ILLINOIS POLLUTION CONTROL BOARD

April 1, 1987

VILLAGE OF LEMONT,        

)

Petitioner,

)

PCB 86—207

ILLINOIS ENVIRONMENTAL      

)

PROTECTION AGENCY,

Respondent,

and

CAROLYN F. PLACEK, KATHERINE   

)

B. MURPHY AND GEORGE PODREBARAC,

Intervenors.

JOHN ANTONOPOULUS, VIRTEL & GROSELAK, P.C., APPEARED ON BEHALF OF

PETITIONER; AND

WAYNE L. WIEMERSLACE, STAFF ATTORNEY, APPEARED ON BEHALF OF

RESPONDENT.

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

This matter comes before the Board on a December 3, 1986

petition filed by the Village of Leinont seeking variance, for a

period of one year from the provisions of 35 Ill. Adin. Code

602.105(a), Standards for Isssuance, and from 35 Ill. Adm. Code

602.106(b), Restricted Status, but only to the extent those rules

involve 35 Ill. Adm. Code 604.301(a) and (b) (combined radium 226

and 228 and gross alpha particle activity). The Illinois

Environmental Protection Agency (Agency) filed its recommendation

that variance be granted on January 7, 1987. Six objections to

the variance were filed. Hearing was held in Lemont on February

9, 1987. At hearing three objectors moved to intervene which

motion was granted by the hearing officer. The intervenors are

Carolyn F. Placek, Katherine H. Murphy and George Podrebarac

(“Intervenors”). This Opinion supports the Board’s Order of

March 19, 1987 which granted the variance relief requested.

The Village of Lemont has previously sought and obtained a

variance for its public water supply. In PCB 80—84, a variance

from the gross alpha particle activity limitation was granted

until January 1, 1984. On April 21, 1986 the Village requested

variance from restricted status for the contaminants in question

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for a period of five years. This variance request was denied on

July 31, 1986. In its denial, the Board noted the Village’s lack

of compliance with the conditions imposed in the prior

variance. The Board also noted that the Village had failed to

devise a viable compliance plan over nearly seven years.

Accordingly, the Board did not look favorably upon •the variance

request since it essentially amounted to a request to study the

problem and achieve compliance over an additional five years.

The Board thus found that denial of the variance would not

constitute an arbitrary or unreasonable hardship since any

hardship was largely self—imposed by Leinont’s dilatory approach

to compliance. Thus, the variance request was denied.

Subsequently, the Village filed the current petition on December

3, 1986.

BACKGROUND

The Village of Lemont is located in southwestern Cook

County, Illinois and has a population of approximately 5300

residents. The Village owns its public water supply which serves

approximately 5000 residents from its deep and shallow well water

supply. The Village also maintains a complete public water

distribution system including deep wells, shallow wells, pumps

and distribution facilities.

The Petitioner has three wells with the following depths,

ages and pumping capacities:

Placed in   

Gallons

Well No.    

Depth     

Operation  

Per Minute

2

172 ft.    

1955

400

3

1662 ft.    

1969

940

4

1657 ft.    

1978

940

By letter dated October 4, 1986, the Village was advised by

the Agency that the maximum allowable concentration of 5 pCi/i

for gross alpha activity was exceeded and that the Village was

going to be placed on Restricted Status. The Agency reported a

gross alpha activity concentration of 19 pCi/i. By letter dated

October 4, 1984, the Village was advised by the Agency that the

maximum allowable concentration of radium was exceeded and that

the Village was placed on Restricted Status. Pet. at 4. The

analyses showed a radium—226 count of 12.4 pCi/l and a radium—228

count of 5.6 pCi/l. The combined radium content of the water was

thus 18 pCi/l which exceeds the standard of 5 pCi/l.

The Village states that it attempted to comply with its

previous variance by establishing a blending program. However,

this attempt proved unsuccessful since blending of the flows from

the Village’s one shallow well with either deep well ‘failed to

meet the Village’s daily capacity requirements. The Village then

began evaluating the installation of softening equipment. The

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Village obtained cost estimates from various consultants but was

unable to determine how to fund the equipment purchase. The

Village states that during 1981 to 1984 it experienced a period

of stagnant growth and an inadequate increase in its assessed

valuation. Since 1985, however, the Village states that it has

experienced substantial growth which will enable it. to finance a

compliance plan. Current projects to be developed are:

a)  Amber Shires Planned Unit Development of 225 acres with

approximately 1,100 units and a projected population of

3,500;

b)  Windmills of Lemont, a Senior Citizen Development with

200 units and a development cost of $10 million;

Four Winds Hospital, a 30 acre development with

estimated construction costs of $25 million;

d)  Hilltop Estates Subdivision of 150 single—family homes;

and

e)  Dudek Industrial Park of approximately 20 Industrial

Buildings.

