ILLINOIS POLLUTION CONTROL BOARD
June 20, 1986
VILLAGE OF
OSWEGO
)
Petitioner,
v.
)
PCB 85—106
ILLINOIS ENVIRONMENTAL
)
PROTECTiON AGENCY,
Respondent.
OPINION AND ORDER OF THE BOARD
(by
R.
C.
Flernal):
This matter comes before
the Board upon a July 15,
1985
Petition
for Variance filed
by the Village
of Oswego
(“Oswego”).
Oswego submitted its First Amended Petition (~FAP”)
for variance on July 29, 1985.
Petitioner requests variance
until January 1,
1990
from Standards for Issuance and Restricted
Status
as they relate
to combined radium 226 and radium 228, but
not from the actual combined radium standard.
By
its PAP, Oswego
waived
its right
to
a hearing
in this matter
(FAP, par.
50) and
none was held.
On September
5, 1985,
Oswego waived the time for Board
decision
in this matter until July 1,
1986,
pursuant
to 35
Ill.
Adm.
Code 104.220.
This action was largely in response to the Board’s Interim
Order
of August 15, 1985, which noted
that the Board on that date
enacted an emergency rule in the matter
of R85—14.
The R85—l4
emergency rule had the effect
of removing temporarily
(for 150
days) from the Restricted Status list some communities whose
finished water contained levels of fluoride, combined radium—226
and radium—228,
or gross
alpha particle activity
in excess
of
Board regulations.
Oswego was one of the communities
so affected
by the August 15 Interim Order, and therefore was,
for the
ensuing 150—day period,
afforded the identical relief
it had been
seeking through the variance process.
Also by
its September
5 filing, Petitioner waived
its right
to require
a variance recommendation from the Illinois
Environmental Protection Agency (“Agency”)
until May 1,
1986.
The Ag~encyfiled
its Recommendation
(“Rec”) on April
7, 1986,
recommending that the requested variance relief be granted,
subject
to conditions,
until Petitioner
shows compliance with the
combined radium standard or until January 1, 1990, whichever
comes
first.
70.246
—2—
RELIEF SOUGHT BY PETITIONER
Oswego requests variance until January 1, 1990 from 35
Ill.
Adm. Code
602.105(a)
(Standards for Issuance)
and from 35 Ill.
Adm. Code 602.106(b)
(Restricted Status),
but only as they relate
to 35 Ill. Adm. Code 604.301(a)
(combined radium—226 and radium—
228).
Section 602.105(a)
states
in
full:
a)
The Agency shall not grant any construction or
operating permit required
by this Part unless
the applicant submits adequate proof
that the
public water supply will
be constructed,
modified or operated so as not
to cause
a
violation of the Environmental Protection Act
(Ill. Rev. Stat.
1981,
ch.
l1i~,’~,pars.
1001 et
seq.)(Act),
or
of this chapter.
Sections 602.106(a)
and
(b)
state in
full:
a)
Restricted status shall
be defined as
the
Agency determination, pursuant
to Section 39(a)
of the Act and Section 602.105,
that
a public
water supply facility may no longer
be issued
a
construction permit without causing
a violation
of the Act or
this Chapter.
b)
The Agency shall publish and make available
to
the public,
at intervals of not more than six
months,
a comprehensive and up—to—date list of
supplies subject
to restrictive status and the
reasons why.
The asserted purpose
of the requested variance
is to allow
for continued operation of Petitioner’s water supply and
distribution system,
expansion of
or extension
to the
distribution system as necessary, and removal of the facility
from the Agency’s Restricted Status List
(FAP,
par.
2).
The Board
notes that Petitioner’s ability
to continue
operation of
its water supply and distribution system would not
be affected by either
a grant or denial of the requested
relief.
However,
the decision on relief could affect the
likelihood of those future
develdpinents which would require
extension of Petitioner’s water service.
BACKGROUND
Oswego
is located
in Kendall County and provides public
services including potable water supply and distribution
to
a
total of 1,173 customers
(FAP,
par.
11).
Of this total, 1,083
are residential
and
90 are commercial
in character
(Id.).
