Petitioner
Authorized Agent
Title
Date
Section 41 of the Environmental Protection Act, Ill~Rev.
Stat4 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 thelllinois Pollution Control
Board, hereby certif hat the abov~JOpir~4~n.._a.ndOrder was
adopted ont~the
,J
ay of _________________________, 1987, by a
vote of
~
Dorothy
4U~V~.
M. unn, Cleric
4~
Illinois Pollution Control Board
81—255