Pet, at 6.

All of the projects are contingent upon water main

extensions and when built will generate substantial increases in

assessed valuation and income to the community.

The Village notes that since its previous variance request

it has retained the services of a professional engineering firm

for the purpose of preparing a preliminary water treatment

design. The firm has recommended that the Village install an ion

exchange system for its two deep wells. Accordingly, the Village

has determined to install the ion exchange system and has

authorized final engineering and the purchase of the necessary

equipment. The total capital cost for the system is projected to

be $650,000 with an annual cost of $158,696. The monthly cost to

each water user is projected to be $7.35. See Attachment to

Petition. The Village will finance this obligation with a

donation of $100,000 from Four Winds Hospital and has contacted a

municipal financial consultant concerning appropriate funding for

the remaining cost.

The Village states that it intends to obtain final

engineering drawings and to complete the installation of the

system as soon as practicable. The Village believes that the

system can be installed and functioning in approximately 12

months.

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INTERVENORS 

OBJECTIONS

The Intervenors object to the grant of this variance on

numerous grounds. In particular, the Intervenors doubt the

sincerity of the Village to pursue the proffered compliance plan

and in support of their contention they question a number of the

Village’s assertions.

Mr. Podrebarac and Ms. Placek question whether the Village

sincerely attempted to establish a blending program and whether

the conclusion that such is infeasible is really valid. (R. at

108—111, 203—228). They provided some calculations to support

their position. (Exh. 15). In rebuttal, however, the City’s

engineer explained that although at a pumping capacity of 400 gpm

the shallow well could blend successfully with the deep wells in

terms of complying with the radiological standards, good

engineering practice would dictate a number of expenditures

before blending would really become a long—term viable

solution. The capacity of the shallow well would have to be

doubled to provide for increases in population and to provide for

the contingency of failure of the existing well. This would

necessitate digging an additional well at a very rough cost of

$200,000. The piping necessary to effectuate the blending would

also require a large expense. In addition, the shallow well

presently used is high in iron and using a large amount of this

water would necessitate the installation of an ion exchange

softener to maintain water quality. Thus, the cost of blending

would be greater than the cost of simply installing the softener

for radionuclide removal. R. at 273—78. The Board believes that

Mr. Schaeffer adequately explained why blending was not a viable

long—term solution. Although the Board appreciates the

Intervenors concerns, the Board must remind the Intervenors that

under the Environmental Protection Act, a variance petitioner is

to submit a compliance plan which will lead to compliance at the

expiration of the variance. The determination of what compliance

plan to pursue is uniquely within the discretion of each variance

petitioner, as long as compliance is achieved. Lemont has

demonstrated that the installation of softeners will result in

compliance, and while other means might also lead to compliance

this fact alone provides no basis for denial of the variance.

The proper place for the Intervenors to have voiced their

objections concerning the instant compliance plan was in the

Village Board room. The Board finds, however, that based on the

Village’s own testimony blending is currently a feasible way to

achieve some reductions in the contaminant levels over the short

time frame that this variance is in effect without significant

expenditures. Accordingly, a condition of this variance will

require that the Petitioner take all reasonable measures with its

existing equipment to minimize the levels of radiological

contaminants in its finished water. (See Order, Par. 12).

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The Intervenors also object to grant of the variance on the

basis that 35 Ill. Adm. Code 104.121 was not strictly complied

with.

Section 104.121 lists the information to be included in a

variance petition “where applicable.” The Intervenors allege

that for numerous subsections no or minimal information was

provided.

The Intervenors urge the Board to dismiss the petition

as inadequate under 35 Ill. Adm. Code 104.125. However, the

Board notes that failure to strictly comply with the requirements

of Section

104.121 is not an automatic grounds for dismissal.

The informational requirements of Section 104.121 are somewhat

loose by their nature and not all subsections will be applicable

in every situation.

Just how much information is to be provided

for a petition to be deemed “adequate” is a matter of great

discretion left to the Board.