The
total population served by the water supply system is
approximately 4,500.
Some 3,500 of
those persons are residents,
with the other 1,000 being employees of the
commercial users
(Id.).
70.247
—3—
Petitioner’s water supply and distribution system consists
of two deep wells (referred
to as Well Nos.
3 and 4),
a 200,000
gallon elevated water storage tank,
pumps,
and distribution
facilities
(FAP,
par.
13).
Well No.
3
is 1,378
feet deep,
and
was placed
in operation in
1957.
Well No.
4
is 1,395
feet deep,
and was placed
in operation
in 1964.
Petitioner was notified by the Agency by letter of March 13,
1984 that the concentration of combined
radiurn—226 and —228
in
its water exceeded
the maximum allowable under Board
regulations.
Prior
to receipt of the letter, Oswego was not
aware of
this condition
(FAP,
par.
21).
The Agency notified
Petitioner
on October
4,
1984
that it would
be placed on the
Restricted Status List because of
the excessive radium levels
(Rec.,
par.
10).
The Agency analyzed four consecutive quarterly samples
of
Petitioner’s water before concluding
that the amount
of radium
contained
in Oswego’s water exceeds the maximum allowable
level.
The Agency analysis indicated the radium—226
and —228
content
to be
on average 6.7 pCi/l
(Rec., par. 11).
After
receiving
the Agency’s report, Oswego conducted
its own analyses
of the water
in
its distribution system and obtained the
following results:
Date of Samples:
September
5, 1984
SAMPLE NO.
COMBINED RADIUM LEVEL
LOCATION
1
13.5 ±1.6
Southwest Portion of Village
2
9.3 ±1.3
Well No.
3
3
12.5 ±1.6
Well No.
4
4
5.0 ±2.0
Well No.
4
5
13.5 ±1.7
Windcrest Subdivision
COMPLIANCE ALTERNATIVES
Petitioner believes there are in general two treatment
alternatives
for resolving Oswego’s excess radium problem.
The
first alternative would involve the use of shallow wells for
blending and dilution purposes.
The estimated construction cost
for each shallow well
is $25,000,
and it
is anticipated that
three such wells would
be necessary to reduce
the concentration
of combined radium presently found
in Oswego’s water
to below
5
pCi/l.
The exact number of wells that would be required
is
uncertain since the pumping capacities of any future wells are
unknown.
The estimated time for implementation of this
alternative
is 12 months
(FAP, par. 23).
The second alternative would entail
the construction
of
facilities
to treat all water supplied by Oswego.
The treatment
method chosen would be either lime softening or
ion exchange
water softening
(FAP,
pars.
29—30).
The Agency believes that
each treatment method
is disadvantageous in some respect.
The
70.248
—4—
Agency states that the lime softening process produces
large
quantities
of sludge and concentrates the radium,
which makes
proper
disposal of the sludge more difficult and expensive (Rec.,
par.
18).
Regarding ion exchange softening,
the Agency
says:
(I)f
an ion exchange softener which
is regenerated
with salt
is used,
the sodium content of the water
will
be increased significantly.
This may create
a
significant risk to persons who are hypertensive or
who have heart problems, even though the treatment
would
reduce
the risk from radium for the general
population.
In addition,
the waste from routine
softening
is high
in total dissolved solids and may
be very difficult
to dispose
of legally.
The ion
exchange process will concentrate
the radioactivity
and release the majority
of the radioactivity in
the waste stream in a concentrated form, which may
be more
of
a hazard at that point than it
is
in the
drinking water.
Also,
some of
the radioactivity
remains
in the ion exchange material,
so that
it
may be
a hazard
to anyone subsequently working on
the
softener, and disposal
of the radioactive ion
exchange material may be
a problem.
(Rec., par.
19.)
The estimated cost
of constructing treatment facilities
is
$500,000
to $750,000,
and the estimated time for implementation
of
this alternative
is 24 months
(PAP,
par.
23).
The cost per
capita for constructing the treatment facilities would be
approximately $143
to $215, since Oswego has
a water consumer
population of 3500
(PAP,
par.
24).
Petitioner presently
intends
to utilize shallow wells
(for
blending and dilution purposes) as a short—term solution
(PAP,
par.
26).
HEALTH RISK
The Agency states
that although radiation at any level
creates some risk,
the
risk associated with this level is very
low.
The Agency further notes that the maximum allowable
concentration
(“MAC”)
for combined radium is currently under
review at the federal level,
but that no proposal
to alter
the
standard
is expected before 1987 or early 1988.
The Agency also
cites
the testimony presented
by Richard E. Toohey, Ph.D.,
at
hearings held
in PCB 85—54, City of Aurora
v.
Illinois
Environmental Protection Agenc~, and R85—l4, Propose~Amendments
to Public Water Supply Regulations,
35 Ill. Adm. Code 602.105 and
602.106, for the proposition that:
an incremental increase
in the allowable
concentration for combined radium—226 and
radium—
228,
even up
to a maximum of 20 pCi/l,
should cause
no significant health
risk for
the limited
70.249
—5—
population served by new water main extensions
for
the time period of this recommended variance
(emphasis
in original).
(Rec.,
par.
17.)
HARDSHIP
The Agency believes that should the Board grant
the variance
relief requested by Oswego, no significant injury to the public
or
to the environment will occur during
the limited duration of
the variances effect.
Moreover,
the Agency feels
that denial
of
varian~cerelief here would
result
in an arbitrary or unreasonable
hardship
to Petitioner
(Rec., par. 21).
The Agency states that
such hardship would result because denial of the variance would
require the Agency
to continue
to deny construction and operating
permits within Oswego until compliance
is achieved.
Therefore
no
new water main extensions could be permitted by the Agency and
economic growth dependent on those water main extensions would
not occur
(Rec.,
par.
22).
Petitioner contends that an additional
reason for granting
variance relief here
is that it is possible the standard for
combined
radiurn—226 and —228 may
be changed.
The United States
Environmental Protection Agency (“USEPA”) has published
notice of
its intention to propose National Revised Primary Drinking Water
Regulations for various contaminants
in drinking water
(including
radium),
but no revised regulations pertaining
to radium have
been proposed as of yet
(PAP,
pars.
38—39).
Oswego argues
it
would suffer arbitrary
or unreasonable hardship
if required
to
build treatment facilities which would be rendered unnecessary
in
the future
if the combined radium regulation was made less
strict.
CONCLUSION
Oswego’s request
is basically that
it be allowed
to expose
an additional unidentified number
of persons
to
its excess
combined radium levels
by extending water service
to
them,
and
that such additional exposure be for
a period ending not later
than January 1, 1990.
The critical
item here
is the duration
of
that period.
In view of the Agency’s determination that exposure
overthis time frame would cause
no significant health risk for
the limited population served by new water main extensions,
the
Board finds
that granting
the requested variance would produce no
significant health
risk.
On
the matter of hardship,
no estimation of the number
of
homes or other facilities which would
be without service absent
the variance
is given by Petitioner.
However, Oswego does
IlefltiQfl
it intends
to provide water
to new areas within
its
service area.
Petitioner also asserts
that there
is
a need for
the expansion of the water distribution system
in order
to
reinforce and upgrade
the existing system
(FAP, par.
43).
The
Board finds
that arbitrary or unreasonable hardship would exist
absent the variance.
70.250
—6—
The Board
feels compelled
to note that although
it finds
that arbitrary or unreasonable hardship would result absent
variance relief here,
it was not persuaded
in reaching
that
conclusion by Oswego’s argument regarding possible USEPA revision
of the combined radium standard.
The Board can give no weight to
such
an argument.
“If the speculative prospect of future changes
in
the law were to constitute
an arbitrary and unreasonable
hardship,
then the law itself would be emasculated with
variances,
as there
is always the prospect for future change.”
Citizens Utilities Company of Illinois
v. Illinois Pollution
Control Board,
134
Ill. App.
3d 111
(Third District 1985).
It should
be mentioned that both Oswego and the Agency have
proposed
a set of conditions
to be imposed on Petitioner should
variance relief be granted.