In the normal course of events

this determination is made upon filing of the petition and where

minimally adequate a petition is allowed to proceed to hearing

where normally more information will be brought out. In this

instance, although the information provided in the petition was

not as detailed as the Intervenors would have liked, the Board

finds that the petition and hearing provided sufficient

information to enable the Board to determine whether an arbitrary

or unreasonable hardship had been demonstrated.

The Intervenors also allege that the petition should be

dismissed as inconsistent with federal law. However, this

contention misapprehends the request for relief made by the

Village in its variance petition.

The variance requested is from

a state

requirement that when a public water supply is in

violation of any maximum

contaminant level that it 

be placed on

restricted status. Since there is no such requirement imposed by

federal law, to grant a variance from the state imposed

“restricted status” is thus, not inconsistent with federal law.

The Board commends the intervenors efforts to insure that a

safe drinking water supply is made available to the users in

Lemont and appreciates th.eir concerns that the Village has not

acted quickly, decisively and forthrightly in the past. The

Village’s failure to comply with the terms of its previous

variance and its lack of a concrete compliance plan were the

major reasons for the Board’s denial of its previous variance

request in PCB 86—54. However, the Board believes that the

testimony in this proceeding demonstrates that the Village is

extremely committed to achieve compliance within 12 months.

Final engineering specifications have been authorized, the

availability of softening equipment has been investigated,

partial financing has materialized and a consultant has been

contacted to help arrange the remaining financing. The variance

time frame is rather tight and requires total compliance within

one year. The Board believes that to grant the variance and have

the Village under an enforceable Board Order is preferable to

denying the variance and have no order to force compliance.

During the variance period, the Village is admonished to strictly

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comply with the conditions of this variance.

The Board wishes to

note that its Order is enforceable by the Intervenors who may

bring an action on their own behalf, without an attorney, before

the Circuit Court to require compliance with the Order or before

the Board for recission of the variance for failure to comply.

Such an enforcement action may also result in the payment of

fines if non—compliance is established.

ENVIRONMENTAL IMPACT

The Agency states that while radiation at any level creates

some risk, the risk associated with this level is very low and

cites the testimony of Dr. Richard Toohey in PCB 85—84 and P85—

14. The Agency believes that an incremental increase in the

allowable concentration for these

contaminants even up to a

maximum of four times the allowable level should cause no

significant health risk for the limited

population served by new

water main extensions for the time period of the recommended

variance, the Agency also notes that compliance will be

achieved

at the end of the variance period and that the variance is for a

relatively short period of time.

Rec. at 8—10.

Concerning ion exchange water softening, the Agency states

that

it is capable of removing more than 90 of the radium.

However, a significant health risk may result if the softener is

regenerated with salt

since this will significantly increase the

sodium content of the water. 

Increased sodium is a health risk

for persons who are hypertensive or who have heart problems.

Pet. 9—10. The Agency also points out that waste from routine

softening is high in total dissolved solids and may be difficult

to dispose of legally. The softening process concentrates the

radioactivity which may be more of a hazard in the waste stream

than in the drinking water. In addition, some of the

radioactivity remains in the ion exchange material posing a

hazard to maintenance workers. Thus, the Agency actively

discourages the use of the ion exchange process for radionuclide

removal unless it is the best treatment method for a particular

supply.

CONCLUS IONS

The Agency recommends that the Board grant the variance for

the period requested. The Board finds that denial of the

variance would impose an arbitrary or unreasonable hardship as it

would impose a moratorium on the very economic growth necessary

to fund the proposed improvements to bring the Village’s water

system into compliance. In addition, the Board finds that grant

of the requested variance will impose no significant injury on

the public or on the environment for the limited time of the

requested variance and will actually help to hasten ultimate

compliance. The Board notes that since the variance only lifts

the effects of being on restricted status, it only affects those

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users who consume water drawn from any newly extended water

lines. The variance does not alter the status of the population

who draws from existing water lines except insofar as the

variance helps to expedite the ultimate compliance date.

Accordingly, the variance relief requested will be granted

subject to conditions as proposed by the Agency.

This Opinion constitutes the Board’s conclusions of law and

findings of fact in this matter.

IT IS SO ORDERED.

B. Forcade dissented and J. D. Durnelle concurred.

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

Board, hereby certify ~4~at the above Opinion was adopted on

the

/~~Q~4

day of 

_________________,

1987, by a vote of ~5—/

Dorothy M. ,R~unn, Clerk

Illinois Pollution Control Board

77-57