The sets propose some identical
conditions,
but in other instances differ substantially, with the
Agency
imposing the stricter conditions.
The Board
is persuaded
that,
for the most part,
those conditions proposed by
the Agency
are
the more appropriate because they will bring
about the most
expeditious
rectification of the combined radium problem faced by
Oswego.
Finally,
the Board notes that the USEPA has challenged
several Board
issued variances
from the combined radium standard
as
being inconsistent with the States obligations
under
the Safe
Drinking Water Act.
However,
the variance requested here
is
solely from Illinois
regulations establishing the restricted
status mechanism and not from the national primary drinking water
regulations.
That being
the case,
such variance will not
insulate Oswego from the possibility of enforcement for
violations of the underlying combined radium standard.
This Opinion constitutes the Board’s
findings of fact and
conclusions of
law
in this matter.
ORDER
The Village
of Oswego
is hereby granted variance from
35
Ill. Adm. Code 602.105(a)
(Standards of Issuance)
and 602.106(b)
(Restricted Status)
but only as they relate
to 35
Ill.
Adm. Code
604.301(a)
(combined radium—226 and radium—228),
subject to the
following conditions:
1.
Variance
shall be effective this date and shall
expire on
January 1,
1990,
or when analysis pursuant
to 35 Ill.
Adm.
Code 605.l05(a)
shows compliance with the combined
radium standard, whichever occurs first.
2.
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.
Testing for
radium—226 and —228 shall be
continued.
70.251
—7—
3.
Within three months of the grant of
the variance,
the
Petitioner
shall secure professional assistance
(either
from present staff or
an outside consultant)
in
investigating compliance options, including the
possibility
and feasibility
of achieving compliance
by
blending water
from
its shallow well(s~wit~hFhat of its
deep well(s).
4.
Within four months of
the grant of the variance, 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.
5.
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 Techniqu~~
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 January
1,
1990.
6.
This Compliance Report
shall
be submitted within ten
months
of the grant of
this variance
to IEPA, DPWS,
for
its approval.
7.
Within three months
after submission of the Compliance
Report,
unless there has been
a written extension of
time
granted by
the Agency,
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 with
the maximum allowable concentration for
combined radium—226 and radiujn—228.
8.
Within
three months after each construction permit
is
issued by IEPA,
DPWS,
Petitioner shall advertise for bids
from contractors to
do the necessary work described
in
the construction permit and shall accept appropriate
bids
within
a reasonable
time.
9.
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 combined radium—226 and radium—228 standard shall
begin no later
than April
1, 1988 and shall
be completed
no later
than August
1, 1989.
10. Compliance shall
be achieved with the combined radium—226
and
radium—228 standard no later than January
1, 1990.
70.252
—8—
11. 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.
Adrn.
Code
602.105(a)
(Standards of Issuance)
and 35 Ill. Adm. Code
602.301(a)
(combined radium—226
and radium—228).
12. Pursuant
to 35 Ill. Adm. 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 a written notice
to the effect
that Petitioner
is not in compliance with the combined
radiurn—226 and radium—228 standard.
The notice shall
state
the average content of combined radium—226
and
radiurn—228
in samples taken since
the last notice period
during which
samples were taken.
13. That Petitioner shall
take all
reasonable measures with
its existing equipment to minimize the level of combined
radium—226 and radium—228
in its finished water.
14.
That within forty—five days
of
the date of this Order,
Petitioner
shall execute and forward to 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 day period shall
be held
in
abeyance for any period
this matter
is being appealed.
The
form of
the Certification shall
be
as follows:
70-253
—9—
Certification
The Village of Oswego,
having read the Order of the Illinois
Pollution Control Board in PCB 85—106 dated June
20,
1986,
understands and accepts
the said Order,
realizing
that such
acceptance renders all terms
and conditions thereto binding and
enforceable.
Village
of Oswego
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 above Opinion an
Order was
adopted
on the ______________________ day of
____________,
1986,
by
a vote of
_____________.
Dorothy
M.
Gt~in,Clerk
Illinois Pollution Control Board
70-254